STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3023

) NORMAN J. CLEMENT, D.D.S., )

)

Respondents., )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in this case on March 23 and 24, 1987, in Tallahassee, Florida. The issue for determination is whether Respondent should be terminated from participation in the Florida Medicaid Program for the reasons set forth in Petitioner's letter dated June 20, 1986.

APPEARANCES

For Petitioner: Theodore E. Mack, Esquire

1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399

(904) 488-2381

For Respondent: Harold E. Regan, Esquire

308 East College Avenue Tallahassee, Florida 32301

BACKGROUND

By letter dated June 20, 1986, the Petitioner Department of Health and Rehabilitative Services (DHRS) notified the Respondent, Norman J. Clement,

D.D.S. (Dr. Clement) of his termination from participation in the Florida Medicaid Program (Program) for inappropriate billing in the following areas:

(1) Procedures such as examination, prophylaxis and fluoride treatment at intervals of less than the recommended six (6) months; (2) Consultation fees when allegedly no consultations occurred; (3) Behavior management and nitrous oxide during the same visit; (4) Excessive use of the procedure for extraction of first tooth in quadrant (procedure code 07110); (5) Excessive use of the alveolectomies (children and non-denture cases); (6) Excessive use of pulp caps;

1. Palliative emergency procedures at the same time as treatment is rendered;

2. Prophylaxis, periodontal scaling and gingival curettage all on the same day and; (9) Excessive use of gingival curettage in children. In response to this letter, Dr. Clement requested a formal hearing to contest the decision of DHRS and this hearing ensued. At the hearing, Respondent's Motion To Dismiss Proceedings Brought by Petitioner, Department of Health and Rehabilitative

   Services, was argued by counsel and a ruling was reserved. After careful consideration of the grounds for dismissal and the oral and documentary evidence adduced at the hearing, the motion is DENIED.

   
   

   In support of its action terminating Dr. Clement from participation in the Program, DHRS presented the testimony of John Whiddon, Maureen Funderburk, Glen Stone, Irving Fleet, M.D. and Charles Kekich, M.D. Petitioner's exhibit 1 through 15 were received into evidence.

   
   

   Dr. Clement testified on his own behalf. Respondent presented exhibits 1 through 4 for identification but these exhibits were not allowed into evidence.

   
   

   The parties submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary' evidence adduced at the hearing, the following relevant facts are found:

   
   

   1. DHRS administers the Program which is jointly funded by the state and federal government under Title XIX of the Social Security Act. The Program is voluntary and is subject to both state and federal laws, rules and regulations.

      
      

   2. The Program does not reimburse providers such as Dr. Clement for all services rendered. Only those services which are determined to be medically necessary or which the state has determined it wishes to provide are covered by the Program. The services to be rendered and the fees to be paid for those services are set forth in the policy manuals and fee schedules which are given the provider when he enrolls in the Program.

      
      

   3. Under the Program, the provider files claims in accordance with the policies set forth in the manual. Those claims are computer processed and it is assumed that the provider is submitting the claims in accordance with the policies. The computer system is not programmed to reject all erroneous claims. Therefore, the provider is automatically reimbursed based upon claims submitted. The Program operates on the honor system and must "pay and chase" providers who submit improper claims.

      
      

   4. Under the Program the state is required to protect the integrity of the Program by reviewing providers for possible fraud and abuse. The Program utilizes a Surveillance Utilization and Review System (SURS) which compares a provider's Medicaid practice with that of his peers. This system takes the provider's computer generated claims history and compares it both quantitatively and qualitatively with the average practice of his peers. When a potential problem is detected, the provider's practice is further reviewed to determine if fraud or abuse has occurred.

      
      

   5. On November 4, 1983, Dr. Clement signed a provider agreement with DHRS and operated under this provider agreement at all times material to this proceeding. In signing this provider agreement, Dr. Clement agreed to "submit requests for payment in accordance with program policies" and to, "abide by the provisions of the Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations.

   6. In billing under the Program, Dr. Clement is expected to provide services in accordance with generally accepted practices of his profession of dentistry. Those services for which a provider may submit claims are set forth in the Children's Dental Services Manual (HRSM 230-22), a copy of which was provided to Dr. Clement when he entered the Program. In addition to the manual, Dr. Clement was provided with an EDS Billing Handbook which explained the mechanics of submitting a claim.

      
      

   7. HRSM 230-22 is merely a compilation of procedures for which the Program will reimburse the provider along with the reimbursement rate for each procedure. The manual utilizes procedures and codes utilized by the American Dental Association, is prepared with technical assistance of dental consultants, and is reviewed by various dental associations. The manual is designed for use by dental providers who are knowledgeable in the field of dentistry and are utilizing generally accepted principles of dentistry.

      
      

   8. In 1985 a SURS Level I Review report, comparing Dr. Clement with his peer group of general dentists providing services to children, indicated possible inappropriate billing of the Program. Because of the nature and extent of the billing problems, Dr. Clement's case was referred to the Medicaid Fraud Control Unit (MFCU) of the State of Florida's Auditor General's Office for possible criminal prosecution. DHRS took no further action pending the criminal investigation.

      
      

   9. Criminal charges were subsequently filed against Dr. Clement as a result of the MFCU investigation and Dr. Clement's case was referred back to the Medicaid Office of Program Integrity for review of nine possible areas of program policy violations which were not part of the criminal prosecution. The Program thereupon conducted its own investigation into possible abuse by Dr. Clement.

      
      

   10. Using the preliminary investigation done by an HRS dental consultant who reviewed Dr. Clement's practice for MFCU, and the original Level I Review report, a DHRS investigator reviewed ad hoc computer reports of claims submitted by Dr. Clement for specific dental procedures. Based upon the computer analysis of claims submitted, as well as the advice of the dental consultant, the Program identified nine areas of Dr. Clement's practice of Medicaid billing which were not in compliance with Medicaid billing procedures or generally accepted standards of dental practice.

       
       

   11. On sixty-six occasions, Dr. Clement submitted claims and was paid for procedures such as examinations, prophylaxis and fluoride treatment at intervals of less than six months. HRSM 230-22 recommends that such procedures be performed no more frequently than once every six months, and this recommendation is recognized under generally accepted standards of dentistry. This recommendation is applicable to both private pay patients and Medicaid patients who are generally indigent. Although such treatment may be necessary on occasions at shorter intervals, Dr. Clement offered no evidence to justify the frequency or the necessity of providing such procedures at intervals of less than the recommended six months.

       
       

   12. On two hundred and eighty six occasions, Dr. Clement improperly filed claims and received payment for consultations. HRSM 230-22 only allows claims for consultations by a dental specialist (oral surgeon, periodontist, endodontist, or prosthodontist). Dr. Clement is not a dental specialist and should not have submitted claims for such procedures. The manual's definition

       and interpretation of the appropriate billing procedure for consultation services is in accordance with the generally accepted practice of dentistry.

       
       

   13. On ninety four occasions, Dr. Clement submitted claims and received payment for behavior management and nitrous oxide on the same visit. HRSM 230-

       22 only allows claims for behavior management where nitrous oxide is not used. There was no evidence to show that both behavior management and nitrous oxide on the same visit was necessary.

       
       

   14. On seven occasions, Dr. Clement submitted claims and received payment for extracting more than one first tooth in a given quadrant. HRSM 230-22 provides a fee of $10.00 for the extraction of the first tooth in a given quadrant which is billed on a claim as procedure D7110 whereas each additional tooth extracted in the same quadrant at the same time is reimbursed at the rate of $7.00 and billed on a claim as procedure D7120. The fee for the removal of the first tooth in a given quadrant is higher than the fee for each succeeding tooth in the same quadrant because anesthesia for the first tooth does not have be administered for each succeeding tooth in the same quadrant.

       
       

   15. Dr. Clement received payment for 117 alveolectomies (a reshaping of the bone) performed on 52 children which is an excessive number. Alveolectomies should only be performed in extreme cases where, without an alveolectomy, the insertion of dentures or partials would be impossible. It is standard dental practice to perform an alveolectomy only where a denture is supplied. Performing an alveolectomy on a child is not a common practice. There was no evidence that Dr. Clement performed the alveolectomies in preparation of insertion of partials or dentures.

       
       

   16. Dr. Clement filed an excessive number of claims for pulp caps. A pulp cap is a protective material utilized when the pulp of the tooth is exposed (direct pulp cap) or nearly exposed (indirect pulp cap). HRSM 230-22 differentiates a pulp cap from a medicated base. A pulp cap is reimbursable as a separate claim, the medicated base is not. Dr. Clement claimed and received payment for pulp caps 68.7 percent of the time in conjunction with a tooth restoration. There was credible evidence to show that in the generally accepted practice of dentistry, pulp caps are used no more than 5 percent of the time in a tooth restoration. Dr. Clement billed for pulp caps whenever he applied a medicated base, even though the pulp was not exposed or nearly exposed.

       
       

   17. On one hundred occasions Dr. Clement improperly filed claims and received payment for palliative (emergency) treatment at the same time that he filed a claim and was paid for regular dental treatment. Palliative treatment is used to relieve pain and discomfort on an emergency basis when time and circumstances contra-indicate a more definitive treatment and additional services. In the general accepted practice of dentistry, palliative treatment is used as a temporary measure to assist the patient until such time as regular treatment can be provided. Palliative treatment and any other treatment are mutually exclusive and normally would not be given on the same day. On those occasion where Dr. Clement filed claims and received payment for both palliative treatment and regular treatment on the same day, there is insufficient evidence to show that this treatment was within the generally accepted practice of dentistry.

       
       

   18. On sixteen occasions Dr. clement improperly filed claims and was paid for prophylaxis, periodontal scaling, and gingival curettage all on the same date of service. Prophylaxis is the standard cleaning of the teeth. Periodontal scaling is a more advanced procedure of cleaning wherein larger

       deposits of caclculus are removed by scraping. Gingival curretage is a more drastic procedures wherein pockets which have formed between the gum and the teeth are scraped out. While all three procedures are different, they overlap somewhat and it is not a generally accepted practice of dentistry to perform more than one of these procedures at any given time. There was no evidence presented to show that performing all three procedures on the same date was necessary or was within the generally accepted practice of dentistry.

       
       

   19. Dr. Clement filed an excessive number of claims for gingival curretage. Dr. Clement claimed and received payment for gingival curretage on

       14 percent of his patients under the age of 17. In the generally accepted practice of dentistry, the use of gingival curretage on children will not normally exceed 1 percent to 3 percent for ages 10 and under or 3 percent to 6 percent over the age of 10. Although Dr. Clement urged that these claims for gingival curretage had been given prior approval, the evidence showed that the prior approval had been given based on information furnished by Dr. Clement and the dental consultant giving the prior approval did so on that information on a case by case basis and did not know of the excessive use of gingival curretage by Dr. Clement.

       
       

   20. Based on the nine areas cited for inappropriate billing, there is substantial competent evidence to show that Dr. Clement was not following generally accepted standards of dental practice.

       
       

       CONCLUSIONS OF LAW

       
       

   21. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

       
       

   22. Rule 10C-7-047, Florida Administrative Code governs the reimbursement for children's dental services and in pertinent part is quoted below:

       
       

       1. Payment Methodology

          * * * *

          (b) Reimbursement for examinations and related visual, dental and hearing services, and the appliances is based on a fee schedule of maximum allowable charges. Information regarding fee schedules, billing procedures, and changes thereto shall be provided to participating providers of services by the Department.

          
          

   23. The fee schedule for children's dental services is set forth in HRSM 230-22 and a copy was provided Dr. Clement when he entered the Program. The services set forth in HRSM 230-22 are reasonable recitations of generally accepted dental procedures that would be understandable to a licensed practicing dentist. The extent of the services to be reimbursed and the amount of the reimbursement are set forth in HRSM 230-22.

       
       

   24. Medicaid is a voluntary program with which Dr. Clement contracted to provide services in accordance with existing Federal laws and regulations, Florida Statutes, Florida Administrative Rules, and Florida Medicaid Program policies. Medicaid was enacted by Congress to provide health care for the poor and aged, not to subsidize or otherwise benefit health care providers. See

       Almand Pharmacy, Inc. v. Mankowitz, 587 F. Supp. 925 (1984); Pennsylvania Pharmaceutical Association v. Department of Public Welfare, 542 F. Supp. 1349 (1982).

       
       

   25. Rule 10C-7.030, Florida Administrative Code covers the general Medicaid provisions, subsections (7) and (8) of that rule are pertinent to this proceeding and provide as follows:

       
       

       1. Services or good billed to the Medicaid program must be necessary, Medicaid compensable and of a quality comparable to those furnished by the provider's peers, and the services or goods must have been

          actually provided to eligible Medicaid recipients by providers prior to submitting a claim. Any payment made by Medicaid for services or goods not furnished in accordance with these provisions is subject to recoupment and the Department reserves the right in such instances to initiate other appropriate administrative or legal action.

       2. The provider of Medicaid services shall furnish the Department with all information regarding all claims submitted by that provider to the Medicaid program and shall permit access to all Medicaid records and facilities for the purpose of claims audit, program monitoring, and utilization review

       by Federal and State agencies connected with administration of the program. Complete and accurate medical and fiscal records that fully disclose the extent of the services and billings shall be maintained by the provider of the Medicaid services. Said records shall be retained for the period of time required by State and Federal laws.

       
       

   26. Section 409.266(9)(g), Florida Statutes empowers DHRS to impose administrative sanctions on a provider participating in the Medicaid program when the provider fails to comply with officially adopted departmental Medicaid policy manuals, the Florida Statutes, or the Federal Rules and Regulations as they pertain to the Medicaid program. In implementing this section of the statutes, DHRS adopted Rule 10C-7.60, Florida Administrative Code which in pertinent part provides as follows:

       
       

       (4) The Department may impose administrative sanctions on a provider participating in the Medicaid Program when:

       * * * *

       (g) The provider is in noncompliance with officially adopted department Medicaid policy manuals, the Florida Administrative Code, Florida Statutes, or the Federal Rules and Regulations as they pertain to the Medicaid program.

       * * * *

       (i) The provider has furnished or ordered the furnishing of goods or services to a recipient which are:

       (1) in excess of his or her needs,

       * * * *

       (6) the following sanctions may be imposed on providers who violate the provisions of subsection (4):

       * * * *

       (b) Termination of a provider from the program, with reinstatement based on submission of a new application and Department approval.

       
       

   27. The basis and scope of 42 C.F.R. 455 is to prevent fraud and abuse in the Medicaid program and requires Medicaid agencies such as the Florida Medicaid Program to have the ability to exclude from program reimbursement any provider that de frauds or abuses the Medicaid program. Abuse is defined in 42 C.F.R.

       455.2 to mean "provider practices that are inconsistent with sound fiscal, business, or medical practices, and result in an unnecessary cost to the Medicaid program, or in reimbursement for services that are not medically necessary or that fail to meet professionally recognized standards for health care. "

       
       

   28. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation

v. J.W.C. Company, Inc., 396 So.2d 778 (1 DCA Fla. 1981). Petitioner must prove its allegations by a preponderance of the evidence, Florida Department of Health and Rehabilitative Services v. Career Services Commission, 289, So.2d 412 (4 DOA Fla. 1974). The Petitioner, DHRS has met its burden of proof that Dr. Clement abused the Florida Medicaid Program by showing that: (a) Dr. Clement failed to file claims in accordance with the provider agreement entered into when he came into the Florida Medicaid Program and; (b) Dr. Clement's methods of filing claims were not within the generally accepted practice of dentistry and were in violation of Federal laws and regulation, Florida Statutes, Florida Administrative Rules, and Florida Medicaid Program policies, procedures and manuals.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that the Petitioner, Department of Health and Rehabilitative Services enter a Final Order finding that Dr. Clement has abused the Florida Medicaid Program and terminating Dr. Clement from participation in the Florida Medicaid Program.

Respectfully submitted and entered this 7th day of May, 1987, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3023

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

21. Rejected as immaterial and irrelevant.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 17 but clarified.

2. Rejected as immaterial and irrelevant.

3. Rejected as not supported by substantial competent evidence in the record.

4. Rejected as immaterial and irrelevant.

5. Rejected as immaterial and irrelevant.

6. Rejected as not supported by substantial competent evidence in the record.

7. Rejected as not supported by substantial competent evidence in the record.

8. Rejected as immaterial and irrelevant.

9 The first sentence adopted in Finding of Fact 19. The balance is rejected as immaterial and irrelevant.

COPIES FURNISHED:

Theodore E. Mack, Esquire 1323 Winewood Boulevard

Building 1, Room 407

Tallahassee, Florida 32399

Harold E. Regan, Esquire

308 East College Avenue Tallahassee, Florida 32301

Gregory L. Coler, Secretary Department of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 86-003023

Orders for Case No: 86-003023