STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3466

)

S. D. SHANKLIN, )

)

Respondent. )

)

RECOMMENDED ORDER

This is a Medicaid reimbursement case, in which the Department of Health and Rehabilitative Services, petitioner, seeks to recover $7,808.39 in alleged overpayments from Dr. S. D. Shanklin, Doctor of Osteopathy.

A final hearing in this case was held on August 8, 1984, in Tampa, Florida, by Stephen F. Dean, assigned Hearing Officer, of the Division of Administrative Hearings. This case was presented on the basis of the Department of Health and Rehabilitative Services letter of claim, dated October 11, 1983. This claim letter alleges that the respondent was overpaid for Medicaid services due to over-utilization. Dr. Shanklin controverted the Department's claim and requested a formal hearing on the matter.

APPEARANCES

For Petitioner: Ted Mack, Esquire

1323 Winewood Boulevard, Suite 407

Tallahassee, Florida 32301

For Respondent: Douglas MacPherson

501 East Jackson Street, Suite 200 Tampa, Florida 33602

FINDINGS OF FACT

1. Dr. Steven D. Shanklin is a Doctor of Osteopathy, maintaining a general practice at 3304 Giddens Street, Tampa, Florida, 33610.

   
   

2. During the year 1980, Dr. Shanklin treated numerous Medicaid patients and received payment for these services from the Department of Health and Rehabilitative Services as agent for Medicaid payments in the State of Florida.

   
   

3. In 1981 the Department of Health and Rehabilitative Services conducted a routine, computerized assessment of payments made to its Medicaid providers. This assessment identified the respondent for further audit. A level two audit was conducted, which resulted in the Department of Health and Rehabilitative Services requesting 30 specifically identified patient files from Dr. Shanklin.

4. The 30 designated patient files were identified as the result of a disproportionate random sample, which groups by the dollar volume of services rendered. In this method, the total dollar value of Medicaid services is divided by five and the total patient population divided into five subsets in which the value of the services rendered to all the patients in the subset equals 1/5 of the total dollar volume of Medicaid payments. The practical result of the disproportionate random sample is that the subsets become smaller as the dollar value of the services rendered for each individual patient becomes greater. Specifically, in this case, there were 471 patients in subset one, 202 in subset two, 130 in subset three, 78 patients in subset four, and 43 patients in subset five. A sample of six patients was taken from each subset for a total of 30. This is a statistically significant sample of Dr. Shanklin's total Medicaid patient population.

   
   

5. Dr. Shanklin transmitted to the Department of Health and Rehabilitative Services 28 of the files specifically identified by the Department of Health and Rehabilitative Services. In addition, Dr. Shanklin provided the Department of Health and Rehabilitative Services two additional files for patients having the same last name as patients whose file had been requested by HRS.

   
   

6. The Department of Health and Rehabilitative Services forwarded 30 files to the Peer Review Committee of the Florida Osteopathic Medical Association, which was chaired by Dr. H. Jerome Koser, D.O. The Peer Review Committee consisted of seven Doctors of Osteopathy, five of whom were general practitioners, and two of which were specialists. The Peer Review Committee set aside two of the files furnished them by the Department of Health and Rehabilitative Services, which contained no records. The remaining 28 files were divided among the seven reviewing doctors, each of whom reviewed approximately four files. The individual files were not assessed by the Peer Review Committee acting as a whole, or by a sub-grouping of the Committee. The Peer Review Committee identified seven files in which the reviewing Doctor determined there was over-utilization. In the Peer Review Committee's group discussion, the Committee determined that the over-utilization was minimal. As Chairman of the Committee, Dr. H. Jerome Koser prepared a letter of June 20, 1983 which published the Committee's findings.

   
   

7. A copy of Dr. Koser's letter of June 20, 1983 was forwarded to the Department of Health and Rehabilitative Services together with the 30 files which HRS had forwarded to the Peer Review Committee. Upon receipt of the Peer Review Committee's findings, the assigned auditor and Orson Smith, M.D., specializing in Cardiology reviewed the files. Dr. Smith and the Department's auditor determined there was over-utilization in 18 of the 30 cases as indicated in the recoupment determination received as an attachment to petitioner's exhibit nine, the claim letter of October 11, 1983. Based upon the determination of over-utilization by the Department's auditor and Dr. Smith, a percentage of over-utilization in each of the five subsets was determined which was then extended to the total patient population and the amount of recoupment calculated.

   
   

8. The recoupment determination form, referenced above, provides as follows:

   
   

   "This form explains how the amount of the recoupment was determined in the peer review process. All of the claims for the sample of recipients were returned to the Medicaid Office by the Florida Osteopathic Medical

   Association with a cover sheet indicating whether or not there exists misutilization or over-utilization for each recipient.

   The claims were then reviewed by the Medicaid Medical Consultant to determine the claims that were for services considered to be not medically necessary

   and that are consequentially being denied in light of the findings of the Peer Review Committee.

   
   

   This first step in the determination is to find the average amount paid, and the average overpayment for the recipients in each stratum of the sample as indicated in this chart:"

   
   

9. Based upon the calculations, it was determined that Dr. Shanklin was overpaid $7,808.39.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Department of Health and Rehabilitative Services administers the Medicaid Audit Program pursuant to Rule 10C-7.38 as an agent for the Federal Government. This Recommended Order is entered pursuant to the provision of Section 120.57(1), Florida Statutes.

    
    

11. The evidence presented shows that from the population of Dr. Shanklin's Medicaid patients a statistically significant sample was taken. This sample was subjected to individual, specific evaluation and assessment by a Peer Review Committee, as provided for in Rule 10C-7.61(4)(c), Florida Administrative Code. This rule provides in pertinent part concerning peer review as follows:

    
    

    Peer review. When conducted, peer review will be carried out by peers of the provider. These persons shall be members of an organization whose purposes include peer review, or they shall be professional consultants to the department who are peers of the provider. Peer review is conducted in order to determine the appropriateness, necessity or quality of the goods or services furnished by the provider under review and paid for by Medicaid. Those conducting the peer review shall examine either arbitrarily selected paid claims or

    a statistically representative sample of the paid claims, and related medical records, of the provider under review. The paid claims shall be either those paid by Medicaid during a given time period or those paid for services rendered by the provider during a given time. Based upon peer judgement and evaluations, claims for inappropriate, unnecessary or inferior quality goods or services, will be identified, and payments

    for such goods or services will be considered

    to be overpayments . . .

    If a statistically representative claim has been examined, the overpayment applying to the sample will he extended to the total population of the claims of the provider for the time period under review using generally accepted statistical methods." (Emphasis supplied)

    
    

12. The emphasis presented shows that the Department has failed to follow its rule concerning peer review. The rule cited above specifically provides that when a statistically representative sample of claims is examined, the overpayment applying to the sample will be extended to the total population of claims using generally accented statistical methods. The facts show that the findings on the statistically representative sample were not extended to the total population of claims for the period under review based upon the peer review. As the recoupment determination form reflects, after a general determination of over-utilization was made by the Peer Review Committee of the Osteopathic Medical Association, the claims were then reviewed by the Medicaid Medical Consultant to determine specifically the claims which were for services considered to be not medically necessary and consequently denied. This process is contrary to the Department's rules, the determinations were not made or based upon peer judgment evaluation, and this process prevents extension to the total population of claims of the statistically representative sample as required by the rule.

    
    

13. The provisions of Rule 10C-7.61(4)(c), supra, would require that the Department assess the seven claims identified by the Peer Review Committee and extend the findings on those specific seven cases to the general overall population of total patient claims. This was not done.

RECOMMENDATION

Having found that the amount of recoupment was not based upon the seven specific files identified by the Peer Review Committee as the rules require, it is recommended that the Department not recoup the $7,808.30 originally claimed.

DONE and RECOMMENDED this 20th day of September, 1984, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1984.

COPIES FURNISHED:

Robert V. Pierce, Supervisor

HRS Medicaid Investigative Services 1317 Winewood Boulevard

Building 6, Room 271

Tallahassee, Florida 32301

Ted Mack, Esquire

HRS Assistant General Counsel 1323 Winewood Boulevard

Building 1, Suite 407

Tallahassee, Florida 32301

S. D. Shanklin, D.O., pro se 3304 East Giddens Avenue Tampa, Florida 33610

Docket for Case No: 83-003466

Orders for Case No: 83-003466