STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
TONY C. RICH,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
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) Case No. 01-1150MPI
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RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its designated Administrative Law Judge Stephen F. Dean, held a formal hearing on the above-styled case on May 22, 2001, in Tallahassee, Florida, and on August 7, 2001, in Ocala, Florida.
APPEARANCES
For Petitioner: Tony C. Rich, pro se
1710 Northwest 42nd Street Gainesville, Florida 32605
For Respondent: Anthony L. Conticello, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308-5403 STATEMENT OF THE ISSUE
Whether the amount sought to be recovered from Petitioner for Medicaid overpayments by the Agency is correct.
PRELIMINARY STATEMENT
The Agency for Health Care Administration (Agency) conducted an audit of Petitioner's Medicaid patients for the period 1996 through 1999 to determine whether Petitioner was billing for his services in accordance with established procedures and rules.
The Agency advised Petitioner that it had discovered instances in its audit when Petitioner had not billed in accordance with established procedures and rules. As a result, the Agency gave Petitioner notice that it sought repayment of over $40,000. The Agency also advised Petitioner of his right to a formal hearing on the matter which Petitioner requested. The Agency forwarded the case to the Division of Administrative Hearings to conduct the final hearing.
The Division of Administrative Hearings duly noticed the matter for hearing, and the first day of hearing was held in Tallahassee, Florida, on May 22, 2001. The hearing was not concluded, and the second day of hearing was held on August 7, 2001. At the conclusion of the second day's testimony, the record was held open for the taking of the deposition of
Dr. Larry Deeb. This deposition was finally taken on March 5, 2002, and the hearing was concluded.
The proposed findings of fact of the Agency were filed on May 17, 2002. Petitioner did not file proposed findings;
however, he filed a lengthy letter outlining his position regarding the case.
The Agency called the following as witnesses at the final hearing: Brenda Turner, an Agency employee who conducted the audit of Petitioner; Margerite Johnson, a registered nursing consultant who testified as to Medicaid's policies; and
Dr. Larry Deeb, a licensed pediatrician who testified as a peer to the professional practices of Petitioner. In addition to his live testimony, the depositions of Dr. Deeb on January 31, 2002; February 4, 2002; February 14, 2002; and February 15, 2002, were submitted in lieu of trial testimony. The Agency introduced into evidence a series of exhibits which are listed in Appendix A to this order. The exhibits are referred to in this order as P-# and R-# and are contained in an appendix to this recommended order.
Petitioner offered his own testimony and one exhibit, the contents of which were also included in Respondent's exhibits which are listed in an appendix to this recommended order.
FINDINGS OF FACT
Petitioner is a licensed pediatrician who provided services to Medicaid beneficiaries.
Petitioner voluntarily signed a Medicaid Provider Agreement, and was subject to all of the duly-enacted statutes, rules, and policies pertaining to Medicaid providers.
On January 10, 2001, the Agency issued a Final Agency Audit Report (Audit Report), requesting Petitioner to reimburse the Agency $42,713.15, for certain services Petitioner rendered to Medicaid recipients between October 19, 1997, and October 19, 1999. (R-4, pg. 1)
The determination of overpayment was based upon audit findings that the services provided by Petitioner did not meet the Medicaid criteria. These criteria include: lack of medical necessity; lack of documentation for the services rendered to support the higher level of office visit billed; medical records inappropriately maintained; the required elements for early periodic screening for diagnosis and treatment services not performed; services erroneously coded on submitted claims; evaluation and management services improperly documented in the medical records; laboratory tests improperly billed; two billing codes used in instances in which one code incorporates the elements of the other; new patient billing codes used for patients who did not meet the requisite new patient criteria; and evaluation and management services billed absent the requisite face-to-face encounter. (R-4, pgs. 2-3)
Testimony of Brenda Turner
Brenda Turner testified at hearing on May 22, 2001, in Tallahassee, Florida.
Ms. Turner is a human services program specialist employed by the Bureau of Medicaid Program Integrity at the Agency.
As a human services program specialist, Ms. Turner's primary responsibility is to conduct audits of Medicaid providers.
The Agency performed an audit of Petitioner's Medicaid billings for the period October 1997 through October 1999.
As part of this audit, the Agency generated a list of
31 Medicaid recipients (cluster sample) rendered services by Petitioner during the audit period. These medical records (R-6) were examined by Ms. Turner, Ms. Johnson, and Dr. Deeb. In addition, the Agency generated work papers of the total amount Petitioner billed during the audit period, the total number of recipients Petitioner rendered services to during the audit period, and the total times Petitioner billed any claim. (R-11)
Ms. Turner completed a summary report of her on-site visit. The primary finding of her report was that Petitioner did not have on-site the appropriate equipment for certain services for which Petitioner had submitted claims.
Subsequent to an on-site visit of Petitioner's office in December 1999 by Agency staff, Petitioner was asked to provide the Agency with answers to a questionnaire and medical records relating to the cluster sample.
Petitioner submitted medical records for the cluster sample as requested by the Agency. These records were given to an Agency registered nursing consultant, Margerite Johnson, and physician consultant, Dr. Larry Deeb, for review.
After their review, Ms. Johnson and Dr. Deeb provided Ms. Turner with worksheets outlining their review findings and a medical record review report. (R-16)
Based upon the information contained in the worksheets and medical record review report, including the total claims, the total amount billed, and the total amount disallowed,
Ms. Turner used a statistical program to calculate with a computer the amount Petitioner was overpaid during the audit period.
The statistical methodology utilized by the Agency in determining the overpayment amount was not contested and was not an issue.
Petitioner was sent a preliminary letter notifying him of the calculated overpayment amount.
Subsequent to his receipt of the preliminary letter, Petitioner submitted additional documentation to contest the audit findings.
Petitioner's additional documentation was submitted to Ms. Johnson and Dr. Deeb for review.
Ms. Johnson and Dr. Deeb produced a second medical record report review containing findings which they gave to Ms. Turner. (R-16)
Based upon the conclusions of the second medical record report, Ms. Turner recalculated the amount Petitioner was overpaid during the audit period. (R-10)
The Agency sent Petitioner a final agency action letter on January 10, 2001, setting forth the recalculated overpayment amount of $42,713.15.
Testimony of Margerite Johnson
Margerite Johnson testified at hearing on May 22, 2001, in Tallahassee, Florida.
Ms. Johnson is a registered nursing consultant employed by the Bureau of Medicaid Program Integrity at the Agency.
As part of her duties with the Agency, Ms. Johnson reviews medical records to determine whether they are compliant with the current Physician's Procedural Terminology Manual and Medicaid policies, including the Medicaid Provider Reimbursement Handbook, HCFA-1500 and Child Health Check-Up, the Physician's Coverage and Limitations Handbook, and the EPSDT Coverage and Limitations Handbook.
Ms. Johnson received medical record review sheets listing all of the claims submitted by Petitioner for the cluster sample during the audit period. She also received the medical records submitted by Petitioner pertaining to the cluster sample. Ms. Johnson reviewed these materials to ensure that documentation was provided for each service listed on the review sheets and that the medical records complied with Medicaid policy.
Ms. Johnson wrote a report of the policy violations she observed during her review of the medical record review sheets and corresponding medical records. She then transmitted to Dr. Deeb for further review, her report, the medical record review sheets, and the medical records provided by Petitioner.
Subsequent to Dr. Deeb's review, the medical records and medical record review sheets with Dr. Deeb's comments were returned to Ms. Johnson.
Based on Dr. Deeb's notations on the medical record review sheets, Ms. Johnson indicated on the medical record review sheets whether a claim should be allowed, adjusted, or denied. For those claims on which a determination was made that the claim should be adjusted or denied, Ms. Johnson indicated the difference between the amount the Agency paid for the claim and the amount the Florida Medicaid Management System providers should have been paid for the type of service rendered.
Ms. Johnson also indicated the reason for the denial of the claim on the medical record review sheets.
Using the information from the medical record review sheets, Ms. Johnson prepared a report that sets forth the policy findings by Ms. Johnson and the medical necessity and level of care findings by Dr. Deeb. (R-16)
As indicated on the medical record review report
(R-16), Ms. Johnson identified several claims from the cluster sample where the medical records maintained by Petitioner did not contain appropriate documentation of the billed services. (R-46) After reviewing all of the documentation provided by Petitioner, including the additional documentation that was not contemporaneous with the actual date of services, Ms. Johnson determined that there were no records in the files for the claims set forth in Respondent's Exhibit No. 46.
An examination of the entries on R-46 for the Patients 1, 3, and 7, and comparison with the record of visits in R-6 reveal that there are records present for all the visits except those for Patient #1 and Patient #7 on 9-1-98. Having discovered so many records which were supposedly present, R-46 was determined to be grossly inaccurate as a listing of visits without records and rejected.
Because Ms. Johnson determined that there were no records in the files for the claims set forth in Respondent's Exhibit No. 46 as required by the Medicaid Provider Reimbursement Handbooks, she concluded that said claims should be denied. This was clearly an error in fact.
In addition, Ms. Johnson identified ten claims that were an early and periodic screening diagnosis and treatment (EPSDT), or well-child examinations. Chapter 3 of the EPSDT Coverage and Limitations Handbook provides regarding EPSDT reimbursement that, "The fee includes all the screening components and the diagnosis and treatment of problems that can be diagnosed and treated during screening, such as early otitis media." However, it goes on to say, "Under federal law, Florida must provide medically necessary treatments, as described below, for all medical conditions that are diagnosed during EPSDT screening. Once the recipient is screened, any further diagnoses and treatments are provided through the applicable Medicaid program, such as physician services." See Page 2-2, Chapter 2.
There are numerous components in the EPSDT screening.
If the provider "vaguely mentions" the required components, Ms. Johnson will approve the corresponding claims.
Ms. Johnson's three claims involved lead screenings, which were not performed during an EPSDT visit.
Page 2-13, Chapter 2, states regarding required laboratory tests for lead, "Providers must perform lead poisoning and risk assessment, blood lead testing, and counseling and document the results in the recipient's medical record." Regarding Blood Lead Testing, Page 3-2, Chapter 3 of the EPSDT Coverage and Limitations Handbook provides regarding EPSDT Reimbursement, "Certain providers may also be reimbursed for blood lead testing and other laboratory services." On the same page, Chapter 3, goes on to state, "In addition to the EPSDT screening, certain providers may be reimbursed blood lead testing through their provider specific Medicaid programs, such as physician services."
Petitioner pointed out without contradiction that his clinic was too far from the laboratory to perform a blood test for lead because the test is time critical. He could assess risk and could counsel patients, but he could not submit a valid test for blood lead. Petitioner referred patients to the Health Department for lead testing.
The fee for the EPSDT examination was reduced by $40 to pay an amount equal to the 213 service code. There is no suggestion that the value of the lead blood test is $40.
The EPSDT screening requires taking various examinations, extensive history, and counseling of the parent. As pointed out elsewhere, the examinations are part of and
compensated as part of the EPSDT screen. Although the visit fee was reduced, there is no evidence that Petitioner was compensated for audiometry, and similar tests included in the EPSDT screen fee.
The audit revealed EPSDT screening billed on the same date as evaluation and management services or office visit.
(R-51)
Page 2-62 of the November 1997 Physician Coverage and Limitations Handbook provides that Code W9881, the code for an EPSDT screening, is considered a visit code and is "not reimbursable in addition to an office, home, or hospital visit." (R-27, pg. 4)
Page 2-3 of the July 1997 EPSDT Coverage and Limitations Handbook provides that "[b]ased on his medical discretion, a provider should not perform an EPSDT screening on an obviously sick recipient, because the illness may distort the screening results."
If the patient is sick when he or she presents for an EPSDT visit, the provider should treat or refer the recipient for the illness and reschedule the screening appointment.
(R-32, pg. 3)
Dr. Deeb reviewed the records submitted by Petitioner for those claims where an EPSDT screening and evaluation and
management services were simultaneously billed, and determined that both procedures were not medically necessary.
Ms. Johnson gave Petitioner credit for the more expensive of the two billed procedures when an EPSDT and an office visits were billed for the same recipient on the same date of service, but not both. As stated above, the record does not reflect Petitioner was similarly credited with tests normally included in EPSDT screens which are not part of an office visit. (R-16, pg. 1, 3)
Ms. Johnson identified 12 claims from the cluster sample that were erroneously coded. (R-49, pg. 1) However, the Agency concedes and withdraws its allegations that the 12 claims listed in Respondent's Exhibit No. 49 were in error.
Ms. Johnson also identified two claims from the cluster sample where Petitioner billed for an office visit when immunizations were the only documented services rendered. Page 2-37 of the Physician's Coverage and Limitations Handbook provides that "[e]valuation and management (E&M) services are reimbursable in addition to the injectable medicine service, provided the visit is for a separate and identifiable service and the services are documented in the medical record." There was no indication in Petitioner's records that a separate and identifiable service was also rendered on the date the immunizations were provided. (R-41) Accordingly, the claims
for an office visit where immunizations were the only documented services rendered should be denied. (R-16)
Ms. Johnson identified four claims from the cluster sample where Petitioner billed for hemoglobin and hematocrit tests as procedures separate from the general office visit. (R-43) These were improper billings since the costs for the
hematocrit and hemoglobin procedures were included in the amount of money Petitioner was already reimbursed for an office visit.
Page 2-49 of the January 1996 Physician's Coverage and Limitations Handbook provides that ". . . fingerstick hemoglobin and hematocrit performed as part of a physician visit are not reimbursed in addition to the physician visit. The provider may not bill for them as separate procedures." This same language appears on page 2-63 of the November 1997 Physician's Coverage and Limitations Handbook. Page 2-73 of the January 1999 Physician's Coverage and Limitations Handbook provides that
". . . hemoglobin and hematocrit performed as part of a physician visit are not reimbursed in addition to the physician visit. The provider may not bill for them as separate procedures."
Petitioner submitted claims for a pure tone audiometry, procedure code 92552, on the same day and for the same recipients that he submitted claims for EPSDT. (R-48) EPSDT, or early and periodic screening diagnosis and treatment,
is a multiple component comprehensive exam of a well-child, and includes a standardized hearing test. Pure tone audiometry is included in the billing code for an EPSDT screening, and the audiometry and EPSDT screening should not be billed simultaneously.
Page 2-12 of the December 1996 and the July 1997 EPSDT Coverage and Limitations Handbooks provide that a Medicaid provider "must perform a hearing screening on all recipients at each EPSDT screening." (R-32, pg. 11) Accordingly, Ms. Johnson concluded that the claims for a pure tone audiometry submitted simultaneously with the EPSDT screenings should be denied.
(R-16, pg. 2, 4)
Ms. Johnson identified one claim in which Petitioner billed for a new patient visit for a patient who had been previously seen by Petitioner. (R-42) The Physician's Coverage and Limitations Handbook defines a new patient as "one who has not received any professional services from a physician or another physician of the same specialty who belongs to the same group practice, within the past three years." An established patient "is one who has received professional services from a physician . . . within the past three years." The Handbook provides that only "[o]ne new patient visit may be reimbursed once per recipient." Accordingly, Ms. Johnson concluded that the claim for a new patient who was previously rendered services
should be denied. (R-16, pg. 4) However, Ms. Johnson treated the visit as a relatively simple doctor's visit, a 213. The records reveal the patient, an infant, presented holding both ears, spitting up since its formula was changed, and had continual constipation. Petitioner spent a great deal of time diagnosing and treating the patient. Under the criteria stated by Dr. Deeb, the patient presented with more than one problem involving more than one body system, and required a complex diagnosis. This visit was not a simple 213 office visit.
In her Medical Record Review Report, Ms. Johnson determined that Petitioner had billed Medicaid "for dipstick urine, which is all-inclusive in the office visit." (R-16 & 44)
Page 2-49 of the January 1996 Physician's Coverage and Limitations Handbook provides that "[d]ipstick urine . . . performed as part of a physician visit are not reimbursed in addition to the physician visit. The provider may not bill for them as separate procedures." This same language appears on Page 2-63 of the November 1997 Physician's Coverage and Limitations Handbook. Page 2-73 of the January 1999 Physician's Coverage and Limitations Handbook provides that "[m]annual or automated dipstick urine . . . performed as part of a physician visit are not reimbursed in addition to the physician visit. The provider may not bill for them as separate procedures."
Accordingly, Ms. Johnson concluded that the claims for dipstick urine in addition to the physician visit should be denied. (R-16, pg. 4)
Ms. Johnson identified one claim in which Petitioner billed Medicaid for a test performed by an independent lab. (R-47, pg. 1)
Page 2-45 of the January 1996 Physician's Coverage and Limitations Handbook provides that services for specimens sent to an independent laboratory are reimbursed to the independent laboratory. (R-47, pg. 2) This same language appears on Pages 2-57 of the November 1997 Physician's Coverage and Limitations Handbook and Pages 2-67 of the January 1999 Physician's Coverage and Limitations Handbook. (R-47, pg. 3, 5)
Accordingly, Ms. Johnson concluded that the claim for the test performed by the independent laboratory should be denied. (R-16, pg. 4)
Ms. Johnson identified one claim in which Petitioner billed Medicaid for an office visit where no patient contact was documented. (R-16, pg. 2; R-45) However, the Agency concedes on this issue, and would adjust its claim accordingly.
The Medical Record Review Report, Respondent's Exhibit No. 16, reflects the sum of Ms. Johnson's conclusions after conducting two reviews of Petitioner's records regarding why certain claims should be denied. The totals stated in R-16,
which is a compilation of the other exhibits including R-46, are wrong.
Testimony of Dr. Larry Deeb
Dr. Larry Deeb testified at hearing on May 22, 2001, in Tallahassee, Florida. In addition, the deposition of
Dr. Deeb on January 31, 2002; February 4, 2002; February 14, 2002; and February 15, 2002, was offered in lieu of trial testimony. (Notice of Continuing Deposition, 2/7/02)
Dr. Deeb is a licensed pediatrician, certified by the American Board of Pediatrics in both pediatrics and pediatric endocrinology. (R-1)
Dr. Deeb currently practices pediatric medicine.
Dr. Deeb is a peer of Petitioner.
In addition, Dr. Deeb has served as a consultant for the Medicaid program since 1981. Dr. Deeb testified that he has conducted peer reviews of Medicaid providers for the Agency for
20 years.
Medical records of the audited patients were introduced. Testimony from the auditors indicated that some records were initially obtained from Petitioner, and in reply to their initial letter, additional records were provided. There was also testimony that only contemporaneous records could be considered in substantiating whether a procedure or services were medically necessary. All materials included in
Respondent's Exhibit No. 6, to include those documents indicated to be "Additional Documents," were examined and considered.
Dr. Deeb was provided a set of documents, which were entered into evidence as Respondent's Exhibit No. 6, by the Agency. Dr. Deeb was asked by Ms. Johnson to review Respondent's Exhibit No. 6 and determine "the level of service provided for the actual visits, and . . . the medical necessity of the visits and/or the ancillary services provided."
After conducting his initial review of Petitioner's records, Dr. Deeb reviewed all of the additional documentation Petitioner provided to rebut Dr. Deeb's initial conclusions.
After Dr. Deeb concluded his review of the documents included in Respondent's Exhibit No. 6, he returned the documents, his notations on the medical record review sheets, and a short memo of his conclusions to Ms. Johnson. (R-16)
In reviewing Petitioner's records, Dr. Deeb determined that the claims submitted to Medicaid reflected a "significant inflation of the level of service," included charges for "prolonged physician attendance" without justification, and contained "wholesale billing for tympanometry."
Dr. Deeb observed that "[v]irtually every patient had a tympanometry," regardless of the condition or symptoms the patient demonstrated to Petitioner. A tympanogram is a graph of how well the ear drum moves and is used to diagnose inner ear
infections or otitis media. Dr. Deeb concluded that Petitioner repeatedly billed Medicaid for tympanometry services when the documentation in the medical records did not indicate that the services were medically necessary. Petitioner admitted that he gave a tympanogram to nearly every patient he saw without regard to their presenting complaint based upon his experience with young patients.
Dr. Deeb testified concerning medically appropriate conditions for billing tympanometry. It is medically necessary to confirm a diagnosis when one is not sure, and to confirm if the patient has improved.
A review of the 31 patient records reveals that 211 tympanograms were performed. Of these, the Agency found that seven were reimbursable. The Agency would deny compensation for
17 of 18 tympanograms performed during well-child visits because they are included in the services and fees to be provided. It would approve one procedure which was performed during a well- child visit and reveal the patient had an inner ear infection. A careful review of the 211 tympanograms performed reveals 98 other instances in which the tympanogram performed revealed a child had an inner ear infection or in which the procedure was performed to respond to a specific complaint related to the patient's ears, and was appropriately billed and paid under the
principles outlined by Dr. Deeb. See Vol. I, Page 93 of Transcript of Proceedings.
When making a determination about level of service, Dr. Deeb relies on the current Procedural Terminology Handbook published by the American Medical Association. The current Procedural Terminology Handbook is used by the medical community, the Agency, the Health Care Financing Administration, and most private insurers "as the methodology for billing and payment."
The level of service codes varies according to the complexity of the office visit. The level of service code depends upon three elements: "the complexity of the history, the detail of the physical examination, and the medical decision-making complexity."
There are five levels of service for repeat office visits, ranging from 99211 through 99215, depending upon the complexity of the visit. A 211 is a visit in which the patient is seen by staff and a 212 would be a very simple case, i.e., taking out stitches and checking a wound. In Dr. Deeb's experience, "the vast majority of visits in a pediatrician's office are 213s." Dr. Deeb observed "there were significant numbers of 99214s and 215s billed where the complexity and the data provided didn't justify" in the records he examined.
Mentioned specifically and emphatically was the failure to take a detailed history on a follow-up visit. A review of the records indicates that Petitioner took careful histories on his patients' past medical involvement, family histories, and social histories upon initially examining a patient or when the patient presented with a complaint. His notes frequently reflect detailed interaction with a patient presenting with a sore throat regarding the patients hyper- activity, behavior in school, and grades. The records also reveal patients who developed over time more complex medical problems.
Further, these records indicate time spent was spent on some medical condition the patient had and which was mentioned in the clinical notes maintained by Petitioner. This conforms to Dr. Deeb's working definition provided for "medical necessity."
Dr. Deeb testified that Petitioner's records contained no documentation that Petitioner spent additional time with the patient. The Physician's current Procedural Terminology Handbook "allows the physician to charge when they are there for additional time." The records contained in R-6 reveal that in the overwhelming majority of cases Petitioner documented additional time spent with his patients.
The treatment by the Agency of Petitioner's billing for Patient #8 is particularly at odds with the standards which the Agency maintains that it follows. Patient #8 was a nine- day-old infant who presented for an EPSDT visit. The visit revealed a cardiac problem which resulted in its transfer to Shand's Emergency Room by ambulance. All Petitioner's notes apparently were not copied because they state "over," indicating added notes were made on the back of the form; however, there are sufficient notes contained in the record to support Petitioner's claim for extra time and for a complex visit.
Continuing with Patient #8, the record reflects a patient with significant continuing problems who was transported to the emergency room on two more occasions, once after the infant stopped breathing. The Agency wants to reduce this code for this patient's visits to 214 on the occasion of its transport to Shand's and again after it stopped breathing. The Agency wants to reduce the code for the visit when cardiac testing was repeated from 215 to 213. The notes reflect that the child was in for testing, but presented with a cough it had had since birth and was still prone to super ventricular tachycardia. In sum, Patient #8 was a complex patient with complex problems requiring high level thinking, the criteria for a high level visit.
Dr. Deeb indicated in his testimony the scale ran from 212, a re-check visit, to 213, a simple medical problem, to 214, a more complex medical problem or multiple medical problems, to 215, which were very complex problem or problems.
The reductions proposed in the billing codes for many of Petitioner's patient visits are inconsistent with the standards expressed by Dr. Deeb, as evidenced by the audit recommendations with regard to Patient #8. A similar pattern occurs with other patients generally or with regard to specific visits. It should be remembered that some patients' conditions changed over time to become more complex. Others presented on one occasion with several things occurring at the same time. In either instance, they presented a situation beyond that of a simple patient. See Patients 9(4-12-99), 12, 15, 16(6-8-99), 17, 23, 24, 25, 26(1-21-99 & 4-6-99), 27, 28(5-28-99 & 6-17-99), 29(9-3-99), and 30(4-21-97).
The auditors proposed to reduce not only the code applicable to the visit, but to deny the claim for additional time. A review of the record reveals instances in which, even if a reduction in the code were warranted, there was a medical need for spending additional time with the patient and it was documented in Petitioner's records. This included time spent counseling patients, obtaining added history about their behavior and performance in school, and discussing referrals
with parents. In most instances, Petitioner's spending extra time coincided with a complex patient presenting with more complex medical problems.
The auditors conclusions regarding Patient #26's visit of 5-11-99 is consistent with Dr. Deeb's testimony. Unfortunately, the audit conclusions with regard to treatment of Patient #26 on other dates are consistent with Dr. Deeb's testimony regarding the standards of review, as are the conclusions reached with regard to other patients. Using the standard applied to the visit of 5-11-99 of Patient #26, very few of the proposed reductions would be as deep as the agency would propose, and others would not be reduced at all.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Chapter 120, Florida Statutes.
The Agency is responsible for administering the Florida Medicaid program, and is required to "operate a program to oversee the activities of Medicaid recipients, and providers and their representatives, to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible." Section 409.913, Florida Statutes (2001).
When Petitioner decided to become a Medicaid provider, he executed a document according to Section 409.907, Florida
Statutes, whereby he agreed to abide by the provisions of the Florida Statutes and the policies, procedures, and manuals of the Florida Medicaid program. This commitment continued throughout the audit period.
The Agency must "conduct, or cause to be conducted by contract or otherwise, reviews, investigations, analyses, audits, or any combination thereof, to determine possible fraud, abuse, overpayment, or recipient neglect in the Medicaid program and shall report the findings of any overpayments in audit reports as appropriate." Section 409.913(2), Florida Statutes (2001). For purposes of this requirement, "'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(1)(d), Florida Statutes (2001).
The audit process which led to the determination of overpayment to Petitioner was initiated by the Agency in accordance with Section 409.913(2), Florida Statutes (2001), and Section 409.913(19), Florida Statutes (2001).
The Agency has the burden of proving that Petitioner was overpaid for the Medicaid services delivered to recipients. See South Medical Services, Inc. v. Agency for Health Care
Administration, 653 So. 2d 400 (Fla. 3d DCA 1995). This proof must be by a preponderance of the evidence. See Id.
Section 409.913(21), Florida Statutes (2001), provides that: "The audit report, supported by agency work papers, showing an overpayment to a provider constitutes evidence of the overpayment." See Maz Pharmaceuticals, Inc. v. Agency for
Health Care Administration, DOAH Case No. 97-3791, 1998 WL 870139 (Recommended Order issued March 20, 1998). Section 409.913(21), Florida Statutes, provides that "[t]he audit report, supported by agency work papers, showing an overpayment to the provider constitutes evidence of the overpayment." It should be noted that the Administrative Law Judge (ALJ) in Maz, supra, was addressing a case in which the provider's attack on the audit was based upon it being hearsay. The ALJ held that the provisions of Section 409.912(21), Florida Statutes, overcame the provisions of Section 120.57(1)(c), Florida Statutes, that a finding cannot be based upon hearsay. The provider did not otherwise attack the audit or its procedure.
Section 409.913(21), supra, does not stand for the proposition that the agency's audits are unassailable. An audit is open to attack on the basis that any factual compilation may be attacked.
In this case, the statistical methods used by the agency in its determination of the Medicaid overpayment were not
attacked. The Agency generated an audit report demonstrating the methodology in calculating the overpayment, as set forth in Respondent's Exhibit No. 4. The Agency provided Petitioner with this audit report pursuant to Section 409.913(20), Florida Statutes.
The Agency has offered the testimony of Margerite Johnson and Dr. Larry Deeb in support of the Agency's audit conclusions as contained in its audit report. The Agency's spreadsheets (R-39 through 50) and medical record review reports (R-16) were introduced.
The statutes, rules, regulations, and handbooks in effect during the period for which the services were provided govern the outcome of the dispute. See Toma v. Agency for Health Care Administration, DOAH Case No. 95-2419 (1996). The Agency clearly established the handbook provisions containing the billing procedures to which Petitioner was required to adhere in effect throughout the audit period. (R-20 through 22 and 26-32)
The Agency established that Dr. Deeb is an active practicing physician of the same specialty or subspecialty as Petitioner and, thus, qualifies as a peer under Section 409.9131(2)(d), Florida Statutes.
The issue presented is whether the amount sought to be recovered based upon the audit is correct. The Agency has
withdrawn its allegations that the 12 claims listed in Respondent's Exhibit No. 49 and the one claim listed in Respondent's Exhibit No. 45 were in error. The Agency has adjusted the overpayment accordingly, and the new overpayment calculation is $42,404.93.
There are several aspects of the proof regarding the amount sought to be recovered that are wanting. First, there is the matter of the tympanograms. Dr. Deeb testified that he found the wholesale administration of tympanograms suspect and without medical necessity. Later in his testimony, Dr. Deeb stated that there were two grounds for having a tympanogram: to resolve one's diagnosis if one was uncertain, and to determine after treatment if the situation had been resolved.
Having reviewed all of the medical records presented, only a few were identified in which payment for a tympanogram was permitted, generally in a check-up situation. However, a myriad of diagnosis of "OM" or Otitis Media, infection of the inner ear, were observed. There were several more patients who presented with the complaint that they were pulling at their ears. Notwithstanding a diagnosis that the patient had Otitis Media, or a diagnosis that they did not have Otitis Media, the Agency seeks to deny payment for the tympanogram. Also, "credit" was not given for many of the instances when the
patient diagnosed with Otitis Media was given a tympanogram when re-checked.
The records of the audit are inconsistent with the standards enunciated by Dr. Deeb auditors as it relates to typanograms. While there were cases in which a tympanogram was administered to a patient presenting with an unrelated complaint, the overall record indicates that about half the tympanograms were medically necessary. The audit findings are in error. This error is compounded because it constitutes a significant number of the total errors in the audit, which was statistically applied to all claims inflating the recovery figure.
Regarding issues of medical necessity as they arise in the context of the audit, Section 409.913(1)(c), Florida Statutes, provides: "Medical necessity" or "medically necessary" means any goods or services necessary to palliate the effects of a terminal condition, or to prevent, diagnose, correct, cure, alleviate, or preclude deterioration of a condition that threatens life, causes pain or suffering, or results in illness or infirmity, which goods or services are provided in accordance with generally accepted standards of medical practice. For purposes of determining Medicaid reimbursement, the agency is the final arbiter of medical necessity. "Determinations of medical necessity must be made by
a licensed physician employed by or under contract with the agency and must be based upon information available at the time the goods or services are provided."
As mentioned above, Dr. Deeb was employed by the agency and determined to be a peer of Petitioner. He offered his opinion regarding the medical necessity of the level of services provided by Petitioner. The agency based its audit report upon his opinion. However, in matters related to administrative adjudication, these proceedings are de novo and the fact finder stands in the position of the agency head, who is the final arbiter of medical necessity. Therefore, while the testimony of the agency physician is admissible, it is not unassailable, and it must be internally consistent with the reviewing physician's stated criteria.
Regarding the audit findings that office visit codes were inflated, Dr. Deeb testified that he had reviewed the visits of the 31 patients in the sample and had found many instances in which the code was greater than the records supported. His testimony was similar regarding the related findings that there were too many extended visits that were undocumented. He concluded that these were medically unnecessary. Dr. Deeb, in outlining the criteria for assessing a revisit, stressed again and again the need for detailed
medical histories, multiple complaints, multiple systems, and complex diagnosis.
The records examined reflect that in those instances in which added time was taken with a patient, i.e., it was an extended office visit, there was a record made in all but one or two occasions. The notes made by Petitioner reflect counseling, discussion of the patient's condition with the parent, discussion and consideration of many aspects of the patients' physical and mental health, referrals to other care givers, and consideration and discussions of reports received back from other care givers. Several of the patients, who were the recipient of a great portion of these services, were patients who had several problems. Many presented with multiple problems.
Dr. Deeb testified with regard to one of the patients audited that he could easily change his categorization of the treatment code, and raise it considering all of the factors involved. There were many more of these types of visits within the totality of the patients audited based upon a review of all of the records about which Dr. Deeb was unable to specifically testify. With regard to this aspect of the audit, when there are notes to reflect what Petitioner did, and, where the patient was very young, had more than one medical or similar problem, or was very sick, there is no basis for adjustment regarding the
treatment code or charge for extended visit under the criteria stated.
The Agency alleges wholesale inflation of treatment codes. The Agency showed that in some instances there was an overcharge. There were dual charges for service, i.e., EPSDT visit with a charge for some office procedure or visit in combination. However, at least half the claimed reductions cannot be sustained by an examination of the record. There was some inflation of service codes in about fifty percent of the cases; however, where reduction was justified, the reduction imposed by the Agency is to a level which is inconsistent with the narrative provided regarding the classification of services. However, no evidence is presented upon the cash value of any of the services provided, and no dollar adjustment to the sample can be made.
The means of feeding this information back into the statistical formula does not exist. Further, all of the alleged overpayments do not involve the same amount of money.
Therefore, while it can be said unhesitatingly that the instant audit does not warrant the recovery of $42,000, it is impossible to say how much should be recovered.
"[O]nce the Agency has put on a prima facie case of overpayment--which may involve no more than moving a properly- supported audit report into evidence--the provider is obligated
to come forward to rebut, impeach, or otherwise undermine the Agency's statutorily-authorized evidence." Recommended Order, Full Health Care, Inc. vs. Agency for Health Care Administration, DOAH Case No. 00-4441 (citing Maz Pharmaceuticals, DOAH Case No. 97-3791). However, although the Agency presented some evidence of overpayments in a number of cases, it has not proven by a preponderance of the evidence the value of the amount to be reimbursed. Further, review of the records reveals that the amount claimed is grossly inaccurate.
Being unable to approve the Agency's audit numbers or to arrive at an alternative figure for the reasons stated, a recommendation cannot be made regarding the amount to be recouped.
The only avenue open to the Agency is to recompute the amount claimed based on the findings herein and file a new claim letter on Petitioner.
Any revision to the audit numbers would create a new point of entry for Petitioner; however, the factual determination made in these proceedings would be res judicata in any future proceedings, and Petitioner would be collaterally estopped from raising issues in future proceedings that could have been raised in these proceedings.
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED:
That Respondent recompute the claim and re-file against the Petitioner, who would have a limited right to contest the new claim.
DONE AND ENTERED this 19th day of July, 2002, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN
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 19th day of July, 2002.
COPIES FURNISHED:
Anthony L. Conticello, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308-5403
Tony C. Rich
1710 Northwest 42nd Street Gainesville, Florida 32605
Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3431 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.
APPENDIX
At the final hearing, the Agency offered into evidence the following exhibits:
Respondent's No. 1, the Curriculum Vitae of Larry Deeb, M.D.;
Respondent's No. 4, the Final Agency Audit Report dated January 10, 2001;
Respondent's No. 6, documents from Petitioner and Agency worksheets relating to the 31 patient clusters and 727 claims which are the basis of the audit;
Respondent's No. 8, the ad hoc request;
Respondent's No. 10, the overpayment calculation using cluster sampling;
Respondent's No. 11, the M.I.S. statistical sample and certification documents;
Respondent's No. 13, the audit provider questionnaire;
Respondent's No. 14, the audit information certification of production of documents signed by Petitioner;
Respondent's No. 15, the summary of the on-site investigation dated December 29, 1999;
Respondent's No. 16, the medical record review reports by Larry Deeb, M.D., and Margerite Johnson, R.N., dated February 29, 2000, and December 28, 2000;
Respondent's No. 20, excerpts from the 1997 Physician's Current Procedural Terminology Handbook;
Respondent's No. 21, excerpts from the 1998 Physician's Current Procedural Terminology Handbook;
Respondent's No. 22, excerpts from the 1999 Physician's Current Procedural Terminology Handbook;
Respondent's No. 26, excerpts from the August 1995 Physician's Coverage and Limitations Handbook;
Respondent's No. 27, excerpts from the November 1997 Physician's Coverage and Limitations Handbook;
Respondent's No. 28, excerpts from the January 1999 Physician's Coverage and Limitations Handbook;
Respondent's No. 29, excerpts from the November 1996 Medicaid Provider Reimbursement Handbook, HCFA-1500 and Child Health Check-Up 221;
Respondent's No. 30, excerpts from the July 1999 Medicaid Provider Reimbursement Handbook, HCFA-1500 and Child Health Check-Up 221;
Respondent's No. 31, excerpts from the December 1996 EPSDT Coverage and Limitations Handbook;
Respondent's No. 32, excerpts from the July 1997 EPSDT Coverage and Limitations Handbook;
Respondent's No. 39, the "No Medical Necessity" spreadsheet prepared by Brenda Turner and excerpts from the Medicaid Provider Reimbursement Handbooks, HCFA-1500 and Child Health Check-Up 221 and Physician's Coverage and Limitations Handbooks;
Respondent's No. 40, the "Levels of Service" spreadsheet prepared by Brenda Turner and excerpts from the Physician's Coverage and Limitations Handbooks;
Respondent's No. 41, the "Immunizations Only Billed OV" spreadsheet prepared by Brenda Turner and excerpts from the Physician's Coverage and Limitations Handbooks;
Respondent's No. 42, the "New PT Visit for Established PT" spreadsheet prepared by Brenda Turner and excerpts from the Physician's Coverage and Limitations Handbooks;
Respondent's No. 43, the "Hemoglobin and Hematocrit" spreadsheet prepared by Brenda Turner and excerpts from the Physician's Coverage and Limitations Handbooks;
Respondent's No. 44, the "Dipstick Urine" spreadsheet prepared by Brenda Turner and excerpts from the Physician's Coverage and Limitations Handbooks;
aa. Respondent's No. 45, the "RX Refill Only Billed OV" spreadsheet prepared by Brenda Turner and excerpts from the Physician's Coverage and Limitations Handbooks;
bb. Respondent's No. 46, the "No Record" spreadsheet prepared by Brenda Turner and excerpts from the Medicaid Provider Reimbursement handbooks, HCFA-1500 and Child Health Check-Up 221;
cc. Respondent's No. 47, the "Outside Lab" spreadsheet prepared by Brenda Turner and excerpts from the Physician's Coverage and Limitations Handbooks;
dd. Respondent's No. 48, the "Hearing Screening and EPSDT" spreadsheet prepared by Brenda Turner and correspondence;
ee. Respondent's No. 49, the "Erroneously Coded" spreadsheet prepared by Brenda Turner, correspondence, and excerpts from the Physician's Coverage and Limitations Handbooks;
ff. Respondent's No. 50, the "Incomplete EPSDT" spreadsheet prepared by Brenda Turner and excerpts from the EPSDT Coverage and Limitations Handbooks; and,
gg. Respondent's No. 51, the EPSDT and OV SDOS" spreadsheet prepared by Brenda Turner and excerpts from the EPSDT Coverage and Limitations Handbooks.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 10, 2005 | Agency Final Order | |
| Jul. 19, 2002 | Recommended Order | Agency`s audit was not totally proved up. Therefore, it must be recomputed based on findings, and re-notice. Res judicata and collateral estoppel limit the issues on rehearing greatly. |
ADOLFO S. GALVEZ vs AGENCY FOR HEALTH CARE ADMINISTRATION, 01-001150MPI (2001)
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AGENCY FOR HEALTH CARE ADMINISTRATION vs FLORIDA HOSPITAL ORLANDO, 01-001150MPI (2001)
