vs.
Respondent.
) Case No. 02-3014MPI
A formal hearing was conducted in this case on October 8, 2002, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
For Respondent: Anthony L. Conticello, Esquire
Grant P. Dearborn, Esquire
The issue is whether Petitioner received a Medicaid overpayment in the amount of $11,077.65 for claims filed between April 15, 1998, and December 31, 2001.
In a Final Audit Report dated May 9, 2002, Respondent Agency for Health Care Administration (Respondent) advised Petitioner Hal Cowen (Petitioner) that he had been overpaid
$13,522.02 in Medicaid reimbursement for claims that were, in whole or in part, not covered by Medicaid. Specifically, Respondent claimed that Petitioner had violated Medicaid policy by providing certain free services to his non-Medicaid patients and charging his Medicaid patients for the same services. The free services that Petitioner provided to his non-Medicaid patients were a free initial office examination and up to two free X-rays.
In a letter dated May 23, 2002, Petitioner requested an administrative hearing to contest the denied claims. Respondent referred Petitioner's request to the Division of Administrative Hearings on July 30, 2002.
The Division of Administrative Hearings issued an Initial Order On July 31, 2002. Petitioner and Respondent filed unilateral responses to the Initial Order on August 5 and August 7, 2002, respectively.
On or about August 8, 2002, Respondent served Petitioner with Respondent's First Interrogatories to Petitioner, Respondent's First Request for Admissions, and Respondent's First Request to Produce. Respondent's First Request to Produce
specifically requested Petitioner to produce any and all "Medicaid related records" relative to all of the patients and corresponding individual claims that Medicaid is claiming, in whole or in part, were overpayments.
A Notice of Hearing dated August 19, 2002, scheduled the hearing for October 9, 2002.
On August 22, 2002, Respondent filed a Motion to Reset Final Hearing Date. Petitioner filed a Request for Change of Hearing date on August 23, 2002. The undersigned issued an Amended Notice of Hearing dated August 27, 2002, rescheduling the hearing for October 8, 2002.
Petitioner's one-page Response to Respondent's Request for Documents and Petitioner's answers to Respondent First Interrogatories to Petitioner were filed on September 20, 2002.
Respondent's Witness List and Exhibit List were filed on September 23, 2002.
On or about September 24, 2002, Respondent took Petitioner's deposition. Subsequent to that deposition, Respondent adjusted its audit findings, reducing the overpayment determination to $11,077.65.
Petitioner's Exhibit List and Witness List were filed on October 2, 2002. Respondent's unilateral Pre-Hearing Statement was filed that same day.
During the hearing, Respondent presented the testimony of one witness. Respondent offered Exhibit No. R1-R2, R8-R11, R13-R19, R21, R23, and R30, which were accepted into evidence.
Petitioner testified on his own behalf but did not present the testimony of any other witnesses. Petitioner's only exhibit was Exhibit No. P1, which was accepted into evidence.
The Transcript of the proceeding was filed on October 22, 2002. The parties filed their proposed findings of fact and conclusions of law on November 1, 2002.
On November 12, 2002, Respondent filed a Motion to Strike Improper Attachments and Argument in Petitioner's Proposed Recommended Order. The motion is hereby granted, in part. The attachments to Petitioner's Proposed Recommended Order are not admitted as evidence. However, to the extent that Petitioner's testimony supports his argument, the motion is denied.
Respondent is the agency responsible for administering the Florida Medicaid Program. One of its duties is to recover Medicaid overpayments from physicians providing care to Medicaid recipients.
Petitioner is a licensed chiropractor in the State of Florida. His Medicaid provider number is No. 3801578-00.
At all times relevant here, Petitioner provided services to Medicaid patients pursuant to a valid Medicaid
provider agreement. Therefore, Respondent was subject to all statutes, rules, and policy guidelines that govern Medicaid providers.
Specifically, Petitioner was required to follow the guidelines set forth in the Medicaid Coverage and Limitation Handbook and the Medicaid Reimbursement Handbook. Additionally, Petitioner was required to maintain all "Medicaid-related records" that supported his Medicaid invoices and claims and to furnish those records to Respondent upon request.
In 1997 and until April 1998, Petitioner's advertisement in the yellow pages of the Panama City, Florida, telephone book invited the public to make an appointment for a "free spinal exam," which specifically included two X-rays, if medically necessary. The advertisement indicated that Petitioner's office accepted patients with major medical insurance, workers' compensation insurance, and Medicare and Medicaid coverage.
The advertisement did not specifically exclude Medicare and Medicaid patients, but specifically stated that the free spinal exam did not include further examination, treatment, or workers' compensation and personal injury cases. However, Petitioner's subsequent advertisements in the telephone book specifically included Medicaid as a type of case that Petitioner excluded from the offer of free services.
The original and subsequent advertisements further stated as follows:
Our office policy: The patient and any other person responsible for payment has the right to cancel payment, or be reimbursed for payment for any other service, exam, or treatment which is performed as a result of and within 72 hours of responding to the ad for the free service, exam or treatment. ($99.00 value)
Respondent's investigator, Julie Canfield-Buddin, saw the advertisement excluding Medicaid patients as recipients of the free services. After confirming that Petitioner was a Medicaid provider, Ms. Canfield-Buddin performed an audit of Petitioner's paid Medicaid claims between April 15, 1998, and December 31, 2001.
The audit revealed that Petitioner had not provided the advertised free services to Medicaid patients. In other words, Petitioner had received Medicaid reimbursements for initial office visits and X-rays of new patients who were Medicaid eligible. Petitioner received reimbursements for these services even though Medicaid policy prohibits payments to providers for services that are given to non-Medicaid patients free of charge.
In April 2002, Respondent sent Petitioner a preliminary audit report. The preliminary report indicated that for the period beginning April 15, 1998, up to and including December 31, 2001, Petitioner had received $13,522.02 for
certain claims that were not covered by Medicaid. The report included a request for Petitioner to send Respondent that amount for the Medicaid overpayment.
After receiving the preliminary report, Petitioner's office contacted Ms. Canfield-Buddin, stating that Petitioner had some issues with the denied claims. Ms. Canfield-Buddin responded that Petitioner should state his concerns in writing and furnish Respondent with any additional medical documentation that would serve to reduce the overpayment.
Petitioner sent Ms. Canfield-Buddin a letter dated April 25, 2002. Petitioner did not send Respondent any additional medical documentation with the letter to substantiate his position regarding the denied claims. Additionally, Petitioner did not provide Respondent with any written office policy that delineated any difference in the services provided to Medicaid and non-Medicaid patients.
In a final audit report dated May 9, 2002, Respondent informed Petitioner that he had been overpaid $13,522.02 for Medicaid claims that, in whole or in part, were not covered by Medicaid. The final audit report included a request for Petitioner to pay that amount for the Medicaid overpayment.
Ms. Canfield-Buddin subsequently received a telephone call from Petitioner's office on May 30, 2002. She received
Petitioner's written request for a formal administrative hearing on June 3, 2002.
After receiving Petitioner's request for a hearing, Ms. Canfield-Buddin reviewed Petitioner's account statements that related to the Medicaid overpayments. Based on that review, Ms. Canfield-Buddin reduced the amount of overpayment to
$11,077.65. The revised overpayment reversed denied charges for X-rays of Medicaid patients in excess of the two X-rays that should have been provided free of charge pursuant to the offer for free services.
For example, Petitioner was reimbursed for services provided to B.A. on August 10, 2001. These charges included an initial office visit under the Current Procedures Terminology (CPT) code 99203, two X-rays under the CPT code 7240, two X-rays under the CPT code 72072, and two or three X-rays under the
CPT code 72100. The final audit denied reimbursement for all charges except the two or three X-rays under CPT code 72100. The revised overpayment reversed the denied charges for two
X-rays under the CPT code 72070. The end result was that Respondent denied Petitioner reimbursement only for the initial office visit and two X-rays that ordinarily would have been provided free to non-Medicaid patients.
Medicaid allows reimbursement for services equal to the lesser of the Medicaid fee or the provider's usual and
customary charge. Petitioner's advertisement offered free services to the public at large with certain exceptions.
Petitioner cannot exclude Medicaid patients from that offer by also excluding patients with personal injury or workers' compensation claims.
All patients who are not Medicaid eligible are
non-Medicaid patients regardless of their payment source. Just because Petitioner excludes free services to non-Medicaid patients with personal injury and workers' compensation claims, does not mean that he can deny those free services to Medicaid patients when his usual and customary practice is to provide the services free to non-Medicaid patients.
Some of the denied charges at issue here allegedly involve spinal manipulations that Petitioner claims he performed on Medicaid patients during their initial office visits. Medicaid reimbursement policy requires a spinal manipulation performed during an initial office visit under a 99203 CPT code for a new patient visit to be included as part of the examination conducted during that visit. Medicaid does not allow Petitioner to be separately reimbursed for a spinal manipulation performed on the same day of service as an initial office visit.
Petitioner did not include more than two X-rays or any spinal manipulations in his offer of free services for any
patient. When a patient has an initial office visit in response to Petitioner's offer of free services, Petitioner first takes the patient's history, performs an examination, and reviews the first two free X-rays. Depending on the results of the evaluation, Petitioner may or may not advise the patient that additional X-rays and/or a spinal manipulation are medically necessary. Petitioner then allows the patient to arrange for payment of those services with his office staff.
If the patient is non-Medicaid eligible and is able to pay for services, Petitioner proceeds to take the additional
X-rays and/or to perform the spinal manipulation immediately or during a subsequent visit with payment due as arranged. If a non-Medicaid patient requires subsequent examinations during the course of treatment, Petitioner bills the patient or his or her insurance carrier for those services.
If the patient is Medicaid eligible, Petitioner may either proceed with taking the X-rays and/or performing the spinal examination immediately, knowing that he will not be separately reimbursed for the spinal manipulation, or make an appointment for the Medicaid patient to return on another day so that he can be reimbursed for the spinal manipulation. In any event, Medicaid regulations do not allow reimbursement for further examinations within a three-year period.
During the hearing, Petitioner testified that some of the denied charges for initial office visits under the CPT code 99203 included spinal manipulations that he never intended to be free and that he did not provide spinal manipulations as a free service to non-Medicaid patients. Petitioner's testimony in this regard is not credited for two reasons. First, he did not produce any medical documentation to support his testimony as to any Medicaid patient receiving a spinal manipulation during an initial office visit. Second, he did not identify any such patient during his testimony.
Respondent performs Medicaid audits after a provider renders services. Therefore, it is essential for providers like Petitioner, who contest denied claims, to be able to substantiate their billing with appropriate documentation. Such documentation must be created at the time of service, maintained pursuant to statutory and rule requirements, and furnished to Respondent upon request. Petitioner never responded to
Ms. Canfield-Buddin's request for medical documentation to substantiate Petitioner's challenge to the denied claims.
Additionally, Petitioner testified that the services he performed for some Medicaid patients were not equivalent to the free services he performed for non-Medicaid patients because they often involved a higher level of service, including additional services, tests, or examinations. According to
Petitioner, some of the Medicaid patients required more extensive screening and counseling that consumed more of Petitioner's time.
Despite this testimony, Petitioner admitted that the histories he took of Medicaid patients and non-Medicaid patients were basically the same. Petitioner testified that the difference in the level of service provided to all patients varied based upon the individual patients and did not depend on whether they were or were not Medicaid patients. He had no written or unwritten guidelines or policies that limited the scope of screening or level of service in an initial office visit for either type of patient.
Petitioner's testimony that the level of services provided to Medicaid patients differed from the level of services offered to non-Medicaid patients is not persuasive. Once again, Petitioner failed to provide the required medical documentation to support his testimony or to identify in his testimony Medicaid patients who required a higher level of service.
Moreover, Petitioner knew, when he made his offer of free services, that he would not be able to claim reimbursement for services provided to Medicaid patients that were not separately reimbursable even if Petitioner was entitled to exclude Medicaid patients from the offer. This includes cases
where a Medicaid patient may have required a high level of service in terms of the time expended during the screening or a spinal manipulation during the initial office visit.
Petitioner provides free services to members of his family. The provision of free services to family does not establish that Petitioner had a usual and customary practice of providing free services.
At times, Petitioner treats police officers and indigent persons free of charge. However, Petitioner does not publicly advertise that he treats these patients free of charge because he does not want to be overrun with people taking advantage of the offer. There is no persuasive evidence that Petitioner routinely treats police officers covered by private health insurance and indigent patients covered by Medicaid free of charge. Therefore, it cannot be said that Petitioner's usual and customary practice is to furnish services to these patients free of charge.
A Medicaid provider is allowed to use the CPT code 99203 for a new patient visit once per recipient every three years. Petitioner's offer of free services for non-Medicaid patients allows them one free office visit and two free X-rays regardless of the passage of time. According to Petitioner, this means that Respondent's interpretation of Medicare regulations would entitle a Medicaid patient to the free
services every three years whereas a non-Medicaid patient would not be so entitled, showing yet another difference in the services provided to Medicaid and non-Medicaid patients under the offer of free services. However, Petitioner's testimony in this regard is not persuasive because it is not based on medical documentation or testimony showing that Petitioner ever treated a Medicaid patient as a new patient more than once.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes.
Respondent has the burden of proving by a preponderance of the evidence that Petitioner was overpaid for services delivered to Medicaid recipients. See South Medical
Services, Inc. v. Agency for Health Care Administration, 653 So. 2d 440 (Fla. 3rd DCA 1995).
Section 409.907, Florida Statutes, governs Medicaid provider agreements. The agreements require providers to "retain all medical and Medicaid-related records for a period of 5 years to satisfy all necessary inquiries by the agency." Section 409.907(3)(c), Florida Statutes. The agreements also require providers to "permit the agency . . . access to all Medicaid-related information . . . and other information
pertaining to services or goods billed to the Medicaid program. . . ." Section 409.907(3)(e), Florida Statutes.
Section 409.913, Florida Statutes, which relates to Respondent's oversight of the integrity of the Medicaid program, states that
The agency shall operate a program to oversee the activities of Florida Medicaid recipients, and providers and their representatives, to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible, and to recover overpayments and impose sanctions as appropriate.
Section 409.913(1)(c), Florida Statutes, states as follows in pertinent part:
. . . 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.
"Overpayment" is defined as "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.
Section 409.913(2), Florida Statutes, states as follows:
(2) The agency shall conduct, or cause to be conducted by contract or otherwise, review, investigation, 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(7), Florida Statutes, states as follows in relevant part:
(7) When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that:
* * *
Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state, and local law.
Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient's medical record.
Section 409.913(8), Florida Statutes, states as follows in relevant part:
(8) A Medicaid provider shall retain medical, professional, financial, and business records pertaining to services and goods furnished to a Medicaid recipient and bill to Medicaid for a period of 5 years after the date of furnishing such services or goods. The agency may investigate, review, or analyze such records, which must be made available during normal business hours. . . The provider is responsible for furnishing to the agency, and keeping the agency informed of the location of, the provider's Medicaid-related records.
Respondent has authority to require a provider to repay amounts received for goods and services that are inappropriate, medically unnecessary, or excessive. Section 409.913(10), Florida Statutes.
In the instant case, Respondent made its determination of overpayment to Petitioner using accepted and valid auditing, accounting, and analytical review methods as required by Section 409.913(19), Florida Statutes. Regarding the audit report and agency work papers, Section 409.913(21), Florida Statutes, states as follows:
(21) The audit report, supported by agency work papers, showing an overpayment to a provider constitutes evidence of the overpayment. A provider may not present or elicit testimony, either on direct examination or cross-examination in any court or administrative proceeding, regarding the purchase or acquisition by any means of drugs, goods, or supplies; sales or divestment by any means of drugs, goods, or supplies; or inventory of drugs, goods, or supplies, unless such acquisition, sales, divestment, or inventory is documented by
written notices, written inventory records, or other competent written documentary evidence maintained in the normal course of the provider's business.
Chapter Two of the Chiropractic Coverage and Limitations Handbook relates to covered services, limitations, and exclusions. At all times relevant to this case, the handbook, as revised and updated, stated that the new patient visit, which is reimbursable only once per provider per recipient, consists of a screening and any required manipulation of the spine. According to the handbook, a new patient is one who has not received any professional services from the chiropractic physician or another physician of the same specialty who belongs to the same group practice, within the past three years. The handbook also states that the CPT code for a new patient visit is 99203.
Chapter One of the Medicaid Provider Reimbursement Handbook, HCFA-1500 and EPSDT 221, relate to the Florida Medicaid Program. At all times relevant to this case, the handbook, as revised and updated, states as follows relative to free health care: "Medicaid will not reimburse services for Medicaid recipients if non-Medicaid recipients are provided the same services free of charge." The only exceptions to this provision are not relevant here.
In this case, Respondent met its prima facie burden of proving that Petitioner received an overpayment in the amount of
$11,077.65. Petitioner, on the other hand, presented no persuasive evidence to the contrary. In fact, he presented no medical documentation whatsoever to support his position that the services provided for his Medicaid patients differed from the free services provided to his non-Medicaid patients.
Petitioner's testimony did not identify even one such Medicaid patient.
As stated in Full Health Care, Inc. v. Agency for
Health Care Administration, DOAH Case No. 00-4441 (Recommended Order, June 25, 2001), "once 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 with written proof to rebut, impeach, or otherwise undermine the Agency's statutorily-authorized evidence; it cannot simply present witnesses to say that the Agency lacks evidence or is mistaken."
Finally, Petitioner's case for the most part consisted of his disagreement with Respondent's interpretation of the statutes and Medicaid policies. However, he cited no authority to support his contention that the policy regarding free health care did not apply to the audited services.
That Respondent enter a final order determining that Petitioner owes $11,077.65 for Medicaid reimbursement overpayments.
DONE AND ENTERED this 18th day of November, 2002, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2002.
Anthony L. Conticello, Esquire Grant P. Dearborn, Esquire
Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive
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.
