STATE OF FLORIDA~

DIVISION OF ADMINISTRATIVE HEARINGS~

BARRY M. RAGONE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0225

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on August 19, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Jay M. Kolsky

239 Northeast 20th Street Miami, Florida 33137

For Respondent: Gordon Scott

Karel Baarslag Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Building 6, Room 271

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner owes the sum of $51,072 for Medicaid overpayments received through the Department of Health and Rehabilitative Services (Department), now the Agency for Health Care Administration.

PRE1IMINARY STATEMENT

This case began on November 26, 1990, when the Medicaid Program Integrity Office of the Department completed a review of the Petitioner's Medicaid claims. The notice issued to Petitioner on that date alleged that Petitioner had been overpaid $5Ij072.00 for claims that were, in whole or part, not covered by Medicaid. More specifically, the notice alleged that the procedure codes and descriptions found in the Medicaid Provider Handbook (Rule 10C-7.523, Florida Administrative Code) did not allow for the reimbursements paid to Petitioner, and that Medicaid cannot properly pay claims which do not meet the guidelines. Additionally, the notice alleged that Petitioner had not responded to the letter dated October 1, 1990, which encouraged the submission of information or documentation that would serve to reduce the overpayment claim.

In response to the notice of November 26, 1990, the Petitioner filed a petition for formal hearing that maintained Petitioner had documented the medical necessity for services rendered for all procedures in dispute, that radiographs were not required for diagnosis, and that the forms utilized have been approved and previously submitted without issue. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on January 8, 1991.

At the hearing, the Department presented the testimony of the following witnesses: Robert V. Peirce, an employee of the Agency for Health Care Administration, Office of the Inspector General, Medicaid Program Integrity Office; Barry Ragone, the Petitioner; Glen Scone, an a by the Department; and, by deposition, Dr. Stanley A. Sheppard, a pediatric dentist. Dr. Sheppard's deposition has been admitted into evidence over Petitioner's objection. The Department's exhibits numbered 1 through 5, 7 and 8 were admitted into evidence. The Department requested and official recognition has been taken, of Chapters 10C-7 and 21G-17, Florida Administrative Code.

The Petitioner testified in his own behalf. Petitioner's exhibits numbered 1, 2, and 3 were marked for identification. The transcript of the hearing was filed on August 30, 1993, and the parties were granted ten days to file proposed recommended orders. Specific rulings on the proposed findings of fact are included in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. At all times material to this case, Petitioner, Barry

   M. Ragone, D.D.S., was a licensed dentist participating in the

   Medicaid program in Florida. Petitioner's provider number was 0727610 00, his license no. 5079.

   
   

2. At all times material to this case, Petitioner had executed an agreement which provided, in pertinent part:

   
   

   1. The provider agrees to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance under the State Plan and agrees to furnish the State Agency upon request such information regarding any payments claimed for providing these services. Access to these pertinent records and facilities by authorized Medicaid Program representatives will be permitted upon a reasonable request.

      
      

   2. The provider agrees that claims submitted must be for services rendered to eligible recipients of the Florida Medicaid Program and that payment by the program for services rendered will be based on the payment methodology in the applicable Administrative Rule. The Provider also agrees to submit requests for payment in accordance with program policies.

      
      

3. In August, 1990, as a result of an investigation not related to this case, the Office of the Auditor General notified the Department's Medicaid Program Integrity Office (MPIO) that the Petitioner had billed for periodontal scalings, procedure code D4342, for which administrative recoupment might be sought.

   
   

4. Subsequently, the MPIO completed a review of Petitioner's Medicaid claims for procedure code D4342 and determined that an overpayment in the amount of $51,072.00 was made. The review covered the period January 1, 1986 through June 30, 1990.

   
   

5. On October 1, 1990, the MPIO notified Petitioner of the alleged overpayments and requested additional information or documentation from Petitioner that would either justify the payments or reduce the amount of the overpayment.

   
   

6. Having received no response to the October, 1990 letter, the MPIO sent a second notice to Petitioner on November

   26, 1990. That notice further claimed the overpayment and alleged that the billing for periodontal scaling did not meet Medicaid criteria. This second notice requested that Petitioner remit the amount of the overpayment, and advised him of his right to an administrative hearing to challenge the decision.

   
   

7. According to the rule governing procedure code D4342:

   
   

   Periodontal scaling is allowable only when generalized subgingival accretions are readily visible on radiographs. Periodontal scaling can be billed only one time, at the completion of the procedure, regardless of the number of visits required for completion.

   
   

8. Before performing the periodontal scaling procedure, it is customary practice for dentists to document the patient record with an indication as to why the procedure needs to be done.

   
   

9. In this case, the records maintained for each of the patients for whom the procedure was allegedly performed contained but one record, form 1014. The form 1014 contained an abbreviated description of the procedure and the area (upper right, upper left, lower left, or lower right quadrant) where the services were rendered.

   
   

10. Prior approval of the procedure- was not required to seek payment for the claim for periodontal scaling. When reviewing patient records related to this procedure, the MPIO looks for records which establish the medical necessity for the procedure. Such records were requested from Petitioner, however, only the form 1014 records were submitted.

    
    

11. The completion of the form 1014 as submitted by Petitioner inadequately documents the medical necessity for periodontal scaling and inadequately records results of such treatment. For example, such record does not demonstrate the reasons for performing the scaling and does not record the information (such as the pocket depth or calculus score) resulting from such procedure.

    
    

12. Periodontal scaling, unlike other dental procedures such as fillings or root canals, cannot readily be detected or confirmed by later observation. For instance, if the child required the procedure, had it, and subsequently returned to

    poor oral care, a later review of the patient would not confirm the procedure had been performed. Similarly if the child did not require the procedure and did not have it, a later review of the patient would not detect that the procedure had not- been performed.

    
    

13. Because periodontal scaling cannot be confirmed or detected after the fact, it is impossible to revisit the patient and create an accurate dental record.

    
    

14. Petitioner submitted 4,539 specific claims for periodontal scaling procedures during the period covered in this case. Such procedures were allegedly performed on 866 patients and totalled $51,072.00.

    
    

15. Petitioner did not have radiographs or x-rays to support the need for the procedures. In fact, Petitioner did not take x-rays to support the need to perform the procedures.

    
    

16. Petitioner did not maintain a medical history with the dental record for the patients who received the periodontal scaling.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

18. The Department bears the burden of proof to establish the amount of the Medicaid overpayment, if any.

    
    

19. Section 466.028(1)(m), Florida Statutes, provides that disciplinary action may be taken against a dentist who fails to keep written dental records and medical history records justifying the course of treatment of the patient. Such records are to include the results of clinical examination and tests conducted, the treatment pear. proposed by the dentist, and the treatment rendered by the dentist. See Rule 21G-17.002, Florida Administrative Code.

    
    

20. The Medicaid agreement executed by Petitioner also required him to keep appropriate records regarding the services provided.

    
    

21. The Department has established by a preponderance of the evidence that the Petitioner failed to maintain appropriate

    dental records to support the procedures allegedly performed. Medicaid requires that appropriate records be maintained to support the claims submitted to the Florida Medicaid program.

    An overpayment to a provider may be made as the result of either simple mistake or fraud.

    
    

22. Section 409.335, Florida Statutes, provides, in part:

    
    

    (1) Whenever it becomes apparent that any person or-provider has received any benefits under this chapter to which he is not entitled, either through simple mistake or fraud, the department shall take all necessary steps to recover the overpayment, unless it is determined that extreme hardship would result if repayment were forced at that time. The department may make appropriate settlements and shall establish a policy and cost-effective rules to be used in the recovery of such overpayments.

    
    

23. In this case, the Department has established that the Petitioner, as provider, received an overpayment as the services allegedly rendered cannot be supported by record as appropriate or medically necessary. Petitioner's testimony to the contrary has not been deemed credible.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That Agency for Health Care Administration enter a final order requiring the Petitioner to reimburse the agency in the amount of $51,072.00 for dental services not appropriately documented as medically necessary.

DONE AND RECOMMENDED this 14th day of October, 1993, in Tallahassee, Leon County, Florida.

Joyous D. Parrish Hearing Officer

Division of Administrative Hearings

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1993.

APPENDIX

Rulings on the proposed findings of fact submitted by the Petitioner:

1. None submitted.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Paragraphs 1 through 9, 12 through 16, 18 through 22, 24 through 33 are accepted.

2. Paragraph 10 is rejected as irrelevant or too vague to constitute a statement of fact.

3. Paragraph 11 is rejected as irrelevant.

4. Paragraph 17 is rejected as irrelevant.

5. Paragraph 23 is rejected as irrelevant.

COPIES FURNISHED:

Gordon B. Scott Senior Attorney

HRS Medicaid Office 1317 Winewood Boulevard Building Six, Room 234

Tallahassee, Florida 32399-G700

Jay M. Kolsky

239 N. E. 20th Street- Miami, Florida 33137

Robert L. Powell, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Kim Tucker, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-000225

Orders for Case No: 91-000225