STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IAN L. GARRIQUES, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5094

) STATE OF FLORIDA, AGENCY FOR ) HEALTH CARE ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on February 6 and 7, 1996, in Key West, Florida.

APPEARANCES

For Petitioner: Louise T. Jeroslow, Esquire

Zack, Sparber, Kosnitzky, Truxton, Spratt and Brooks, P.A.

One International Place

100 Southeast Second Street, Suite 200 Miami, Florida 33131

For Respondent: Wayne Mitchell, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403 STATEMENT OF THE ISSUES

Whether Respondent is entitled to recoup certain payments made to Petitioner for Medicaid claims from January 1, 1991 through June 30, 1994, and if so, whether Petitioner should be fined $5,000.00.

PRELIMINARY STATEMENT

By letter dated September 18, 1995, Respondent, Agency for Health Care Administration (AHCA), advised Petitioner, Ian L. Garriques, M.D. (Dr.

Garriques), that AHCA was seeking recoupment of payments made to Dr. Garriques and imposing a $5,000.00 administrative fine, claiming that Dr. Garriques had received overpayment for certain Medicaid claims from January 1, 1991 through June 30, 1994. Dr. Garriques timely filed a request for an administrative hearing. The case was forwarded to the Division of Administrative Hearings on October 19, 1995.

On January 17, 1996, the parties filed a Joint Motion to Bifurcate Final Hearing, requesting that the issue of the amount of any overpayment be determined in a separate hearing. The motion was granted.

At the final hearing, AHCA called the following witnesses: Vickie Divens, Dr. John Sullenberger, Richard Hart, and Carol Rogers. AHCA presented the testimony of Miguel Milanes by deposition. Respondent's Exhibits 1-39 were admitted in evidence. Dr. Garriques testified in his own behalf and called John Jefferson Overby and Ronald Herron as witnesses. Petitioner's Exhibit 1 was admitted in evidence.

At the final hearing the parties agreed to file proposed recommended orders within ten days from the date of the filing of the transcript. The transcript was filed on April 22, 1996. On April 26, the parties filed a Joint Motion for Extension of Time to file proposed recommended orders. The motion was granted and the time for filing proposed recommended orders was extended to June 3, 1996. The parties timely filed their proposed recommended orders. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Agency for Health Care Administration (Department), is the successor in interest to the Department of Health and Rehabilitative Services as the single state agency responsible for the Florida Medicaid program.

   
   

2. Petitioner, Ian L. Garriques, M.D. (Dr. Garriques), is a licensed physician. He is a board certified internist with a subspeciality in infectious diseases. In 1980, he came to Key West, Florida, to practice.

   
   

3. In the early 1980's Dr. Garriques and his colleagues began to see patients who were experiencing symptoms resembling mononucleosis syndrome and who were dying from pneumonia for unexplained reasons. These patients were diagnosed with AIDS and thus, began the AIDS epidemic in Key West. Many AIDS patients did not have the resources to pay for medical care. They would go to the emergency room when they needed to see a doctor, resulting in a lack of continuity of care because they would see the doctor who happened to be covering the emergency room on that particular day. The patients would be released to a home health care agency that would continue with the medications prescribed on discharge regardless of whether the medications continued to be effective. Dr. Garriques began to see AIDS patients in his office that were getting worse because of the medications that they were being given.

   
   

4. In 1986, AIDS Help, Inc. (AHI), a non-profit organization was formed to help those AIDS victims who were not receiving adequate care because of a lack of financial resources. AHI provides medical services, housing, transportation, case management, counseling, food, utility assistance, and drugs to its clients. At first AHI was funded from private donations. Later, AHI began to receive state general revenue funds and applicable Department of Health and Rehabilitative Services (HRS) funds for its operations pursuant to legislative appropriations.

   
   

5. From 1987 to 1991, Dr. Garriques was a member of the board of directors for AHI.

   DUPLICATE BILLING

   
   

6. Because of Dr. Garriques' expertise in treating HIV, AHI contracted with him to provide services to AHI clients in 1991. Dr. Garriques provided services at the Aids Help Clinic under the terms of that contract during the audit period at issue.

   
   

7. The contract recited the background of the agreement as follows:

   
   

   AHI has entered into a contract with the State of Florida, Department of Health and Rehabili-

   tative Services (HRS) to provide certain medical, evaluative, consultative, referral and treatment services to its clients. AHI presently has the need to staff the Health Care Center and provide the services which it has contracted to provide. Discussions have taken place between AHI and the Doctor [Dr. Garriques] in regard to subcontracting the necessary services to him. . . .

   
   

8. The contract further provided:

   
   

   1. AHI hereby retains the Doctor to provide the services, equipment, supplies and personnel described in this Agreement and the Doctor agrees to provide them from the date of the execution of

      this Agreement by all parties hereto until June 30, 1991 under the terms hereof.

   2. In payment therefor AHI agrees to pay the Doctor the sum of $3,000.00 per month, to be paid by AHI in the following manner: The Doctor shall submit to AHI an invoice between the first and the

      tenth day of each month of this Agreement, beginning March 1, 1991, for the services, supplies and personnel in the amount of $3,000.00. AHI shall then pay to the Doctor the sum billed by the

      fifteenth day of this month. The amount of $3,000.00 shall be reviewed by the parties hereto at the end of the second month of the term of this Agreement in order to determine whether this amount is fair and adequate to both of the parties in view of the nature and volume of the services provided and also to review whether any other changes are needed in the terms and provisions of this Agreement. The parties agree to discuss these matters in good faith and to attempt

      to come to a mutually agreeable resolution of their differences, if any.

   3. In addition to this amount, the Doctor shall be allowed to bill for his services and to retain such amounts which he may collect from Medicare, Medicaid, private insurers, companies, or other federal or state reimbursement programs. He shall be responsible for the fairness and accuracy of such billing and shall hold AHI harmless from any and all liability or responsibility whatsoever for such billing. He shall look solely and exclusively to patients or to those persons or third party payors

      who are responsible for services rendered to these patients and not to AHI.

   4. The Doctor shall, personally, be present at the Health Center one day each week, presently contemplated to be Wednesday, for a period of approximately eight hours. On each such day he shall be available to provide medical, evaluative, consultative and treatment services which he deems necessary and appropriate to any and all patients referred to the Health Center. He shall act as the primary care physician for all such persons and shall make such referrals to other physician specialists and other health persons (sic) and shall make such referrals to other physician specialists and other health care personnel and he shall admit any such persons to a hospital or such other medical facility as he deems necessary and appropriate in the exercise of his best medical

      judgment. He will continue to provide such primary care to such persons and shall continue to parti- cipate in the care of such persons as may be necessary in his best medical judgment.

   5. The Doctor shall provide on each day of service a Florida licensed registered nurse for approximately eight hours to assist him in the performance of his services hereunder, shall pay the nurse from his own funds and supervise the performance of his/her duties. In addition, the Doctor shall provide the services of a billing clerk and such other personnel as are required to competently carry out his duties hereunder.

      The Doctor shall also provide, at his own expense such equipment, supplies (medical and office) as may be necessary to carry out his duties hereunder.

   6. The Doctor shall provide AHI with such records, summaries, information and reports as AHI may from time to time request pertaining to the rendering of his services hereunder and the oper- ations of the Health Care Center, including but not limited to financial and billing records, medical records and correspondence. The Doctor shall also conduct a monthly case review with the staff/case managers of AHI to discuss with them the medical status of AHI's clients which he has seen.

      
      

9. The contract was amended to extend the term through June 30, 1993, to increase the rate of payment to $6,000.00 per month and to increase the time of the nurse practitioner at the clinic to one-and-one-half days per week.

   
   

10. Dr. Garriques was an enrolled Medicaid provider during January 1, 1991 through June 30, 1994, the audit period at issue. Dr. Garriques' Medicaid provider number is 036395200. By signing the Medicaid provider agreement, Dr. Garriques agreed to be bound by the applicable law and Medicaid policies and manuals.

    
    

11. During the term of the contract, Dr. Garriques sent AHI an invoice each month for a flat fee. AHI also requested Dr. Garriques to send it a

    production analysis, listing all the transactions for the clinic patients each month. There was no correlation between the number of patient transactions and the amount of money that Dr. Garriques received each month from AHI. Dr.

    Garriques billed Medicaid for medical services provided to the clinic patients who were Medicaid eligible.

    
    

12. Dr. Garriques paid the nurse practitioner, which he was required to provide pursuant to the AHI contract, approximately $1500.00 per month and he paid a nurse approximately $700 to $800 per month to assist in running the clinic. In addition, he paid a secretary to perform clerical duties associated with the clinic.

    
    

13. Dr. Garriques spent approximately fifty percent of his time caring for approximately 75 to 100 AHI clinic patients.

    
    

14. The Department takes the position that Medicaid made payments to Dr. Garriques for services which were also paid for pursuant to the contract between Dr. Garriques and AHI. Thus, the Department considers the amounts paid by Medicaid for the patients listed below constitute overpayments for which the Department is entitled to be reimbursed.

    
    

    a C.H. (listed as Patient Number 1)

    b. J.M.	(listed	as	Patient	Number	6)
    c. A.K.	(listed	as	Patient	Number	9)
    d. G.S.	(listed	as	Patient	Number	10)
    e. T.V.	(listed	as	Patient	Number	16)
    f. K.H.	(listed	as	Patient	Number	17)
    g. R.W.	(listed	as	Patient	Number	18)
    h. T.S.	(listed	as	Patient	Number	19)
    i. R.M.	(listed	as	Patient	Number	21)
    j. S.V.	(listed	as	Patient	Number	23)
    k. P.N.	(listed	as	Patient	Number	25)
    l. L.A.	(listed	as	Patient	Number	26)
    m. T.T.	(listed	as	Patient	Number	27)
    n. J.G.	(listed	as	Patient	Number	31)
    o. J.C.	(listed	as	Patient	Number	32)
    p. G.L.	(listed	as	Patient	Number	33)

    
    

15. Dr. Garriques takes the position that the services provided under the terms of his contract with AHI were different from and not included in the services that he billed Medicaid. Services which Dr. Garriques provided pursuant to the AHI agreement included administrative services associated with the responsibility of running the clinic; 24-hour on-call, seven days a week availability to AHI patients; physician services for which Medicaid does not reimburse; admitting AHI patients to the hospital; answering patient questions by telephone; coordinating the care of AHI patients with their treating providers; reviewing patient labs; billing related to treating AHI patients; seeing patients in the hospital; seeing patients outside the clinic; answering questions from patients and staff; quality assurance; attendance at Board meetings; and meeting with case managers and home health personnel. He claims the services he provided under the AHI agreement were either non-reimbursable Medicaid services or services for clients who were not eligible for Medicaid services.

    
    

16. It is AHI's position that the payments made to Dr. Garriques were for services which were not compensable under Medicaid and for services to clients who were not eligible for Medicaid services.

17. The Department of Health and Rehabilitative Services's policy is that the funds which it provided to AHI to subcontract with Dr. Garriques were to be used for services and clients that were not covered by other funding sources.

    
    

18. The records from AHI show that Dr. Garriques provided services to C.H. either at the clinic or the hospital on the following dates: 10/16/91, 10/30/91, 11/20/91, 1/8/92, 2/12/92, 4/22/92, 6/24/92, 7/8/92, 7/21/92, 7/22/92, 7/29/92, 8/12/92, 9/2/92, 9/9/92, 10/7/92, 10/21/92, 10/22/92, 10/23/92, 10/24/92, 10/25/92, 10/26/92, 10/27/92, 11/4/92, 12/9/92, 1/13/93, 2/10/93, 3/24/93, 5/12/93, and 5/13/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to

    C.H. on the dates listed above.

    
    

19. The records from AHI show that Dr. Garriques provided services to J.M. at the clinic on September 21, 1991. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to J.M. on that date.

    
    

20. The records from AHI show that Dr. Garriques provided services to G.S at the clinic on the following dates: 2/20/91, 2/27/91, 3/13/91, 3/21/91, 4/3/91, 5/8/91, and 8/7/91. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to G.S. on those dates.

    
    

21. The records from AHI show that Dr. Garriques provided services to T.V. at the clinic on the following dates: 12/4/91, 12/11/91, 6/3/92, 8/19/92, 12/2/92, 3/3/93, and 6/3/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to T.V. on those dates.

    
    

22. The records from AHI show that Dr. Garriques provided services to K.H. at the clinic on the following dates: 1/8/92, 1/15/92, 1/30/92, 2/12/92, 2/26/92, 3/4/92, 3/18/92, 4/1/92, 4/15/92, 4/29/92, 5/27/92, 6/24/92, 7/15/92, 10/7/92, 11/4/92, and 11/25/92. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to K.H. on those dates.

    
    

23. The records from AHI show that Dr. Garriques provided services to R.W. at the clinic on the following dates: 5/6/92, 7/1/6/92, 8/3/92, 10/15/92, 1/13/93, and 3/31/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to

    R.W. on those dates.

    
    

24. The records from AHI show that Dr. Garriques provided services to T.S. at the clinic on the following dates: 5/20/92, 6/3/92, 7/1/92, 7/15/92, 7/29/92, 8/19/92, 9/2/92, 9/23/92, 10/21/92, 11/18/92,12/9/92, 1/6/93, 1/20/93, 3/10/93, 3/17/93, 4/48/93, and 5/26/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to T.S. on those dates.

    
    

25. The records from AHI show that Dr. Garriques provided services to R.M. at the clinic on the following dates: 3/24/93, 4/7/93, 4/28/93, and 6/16/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to R.M. on those dates.

26. The records from AHI show that Dr. Garriques provided services to S.V. at the clinic on the following dates: 10/7/92, 10/15/92, and 11/9/92. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to S.V. on those dates.

    
    

27. The records from AHI show that Dr. Garriques provided services to P.N. at the clinic on 11/9/92, 2/24/92, and 4/21/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to P.N. on those dates.

    
    

28. The records from AHI show that Dr. Garriques provided services to L.A. at the clinic on the following dates: 1/6/93, 1/20/93, 2/10/93, 3/10/93, 4/21/93, and 6/2/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to L.A. on those dates.

    
    

29. The records from AHI show that Dr. Garriques provided services to T.T. at the clinic on 5/12/93 and 6/2/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to T.T. on those dates.

    
    

30. The records from AHI show that Dr. Garriques provided services to J.C. either at the clinic or the hospital on the following dates: 2/6/91, 3/6/91, 3/11/91, 3/12/91, 3/13/91, 3/14/91, 3/15/91, 3/17/91, and 3/18/91. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to J.C. on those dates.

    
    

31. The records from AHI show that Dr. Garriques provided services to N.S. either at the clinic or the hsopital on the following dates: 5/29/91, 8/7/91, 8/21/91, 9/4/91, 9/5/91, and 9/18/91. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to N.S. on those dates.

    
    

32. The records from AHI show that Dr. Garriques provided services to J.F. at the clinic on the following dates: 2/13/91, 3/20/91, 5/1/91, 5/15/91, 5/29/91, and 6/26/91. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to J.F. on those dates.

    
    

33. The records from AHI show that Dr. Garriques provided services to W.M. either at the clinic or the hospital on the following dates: 6/5/91, 11/10/91, 11/11/91, 11/12/91, 11/13/91, 11/14/91, 1/3/92, 1/8/92, 1/9/92, 1/10/92, 1/11/92, 1/12/92, 1/13/92, 1/14/92, and 2/19/92. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to W.M. on those dates.

    
    

34. The records from AHI show that Dr. Garriques provided services to M.L. either at the clinic or the hospital on the following dates: 4/22/92, 5/13/92, 5/14/92, 5/15/92, 5/16/92, 5/17/92, 5/18/92, 5/19/92, 5/20/92, 5/21/92, 5/22/92, 5/23/92, 5/24/92, and 5/25/92. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to M.L. on those dates.

    
    

35. The records from AHI show that Dr. Garriques provided services for

    D.M. on April 28, 1993, at the clinic. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to D.M. on that date.

36. The records from AHI show that Dr. Garriques provided services to J.G. either at the clinic or the hospital on the following dates: 9/18/91, 10/23/91, 11/20/91, 1/22/92, 3/11/92, 3/25/92, 4/15/92, 5/20/92, 5/27/92, 6/24/92, 7/15/92, 8/5/92, 9/9/92, 9/18/92, 9/19/92, 9/20/92, 9/21/92, 9/22/92, and 9/23/92. The records for the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to J.G. on those dates.

    
    

    DISPUTES OVER LEVEL OF SERVICE

    
    

37. Part of the recoupment action deals with the level of service which Dr. Garriques claims to have provided and the level of service which the Department deems to be the appropriate level of service for payment. Payment for services are made in accordance with the level of service provided. The level of service is coded according to Current Procedural Terminology (CPT), which is a compilation of codes by the American Medical Association Committee.

    
    

38. For patient D.W., there was a dispute over the level of services provided on June 8, 9, and 10, 1992. For those dates, Dr. Garriques submitted a claim showing a CPT code of 99223, which stands for an initial hospital visit. Patient D.W. had been admitted for HIV and streptococcal meningitis on June 7, 1992. Dr. Sullenberger, who was the expert witness for Respondent concerning level of service, correctly opined that given the seriousness of the patient's disease, the CPT code for services on June 8 and 9 should be 99233. At the hearing the parties stipulated that the appropriate CPT code for June 10 should be 99232.

    
    

39. For patient J.G., there was a dispute over the level of services provided on April 24 and 25, 1994. Patient J.G. was admitted to the hospital for an overdose of tylenol. If not treated properly, a patient's liver can be destroyed within 12 hours of taking an overdose of tylenol. The liver damage will not be apparent until approximately a week later when the patient dies. Therefore, it is important that the patient be given the correct medication and that the blood level of the patient be monitored very closely during the first

    12 hours after admission to the hospital.

    
    

40. Dr. Sullenberger, apparently unaware of the potentially lethal effects of a tylenol overdose, opined that the CPT code for the service provided on April 24 should be 99222, which stands for a moderately complex level of care and that the CPT code for April 25 should be reduced to 99231. However, based on Dr. Garriques' testimony of the seriousness of a tylenol overdose, it is found that Dr. Garriques correctly entered CPT codes of 99291 for April 24 and 25.

    
    

41. For patient N.D., there was a dispute over the level of service provided on September 17, 1991, and February 1, 1994. Patient N.D. was seen on September 17 for a physical examination. It took Dr. Garriques time to complete the physical because of communication difficulties stemming from N.D.'s mental retardation. However the level of service has nothing to do with the ability to communicate with the patient. The proper CPT code for the September 17 service was at an intermediate level of service, CPT code 90060. Dr. Garriques referred the patient to an opthamologist at the February 1 visit. The CPT code of 99214 billed by Dr. Garriques was correct.

    
    

42. Patient G.M. was admitted to the hospital on October 18, 1991 based on Dr. Garriques' telephone orders. Dr. Garriques saw the patient for the first

    time during his stay at the hospital on October 19, 1991. There should have been no payment for the telephone order on October 18 because there was no face to face contact with the patient. The CPT code for October 19 should have been 90220. The CPT code for the services provided on October 20 and 21 should have been 90250.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

44. Sections 409.10(1)-(4), Florida Statutes (1991 and 1993) provide:

    
    

    1. It is the intent of the Legislature that Medicaid be the payer of last resort for medically necessary goods and services furnished to Medicaid recipients. All other sources of payment for medical care are primary to medical assistance provided by Medicaid. If benefits of a liable third party are discovered or become available after medical assistance has been provided by Medicaid, it is the intent of the Legis- lature that Medicaid be repaid in full and

       prior to any other person, program, or entity. Medicaid is to be repaid in full from, and to the extent of, any third-party benefits, regardless of whether a recipient is made whole or creditors paid. Principals of common law and equity as to assignment, lien, and subrogation are to be abrogated to the extent necessary to ensure full recovery by Medicaid from third-party resources. It is intended that if the resources of a liable third party become available at any time, the public treasury should not bear the burden of medical assistance to the extent of such resources.

    2. This section may be cited as the 'Medicaid Third-Party Liability Act.'

    3. Third-party benefits for medical services shall be primary to medical assistance provided by Medicaid.

    4. After the department has provided medical assistance under the Medicaid program, it shall seek the limit of legal liability and for the full amount of third party benefits, but not in excess of the amount of medical assistance paid by Medicaid, as to:

       1. Claims for which the department has a waiver pursuant to federal law; or

       2. Situations in which the department learns of the existance of a liable third party or in which third-party benefits are discovered or become available after medical assistance has been provided by Medicaid.

45. Section 409.910(7), Florida Statutes provides:

    
    

    The department shall recover the full amount of all medical assistance provided by Medicaid on behalf of the recipient to the full extent of third party benefits.

    1. Recovery of such benefits shall be collected directly from:

       1. Any third party;

       2. The recipient or legal representative, if he has received third-party benefits;

       3. The provider of a recipient's medical services if third-party benefits have been recovered by the provider; notwithstanding any provision of this section, to the contrary, however no provider shall be required to refund or pay to the department any amount in excess of the actual third-party benefits received by the provider from a third-party payor for medical services provided to the recipient; or

       4. Any person who has received the third-party benefits.

    
    

46. A plain reading of the contract between Dr. Garriques and AHI shows that any and all clients who were referred to the clinic were to receive services; that Dr. Garriques was to be designated as the primary care physician for those clients; that Dr. Garriques was to admit the clients to the hospital when it was necessary; that Dr. Garriques was to continue to act as the clients' primary care physician after the clients were admitted to the hospital; and that Dr. Garriques was to refer the clients to other physician specialists and health care personnel as necessary. The contract provided that AHI would pay Dr. Garriques a flat monthly fee for services provided to AHI clients and Medicaid would be the funding source for services that would be covered by Medicaid. It was the responsibility of Dr. Garriques to collect the funds from Medicaid or other applicable funding sources. If the patient did not have another resource available, Dr. Garriques would still have to treat the patient without receiving any additional funds from AHI above the monthly flat rate.

    
    

47. A reasonable interpretation of the contract between AHI and Dr. Garriques is that the AHI contract funds were for services which were not covered by another funding source such as Medicaid, Medicare, and private insurance. This interpretation comports with the Department of Health and Rehabilitative Services' position that the funds for the AHI contract were to be used as a last resort when no other funds were available.

    
    

48. Although Section 409.10, Florida Statutes, provides that Medicaid is to be the payor of last resort for medical services for Medicaid recipients, the funds from the AHI were not available for eligible medical services for Medicaid recipients. The AHI funds were for those clients who had no other funding sources and were falling through the cracks, so to speak.

    
    

49. Based on the testimony at the final hearing, it is clear that the agreement between AHI and Dr. Garriques was a means to secure services for AIDS victims in an epidemic situation when it was virtually impossible to get physicians to provide the continuity of care that was so vitally needed. The AHI contract provided a central location for the provision of medical services to AIDS victims and provided that the AIDS victims would have a primary care

    physician. It was never the intent of the parties to the contract that Dr. Garriques would be paid twice for the same service.

    
    

50. The evidence does not establish that Dr. Garriques received duplicate payments from Medicaid.

    
    

51. Given the minor nature of the disputes concerning the level of service, no administrative fine should be imposed on Dr. Garriques.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the Medicaid

payments at issue for patients C.H., J.M., A.K., G.S., T.V., K.H., R.W., T.S.,

R.M., S.V., P.N., L.A., T.T., J.G., J.C., and G.L. did not constitute duplicate payments for which Dr. Garriques should reimburse AHCA; that the level of service for D.W. on June 8 and 9, 1992 is 99233 and 99232 on June 10, 1992; that the CPT code for the services provided to J.G. on April 24 and 25, 1994 is 99291; that the CPT code for the services provided to N.D. on September 17, 1991 is 90060 and the CPT code for services on February 1, 1994 is 99214; and that payment for the claim for October 18, 1991 for G.M. should be reimbursed by Dr. Garriques, the CPT code for October 19, 1991 services is 90220, and the CPT code for services on October 20 and 21 is 90250.

DONE AND ENTERED this 8th day of July, 1996, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 8th day of July, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5094

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraph 1: The first sentence is accepted in substance. The remaining is rejected as unnecessary.

2. Paragraphs 2-6: Accepted in substance.

3. Paragraph 7: Rejected as irrelevant. The contract between AHI and Dr. Garriques defines what services are to be provided.

4. Paragraphs 8-15: Accepted in substance.

5. Paragraph 16: Rejected as not necessary.

6. Paragraph 17: Accepted in substance.

7 Paragraph 18: Rejected as immaterial.

1. Paragraphs 19-20: Accepted in substance

2. Paragraph 21: Rejected as subordinate to the facts found.

3. Paragraphs 22-23: Accepted in substance.

4. Paragraph 24: Rejected as unnecessary.

5. Paragraph 25-27: Rejected as subordinate to the facts found.

6. Paragraph 28: Accepted in substance.

7. Paragraph 29: Rejected as subordinate to the facts found.

8. Paragraphs 30-31: Accepted in substance.

9. Paragraphs 32-34: Accepted in substance except Patient Number 5 is

   G.M. not C.M.

10. Paragraphs 35-36: Accepted in substance.

Respondent's Proposed Findings of Fact.

1. Paragraphs 1-3: Accepted in substance.

2. Paragraphs 4-5: Rejected as unnecessary.

3. Paragraph 6: Accepted in substance.

4. Paragraph 7: Rejected as unnecessary.

5. Paragraphs 8-9: Accepted in substance.

6. Paragraph 10: Rejected as unnecessary given the stipulation of the parties that the amount of reimbursement, if any, would not be decided in this proceeding.

7. Paragraph 11: The first sentence is rejected as unnecessary. The remainder is accepted in substance.

8. Paragraphs 12-13: Accepted in substance.

9. Paragraph 14: The first sentence is rejected as unnecessary. The second through the fifth sentences are accepted in substance. The sixth sentence is accepted that that was Dr. Sullenberger's testimony but rejected that the correct CPT code was 99222.

10. Paragraph 15: The first sentence is accepted. The remainder is rejected as not supported by the greater weight of the evidence.

11. Paragraph 16: The first sentence is rejected as unnecessary. The remainder is accepted in substance.

12. Paragraphs 17-18: Accepted in substance.

13. Paragraph 19: The last sentence is rejected as to code 90260. The remainder is accepted in substance.

14. Paragraph 20: Accepted.

15. Paragraph 21: The first sentence is rejected as unnecessary. The remainder is accepted in substance to the extent that the services were rendered at the clinic but not that the services were funded by the AHI contract.

16. Paragraph 22: Rejected as not supported by the greater weight of the evidence that the dates listed were for services which were funded by the AHI contract. The listing merely shows who was served at the clinic and

    on what dates.

17. Paragraph 23: The first sentence is accepted in substance. Rejected as not supported by the greater weight of the evidence. The evidence is clear that the parties contemplated that non-Medicaid reimbursable services and non- Medicaid eligible clients were funded by the AHI contract.

18. Paragraph 24: The first and last sentences are accepted in substance. The second and third sentences are rejected as not supported by the record.

    The contract indicated that some services would be funded by AHI and some would be funded by Medicaid.

19. Paragraph 25: Rejected as constituting argument.

20. Paragraph 26: The first sentence is accepted in substance to the extent that Medicaid was billed for the services on that date but not that AHI paid for the same services. The remainder is rejected as not supported by the greater weight of the evidence.

21. Paragraphs 27, 31, 35, 39, 43, 47, 51, 55, 59, 63, 67, 71, 75, 79, 83,

87, 91, and 95: The first sentence is rejected as unnecessary. The remainder is accepted in substance to the extent that Medicaid was billed for the services provided at the clinic but not that AHI funded those services.

22. Paragraphs 28, 32, 36, 40, 44, 48, 52, 56, 60, 64, 68, 72, 76, 80, 84,

88, 92, and 96: Rejected as not supported by the greater weight of the evidence. The contract provided that some of the services would be funded by Medicaid and some of the services would be funded by AHI

23. Paragraph 29, 33, 37, 41, 45, 49, 53, 57, 61, 65, 69, 73, 77, 81, 85,

89, 93, and 97: The first sentence is accepted in substance to the extent that the patients were seen at the clinic but not that the services were funded by the AHI agreement. The remainder is rejected as constituting argument.

24. Paragraph 30, 34, 38, 42, 46, 50, 54, 58, 62, 66, 70, 74, 78, 82, 86,

90, 94, and 98: Accepted in substance to the extent that Medicaid paid for services on those dates but rejected that the Medicaid payment was duplicative of payments from the AHI contract.

COPIES FURNISHED:

Wayne Mitchell, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

Louise T. Jeroslow, Esquire

Zack, Sparber, Kosnitzky, Truxton, Spratt and Brooks, P.A.

One International Place

100 Southeast Second Street, Suite 2800 Miami, Florida 33131

1. S. Power, Agency Clerk

   Agency for Health Care Administration 2727 Mahan Drive

   Fort Knox Building 3, Suite 3431

   Tallahassee, Florida 32308-5403

   
   

   Jerome W. Hoffman General Counsel

   Agency For Health Care Administration 2727 Mahan Drive

   Fort Knox Building 3, Suite 3431

   Tallahassee, Florida 32308-5403

   
   

   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 ten 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.

   
   

   STATE OF FLORIDA

   DIVISION OF ADMINISTRATIVE HEARINGS

   
   

   IAN L. GARRIQUES, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 95-5094

   ) STATE OF FLORIDA, AGENCY FOR ) HEALTH CARE ADMINISTRATION, )

   )

   Respondent. )

   )

   
   

   SUPPLEMENTAL RECOMMENDED ORDER

   
   

   On July 8, 1996, the undersigned Administrative Law Judge entered a Recommended Order in the instant case. The Agency for Health Care Administration issued an Order of Remand, requesting that the Administrative Law Judge address the issue of liability for Medicaid payments for certain patients which were inadvertently omitted from the original Recommended Order. The Order of Remand did not identify which patients were omitted. A telephonic conference was held with counsel for the parties and the patients were identified. Having reviewed the Recommended Order issued July 8, 1996 and the record in this case, it is determined that six patients were inadvertently omitted in Paragraph 14 of the Findings of Facts and three patients listed in Paragraph 14 should be deleted.

   The Recommended Order issued on July 8, 1996, is supplemented to include the following Findings of Fact relating to those patients. It should be noted that the facts relating to the service provided and the payments made to the six patients who were inadvertently omitted in Paragraph 14 were covered in Paragraphs 31-36 of the original Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Paragraph 14 of the Recommended Order is supplemented to include the following patients:

      
      

      1. N.S. (listed as Patient Number 34)

      2. J.F. (listed as Patient Number 36)

      3. W.M. (listed as Patient Number 37)

      4. M.L. (listed as Patient Number 38)

      5. D.M. (listed as Patient Number 39)

      6. J.G. (listed as Patient Number 40)

         
         

   2. Additionally, Paragraph 14 is amended to delete Patient A.K. (listed as Patient Number 9); Patient G.L. (listed as Patient Number 33); and patient J.G. (listed as patient Number 31).

RECOMMENDATION

Based on the foregoing supplemental Findings of Fact, it is

RECOMMENDED that a Final Order be entered finding that the Medicaid payments at issue for patients C.H., J.M., G.S., T.V., K.H., R.W., T.S., R.M., S.V., P.N.,

L.A., T.T., J.C., N.S., J.F., W.M., M.L. D.M., and J.G. did not constitute duplicate payments for which Dr. Garriques should reimburse AHCA; that the level of service for D.W. on June 8 and 9, 1992 is 99233 and 99232 on June 10, 1992; that the CPT code for the services provided to J.G. on April 24 and 25, 1994 is 99291; that the CPT code for services provided to N.D. on September 17, 1991 is 90060 and the CPT code for services on February 1, 1994 is 99214, and that the payment for the claim for October 18, 1991 for G.M. should be reimbursed by Dr. Garriques, the CPT code for October 19, 1991 services is 90220, and the CPT code for services on October 20 and 21 is 90250.

DONE AND ENTERED this 13th day of March, 1997, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1997.

COPIES FURNISHED:

Kim A. Kellum, Esquire

Agency For Health Care Administration 2727 Mahan Drive

Fort Knox Building #3 Tallahassee, Florida 32308-5403

Louis T. Jeroslow, Esquire Zack, Sparber, Kosnitzky,

Spratt & Brooks, P.A. One International Place

100 Southeast 2nd Street, Suite 2800 Miami, Florida 33131

Douglas M. Cook, Director

Agency For Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman, General Counsel Agency For Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 95-005094

Orders for Case No: 95-005094