STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE D. MERER, M.D., )

)

Petitioner, )

)

vs. ) Case No. 00-2284

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on September 29, 2000, in Miami, Florida, before Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce D. Merer, M.D., pro se

1802 East Fourth Avenue Hialeah, Florida 33010

For Respondent: L. William Porter, II, Esquire

Agency for Health Care Administration Fort Knox Executive Center

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308-5403 STATEMENT OF THE ISSUE

The issue for determination is whether the Petitioner is liable to the Agency for Health Care Administration ("Agency")

for Medicaid reimbursement overpayments and related fines,

costs, and interest.

PRELIMINARY STATEMENT

At the final hearing, the Agency presented the testimony of one witness and offered eleven exhibits, all of which were received in evidence.1 The Petitioner testified on his own behalf and also presented the testimony of one other witness.

The Petitioner did not offer any exhibits.

At the conclusion of the final hearing on September 29, 2000, the parties were allowed thirty days from the filing of the transcript within which to file their proposed recommended orders. The transcript was filed with the Division of Administrative Hearings on November 7, 2000. On November 27, 2000, the Agency filed a Proposed Recommended Order containing proposed findings of fact and conclusions of law.2 As of the date of this Recommended Order, the Petitioner has not filed any post-hearing document.

FINDINGS OF FACT

1. The Agency is the single state agency charged with administration of the Medicaid program in Florida under Section 409.907, Florida Statutes.

2. The Petitioner provides physician services to Medicaid beneficiaries pursuant to a contract with the Agency under provider number 037381800.

3. The Agency sent the Petitioner a Preliminary Agency Audit report on June 30, 1998, notifying him of a preliminary determination of Medicaid overpayments in the total amount of

   $21,156.35.

   
   

4. The Agency sent the Petitioner a Final Agency Audit Report on October 28, 1998, confirming the Agency's determination of Medicaid overpayments in the total amount of

   $21,156.35.

   
   

5. The Agency's determination of overpayment was based upon findings that obstetrical echography services "were billed and paid in violation of Medicaid policy governing those services."

6. The Agency performed an audit of the Petitioner for the period January 1, 1993, through October 31, 1996. According to the Agency audit report, the Petitioner's records contained violations of two billing policies outlined in the Medicaid Physician Provider Handbook. The first violation was that the Petitioner billed and received payment for more than one initial ultrasound procedure per pregnancy, and the second was that the Petitioner failed to submit documentation of medical necessity for additional procedures.

7. During the years examined by the audit, Medicaid policy allowed providers to bill for more than one complete initial procedure per patient, so long as providers filed supporting

   documentation of medical necessity. However, the documentation submitted by the Petitioner indicated that the additional ultrasound procedures he conducted were mere follow-up procedures, instead of medically necessary complete procedures.

8. According to the terms of the Medicaid Physician

   
   

   Provider Handbook, "[i]f more than two (or any combination of two) ultrasounds are performed during a pregnancy, they must be billed with modifier-22 and a report documenting the medical necessity for the procedure." The Petitioner submitted bills for more than two ultrasound treatments per recipient without explaining why the procedures were medically necessary.

9. The Agency audit report established that the Petitioner has been overpaid as a result of the Petitioner's erroneous billings. The total overpayment to the Petitioner was calculated as "the difference between what he got paid for a complete procedure and the amount that he should have gotten paid for the follow-up." The Agency records received in evidence and the testimony of the Agency's witness establish that the amount overpaid to the Petitioner totaled $21,156.35.

10. The Petitioner, as an authorized provider of Medicaid services, had signed a Medicaid Provider Agreement. That agreement states, among other things, that the "provider agrees to submit Medicaid claims in accordance with program policies."

11. When the Petitioner became a certified Medicaid provider, he received a handbook outlining billing procedures for the performance of diagnostic ultrasounds.

12. The Petitioner admitted that he knows "little about billing," that he "didn't involve [himself] in the billing at all," and that he has never read the Physicians' Current Procedural Terminology book, which sets forth the universally used billing codes.

    CONCLUSIONS OF LAW

    
    

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

14. The audit process which led to the claim for overpayment was initiated by the Agency in accordance with Section 409.913(12), Florida Statutes (1993), and Section 409.913(19), Florida Statutes (1998).

15. The Agency has the burden of proving that the Petitioner has been overpaid for the Medicaid services delivered to recipients. See South Medical Services, Inc. v. Agency for

    Health Care Administration, 653 So. 2d 440 (Fla. 3d DCA 1995). This proof must be by a preponderance of the evidence. The evidence in this case is sufficient to meet the required burden, and the Agency has established that during the period covered by the audit, the Petitioner was overpaid a total of $21,156.35.

16. The statutes, rules, Medicaid Physician Provider

    
    

    Handbook, and Physicians' Current Procedural Terminology in effect during the period for which the services were provided govern the outcome of the dispute. See Toma vs. Agency for Health Care Administration, Case No. 95-2419 (Div. of Admin.

    Hearings 1996)(as incorporated in Toma vs. Agency for Health Care Administration, 18 FALR 4735 (Div. of Admin. Hearings 1996)).

17. When the Petitioner decided to become a Medicaid provider, he executed a document according to Section 409.907, Florida Statutes (1993), where he agreed to abide by the provisions of the Florida Statutes and the policies, procedures, and manuals of the Florida Medicaid Program. This commitment was made on February 4, 1993, and continued through the period in dispute.

18. Section 409.913(5), Florida Statutes (1993), states that a provider participating in the Medicaid Program has an affirmative duty to supervise and be responsible for the preparation and submission of accurate claims for payment from the program. It is the provider's duty to ensure that all claims "[a]re provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies." Section 409.913(5)(e), Florida Statutes (1993).

19. The Agency is required to oversee the Florida Medicaid Program and recover any overpayments of Medicaid monies. See Section 409.913, Florida Statutes (1993), and Section 409.913, Florida Statutes (1998). "'Overpayment' includes any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake." Section 409.913(d), Florida Statutes (1998).

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Agency issue a final order requiring the Petitioner to reimburse the Agency for overpayments in the total amount of

$21,156.35, plus such interest as may accrue as of the date on which payment is made.

DONE AND ENTERED this 3rd day of January, 2001, in

Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2001.

ENDNOTES

1/ The eleven exhibits offered by the Agency are numbered 1 through 7 and 9 through 12.

2/ The Agency's proposals have been carefully considered during the preparation of this Recommended Order. Portions of the Agency's proposals have been incorporated into the text of this Recommended Order. Many of the proposed facts submitted by the Agency have been omitted from this Recommended Order because they are subordinate or unnecessary details, even where supported by competent and substantial evidence.

COPIES FURNISHED:

Bruce D. Merer, M.D. 1802 East Fourth Avenue Hialeah, Florida 33010

L. William Porter, II, Esquire

Agency for Health Care Administration Fort Knox Executive Center

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308-5403

Sam Power, Agency Clerk

Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration Fort Knox Executive Center

2727 Mahan Drive, Suite 3116

Tallahassee, Florida 32308-5403

Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

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: 00-002284

Orders for Case No: 00-002284