vs.
Respondent.
) Case No. 03-0773MPI
Pursuant to notice, a final hearing was conducted in this case on July 29, 2003, in Tallahassee, Florida, before
Michael M. Parrish, an Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Lawrence R. Metsch, Esquire
Metsch & Metsch, P.A.
Whether Petitioner received Medicaid overpayments and, if so, the total amount of the overpayments.
The final hearing in this case was held on July 29, 2003.
The Agency for Health Care Administration ("AHCA" or "Respondent") presented the testimony of two Agency employees: Claire Cohen, a Medical Health Care Program Analyst, and Ellen Williams, an Agency administrator. AHCA also offered nine documentary exhibits and Petitioner offered four exhibits. All of the exhibits were received into evidence. Petitioner, R & R Medical Supply, Inc. ("Petitioner") also presented the testimony of Rosa Paula, an employee of Petitioner and the wife of the owner of Petitioner.
The deadline for filing proposed recommended orders was August 28, 2003. The transcript of the final hearing was filed with the Division of Administrative Hearings on August 14, 2003.
On August 28, 2003, the Agency filed a Proposed Recommended Order containing proposed findings of fact and conclusions of law. Petitioner filed a Proposed Recommended Order on
September 2, 2003. Both Proposed Recommended Orders were considered prior to the entry of this Recommended Order.
All citations to the Florida Statutes are to the current version of those statutes, unless otherwise indicated.
AHCA is charged with administration of the Medicaid program in Florida pursuant to Section 409.907, Florida Statutes.
Petitioner is a durable medical equipment provider that provided Medicaid services to Medicaid beneficiaries pursuant to a valid Medicaid Provider Agreement with AHCA under provider number 9512721 00.
Petitioner was an authorized Medicaid provider during the period of October 1, 1999, through September 30, 2001, which is the audit period at issue here.
AHCA conducted an audit of paid Medicaid claims for services claimed to have been performed by Petitioner from October 1, 1000, through September 30, 2001.
On October 16, 2002, AHCA issued a Final Agency Audit Report ("FAAR") requesting Petitioner to reimburse AHCA in the amount of $28,407.90, for Medicaid claims submitted by and paid to Petitioner, for services allegedly rendered during the audit period.
When the FAAR was issued, AHCA's claims for overpayment were based upon audit findings that paid Medicaid claims for certain services performed by Petitioner did not meet Medicaid requirements. The deficiencies in the subject Medicaid claims included a lack of documentation of required medication for
nebulizer equipment, payments in excess of allowable total amounts for rent-to-purchase equipment, and payments for portable oxygen with a lack of documentation that the attending practitioner has ordered a program of exercise or an activity program for therapeutic purposes, that the recommended activities cannot be accomplished by the use of stationary oxygen service, and that the use of a portable oxygen system during exercise or activity results in improvement in the individual's ability to perform the exercises or activities.
During the subject audit period, the applicable statutes, rules, and Medicaid handbooks required Petitioner to retain all medical, fiscal, professional, and business records on all services provided to a Medicaid recipient. Petitioner had to retain these records for at least five years from the dates of service.
Petitioner had a duty to make sure that each claim was true and accurate and was for goods and services that were provided in accordance with the requirements of Medicaid rules, handbooks, and policies, and in accordance with federal and state law.
Medicaid providers who do not comply with the Medicaid documentation and record retention policies may be subject to administrative sanctions and/or recoupment of Medicaid payments.
Medicaid payments for services that lack required documentation and/or appropriate signatures will be recouped.
Claire Cohen, AHCA's analyst, generated a random list of 30 Medicaid recipients (cluster sample) who had received services by Petitioner during the audit period. In addition, AHCA generated work papers revealing the following: the total number of Medicaid recipients during the audit period; the total claims of Petitioner, with dates of services; the total amount of money paid to the Petitioner during the audit period; and worksheets representing the analyst's review of each recipient's claims for the audit period.
After Ms. Cohen reviewed the medical records and documentation provided by Petitioner, she reviewed the Medicaid handbook requirements, and arrived at a figure of $7,572.13 as the total overpayment for all cluster sample claims.
Using the Agency's formula for calculating the extrapolated overpayment, Ms. Cohen determined that the overpayment in this case amounted to $29,703.63.
Ms. Cohen then prepared the June 20, 2002, Preliminary Agency Audit Report (PAAR) and mailed it to Petitioner. At that point, the case was reassigned to Ellen Williams, a program analyst/investigator.
Ms. Williams reviewed additional documentation submitted by Petitioner, and on October 16, 2002, issued on
behalf of AHCA, the FAAR, which reduced the alleged overpayment to $28,407.90. Part of this reduction resulted from Petitioner's paying $369.97 to satisfy the issue concerning payments in excess of allowable totals for rent-to-purchase equipment. At the hearing, Ms. Williams testified that the adjusted overpayment amount was $27,473.27.
The formula used by AHCA is a valid statistical formula, the random sample used by the Agency was statistically significant, the cluster sample was random, and the algebraic formula and the statistical formula used by AHCA are valid formulas.
The DME/Medical Supply Services Coverage and Limitations Handbook provides, in part:
Medicaid reimburses for portable oxygen when a practitioner prescribes activities requiring portable oxygen. The oxygen provider must document the following information in the recipient's record:
the recipient qualifies for oxygen service; the attending practitioner has ordered a program of exercise or an activity program for therapeutic purposes;
the recommended exercises or activities cannot be accomplished by the use of stationary oxygen services; and
the use of a portable oxygen system during the activity or exercise results in an improvement in the individual's ability to perform the activities and exercises.
The DME/Medical Supply Services Coverage and Limitations Handbook also provides, in part:
Medicaid may reimburse for a nebulizer if the recipient's ability to breathe is severely impaired. The documentation of medial necessity must include required medications.
The following payments are claimed by AHCA to be overpayments for failure to provide documentation of medical necessity and required medications:
Recipient Date of Service Procedure Overpayment 4 7/19/00 E0570 $106.70
9 6/30/00 E0570 $106.70
10 10/24/00 E0570 $106.70
14 02/15/00 E0570 $106.70
16 05/08/00 E0570 $106.70
23 06/09/00 E0570 $106.70
26 06/14/00 E0570 $106.70
The remaining overpayments claimed by AHCA concern the failure to document that the attending practitioner had ordered a program of exercise or an activity program for therapeutic purposes that required the use of a portable oxygen system.
The Medicaid Provider Reimbursement Handbook provides, in part, that "Records must be retained for a period of at least five years from the date of service." The types of records that must be retained include "patient treatment plans" and "prescription records." The handbook goes on to provide in pertinent part:
Medical records must state the necessity for and the extent of services provided. The following minimum requirements may vary according to the services rendered:
* * *
Treatment plan, including prescriptions; Medications, supplies, scheduling frequency for follow-up or other services;
Progress reports, treatment rendered;
* * *
Note: See the service-specific Coverage and Limitations Handbook for record keeping requirements that are specific to a particular service.
Providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid Payments.
Medicaid payments for services that lack required documentation or appropriate signatures will be recouped.
Note: See Chapter 5 in this handbook for information on administrative sanctions and Medicaid payment recoupment.
Petitioner, through its owners and operators, is of the view that it does not need to have the documentation on file, and it does not ask physicians for details about their prescriptions, "because that's something private from doctors and patient."
Petitioner, by signing a Medicaid Provider agreement, agreed that all submissions for payment of claims for services
will constitute a certification that the services were provided in accordance with local, state, and federal laws, as well as rules and regulations applicable to the Medicaid program, including the Medical Provider Handbooks issued by AHCA.
Petitioner routinely obtained from Medicaid beneficiaries to whom it provides goods or services a written statement authorizing other healthcare provides to furnish any information needed to determine benefits.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57(1).
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. 3d DCA 1995).
Rule 59G-4.070, Florida Administrative Code, provides:
59G-4.070 Durable Medical Equipment and Supplies.
This rule applies to all durable medical equipment and supply providers enrolled in the Medicaid program.
All durable medical equipment and supply providers enrolled in the Medicaid program must comply with the Florida Medicaid Durable Equipment and Supply Services Coverage and Limitations Handbook, April 1998, incorporated by reference, and
the Florida Medicaid Provider Reimbursement Handbook, HCFA 1500 and EPSDT 221, incorporated by reference in 59G-5.020.
Both handbooks are available from the Medicaid fiscal agent.
The statute, rules, and handbooks in effect during the audit period govern the outcome of the dispute. See Toma v. Agency for Health Care Administration, DOAH Case No. 95-2419.
Section 409.913 relates to AHCA's oversight of the integrity of the Medicaid program and provides that AHCA may recover overpayments from providers.
"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).
Section 409.913(7) 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:
* * *
(b) Are Medicaid-covered goods or services that are medically necessary.
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.
AHCA has the authority to require a provider to repay amounts received for goods and services that are inappropriate, medically unnecessary, or excessive. Section 409.913(10).
Regarding the audit report and AHCA work papers, Section 409.913(21) states, in part, as follows: "The audit report, supported by agency work papers, showing an overpayment to a provider constitutes evidence of the overpayment." AHCA presented its audit report, supported by agency work papers, and AHCA presented stipulated revisions to the audit report. AHCA met its prima facie burden of proving that Petitioner received a Medicaid overpayment in the amount of $27,473.27. Petitioner presented no persuasive or credible evidence to the contrary.
As stated in Full Health Care, Inc. v. Agency for Health Care Administration, DOAH Case No. 00-4441 (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."
Although Petitioner's representative testified that she disagreed with AHCA's interpretations of Medicaid policies and handbook provisions, she cited no authority to support her contentions and presented no evidence to rebut, impeach, or otherwise undermine AHCA's evidence on these issues.
The audit process that led to AHCA's assertion of overpayment was initiated by AHCA in accordance with Section 409.913, Florida Statutes (1999); and it was completed in accordance with Sections 409.913, Florida Statutes (2000 and 2001), and 409.9131, Florida Statutes (2000 and 2001).
AHCA met its burden of proof, as is reflected in the Findings of Fact set forth above, that Petitioner was overpaid the total of $27,473.27 for Medicaid claims paid to Petitioner during the audit period. In reaching this conclusion the undersigned has not overlooked Petitioner's arguments based on Section 395.3025 concerning the confidentiality of patient records. Section 395.3025 recognizes that patients may consent to disclosure of their patient records and Respondent's
Exhibit 7 reveals that Petitioner has been obtaining such consent on a routine basis.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency issue a final order requiring Petitioner to reimburse the Agency for Medicaid overpayments in the total amount of $27,473.27, plus such interest as may statutorily accrue.
DONE AND ENTERED this 22nd day of September, 2003, in Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2003.
Lawrence R. Metsch, Esquire Metsch & Metsch, P.A.
Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3
Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431
Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116
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.
