STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JULES G. MINKES, D.O., )
)
Petitioner, )
)
vs. ) Case No. 03-1186MPI
)
AGENCY FOR HEALTH CARE )
ADMINISTRATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case pursuant to Section 120.569, Florida Statutes, and Section 120.57(1), Florida Statutes, on June 11 through 13, 26, 27, 2003, and July 16, 2003, in Tallahassee, Florida, before Stuart
Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Daniel C. Minkes, Esquire
9765 184th Street
Miami, Florida 33157
For Respondent: Anthony L. Conticello, Esquire
Garnett W. Chisenhall, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308-5403
STATEMENT OF THE ISSUES
Whether Medicaid overpayments were made to Petitioner and, if so, what is the total amount of those overpayments.
PRELIMINARY STATEMENT
By letter dated June 29, 1999, the Agency for Health Care Administration (AHCA) advised Petitioner that, following a "review of [Petitioner's] Medicaid claims specified [in the letter] for dates of service during the period March 1, 1996, through March 17, 1998," it had been determined that Petitioner had been "overpaid $94,208.27 for claims that in whole or in part [were] not covered by Medicaid." AHCA further advised Petitioner in the letter, among other things, that he had "the right to request a formal or informal hearing pursuant to section 120.57, F.S." on this overpayment determination.
Petitioner subsequently requested a "formal hearing."
On October 26, 1999, the matter was referred to the Division of Administrative Hearings (Division or DOAH) for the assignment of a Division Administrative Law Judge to conduct the hearing Petitioner had requested. The case was docketed by the Division Clerk as DOAH Case No. 99-4537. The final hearing was originally scheduled for March 21 through 23, 2000, but was subsequently continued and rescheduled five times. On July 2, 2001, AHCA filed a motion requesting that, because Petitioner had not timely responded to AHCA's discovery requests, an order
be entered "(1) precluding Petitioner from calling any witnesses or using sworn testimony at the Final Hearing except Jules Minkes; and (2) precluding Petitioner from using any exhibits or documents in any way at the Final Hearing except those already provided to AHCA prior to the date of this Motion[;] [and] (3) [granting] such other relief as this Court deems just and proper." Oral argument on AHCA's motion was held on July 16, 2001, by telephone conference call, during which Petitioner requested a continuance of the final hearing (scheduled to commence on July 19, 2001). That same day (July 16, 2001), Division Administrative Law Judge Linda M. Rigot issued an order granting AHCA's motion and denying Petitioner's continuance request. On July 18, 2001, the day before the scheduled commencement of the final hearing, Petitioner filed a Notice of Withdrawal of Petition for Formal Hearing, which read as follows:
Petitioner, JULES G. MINKES, D.O., by and through his undersigned counsel, and following telephone conference between counsel before the Administrative Law Judge, hereby withdraws his petition for formal hearing as follows:
The petition for formal hearing is hereby withdrawn effective Thursday, July 19, 2001, at 9:30 a.m.
The petition is being withdrawn in light of petitioner's impending filing for bankruptcy protection and for the purpose of avoiding possible unnecessary expenditures
by the Agency for Health Care Administration ("Agency") and the Division of Administrative Hearings.
Petitioner understands that the Agency reserves all rights in accordance with the withdrawal of the petition and the right to file a claim in bankruptcy court in accordance with applicable law.
The Agency understands that Dr. Minkes makes no admissions by withdrawing his petition and reserves the right to dispute any claim the Agency may file in bankruptcy court.
Counsel for Petitioner has contacted counsel for the Agency and is authorized to represent that the Agency agrees and concurs with the language of this notice.[1]
WHEREFORE, Petitioner, JULES G. MINKES,
D.O., hereby withdraws his petition for formal hearing effective Thursday, July 19, 2001, at 9:30 a.m.
On July 19, 2001, in light of Petitioner's withdrawal of his request for a formal hearing, Judge Rigot issued an order closing the file of the Division in DOAH Case No. 99-4537.
On July 25, 2001, AHCA issued a final order finding that "Petitioner was overpaid $94,208.27," as alleged in its June 29, 1999, letter to Petitioner. Petitioner appealed this final agency action to the Third District Court of Appeal (Third District).2 The Third District, in a decision rendered on October 23, 2002, "reverse[d] the agency's final order and remand[ed] for an evidentiary hearing on the amount of the overpayment to appellant." AHCA filed a motion for
clarification. On January 10, 2003, the Third District granted the motion and directed that Petitioner, on remand, "refile a petition for formal hearing within twenty (20) days of issuance of [its] mandate."
Petitioner refilled a Petition for Formal Hearing with AHCA on January 31, 2003. On April 1, 2003, AHCA referred the matter back to the Division, requesting that a Division Administrative Law Judge once again be assigned to conduct a "formal hearing" on Petitioner's challenge to AHCA's $94,208.27 overpayment determination (which AHCA had announced more than three and a- half years earlier in its June 29, 1999, letter to Petitioner and which was still proposed agency action as a result of the Third District's reversal of AHCA's final order and remand "for an evidentiary hearing on the amount of the overpayment"3). The Division Clerk assigned the case a new case number, DOAH Case No. 03-1186MPI, notwithstanding that the proceedings on remand would be a continuation of those in DOAH Case No. 99-4537. See Pollock v. T & M Investments, Inc., 420 So. 2d 99, 103 (Fla. 3d DCA 1982)("[T]here will of necessity be a continuation of these proceedings in the trial court upon remand . . . ."). An Initial Order was issued and sent to the parties on April 2, 2003. It advised the parties that the case had been assigned to the undersigned and directed the parties to, among other things, advise the undersigned in writing, within seven days of the date
of the order, "all dates more than 30 and less than 70 days from the date of this Order" on which they would be available for hearing.
On April 9, 2003, AHCA served on Petitioner (by United States Mail) and filed with the Division a Unilateral Response to Initial Order, in which it stated the following:
Counsel for Respondent has been unable to contact counsel for Petitioner.
There are no known related cases before the Division of Administrative Hearings.
It is estimated that three (3) days will be required to conduct a final hearing in this matter.
The Respondent requests that the hearing be held in Tallahassee, Florida. Respondent cites Florida Statute 409.913(27)
(2001 . . .) as grounds for its venue request.
Respondent is available for hearing the week of June 9-13, 2003.
Petitioner did not file any response to the Initial Order. On April 11, 2003, the undersigned issued a Notice of
Hearing, setting the instant case for final hearing on June 11 through 13, 2003, in Tallahassee, Florida. The notice was sent to the parties by United States Mail. Also on April 11, 2003, the undersigned issued an Order of Pre-Hearing Instructions, which provided as follows:
This cause having been scheduled for final hearing, it is, therefore,
ORDERED that:
Counsel for all parties shall meet no later than 15 days prior to the date for final hearing in this cause and shall:
Discuss the possibility of settlement;
Stipulate to as many facts and issues as possible;
Prepare the pre-hearing stipulation as required by this Order;
Examine all exhibits (except for impeachment exhibits) proposed to be offered into evidence at the hearing;
Furnish opposing counsel the names and addresses of all witnesses (except for impeachment witnesses); and
Complete all other matters which may expedite the hearing in this case.
Counsel for Respondent shall initiate arrangements for the attorneys' conferences. However, all attorneys in this cause are charged with the duty of meeting in such conferences and of complying with the schedule set forth in this Order.
The pre-hearing stipulation shall contain:
A concise statement of the nature of the controversy;
A brief, general statement of each party's position;
A list of all exhibits (except for impeachment exhibits) to be offered at the hearing, noting any objections thereto, and the grounds for each objection;
A list of the names and addresses of all witnesses (except for impeachment witnesses) to be called at the hearing by each party, with expert witnesses being so designated;
A concise statement of those facts which are admitted and will require no proof at hearing, together with any reservations directed to such admission;
A concise statement of those issues of law on which there is agreement;
A concise statement of those issues of fact which remain to be litigated;
A concise statement of those issues of law which remain for determination by the Administrative Law Judge;
A concise statement of any disagreement as to the application of the rules of evidence;
A list of all pending motions or other matters which require action by the Administrative Law Judge;
An estimate as to the length of time required for the hearing; and
The signature of counsel for all parties.
The parties shall file their pre-hearing stipulation no later than 10 days prior to the date set for final hearing in this cause. If for any reason the pre-hearing stipulation cannot be executed by all counsel, each attorney shall file and serve a separate proposed pre-hearing statement not later than 7 days before the final hearing with a statement of reasons why no agreement was reached on the stipulation. Failure to comply with the requirements of this Order may result in the exclusion of
witnesses or exhibits not previously disclosed.
On May 22, 2003, AHCA filed an Emergency Motion to Compel Discovery Responses and to Deem Facts Admitted in the instant case. Oral argument on the motion was heard by telephone conference call on May 23, 2003. On May 27, 2003, the undersigned issued an Order Granting Motion to Compel, which provided as follows:
Respondent's Motion to Compel is granted. Petitioner shall furnish Respondent full and complete responses to Respondent's interrogatories and request for production no later than 5:00 p.m. on
May 28, 2003.
Inasmuch as Petitioner has not timely served any response to Respondent's Request for Admissions, the matters set forth in the request are admitted by operation of Rule 1.370(a), Florida Rules of Civil Procedure.
The matters set forth in AHCA's Request for Admissions (and deemed admitted pursuant to Florida Rule of Civil Procedure 1.370(a)) were as follows:
EXHIBITS AND PETITIONER'S MEDICAID- RELATED INFORMATION
Petitioner was an authorized Medicaid provider during the period of March 1, 1996 through March 17, 1998.
During the audit period, Petitioner had been issued Medicaid provider number 0466301-00.
During the Audit Period, Petitioner had a valid Medicaid Provider agreement(s) with AHCA.
Attached hereto and identified as Exhibit A is a true and correct copy of the Final Agency Audit Report dated June 29, 1999.
Attached hereto and identified as Exhibit B are true and correct copies of the Petitioner's 1996 and 1983 provider agreements.
Attached hereto and identified as Exhibit C is a true and correct copy of the Petitioner's provider enrollment file.
Attached hereto and identified as Exhibit D is a true and correct copy of the Petitioner's July 17, 1998 Medicaid Provider Questionnaire.
Attached hereto and identified as Exhibit E is the Petitioner's request for a formal administrative hearing.
Attached hereto and identified as Exhibit F are pages 3-1 from the August 1995 Physician[s'] Coverage and Limitations Handbook and 3-2 from the January 1996 Physician Coverage and Limitations Handbook.
Attached hereto and identified as Exhibit G are pages 3-1 and 3-2 from the November 1997 Physician[s'] Coverage and Limitations Handbook.
Attached hereto and identified as Exhibit H are pages 3-1 and 3-2 from the January 2000 Physician[s'] Coverage and Limitations Handbook.
Attached hereto and identified as Exhibit I is an excerpt from the 1996 version of the Physician[s'] Current Procedural Terminology Handbook.
Attached hereto and identified as Exhibit J is an excerpt from the 1997 version of the Physician[s'] Current Procedural Terminology Handbook.
Attached hereto and identified as Exhibit K is an excerpt from the 1998 version of the Physician[s'] Current Procedural Terminology Handbook.
Attached hereto and identified as Exhibit L are the 1995 HCFA documentation guidelines for Evaluation and Management Services.
Attached hereto and identified as Exhibit M are the 1997 HCFA documentation guidelines for Evaluation and Management Services.
Attached hereto and identified as Exhibit N is page 1-3 from the August 1995 Physician Coverage and Limitations Handbook.
Attached hereto and identified as Exhibit O is page 2-2 from the November 1997 Physician Coverage and Limitations Handbook.
Attached hereto and identified as Exhibit P is page D-6 from the November 1994 Medicaid Provider Reimbursement Handbook, HCFA-1500.
Attached hereto and identified as Exhibit Q is page D-9 from the November 1996 Medicaid Provider Reimbursement Handbook, HCFA-1500.
Attached hereto and identified as Exhibit R is page D-10 from the July 1999 Medicaid Provider Reimbursement Handbook, HCFA-1500.
Attached hereto and identified as Exhibit S are pages 2-12 and 2-13 from the
March 1996 Medicaid Provider Reimbursement Handbook, HCFA-1500.
Attached hereto and identified as Exhibit T are pages 2-12 and 2-13 from the November 1996 Medicaid Provider Reimbursement Handbook, HCFA-1500.
Attached hereto and identified as Exhibit U is page 1-3 from the August 1995 Physician Coverage and Limitations Handbook.
Attached hereto and identified as Exhibit V is page 1-4 from the November 1997 Physician Coverage and Limitations Handbook.
Attached hereto and identified as Exhibit W are pages 2-2, 2-5, and 2-6 from the November 1996 Medicaid Provider Reimbursement Handbook, HCFA-1500.
Attached hereto and identified as Exhibit X are pages 2-2, 2-5, and 2-6 from the March 1996 Medicaid Provider Reimbursement Handbook, HCFA-1500.
Attached hereto and identified as Exhibit Y is page 1-3 from the August 1995 Physician Coverage and Limitations Handbook.
Attached hereto and identified as Exhibit Z are pages 1-5 and 1-6 from the November 1997 Physician Coverage and Limitations Handbook.
APPLICABLE LAWS, RULES AND REGULATIONS
For the subject Audit Period, Petitioner was subject to all of the duly enacted Medicaid statutes, laws, rules and policy guidelines that governed Medicaid providers of its type.
For the subject Audit Period, Petitioner was required to follow all of the Medicaid Coverage and Limitations handbooks for its type of provider.
For the subject Audit Period, Petitioner was required to follow all of the Medicaid Reimbursement Handbooks for its type of provider.
For the subject Audit Period, the applicable Medicaid statutes, laws, rules, and policy guidelines in effect required Petitioner to maintain all "Medicaid-related Records"[4] and information that supported any and all Medicaid invoices or claims made by Petitioner during the Audit Period.
For the subject Audit Period, the applicable Medicaid statutes, laws, rules, and policy guidelines in effect required Petitioner, at the Agency for Health Care Administration's request, to provide AHCA (or AHCA's authorized representative), all Medicaid-related Records and other information which supported all the Medicaid-related invoices or claims that Petitioner made during the Audit Period.
SECTION 409.907(3), FLORIDA STATUTES
35. For the years 1996, 1997, and 1998, section 409.907(3)(c), Florida Statutes, required the Petitioner to retain "all medical and Medicaid-related records for a period of 5 years.
36. For the years 1996, 1997, and 1998, section 409.907(3)(e), Florida Statutes, required the Petitioner to permit the Agency for Health Care Administration (and AHCA's authorized representative) "access to all Medicaid-related information, which may be in the form of records, logs, documents, or computer files, and other information pertaining to services or goods billed to the Medicaid Program, including to all patient records. "
SECTION 409.913, FLORIDA STATUTES
37. For goods and services which are the subject of this audit, section 409.913(7), Florida Statutes, imposed an affirmative duty on the Petitioner to comply with all the requirements as set forth in its subparagraphs (a), (b), (c), (d), (e), and
(f) for the years 1996, 1997, and 1998.
38. For the years 1996, 1997, and 1998, section 409.913(7)(f), Florida Statutes, imposed an affirmative duty on the Petitioner to ensure that the claims for goods and services which are the subject of this audit and were billed during the years 1996, 1997, and 1998 were "documented by records made at the time the goods or services were provided."
For the goods and services which are the subject of this audit and were billed to Medicaid during the years 1996, 1997, and 1998, section 409.913(7)(f), Florida Statutes, imposed an affirmative duty on this Petitioner to ensure that any and all records documenting Medicaid goods and services demonstrate "the medical necessity for the goods and services rendered."
For the goods and services which are the subject of this audit and which were billed to Medicaid during the years 1996, 1997, and 1998, section 409.913(7)(f), Florida Statutes, dictates that Medicaid goods and services are: "excessive and not medically necessary unless both the medical basis and specific need for them are fully and properly documented in the recipient's medical record."
For the goods and services which are the subject of this audit and which were billed to Medicaid during the years 1996, 1997, and 1998, section 409.913(8), Florida Statutes, required Petitioner to: "retain medical, professional, financial and
business records pertaining to services and goods furnished to a Medicaid recipient and billed to Medicaid for a period of 5 years after the date of furnishing such services or goods."
For the goods and services which are the subject of this audit and which were provided or billed to Medicaid during the years 1996, 1997, and 1998, section 409.913(8), Florida Statutes, made Petitioner responsible for providing to AHCA and keeping AHCA informed of the location of the Petitioner's "Medicaid-related Records."
For the goods and services which are the subject of this audit and which were provided or billed to Medicaid during the years 1996, 1997, and 1998, section 409.913(1)(c), Florida Statutes, makes AHCA the "final arbiter of medical necessity."
For the goods and services which are the subject of this audit and which were billed to Medicaid during the years 1996, 1997, and 1998, section 409.913(1)(c), Florida Statutes, states in part that determinations of medical necessity must be based upon information available at the time goods or services are provided.
For the goods and services which are the subject of this audit and which were provided or billed to Medicaid during the years 1996, 1997, and 1998, section 409.913(1)(d), Florida Statutes, defines "overpayment" as: "any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper claiming, unacceptable practices, fraud, abuse, or mistake."
For the goods and services which are the subject of this audit and which were provided or billed to Medicaid during the years 1996, 1997, and 1998, section
409.913(10), Florida Statutes, authorizes AHCA to require this Petitioner to repay AHCA for goods and services that are "inappropriate, medically unnecessary, or excessive."
PROVIDING "MEDICAID-RELATED RECORDS" TO AHCA
As of the date of these responses, Petitioner has provided AHCA (or AHCA's authorized representative), with any and all required "Medicaid-related Records" and information relating to each cluster or corresponding claim that is the subject of this Audit and Petition.
STATISTICAL INFORMATION
The formula applied by AHCA in creating the subject overpayment total stated in the Audit Letter is a valid statistical formula.
The number of clusters applied by AHCA in creating the subject overpayment total stated in the Audit Letter is sufficiently statistically significant to be a valid random sample.
The clusters used by AHCA in creating the subject overpayment total stated in the Audit Letter are statistically representative of this Petitioner's normal practice for the subject audit period.
Petitioner does not contest the randomness of the clusters applied by AHCA in creating the subject overpayment total stated in the subject Audit Letter.
MISCELLANEOUS
This Petitioner billed Medicaid for the services or goods which are the subject of this audit.
This Petitioner was paid by AHCA for the services/goods which are the subject of this audit.
Pursuant to Florida Rule of Civil Procedure 1.370(b), these "admitted" matters have been "conclusively established for the purposes of this action" and are not subject to challenge by Petitioner. Greiner Engineering Sciences, Inc. v. Commercial
Center Development Corp., 508 So. 2d 525, 525-26 (Fla. 5th DCA 1987); see also City of Deland v. Miller, 608 So. 2d 121, 122 (Fla. 5th DCA 1992)("The parties are bound by their pleadings. Admissions in the pleadings are accepted as facts without the necessity of further proof. Moreover, these uncontested facts do not have to be introduced into evidence at trial.")(citation omitted).
On May 28, 2003, Petitioner filed a motion requesting that the final hearing scheduled for June 11 through 13, 2003, be continued to give him and his attorney additional time to prepare. On May 29, 2003, AHCA filed 1) a response in opposition to Petitioner's motion; and 2) a Motion to Preclude the Petitioner from Presenting Undisclosed Evidence or Testimony. In its Motion to Preclude the Petitioner from Presenting Undisclosed Evidence or Testimony, AHCA stated, among other things, the following:
The May 28, 2003, deadline [imposed by the undersigned in his May 27, 2003, Order Granting Motion to Compel] passed without
the Petitioner furnishing responses of any nature to AHCA's interrogatories and requests to produce. In addition, the Petitioner conceded in the Petitioner's First Motion for Continuance served on May 28, 2003 that no response will be forthcoming by the deadline.
Unfortunately, the Petitioner's conduct in the instant case is reminiscent of his conduct during the original litigation regarding AHCA's June 29, 1999 FAAR.
In addition, section 409.913(21), Florida Statutes (2002) mandates that "[n]otwithstanding the applicable rules of discovery, all documentation that will be offered as evidence at an administrative hearing on a Medicaid overpayment must be exchanged by all parties at least 14 days before the administrative hearing or must be excluded from consideration." (emphasis added)
AHCA complied with section 409.913(21) by sending its exhibits via overnight delivery to the Petitioner's attorney on Friday, May 23, 2003. See Exhibit F. The documents AHCA plans to use at the hearing starting on June 11, 2003 were received by Petitioner's attorney on May 27, 2003. See Exhibit F.
However, despite being informed by undersigned counsel verbally and in writing of section 409.913(21)'s requirement, AHCA has not received any documents that the Petitioner plans to present at the June 11, 2003 hearing. See Exhibit A.
Because of the Petitioner's non- compliance with this tribunal's May 27, 2003 order and section 409.913(21), AHCA respectfully requests that this tribunal enter an order precluding the Petitioner from presenting any documentary evidence or witness testimony that was not disclosed to
AHCA on or before May 28, 2003. Granting this motion should result in the Petitioner being unable to present any evidence other than his own testimony during the three-day hearing that is scheduled to start on June 11, 2003 in Tallahassee, Florida.
AHCA would be substantially prejudiced if the instant motion is not granted. Because AHCA has complied with this tribunal's Order of Pre-Hearing Instructions and section 409.913(21), the Petitioner knows the identity of AHCA's witnesses and has copies of the documentary evidence AHCA intends to move into evidence at the hearing starting on June 11, 2003. Not granting the instant motion would enable the Petitioner to conduct a "trial by ambush."
WHEREFORE, AHCA respectfully requests that this honorable tribunal enter an order precluding the Petitioner from presenting any evidence and/or testimony that was not disclosed to AHCA on or before May 28, 2003.
Oral argument on Petitioner's Motion for Continuance and AHCA's Motion to Preclude the Petitioner from Presenting Undisclosed Evidence or Testimony was heard by telephone conference call on May 30, 2003. On June 2, 2003, the undersigned issued an Order on Pending Motions, which provided, in pertinent part, as follows:
Petitioner's Motion for Continuance is denied. See Spolski General Contractor, Inc. v. Jett-Aire Corporation Aviation Management of Central Florida, Inc., 637 So. 2d 968,970 (Fla. 5th 1994); Price v. Point Marine, Inc., 610 So. 2d 1339, 1342 (Fla. 1st DCA 1992); S & S Pharmaceuticals, Inc. v. Hirschfield, 226 So. 2d 874 (Fla. 3d DCA 1969); Lydick v. Chance, 214 So. 2d 885, 887
(Fla. 2d DCA 1968); and Rule 28-106.210,
Florida Administrative Code.
With respect to AHCA's Motion to Preclude the Petitioner from Presenting Undisclosed Evidence or Testimony, the undersigned will consider and rule on any objection to the admissibility of evidence on the ground of untimely disclosure, or any other ground, at hearing when such evidence is sought to be admitted, provided an objection is interposed at that time, and not before then.
On June 4, 2003, AHCA filed a "separate proposed pre- hearing statement" in accordance with the undersigned's
April 11, 2003, Order of Pre-Hearing Instructions. It gave the following "reasons why no agreement was reached on the stipulation":
Undersigned counsel were unable to sufficiently confer with the Petitioner's attorney between the afternoon of Friday, May 30, 2003 (the date that this Tribunal denied the Petitioner's Motion for Continuance) and the deadline for filing a Unilateral Pre-Hearing Statement.
Nevertheless, because the Respondent's Requests to Admit were deemed to be admitted by the Petitioner, AHCA maintains that the instant Pre-Hearing Statement is essentially equivalent to a Joint Pre-Hearing Statement.
AHCA further stated in its Pre-Hearing Statement, among other things, the following:
At this time, AHCA is unable to definitively determine if there is any disagreement regarding the application of rules of evidence. However, AHCA anticipates that the Petitioner may attempt to introduce documents that were not previously made
available to AHCA's auditors/investigators or undersigned counsel. For the reasons set forth in AHCA's Motion to Preclude, AHCA maintains that such documents should not be admitted in evidence.
Furthermore, as stated in the Motion to Preclude, AHCA objects to the Petitioner presenting any testimony other than his own. On Tuesday, June 3, 2004,[sic] the Petitioner's attorney informed undersigned counsel that Dr. Ira Hirschaman [sic] would be testifying as an expert witness on the Petitioner's behalf. However, when undersigned counsel asked for
Dr. Hirschaman's [sic] phone number and address, the Petitioner's attorney stated that he had not yet contacted Dr. Hirschaman [sic] about testifying in this case.
Accordingly, as of June 4, 2003, AHCA maintains that the Petitioner has still neglected to furnish AHCA with the name and address of his expert witness. While the Petitioner has provided AHCA with the name of an alleged expert, the Petitioner's attorney conceded that he had not yet secured Dr. Hirschaman's [sic] services.
Unlike AHCA, Petitioner did not file any "separate proposed pre- hearing statement."
As noted above, the final hearing in this case was held, not only on June 11 through 13, 2003, as originally scheduled,
but on June 26 and 27, 2003, and July 16, 2003, as well, because additional hearing time was needed.
At the outset of the hearing on June 11, 2003, Petitioner, through counsel, asked to be given the opportunity, during time that had been set aside for the hearing that day, to meet with AHCA's peer review expert, Richard Thacker, D.O., to "try and narrow the issues, give [Petitioner] a chance to prepare, . . and enable [Petitioner's attorney] to adequately and appropriately address this case." Hopeful that such a meeting would be a "productive exercise [that would result] in a narrowing of the issues," the undersigned, in the exercise of his discretion, adjourned early on June 11, 2003, so that the meeting sought by Petitioner could take place. The following day, the undersigned was advised, on the record, that the meeting had occurred and resulted in a reduction, to $70,629.68, of the amount that AHCA was alleging Petitioner had been overpaid.
The following witnesses testified at the final hearing: Lynn Metz, AHCA's physician services coordinator; Sharon Dewey, a registered nursing consultant with AHCA; Vicki Stiles, a medical health care program analyst with AHCA; Dr. Thacker; Petitioner; Daniel Edward, Petitioner's office manager; and Ira Hershman, D.O. Petitioner was allowed (on the last day of hearing) to present Dr. Hershman's testimony, over AHCA's
objection, notwithstanding Petitioner's failure to have timely disclosed Dr. Hershman's name and address in accordance with the undersigned's April 11, 2003, Order of Pre-Hearing Instructions. See Binger v. King Pest Control, 401 So. 2d 1310, 1313-14 (Fla. 1981)("It follows, of course, that a trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order. The discretion to do so must not be exercised blindly, however, and should be guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party.
Prejudice in this sense refers to the surprise in fact of the objecting party, and it is not dependent on the adverse nature of the testimony. Other factors which may enter into the trial court's exercise of discretion are: (i) the objecting party's ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party's possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases). If after considering these factors, and any others that are relevant, the trial court concludes that use of the undisclosed witness will not substantially endanger the fairness of the proceeding, the pretrial order mandating disclosure should be modified and the witness should be allowed to testify."); and
Gray Truck Line Co. v. Robbins, 476 So. 2d 1378, 1379-80 (Fla. 1st DCA 1985)("Hearing on the claim for temporary and permanent total disability benefits was scheduled for June 28, 1984. The pretrial order required witness disclosure at least 10 days before the hearing. On June 12, 1984, the E/C began surveillance of the claimant. Surveillance was completed on June 14 and claimant's counsel was notified on June 21, by telephone and letter, of the E/C's intention to use the surveillance witness and film. The E/C's motion to amend its witness list to include the surveillance testimony was denied at the June 28 hearing. The final hearing was not completed on June 28, as scheduled. . . . [T]he deputy continued the final hearing until July 28 . . . . Despite the continuance, the deputy adhered to his previous ruling excluding the E/C's surveillance evidence because of non-compliance with the 10-day disclosure requirement. It was an abuse of discretion for the deputy to refuse the E/C's proffer of the surveillance evidence at the continued hearing. . . . [T]he delay of the hearing for a full month was more than sufficient to alleviate any possible prejudice to the claimant in his ability to obtain discovery of the surveillance material and to prepare evidence in rebuttal, if necessary. Lastly, the court-ordered continuance for unrelated reasons eliminated any possibility of disruption of the orderly and efficient trial of the case.").
In addition to the testimony of the foregoing witness, 23 exhibits (Petitioner's Exhibit 4 and Respondent's Exhibits 1 through 9, 10 through 17, 19, and 21 through 25) were offered and received into evidence. The record was left open until July 30, 2003 (14 days after the last day of hearing) for purposes of giving Petitioner the opportunity to file, for receipt into evidence, Petitioner's curriculum vitae and board certifications, but Petitioner did not take advantage of this opportunity.
At the close of the last day of hearing held in this case on July 16, 2003, the undersigned "establish[ed] the deadline for the filing [of] proposed recommended orders at 60 days from the date that the complete transcript of this hearing [was] filed with the Division."
The first five volumes of the hearing transcript were filed with the Division on July 28, 2003. The last five volumes of the hearing transcript were filed with the Division on
September 24, 2003. Accordingly, proposed recommended orders were due on Monday, November 24, 2003, in accordance with Florida Administrative Code Rule 28-106.103, which provides as follows:
In computing any period of time allowed by this chapter, by order of a presiding officer, or by any applicable statute, the day of the act from which the period of time begins to run shall not be included. The
last day of the period shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday, or legal holiday. When the period of time allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in these rules, legal holiday means those days designated in Section 110.117, F.S. Except as provided in Rule 28-106.217, five days shall be added to the time limits when service has been made by U.S. mail. One business day shall be added when service is made by overnight courier. No additional time shall be added if service is made by hand, facsimile telephone transmission, or other electronic transmission or when the period of time begins pursuant to a type of notice described in Rule 28-106.111.
On November 21, 2003, AHCA timely filed its Proposed Recommended Order, which was 63 pages in length.
On December 1, 2003, Petitioner, through his counsel of record, Daniel Minkes, Esquire, filed, by facsimile transmission, a Motion for Extension of Time to File Proposed Recommended Order. In his motion, Petitioner requested that he be given "up to and including December 31, 2003, to file his Proposed Recommended Order."
On December 4, 2003, AHCA filed a Response to the Petitioner's Motion for Extension of Time to File Proposed Recommended Order. In its response, AHCA stated that it "d[id] not oppose the Petitioner receiving an extension of time, up to and including December 31, 2003, in order to file his Proposed
Recommended Order" (notwithstanding that Petitioner had requested such an extension after the expiration of the November 24, 2003, filing deadline previously established by the undersigned5 and after Respondent had timely filed its Proposed Recommended Order), but indicated that it "will oppose any additional extensions beyond December 31, 2003."
That same date, December 4, 2003, AHCA filed an Unopposed Motion for Belated Leave to File an Enlarged Proposed Recommended Order.
On December 5, 2003, the undersigned issued an Order on Pending Motions, which provided as follows:
Upon consideration, it is hereby ORDERED:
Petitioner's Motion for Extension of Time to File Proposed Recommended Order is granted. Petitioner shall file his Proposed Recommended Order no later than December 31, 2003.
Respondent's Unopposed Motion for Belated Leave to File an Enlarged Proposed Recommended Order is granted.
On December 10, 2003, apparently not having yet received the undersigned's December 5, 2003, Order on Pending Motions, Petitioner, through Attorney Minkes, filed a Reply to Response to Motion for Extension, in which he stated the following:
Petitioner appreciates Respondent's lack of objection to the motion. However, Petitioner is compelled to respond to Respondent's argument that the motion was not timely filed.
Respondent's calculation of the due date of the Proposed Recommended Order is incorrect insofar as it fails to include five days for mailing as provided in Rule 28-106.103, FAC.
Applying this Rule, and taking into account the due date was a holiday, the PROs were due on December 1, 2003, and the motion for extension was timely filed.
WHEREFORE, Petitioner requests that the motion for extension be granted.
On December 11, 2003, the undersigned issued an Order Concerning Proposed Recommended Order Filing Deadline, in which he stated, among other things, the following:
Petitioner's reliance on the five-day extension for mailing provision in Rule 28- 106.103, Florida Administrative Code, in support of his argument that his "motion for extension of time was timely filed" is misplaced inasmuch as the 60-day period for filing Proposed Recommended Orders established by the undersigned at the close of the final hearing began to run upon the filing, not the service, of the complete hearing transcript. (Even if the start date of this 60-day period had been the date the complete hearing transcript was served on the Division of Administrative Hearings, it does not appear from the record in this case that the last five volumes of the hearing transcript filed on September 24, 2003, were served by U.S. mail, as opposed to private courier or hand delivery.)
There should not be any confusion or misunderstanding as to the new deadline, established in the undersigned's December 5, 2003, Order on Pending Motions, that Petitioner must meet. Petitioner's Proposed Recommended Order shall be filed, that is, received by the Clerk of the Division of
Administrative Hearings, no later than 5:00 p.m. on December 31, 2003.
On December 31, 2003, (at 3:49 p.m.) Petitioner, through Attorney Minkes, filed, by facsimile transmission, a Second Motion for Extension of Time to File Proposed Recommended Order, in which he stated the following:
Pursuant to Petitioner's first motion for extension of time, Petitioner was granted until 5:00 p.m. on December 31, 2003, to file his proposed recommended order.
In requesting said date, counsel for Petitioner had planned to complete the PRO during the holiday period after Christmas, where counsel's schedule was free except for a move of his family to Hendry County.
Due to unforeseen complications with the move, counsel has been unable to complete the proposed order in time and is requesting an additional 15 days to file Petitioner's PRO.
Counsel for AHCA is on record as stating the Agency objects to any further extensions.
No party will be prejudiced by the additional 15 days, Petitioner will be prejudiced if this motion is denied.
This motion is made in good faith and not for purposes of delay or other ulterior purpose.
WHEREFORE, Petitioner, Jules G. Minkes, D.O., requests an extension of 15 days up to and including January 15, 2004, to file his Proposed Recommended Order.
Oral argument on the motion, presented by respective counsel for the parties, was heard by telephone conference call on
January 5, 2004. On that same date, January 5, 2004, the undersigned issued an Order Granting Second Extension of Time, which provided as follows:
Upon consideration, it is hereby ORDERED:
Petitioner's Second Motion for Extension of Time to File Proposed Recommended Order is granted. Petitioner's proposed recommended order shall be filed (that is, received by the Clerk of the Division of Administrative Hearings) no later than
5:00 p.m., on January 15, 2004.
No further extensions of time will be granted absent a showing of extraordinarily exceptional circumstances.
On January 15, 2004, (at 12:19 p.m.), Petitioner himself (not through counsel) filed, by facsimile transmission, a letter, signed by him and addressed to the undersigned, which read as follows:
This is to inform you that differences in the opinion and approach to this case have necessitated my need to retain new counsel, or prepare a proposed recommended order myself. I am requesting a date by which to have a stipulation for substitution of counsel or to inform the Division that I will file a proposed recommended order on my own. My attorney, Daniel Minkes, will set this matter for conference hearing prior to withdrawal. Thank you for your consideration on this matter.
The following day, January 16, 2004, the undersigned issued an Order Denying Third Extension of Time, which provided as
follows:
It has been six months since the final hearing in this case was completed.
Petitioner has been given more than ample time and reasonable opportunity to file a post-hearing Proposed Recommended Order. There has been no showing of any "extraordinarily exceptional circumstances" outside of Petitioner's control that have made it impossible for him to meet the twice-extended Proposed Recommended Order filing deadline. Any "differences" he may now have with his attorney of record, Attorney Minkes (who has represented Petitioner in this dispute since 1999), do not constitute such "extraordinarily exceptional circumstances." No reason appears why, with the exercise of due diligence, Petitioner could not have discovered these "differences" sooner and taken appropriate action to avoid the need for a further extension of the Proposed Recommended Order filing deadline.
Because granting the relief requested by Petitioner in his January 15, 2004, letter would cause an unjustified further disruptive delay (of uncertain duration) in the final resolution of this Medicaid overpayment dispute (which has been in litigation since 1999), Petitioner's request for such relief is denied and no further extension of the deadline for filing Petitioner's Proposed Recommended Order will be granted. This denial is without prejudice to Petitioner (through counsel or on his own behalf) filing an out-of-time Proposed Recommended Order, accompanied by a motion which requests that he be permitted to file a Proposed Recommended Order out-of- time and which contains a detailed explanation as to why such request should be
granted. (The undersigned will not wait to receive such an out-of-time Proposed Recommended Order and accompanying motion from Petitioner before completing the preparation of and issuing his Recommended Order. When his Recommended Order is ready for issuance, he will issue it even if no out-of-time Proposed Recommended Order and accompanying motion has been received from Petitioner.) Attorney Minkes will remain counsel of record for Petitioner until such time as he files a motion seeking leave to withdraw in accordance with Florida Administrative Code Rule 28-106.105(3) and Florida Administrative Code Rule 28-106.204 and such motion is granted.[6]
On January 22, 2004, Petitioner, acting on his own behalf (and not through counsel7), filed a letter, signed by him and addressed to the undersigned, which contained "points" he wanted the undersigned to "consider" before issuing his recommended order in this case. This letter is tantamount to an out-of-time proposed recommended order. Notwithstanding that it was not accompanied by the motion prescribed by the undersigned's January 16, 2004, Order Denying Third Extension of Time, the undersigned has given the letter's contents the same careful consideration he has given AHCA's Proposed Recommended Order, having determined that doing so will not result in any unfair, prejudicial harm.8, 9 The undersigned, however, has not considered the copies of medical literature that Petitioner appended to his letter. None of these documents was offered10 or received into evidence at the final hearing. Because they are
outside the scope of the evidentiary record in this case, these documents cannot provide an evidentiary basis for any finding of fact.11 See General Development Utilities, Inc. v. Hawkins, 357 So. 2d 408, 409 (Fla. 1978)("The Commission selected a ratio which nowhere appears in the record, apparently fabricating one for the company based on information it has compiled for water companies generally. The arbitrary selection of this ratio as a 'fact' comes from outside the record of the proceeding and plainly violates the notions of agency due process which are embodied in the administrative procedure act."); and Section 120.57(1)(j), Florida Statutes ("Findings of fact. . . shall be based exclusively on the evidence of record and on matters officially recognized.").
FINDINGS OF FACT
Petitioner
Petitioner is a Florida-licensed osteopathic physician specializing in internal medicine. He has board certifications in internal medicine and nuclear medicine. In addition, he is certified in the sub-specialty of cardiology.
Petitioner graduated from the Kirksville College of Osteopathic Medicine in Kirksville, Missouri in 1962. He has been practicing as an osteopathic internist in Florida since 1966, the year he came to the state after completing his residency at Brentwood Hospital in Cleveland, Ohio.
Petitioner's Practice
Petitioner's practice is now, and has been at all times material to instant case, located in Miami-Dade County, Florida.
Petitioner currently practices at 9765 Southwest 184th Street in Miami Florida.
Among Petitioner's current patients are Ira Hershman, D.O., a retired osteopathic physician who, as noted above, testified as a medical expert on Petitioner's behalf in this case, and Dr. Hershman's wife.
Dr. Hershman's "career as an active doctor ended in 1997."
Dr. Hershman was, and still is, board-certified in family practice medicine. Unlike Petitioner, at no time has he been board-certified in internal medicine. When he was in active practice and needed to consult with an internist, he "utilized [Petitioner's] services."12
From the "mid '60s through the '90s," Dr. Hershman and Petitioner were "on the staff of hospitals" together. They are, and have been over the years, "friends." Furthermore, their "families know each other" and socialize.
During the period from March 1, 1996, through March 17, 1998 (Audit Period), Petitioner rendered "primary care" services at 17615 Southwest 97th Avenue, Miami, Florida, in a 30,000
square foot facility known as the Suburban Medical Center (Facility), which he owned and operated.
A significant number of Medicaid patients were served at the Facility.
Other physicians, hired by Petitioner, saw and otherwise provided services to Petitioner's patients at the Facility. Petitioner considered these physicians, who included Drs. Katzeff and Lubin, to be "independent contractors."
On the premises of the Facility, Petitioner had "sophisticated equipment," not typically found in a "primary care" setting, available to perform various diagnostic tests,13 as well as a room equipped with items for urgent care that "very few" primary care physicians have.
Petitioner used Dr. Key as a "consultant in radiology" to provide him with the "official reading" of x-rays, CAT scans, mammographies, and other imaging tests done at the Facility. The Provider Agreements
During the Audit Period, Petitioner was authorized to provide physician services to eligible Medicaid patients.
Petitioner provided such services pursuant to two provider agreements.
The first agreement was a Non-Institutional Professional and Technical Medicaid Provider Agreement (First Provider Agreement) that Petitioner had entered into with the
Department of Health and Rehabilitative Services, AHCA's predecessor, in 1983.14
The First Provider Agreement contained the following provisions, among others:
* * *
The provider agrees to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance under the State Plan and agrees to furnish the State Agency upon request such information regarding any payments claimed for providing these services. Access to these pertinent records and facilities by authorized Medicaid Program representatives will be permitted upon a reasonable request.
The provider agrees that claims submitted must be for services rendered to eligible recipients of the Florida Medicaid Program and that payment by the program for services rendered will be based on the payment methodology in the applicable Administrative Rule. The Provider also agrees to submit requests for payment in accordance with program policies.
* * *
Payment by the State agency shall constitute full payment for services rendered to recipients under the Medicaid program except in specific programs when co- insurance is required from the recipient.
The provider and the Department agree to abide by the provisions of the Florida Administrative Rules, Florida Statutes, policies, procedures, manuals of the Florida
Medicaid Program and Federal laws and regulations.
* * *
The second agreement was a Medicaid Provider Agreement (Second Provider Agreement) that Petitioner had entered into with AHCA in October of 1996.
The Second Provider Agreement contained the following provisions, among others:
The Provider agrees to participate in the Florida Medicaid program under the following terms and conditions:
* * *
Quality of Services. The provider agrees to provide medically necessary services or goods of not less than the scope and quality it provides to the general public. The provider agrees that services or goods billed to the Medicaid program must be medically necessary, of a quality comparable to those furnished by the provider's peers, and within the parameters permitted by the provider's license or certification. The provider further agrees to bill only for the services performed within the specialty or specialties designated in the provider application on file with the Agency. The services or goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim.
Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they my be amended from time to time.
Term and signatures. The parties agree that this is a voluntary agreement between the Agency and the provider, in which the provider agrees to furnish services or goods to Medicaid recipients. This provider agreement shall become effective the date the provider's Florida Medicaid Enrollment Application is received by the state or its fiscal agent. It shall remain in effect until July 1, 1999, unless otherwise terminated. This agreement shall be renewable only by mutual consent. The provider understands and agrees that no Agency signature is required to make this Agreement valid and enforceable.
Provider Responsibilities. The Medicaid provider shall:
* * *
(b) Keep and maintain in a systematic and orderly manner all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical, business, and fiscal records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid. The provider agrees that only records made at the time the goods and services were provided will be admissible in evidence in any proceeding relating to the Medicaid program.
* * *
(d) Except as otherwise provided by law, the provider agrees to provide immediate access to authorized persons (including but not limited to state and federal employees, auditors and investigators) to all Medicaid- related information, which may be in the form of records, logs, documents, or computer files, and all other information pertaining to services or goods billed to
the Medicaid program. This shall include access to all patient records and other provider information if the provider cannot easily separate records for Medicaid patients from other records.
* * *
(f) Within 90 days of receipt, refund any moneys received in error or in excess of the amount to which the provider is entitled from the Medicaid program.
* * *
Accept Medicaid payment as payment in full . . . .
. . . . The provider shall be liable for all overpayments for any reason and pay to the Agency any fine or overpayment imposed by the Agency or a court of competent jurisdiction. Provider agrees to pay interest at 12% per annum on any fine or repayment amount that remains unpaid 30 days from the date of any final order requiring payment to the Agency.
* * *
Agency Responsibilities. The Agency:
(a) Unless claims have been pended for medical review or investigation of suspected fraud or abuse, will make payment within 60 days at the established rate for medically necessary services or goods furnished to an eligible recipient by the provider upon receipt of a properly completed claim. . . .
Termination and Equitable Relief. This agreement may be terminated, with or without cause, upon thirty (30) days written notice by either party. . . .
* * *
(19) Assignability. The provider number is the property of the Agency and the provider may not assign its rights or obligation under this number or this Agreement without the express written consent of the Agency.
* * *
THE PROVIDER AGREES THAT THIS AGREEMENT SHALL MERGE AND BECOME A PART OF THE PROVIDER APPLICATION . . . .
The Provider Reenrollment Request form that Petitioner submitted (with which the Second Provider Agreement "merge[d]") reflected that the "provider['s] name" was "Minkes, Jules G."
At no time did Petitioner enroll in the Medicaid program as part of a group practice (consisting of two or more physicians).15
He was enrolled only as an individual provider, and he used his individual provider number (0466301-00) to bill the Medicaid program.
All of the Medicaid claims that are the subject of the instant controversy were billed by Petitioner under his individual provider number.
Manual and Handbook Provisions
Among the "manuals" and "handbooks" Petitioner was required to "abide by" and "comply with" during the Audit Period pursuant to the First and Second Provider Agreements were the Medicaid Provider Reimbursement Handbook, HCFA-1500 (MPR
Handbook) and the Physician Coverage and Limitations Handbook (PCL Handbook).
Medical Necessity
The PCL Handbook provided that the Medicaid program would reimburse for services "determined [to be] medically necessary" and not duplicative of another provider's service, and it went on to state as follows:
In addition, the services must meet the following criteria:
the services must be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient's needs;
the services cannot be experimental or investigational;
the services must reflect the level of services that can be safely furnished and for which no equally effective and more conservative or less costly treatment is available statewide; and
the service must be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider.
The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a covered services.
Note See Appendix D, Glossary, in the Medicaid Provider Reimbursement Handbook, HCFA-1500 and EPSDT 224, for the definition of medically necessary
The term "medically necessary" was defined in Appendix D of the MPR Handbook as follows:
Medically Necessary or Medical Necessity
Means that the medical or allied care, goods, or services furnished or ordered must:
Meet the following conditions:
Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain;
Be individualized specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs;
Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational;
Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; and
Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider.
"Medically necessary" or "medical necessity" for inpatient hospital services requires that those services furnished in a hospital on an inpatient basis could not, consistent with the provisions of appropriate medical care, be effectively furnished more economically on an outpatient basis or in an inpatient facility of a different type.
The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a medical necessity or a covered service.
Documentation Requirements
The MPR Handbook required that: "medical
records . . . state the necessity for and the extent of services provided"16; and the provider "retain all medical, fiscal, professional, and business records on all services provided to a Medicaid recipient" for "at least five years from the date of service." The handbook further provided that "payments for services that lack[ed] required documentation" would be recouped.
Physician Supervision
The PCL Handbook provided:
Delivery of all services must be done by or under the personal supervision of the physician.
Personal supervision means the physician:
is in the building when the services are rendered, and
signs and dates the medical record within
24 hours of providing the service.
Enrollment Requirements
The PCL Handbook and the MPR Handbook both mandated that two or more physicians practicing together as a group
enroll in the Medicaid program as a "provider group" and that each member of the group enroll in the program as an individual provider.
Under the provisions of the MPR Handbook, an "individual provider" was required to "report when the provider bec[ame] a member of a provider group or [was] no longer a member of a provider group."
Coding
Chapter 3 of the PCL Handbook "describe[d] the procedure codes for the services reimbursable by Medicaid that [had to be] used by physicians providing services to eligible recipients."
As explained on the first page of this chapter of the handbook:
The procedure codes listed in this chapter [were] Health Care Financing Administration Common Procedure Coding System (HCPCS) Levels 1, 2 and 3. These [were] based on the Physician[]s['] Current Procedural Terminology (CPT) book.
The CPT include[d] HCPCS descriptive terms and numeric identifying codes and modifiers for reporting services and procedures. . . .
The Physicians' Current Procedural Terminology
At all times material to the instant case, the American Medical Association's Physicians' Current Procedural Terminology (or the "CPT") referred to in Chapter 3 of the PCL
Handbook contained an "[i]ntroduction," which read, in pertinent part, as follows:
Physicians' Current Procedural Terminology (CPT) is a systematic listing and coding of procedures and services performed by physicians. Each procedure is identified by a five digit code. . . .
Inclusion of a descriptor and its associated specific five-digit identifying code number in CPT is generally based upon the procedure being consistent with contemporary medical practice and being performed by many physicians in clinical practice in multiple locations. . . .
* * * Section Numbers and Their Sequences
Evaluation and Management 99201 to 99499
* * *
Surgery 10040 to 69979
Radiology (Including Nuclear Medicine and Diagnostic Ultrasound) 70010 to 79999
* * *
At all times material to the instant case, the CPT referred to in Chapter 3 of the PCL Handbook had "[e]valuation and [m]anagement (E/M) [s]ervice [g]uidelines" (E/M Guidelines).
It was noted on the first page of the E/M Guidelines that:
The E/M section is divided into broad categories such as office visits, hospital visits, and consultations. Most of the categories are further divided into two or
more subcategories of E/M services. For example, there are two subcategories of office visits (new patient and established patient) and there are two subcategories of hospital visits (initial and subsequent).
The subcategories of the E/M services are further classified into levels of E/M services that are identified by specific codes. . . .
"New and [e]stablished patient[s]" were described in the E/M Guidelines as follows:
A new patient is one who has not received any professional services from the 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 the physician or another physician of the same specialty who belongs to the same group practice, within the past three years.
The concept of "[l]evels of E/M [s]ervices" was described, in pertinent part, as follows in the E/M Guidelines:
Within each category or subcategory of E/M service, there are three to five levels of E/M services available for reporting purposes. . . .
The levels of E/M services include examinations, evaluations, treatments, conferences with or concerning patients, preventative pediatric and adult health supervision, and similar medical services, such as the determination of the need and/or location for appropriate care. Medical screening includes the history, examination, and medical decision-making required to determine the need and/or location for appropriate care and treatment of the patient . . . . The levels of E/M services
encompass the wide variations in skill, effort, time, responsibility and medical knowledge required for the prevention or diagnosis and treatment of illness or injury and the promotion of optimal health. Each level of E/M services may be used by all physicians.
The descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. These components are:
history;
examination;
medical decision making;
counseling;
coordination of care;
nature of presenting problem; and
time.
The first three or these components (history, examination and medical decision making) are considered the key components in selecting a level of E/M services. . . .
The next three components (counseling, coordination of care, and the nature of the presenting problem) are considered contributory factors in the majority of encounters. . . .
* * *
Time
. . . . The inclusion of time as an explicit factor beginning in CPT 1992 is done to assist physicians in selecting the most appropriate level of E/M services. It should be recognized that the specific times
expressed in the visit code descriptors are averages, and therefore represent a range of times which may be higher or lower depending on actual clinical circumstances.
* * *
According to the E/M Guidelines, "[l]isted services [could] be modified under certain circumstances," with the "modifying circumstances" being "identified by the addition of [an] appropriate modifier code . . . ." Among the available "modifier codes" was one for "[p]rolonged [e]valuation and [m]anagement [s]ervices," which was explained in the E/M Guidelines as follows:
When the face-to-face or floor/unit service(s) provided is prolonged or otherwise greater than that usually required for the highest level of E/M service within a given category, it may be identified by adding the modifier "-21" to the E/M code number or by use of the separate five digit modifier code 09921. A report may also be appropriate.
The E/M Guidelines contained "[i]nstructions for [s]electing a [l]evel of E/M [s]ervice," which read, in pertinent part, as follows:
* * *
Review of Level of E/M Service Descriptors and Examples in the Selected Category or Subcategory
The descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. These components are:
history;
examination;
medical decision making;
counseling;
coordination of care;
nature of presenting problem; and
time.
The first three or these components (i.e., history, examination and medical decision making) are considered the key components in selecting a level of E/M services. An exception to this rule is in the case of visits which consist predominantly of counseling or coordination of care. . . .
The nature of the presenting problem and time are provided in some levels to assist the physician in determining the appropriate level of E/M service.
Determine the Extent of History Obtained
The extent of history is dependent upon critical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of history that are defined as followed:
Problem Focused: chief complaint; brief history of present illness or problem.
Expanded Problem Focused: chief complaint; brief history of present illness; problem pertinent system review.
Detailed: chief complaint; extended history of present illness; problem pertinent system review extended to include a review of a limited number of additional systems;
pertinent past, family and/or social history
directly related to the patient's problems.
Comprehensive: chief complaint; extended history of present illness; review of systems which is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems; complete past, family and social history.
* * *
Determine the Extent of Examination Performed
The extent of the examination performed is dependent on clinical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of examinations that are defined as follows:
Problem Focused: a limited examination of the affected body area or organ system.
Expanded Problem Focused: a limited examination of the affected body area or organ system and other symptomatic or related organ system(s).
Detailed: an extended examination of the affected body area(s) and other symptomatic or related organ system(s).
Comprehensive: a general multi-system examination or a complete examination of a single organ system. . . .
For the purposes of these CPT definitions, the following body areas are recognized
Head, including the face
Neck
Chest, including breasts and axilla
Abdomen
Genitalia, groin, buttocks
Back
Each extremity
For the purposes of these CPT definitions, the following organ systems are recognized
Eyes
Ears, Nose, Mouth and Throat
Cardiovascular
Respiratory
Gastrointestinal
Genitourinary
Musculoskeletal
Skin
Neurologic
Psychiatric
Hematologic/Lymphatic/Immunologic
Determine the Complexity of Medical Decision Making
Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by:
the number of possible diagnoses and/or the number of management options that must be considered;
the amount and/or complexity of medical records, diagnostic tests, and/or other
information that must be obtained, reviewed and analyzed; and
-The risk of significant complications, morbidity and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options.
Four types of medical decision making are recognized: straightforward; low complexity; moderate complexity; and high complexity. To qualify for a given type of decision making, two of the three elements [shown] below must be met or exceeded.
Type of Decision Making: straightforward; Number of Diagnoses or Management Options: minimal; Amount and/or Complexity of Data to be Reviewed: minimal or none; Risk of Complications and/or Morbidity or Mortality: minimal
Type of Decision Making: low complexity; Number of Diagnoses or Management Options: limited; Amount and/or Complexity of Data to be Reviewed: limited; Risk of Complications and/or Morbidity or Mortality: low
Type of Decision making: moderate complexity; Number of Diagnoses or Management Options: multiple; Amount and/or Complexity of Data to be Reviewed: moderate; Risk of Complications and/or Morbidity or Mortality: moderate
Type of Decision Making: High complexity; Number of Diagnoses or Management Options: extensive; Amount and/or Complexity of Data to be Reviewed: extensive; Risk of Complications and/or Morbidity or Mortality: high
Select the Appropriate Level of E/M Services Based on the Following
For the following categories/ subcategories, all of the key components, i.e., history, examination, and medical decision making, must meet or exceed the stated requirements to qualify for a particular level of E/M service: office, new patient; . . .
For the following categories/ subcategories, two of the three key components, (i.e., history, examination, and medical decision making) must meet or exceed the stated requirements to qualify for a particular level of E/M service: office, established patient; . . .
In the case where counseling and/or coordination of care dominates (more than 50%) of the physician/patient and/or family encounter (face-to-face time in the
office . . . ), then time is considered the key or controlling factor to qualify for a particular level of E/M services. The extent of counseling and/or coordination of care must be documented in the medical record.
At all times material to the instant case, the CPT referred to in Chapter 3 of the PCL Handbook contained the following codes and code descriptions for "E/M" office and other outpatient services:
New Patient
99201 Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components:
a problem focused history;
a problem focused examination; and
straightforward medical decision making.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problems are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family.
* * *
99202 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components:
an expanded problem focused history;
an expanded problem focused examination; and
straightforward medical decision making.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family.
* * *
99203 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components:
a detailed history;
a detailed examination; and
medical decision making of low complexity.
Counseling and/or coordination of care with other providers or agencies are provided
consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family.
* * *
99204 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components:
a comprehensive history;
a comprehensive examination; and
medical decision making of moderate complexity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family.
* * *
99205 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components:
a comprehensive history;
a comprehensive examination; and
medical decision making of high complexity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family.
* * * Established Patient
99211 Office or other outpatient visit for the evaluation and management of an established patient that may or may not require the presence of a physician.
Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services.
* * *
99212 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components:
a problem focused history;
a problem focused examination;
straightforward medical decision making.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family.
* * *
99213 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components:
an expanded problem focused history;
an expanded problem focused examination;
medical decision making of low complexity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family.
* * *
99214 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components:
a detailed history;
a detailed examination;
medical decision making of moderate complexity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family.
* * *
99215 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components:
a comprehensive history;
a comprehensive examination;
medical decision making of high complexity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family.
It is a rarity for an osteopathic internist to provide office services at the 99205 or 99215 "E/M" code level.
Generally speaking, office services at the 99203 and 99213 "E/M" code levels are the most common types of office services that osteopathic internists provide.
Typically, osteopathic internists provide a "higher percentage" of office services at the 99204 and 99214 "E/M" code levels than at the 99202 and 99212 "E/M" code levels.17
The experience or expertise of the provider is not a factor to be taken into consideration in determining the appropriate "E/M" code level.
The Audit and Aftermath
Commencing in 1998, AHCA conducted an audit of paid Medicaid claims submitted by Petitioner for services assertedly rendered from March 1, 1996, through March 17, 1998. The audit was undertaken because it had been determined, from a review of the Medicaid provider database maintained by AHCA, that Petitioner had billed for more "chest x-rays and various radiology [tests]" than the "average provider."18
Petitioner had submitted 2,571 Medicaid claims for services assertedly rendered during the Audit Period to 314 patients, for which he had received payments totaling
$134,597.58.
From the 314 Medicaid patients to whom Petitioner had assertedly provided services during the Audit Period, AHCA randomly selected, by computer, a "cluster sample" of 42, and asked Petitioner to produce the medical records he had on file for these 42 patients.
Petitioner had submitted a total of 386 claims for services assertedly rendered to the 42 patients in the "cluster sample" during the Audit Period and had received a total of
$20,823.33 in Medicaid payments for these services.
Each of these claims was reviewed by AHCA to determine whether it was supported by information contained in the medical records produced by Petitioner in response to AHCA's medical records request.
Based on a preliminary review conducted by AHCA staff and a physician consultant (John Sullenberger, M.D.), AHCA determined that Petitioner had been overpaid a total $98,545.98 for the Medicaid claims he had submitted for services assertedly rendered during the Audit Period.
After having been advised of this preliminary determination, Petitioner sent additional documentation to AHCA.
The additional documentation was reviewed by AHCA staff and Dr. Sullenberger. Following this review, the overpayment was
recalculated by AHCA and determined to be $94,208.27. As noted above, by letter dated June 29, 1999, Petitioner was notified of this recalculation and advised of his right to request an administrative hearing on the matter.
After Petitioner requested such a hearing, in or around March of 2000, as a result of the Legislature's enactment of the "peer review" provisions of Section 409.9131, Florida Statutes, which became effective July 1, 1999, AHCA retained the services of Richard Thacker, D.O., an osteopathic physician, like Petitioner, Board-certified in internal medicine.
Dr. Thacker received his medical education at Nova Southeastern University, College of Osteopathic Medicine, from which he graduated in 1992. After graduation, he obtained "internal medicine training" for three years in the internship and residency program at Delaware Valley Medical Center in Langhorne, Pennsylvania. In 1995, he returned to Florida, and has been in "active practice" as an osteopathic physician in the state since his return. His experience includes "working in Medicaid clinics." He currently practices with the Medical Group of North Florida, a Tallahassee "multi-specialty group with primary emphasis on general internal medicine." Aside from his practice, among other things, he serves as: the chairman of
the Tallahassee Community Hospital's Department of Medicine; the Medical Director of Outpatient Services at Health South Rehabilitation Hospital of Tallahassee; the Medical Director of Long Term Care at Capital Health Care Center; the Medical Director of American Home Patient Home Health; and an Associate Professor for Clinical Instruction at Florida State University College of Medicine.
At AHCA's request, Dr. Thacker reviewed all of the records that Petitioner had provided regarding the 42 patients in the "cluster sample" (including those records that had been furnished after June 29, 1999)19 to determine whether there was documentation to support the Medicaid claims relating to these patients that Petitioner had submitted for services assertedly rendered during the Audit Period.20
On or about May 15, 2000, after Dr. Thacker completed his review, the overpayment was again recalculated by AHCA and determined to be $84,486.25.
On or about June 12, 2003, following a meeting between Dr. Thacker and Petitioner held the afternoon of the first day of hearing in this case, AHCA made another downward revision in its overpayment calculation, this time to $70,629.68.21
AHCA has made no additional revisions to its overpayment calculation in the instant case. It maintains that
Petitioner received $70,629.68 in Medicaid overpayments for services claimed to have been provided during the Audit Period.
Respondent's Exhibit 25 contains spreadsheets prepared by AHCA which identify all of the alleged overpaid claims (of the 386 reviewed) and, for each such claim, specify the amount of the alleged overpayment and AHCA's reason(s) for determining that an overpayment was made. Where AHCA alleges "upcoding" (that is, billing for a higher (and more costly) "level of E/M service" than Petitioner's documentation reveals was actually provided) or "inappropriate cod[ing]" of a surgical or radiological procedure, and no other billing deficiency is asserted, the procedure code deemed appropriate by AHCA, based on the documentation furnished by Petitioner, is also specified.
The spreadsheets that comprise Respondent's Exhibit 25 accurately identify (as "not documented") those claims (of the
386 reviewed) that were for services not shown, by the documentation Petitioner has furnished AHCA, to have been actually provided (by anyone). The monies Petitioner received for these claimed, but undocumented, services constitute overpayments.
The spreadsheets that comprise Respondent's Exhibit 25 accurately identify (through entries made in the "not group member" columns thereof) those claims (of the 386 reviewed) that were for services not shown, by the documentation Petitioner has
furnished AHCA, to have been provided by Petitioner or under his "personal supervision," as that term was described in the materials Petitioner was required to "abide by" and "comply with" during the Audit Period pursuant to the First and Second Provider Agreements. The monies Petitioner received for these claimed services not documented as having been provided by him or under his "personal supervision" as required by the First and Second Provider Agreements constitute overpayments.
The spreadsheets that comprise Respondent's Exhibit 25 accurately identify those claims (of the 386 reviewed) that were for services not shown, by the documentation Petitioner has furnished AHCA, to have been "medically necessary," as that term was used in the materials Petitioner was required to "abide by" and "comply with" during the Audit Period pursuant to the First and Second Provider Agreements. The monies Petitioner received for these claimed services not documented as having been "medically necessary" as required by the First and Second Provider Agreements constitute overpayments.
The spreadsheets that comprise Respondent's Exhibit 25 accurately identify (through entries made in the "levels of care" columns thereof) those claims (of the 386 reviewed) that were "upcoded."22 The documentation Petitioner has furnished AHCA supports "adjust[ed]" "levels of E/M service" no higher than those indicated in the "adjust" columns of the
spreadsheets. For each "upcoded" claim, Petitioner was overpaid in an amount equal to what he received minus what he would have received had he billed at the "adjust[ed]" level specified on Respondent's Exhibit 25.
The spreadsheets that comprise Respondent's Exhibit 25 accurately identify those claims for radiological services that, following the meeting between Dr. Thacker and Petitioner, it was agreed were "inappropriate[ly] cod[ed]," and they further reflect the correct codes and reimbursement amounts for these "inappropriate[ly] cod[ed]" services. The difference between the amount Petitioner was reimbursed for each such "inappropriate[ly] cod[ed]" service and the correct reimbursement amount set forth on Respondent's Exhibit 25 represents an overpayment.
As Respondent's Exhibit 25 indicates, the office services Petitioner claimed he provided Patient #79 on October 20, 1997, for which he billed Medicaid at the 99214
"E/M" code level, as well as the office services he claimed he provided Patient #203 on February 16, 1998, for which he billed Medicaid at the 99215 "E/M" code level, were wholly non- reimbursable inasmuch as the documentation concerning these office visits does not reveal that, in either case, the patient received services justifying reimbursement at even the lowest "E/M" code level (99211) for an established patient.
As Respondent's Exhibit 25 also indicates, Petitioner's claim for the January 7, 1998, excision of a benign lesion from Patient #264's left ankle was "inappropriate[ly] coded." Given what the documentation Petitioner has furnished AHCA reveals about the size of the lesion and what needed to be done to remove it and close the resulting wound, in billing Medicaid for this service, Petitioner should have used the 11401 procedure code, instead of the 11404 procedure code, which has a higher reimbursement rate.
In making its final overpayment calculation, AHCA determined, correctly, that Petitioner was overpaid a total of
$11,913.23, or $30.86329051 per claim, for the 386 claims he had submitted seeking reimbursement from Medicaid for services assertedly rendered during the Audit Period to the 42 patients in the "cluster sample."
Using a statistical formula that Petitioner has admitted is valid, AHCA extended these results to the total "population" of 2,571 Medicaid claims that Petitioner had submitted for services assertedly rendered during the Audit Period, and it correctly calculated that Petitioner had been overpaid a total of $70,629.68.
Simple Mistake or Fraud?
There has been no allegation made, nor proof submitted, that any of the overbillings referenced above were
the product of anything other than simple mistake or inadvertence on Petitioner's part.
CONCLUSIONS OF LAW
Effective July 1, 1993, by operation of Section 58 of Chapter 93-129, Laws of Florida, AHCA was transferred "[a]ll powers, duties and functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds of the Medicaid program within the Department of Health and Rehabilitative Services, as well as the infrastructure and support services that support the program, including, but not limited to, investigative, licensing, legal, and administrative activities."
Among the powers transferred to AHCA was the power to recover overpayments made to Medicaid providers, a power it still possesses. See Colonnade Medical Center, Inc. v. State, Agency for Health Care Administration, 847 So. 2d 540, 541-42 (Fla. 4th DCA 2003).
An overpayment occurs when a Medicaid provider receives monies beyond those to which, pursuant to the provisions of its provider agreement, it is entitled.
In the instant case, AHCA is seeking to recover Medicaid overpayments in the amount of $70,629.68 allegedly made to Petitioner for services he claimed he rendered during the Audit Period.
To determine the merits of AHCA's allegation that Petitioner received a total of $70,629.68 in overpayments from Medicaid, it is necessary to examine the substantive law governing Medicaid payments to Florida physician providers like Petitioner that was in effect during the Audit Period. See Toma v. Agency for Health Care Administration, No. 95-2419, 1996 WL 1059900 *23 (Fla. DOAH July 26, 1996)(Recommended Order)("The statutes, rules, Medicaid Physician Provider Handbook and Medicaid EPSDT Provider Handbook in effect during the period for which the services were provided govern the outcome of the dispute.").
The substantive statutory provisions applicable to the instant case that were in effect during the Audit Period are described in Section II of AHCA's unresponded to Requests for Admissions set forth above in the Preliminary Statement of this Recommended Order.
Substantive rule provisions in effect during the Audit Period included those in Florida Administrative Code Rule 59G- 4.230, which "applie[d] to all . . . doctors of osteopathic medicine participating in the Medicaid program for physician services," and required, among other things, that "providers of physician services . . . be approved for enrollment in the Medicaid program"; "two or more physicians practicing as a
group . . . enroll the group practice as a Medicaid provider in order to receive payment from Medicaid"; "[e]ach individual within the group on whose behalf payment is to be made to the group . . . be enrolled as a Medicaid provider"; [a]ll claims for payment . . . utilize the Health Care Financing Administration Common Procedure Coding System, HCPCS, procedure codes and descriptors . . . ."; "[a] physician . . . not bill or accept payment for physician services in excess of one visit per physician or physician subspecialty group per recipient per day, except for emergency services . . . ."; "[c]laims for
payment . . . utilize the HCFA-1500 claim form or electronic submission of data as described in the Medicaid Provider Reimbursement Handbook, HCFA-1500"; and "[p]ayment made by Medicaid for services rendered shall be payment in full."
The law now in effect governs the procedures that AHCA must follow in determining whether a Florida physician provider has been overpaid by Medicaid. See Gupton v. Village Key & Saw Shop, Inc., 656 So. 2d 475, 477 (Fla. 1995)("Statutes that relate only to procedure or remedy generally apply to all pending cases."); Young v. Altenhaus, 472 So. 2d 1152, 1154 (Fla. 1985)("[S]tatutes which relate only to the procedure or remedy are generally held applicable to all pending cases."); Turro v. Department of Health and Rehabilitative Services, 458 So. 2d 345, 346 (Fla. 1st DCA 1984)("In part because Rule 10-
5.11(23) did not become formally effective until after commencement of the hearing on the applications, Community argues that it was improper to apply the standards stated in the rule to their application. However, the rule prescribes an evidentiary standard and is thus procedural in nature. As such it became applicable and controlling on its effective date."); Batch v. State, 405 So. 2d 302, 304 (Fla. 4th DCA 1981)("This section became effective on October 1, 1978, which was after appellant's criminal act but before his trial and sentencing.
Nevertheless, the section is procedural and such statutory changes apply to pending cases."); Florence Western Medical Clinic v. Coye, 91 Cal. Rptr. 2d 609, 616 (Cal. App. 2000)("A statute addressing procedures to be utilized in legal proceedings not yet concluded operates prospectively for acts to be performed after the effective date of the statute."); Union of American Physicians and Dentists v. Kizer, 272 Cal. Rptr.
886, 894-95 (Cal. App. 1990)("The Department submits that since statistical probability sampling is a currently effective procedure or process and not a matter of substance, it properly may be utilized on reexamination of individual Medi-Cal providers. The UAPD contends the use of CCR section 51458.2 in audits commenced prior to its effective date would be an impermissible retroactive application of the regulation. The UAPD's retroactivity argument lacks merit. . . . CCR section
51458.2 does not substantially alter the legal effect of past events and merely serves to expedite provider audits. Assuming the use of random sampling and extrapolation is statistically valid, such audit method does nothing to alter the amount of compensation to which a provider otherwise is entitled. Because the use of statistical sampling and extrapolation pursuant to CCR section 51458.2 will not substantially change the legal effect of events which occurred prior to its May 13, 1988 effective date, the regulation may be utilized in audits which were commenced prior to that date."); State v. Kummer, 741 S.W.2d 285, 289 (Mo. App. 1987)("The State contends that
§§ 577.020.3, 577.026.1 and 577.037.4 do not require that the method of analysis be approved at the time of the incident but that it is sufficient if the method of analysis was approved at the time it is offered in evidence. We agree. It is sufficient if the method of gas chromatography analysis is approved at the time the results are offered, despite the respondent's position that this would constitute a retrospective application of the rules and regulations. . . . The methods and techniques 'approved' by the Department of Health deal with the 'admissibility' of blood alcohol chemical analysis. As such, the rules and regulations relate to 'evidence' and the admissibility of such evidence. These regulations are 'procedural' so that the respondent cannot complain that the
rules were not promulgated at the time of the fatal incident. It is sufficient, for procedural admissibility and evidentiary purposes, that the rules were approved at the time of the motion hearing and that the test and analysis were conducted in accordance with those rules."); and Colgan v. Hammond, 472 A.2d 497, 500 (Md. App. 1984)("The 1982 Amendment is procedural in nature, changing the evidentiary rule governing admissibility of the blood test results. The amendment does not modify the parties' substantive rights. Ordinarily, where a statute makes a change affecting procedure only, and not substantive rights, the change applies to all actions whether accrued, pending or future, unless a contrary intention is expressed.")(citation omitted).
Pursuant to Section 409.9131(5), Florida Statutes:
In making a determination of overpayment to a physician, [AHCA] must:
Use accepted and valid auditing, accounting, analytical, statistical, or peer-review methods, or combinations thereof. Appropriate statistical methods may include, but are not limited to, sampling and extension to the population, parametric and nonparametric statistics, tests of hypotheses, other generally accepted statistical methods, review of medical records, and a consideration of the physician's client case mix. Before performing a review of the physician's Medicaid records, however, the agency shall make every effort to consider the physician's patient case mix, including, but not limited to, patient age and whether
individual patients are clients of the Children's Medical Services network established in chapter 391. In meeting its burden of proof in any administrative or court proceeding, the agency may introduce the results of such statistical methods and its other audit findings as evidence of overpayment.
Refer all physician service claims for peer review when the agency's preliminary analysis indicates a potential overpayment, and before any formal proceedings are initiated against the physician, except as required by s. 409.913.
A "physician," as that term is used in Section 409.9131(5), Florida Statutes, is defined in subsection (2)(e) of the statute as including "a person licensed to practice osteopathic medicine under chapter 459, [Florida Statutes]."
"Peer review," as that term is used in Section 409.9131(5), Florida Statutes, is defined in subsection (2)(d) of the statute as "an evaluation of the professional practices of a Medicaid physician provider by a peer or peers in order to assess the medical necessity, appropriateness, and quality of care provided, as such care is compared to that customarily furnished by the physician's peers and to recognized health care standards, and to determine whether the documentation in the physician's records is adequate."
"Peer," as that term is used in Section 409.9131(5), Florida Statutes, is defined in subsection (2)(c) of the statute as "a Florida licensed physician who is, to the maximum extent
possible, of the same specialty or subspecialty, licensed under the same chapter, and in active practice."
"Active practice," as that term is used in Section 409.9131(5), Florida Statutes, is defined in subsection (2)(a) of the statute to mean that "a physician must have regularly provided medical care and treatment to patients within the past
2 years."
Dr. Thacker is Petitioner's "peer," as that term is used in Section 409.9131(5), Florida Statutes.
Section 409.913(20), Florida Statutes, provides that,"[w]hen making a determination that an overpayment has occurred, [AHCA] shall prepare and issue an audit report to the provider showing the calculation of overpayments."
A provider who is the subject of an audit report that reveals overpayments is entitled to an administrative hearing pursuant to Chapter 120, Florida Statutes, before AHCA takes final agency action ordering repayment.
At any such hearing, AHCA has the burden of establishing, by a preponderance of the evidence, that Medicaid overpayments in the amount it is seeking to recoup were made to the provider. See South Medical Services, Inc. v. Agency for Health Care Administration, 653 So. 2d 440, 441 (Fla. 3d DCA 1995); Southpointe Pharmacy v. Department of Health and Rehabilitative Services, 596 So. 2d 106, 109 (Fla. 1st DCA
1992); Florida Department of Transportation v. J.W.C. Co., Inc.,
396 So. 2d 778, 788 (Fla. 1st DCA 1981); Florida Department of
Health and Rehabilitative Services, Division of Health v. Career Service Commission, 289 So. 2d 412, 415 (Fla. 4th DCA 1974).; and Full Health Care, Inc. v. Agency for Health Care Administration, No. 00-4441, 2001 WL 729127 *8 (Fla. DOAH
June 25, 2001) (Recommended Order).
Section 409.913(21), Florida Statutes, provides that "[t]he audit report, supported by agency work papers, showing an overpayment to a provider constitutes evidence of the overpayment." It has been said that this language enables AHCA to "make a prima facie case without doing any heavy lifting: it need only proffer a properly-supported audit report, which must be received in evidence." Full Health Care, Inc. v. Agency for
Health Care Administration, 2001 WL 729127 *8.
Section 409.913(21), Florida Statutes, further provides, as noted above, that, "[n]otwithstanding the applicable rules of discovery, all documentation that will be offered as evidence at an administrative hearing on a Medicaid overpayment must be exchanged by all parties at least 14 days before the administrative hearing or must be excluded from consideration."
Where there is a conflict in the testimony presented at the administrative hearing, including a conflict in any
expert medical testimony, it is the responsibility of the Administrative Law Judge to assess the relative credibility of the conflicting testimony and resolve the conflict. See Declet v. Department of Children and Families, 776 So. 2d 1000, 1001 (Fla. 5th DCA 2001)("This court cannot reweigh or reevaluate the evidence presented to the hearing officer and cannot substitute its judgment for that of the trier of fact. It was up to the hearing officer to resolve conflicts in the testimony."); Velasquez v. Malaja Construction, Inc., 720 So. 2d 302, 304 (Fla. 1st DCA 1998)("As the finder of fact, the judge of compensation claims had to decide which doctor's testimony to credit."); Boyd v. Department of Revenue, 682 So. 2d 1117, 1118 (Fla. 4th DCA 1996)("Essentially, appellant is asking this court to reweigh the evidence considered by the hearing officer.
However, it is the hearing officer's function to consider all evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact. When evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue, and neither PERC nor this court can overturn the officer's findings based on disputed issues of fact.")(citation omitted); Martuccio v. Department of
Professional Regulation, Board of Optometry, 622 So. 2d 607, 609 (Fla. 1st DCA 1993)("It is for the hearing officer to consider
all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent substantial evidence."); Nead v. Shalala, 89 F.3d 846 (Table), 1996 WL 217912 **1 (9th Cir. 1996)("It is within the factfinder's province to resolve conflicting medical opinions and here the administrative law judge did so."); Lama v. Borras, 16 F.3d 473,
478 (1st Cir. 1994)("Naturally, the trier of fact can rarely determine the applicable standard of care without the assistance of expert testimony. The predictable battle of the experts then creates a curious predicament for the fact-finder, because an error of judgment regarding diagnosis or treatment does not lead to liability when expert opinion suggests that the physician's conduct fell within a range of acceptable alternatives. While not allowed to speculate, the fact-finder is of course free to find some experts more credible than others.")(citations omitted); and Stuckey v. Sullivan, 881 F.2d 506, 509 (7th Cir. 1989)("The ALJ has the authority to assess the medical evidence and give more weight to evidence he finds more credible.").
In evaluating the credibility of testimony, it is appropriate for the Administrative Law Judge to consider whether it is self-serving or if the witness is in any way biased.23 See
Walls v. State, 641 So. 2d 381, 387 (Fla. 1994)("We recognize that Walls himself claimed a loss of emotional control.
However, judge and jury were within their discretion to reject this statement of opinion as self-serving, or inconsistent with the facts, based upon the present record."); N. K. D. v. State, 799 So. 2d 428, 430 (Fla. 1st DCA 2001)("In our view, this type of self-serving statement is the kind that the trier of fact, in consideration of the remaining evidence, was free to weigh and reject."); Dalzell v. Mercy Hospital, 697 So. 2d 537, 538 (Fla. 1st DCA 1997)("The JCC was under no legal obligation to accept Dr. Wand's self-serving explanation for the inconsistent positions he took."); and Conde v. Velsicol Chemical
Corporation, 804 F. Supp. 972, 984 (S.D. Ohio 1992)("Should this case proceed to trial, Velsicol is clearly free to challenge Dr. Conde's methodology, diagnosis, assumptions, and qualifications through cross-examination and through the presentation of its own witnesses. Velsicol may also argue its position that he has let his concern for his and his family's health and their economic interest in this lawsuit affect his professional judgment.").
As is reflected in the Findings of Fact set forth above, at the administrative hearing that Petitioner requested and was granted in the instant case, AHCA met its burden of proving, by a preponderance of the evidence, that Petitioner received Medicaid overpayments in the amount AHCA is seeking to recover from him ($70,629.68).
It did so through the presentation of documentary and testimonial evidence (supplementing the admissions arising from Petitioner's failure to have timely responded to AHCA's Request for Admissions) that established the existence of, among the 386 fully paid claims in the "cluster sample," claims (identified in Respondent's Exhibit 25) that were for services that were wholly non-reimbursable (either because they were not documented, as required, as having been provided at all; because they were not documented, as required, as having been provided by Petitioner or under his "personal supervision"; or because they were not documented, as required, as having been "medically necessary") or were only partially reimbursable (because they lacked the necessary documentation to show that the level of service actually provided was as high as that reflected by the procedure code billed) and for which Petitioner was overpaid a total of
$11,913.23 (or $30.86329051 for each claim of the 386 in the "cluster sample"). Applying a statistical extrapolation technique that Petitioner has not challenged, AHCA showed that Petitioner was overpaid, for all 2,571 paid claims submitted during the Audit period, a total of $70,629.68, which AHCA is entitled to recover.
In determining whether AHCA met its burden of proof, it was necessary for the undersigned to evaluate the credibility of AHCA's medical expert, Dr. Thacker, and weigh his expert
testimony against that given by Petitioner and his expert witness, Dr. Hershman.
The undersigned engaged in such an evaluative and comparative exercise and found Dr. Thacker to have been a more impressive and persuasive witness than either Petitioner or Dr. Hershman.
It is true that Dr. Thacker has practiced considerably fewer years than either Petitioner or Dr. Hershman has. Nonetheless, unlike Dr. Hershman, Dr. Thacker is an osteopathic internist in "active practice" and, as such, as noted above, is Petitioner's "peer," as that term is defined in Section 409.9131(2)(c), Florida Statutes. Furthermore, while he may not be as experienced as Petitioner and Dr. Hershman, it in no way appears that Dr. Thacker is any less knowledgeable regarding the matters (relating to coding and "medical necessity") on which he gave expert testimony. In fact, it is apparent that, compared to Petitioner and Dr. Hershman, Dr. Thacker is more familiar with, and has a better understanding of, the contents of the CPT and the "manuals" and "handbooks" against which the documentation supporting Petitioner's billings during the Audit Period must be measured. Dr. Thacker's expert knowledge of not only osteopathic internal medicine, but of applicable billing requirements, combined with impartiality and objectivity not possessed by either Petitioner or Dr. Hershman, made him, in the
eyes of the undersigned, a more reliable witness than either Petitioner or Dr. Hershman, and his testimony on the claims in dispute in the instant case has been fully credited.
In view of the foregoing, AHCA should enter a final order finding that Petitioner was overpaid a total $70,629.68 for Medicaid claims submitted for services assertedly rendered
during the Audit Period.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that AHCA enter a final order finding that Petitioner received $70,629.68 in Medicaid overpayments for paid claims covering the period from March 1, 1996, through March 17, 1998, and requiring Petitioner to repay this amount to AHCA.
DONE AND ENTERED this 28th day of January, 2004, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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 28th day of January, 2004.
ENDNOTES
1/ AHCA subsequently claimed that it "only agreed that the hearing would not proceed if the Petitioner withdrew his petition" and that it did not otherwise "agree or concur with any of the terms or statements" set forth in Petitioner's Notice of Withdrawal of Petition for Formal Hearing.
2/ It does not appear that Petitioner ever "fil[ed] for bankruptcy protection."
3/ See Beverly Enterprises-Florida, Inc. v. Department of Health and Rehabilitative Services, 573 So. 2d 19, 23 (Fla. 1st DCA 1990)("A request for a formal administrative hearing commences a de novo proceeding intended to formulate agency action, and not to review action taken earlier or preliminarily."); Boca Raton Artificial Kidney Center, Inc. v. Florida Department of Health and Rehabilitative Services, 475 So. 2d 260, 261-62 (Fla. 1st DCA 1985)("Although the CON in question does not so state, it represents preliminary agency action. That the actual certificate fails to state that it is a 'notice of intent to issue CON' or that it is 'subject to administrative review' does not change the character of the certificate as preliminary agency action. Such action is subject to administrative review via Section 120.57(1) or (2) hearings on the petition of a substantially affected party. The policy of HRS, whereby an applicant is permitted to operate a health care facility on the basis of preliminary approval by the agency, acts to foreclose meaningful administrative review afforded substantially affected parties by Chapter 120. The agency's failure to differentiate between preliminary and final agency action leads to a situation where a health care facility is being operated under the authority of a CON which has not yet been issued by final order of the agency. . . . To allow an applicant to operate a health care facility based solely on the preliminary determination of the agency is tantamount to presuming that the preliminary decision of the agency is correct. Such policy also fails to recognize the proper role of Section 120.57 hearings in the administrative process, i.e., such hearings are to aid in the formulation of final agency action and are not intended solely for review of action taken earlier and preliminarily."); Capeletti Brothers, Inc. v.
Department of General Services, 432 So. 2d 1359, 1363 (Fla. 1st
DCA 1983)("Capeletti misconceives the purpose of the [Section]
120.57 hearing. The rejection of bids never became final agency action. As we have previously held, APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind."); Szkolny v. State Awards Committee, 395 So. 2d 1290, 1293-94 (Fla. 1st DCA 1981)("Because we are remanding this case for a hearing concerning the amount of savings, if any, we add (contrary to Szkolny's suggestion) that all matters up to the point of the hearing may be considered. Section 120.57(1) proceedings do not perform a review function: rather, this procedure is utilized to formulate agency action."); and McDonald v. Department of Banking and Finance, 346 So. 2d 569,
584 (Fla. 1st DCA 1977)("Section 120.57 proceedings are intended to formulate final agency action, not to review action taken earlier and preliminarily.").
4/ In a footnote, AHCA stated:
The term "Medicaid-related Records" used throughout this Request for Admissions, has the meaning that is used in Chapter 409, Florida Statutes, and Chapter 59G-1 of the Florida Administrative Code. The definition is set forth in §409.901(19), Florida Statutes, and Section 59G-1.010(154), of the Florida Administrative Code. This term shall also encompass any and all computer stored data (i.e.- electronic mail (E-mail), computerized billing records, computer spreadsheets, computer databases, etc.).
Section 409.901(19), Florida Statutes, provides as follows: "Medicaid-related records" means records
that relate to the provider's business or profession and to a Medicaid recipient.
Medicaid-related records include records related to non-Medicaid customers, clients, or patients but only to the extent that the documentation is shown by the agency to be necessary to determine a provider's entitlement to payments under the Medicaid program.
Florida Administrative Code Rule 59G-1.010(154), provides as follows:
"Medicaid-related records" means records that relate to the provider's business or profession and to a Medicaid recipient.
Medicaid-related records include records related to non-Medicaid customers, clients, or patients, to the extent that the documentation is shown by the department to be necessary to determine a provider's entitlement to payments under the Medicaid program.
5/ Florida Administrative Code Rule 28-106.204(5) requires that "[m]otions for extension of time . . . be filed prior to the expiration of the deadline sought to be extended."
6/ Given the "differences" that Petitioner indicated he had with Attorney Minkes, the undersigned deemed it appropriate to rule on Petitioner 's pro se request for relief (rather than treat it as a nullity) notwithstanding that Petitioner was technically still represented by Attorney Minkes. Cf. Graves v. State, 642 So. 2d 142, 144 (Fla. 4th DCA 1994)("The supposed rule that all pro se filings by represented defendants are a nullity thus makes no sense, at least in the circumstance of ineffective assistance of counsel, and may lead to a manifest injustice."); and Pitts v. Nimnicht Chevrolet, 569 So. 2d 921, 925 (Fla. 1st DCA 1990)("Although technically, Mr. Massey was attorney of record when claimant filed the letter at issue, in view of the circumstances, claimant was justified in believing that the representation had terminated and in conducting himself accordingly. Consequently, we conclude that it was an abuse of discretion to rule that claimant's letter to the Division was a nullity.").
7/ Not having moved for and been granted leave to withdraw, Attorney Minkes technically remains counsel of record for Petitioner in this case.
8/ See endnote 6, supra.
9/ Among the arguments Petitioner makes in his letter is that only "[f]orty-five [sic] cases were used to extrapolate conclusions for hundreds of patients with a variety of ailments and multiple conditions" and that AHCA "denied claims that [he] did not make." These arguments, while they have been considered, must be summarily rejected because they challenge
matters that have been conclusively established as a result of Petitioner's failure to have timely responded to AHCA's Request for Admissions.
10/ It does not appear that these documents had been disclosed to AHCA 14 days before the final hearing. Accordingly, even if they had been offered into evidence, they would not have been received, over AHCA's objection on the ground of untimely disclosure, since, as AHCA pointed out in its pre-hearing Motion to Preclude the Petitioner from Presenting Undisclosed Evidence or Testimony, Section 409.913(21), Florida Statutes, provides that "all documentation that will be offered as evidence at an administrative hearing on a Medicaid overpayment must be exchanged by all parties at least 14 days before the administrative hearing or must be excluded from consideration."
11/ The Motion to Strike that AHCA filed on January 27, 2004, therefore, has been granted in part (to the extent that it requests that these documents appended to the letter be stricken) and denied in part (to the extent that it requests that the letter itself be stricken).
12/ Dr. Hershman testified (by deposition) that he "had a completely different kind of practice than [Petitioner] has."
13/ The services "performed using that equipment" were "billed . . . separately" from office visits.
14/ Prior to July 1, 1993, the effective date of Chapter 93- 129, Laws of Florida, the Department of Health and Rehabilitative Services was the state agency responsible for the administration of the Florida Medicaid program.
15/ Petitioner testified that, although there were other physicians practicing at the Facility, "[i]t wasn't a group practice," but rather "was [his] practice basically."
16/ To do so, they "must be legible and comprehensible," as the handbook specifically provided effective November 1996. Cf.
Tsoutsouris v. Shalala, 977 F. Supp. 899, 905 (N.D. Ind. 1997)("Dr. Freeman stated that although Dr. Tsoutsouris' medical records alone would not enable a third party to make a determination that medical necessity existed in the cases of Hazel Kershaw and Emma MacIntosh, Dr. Tsoutsouris' testimony deciphering his illegible handwriting and explaining his abbreviations and 'as above' references would permit a
determination of medical necessity. . . . However, as in the cases of Mr. Walker and Mrs. Potts, this conclusion does not compel a finding of medical necessity because the issue that the ALJ was reviewing was whether Dr. Tsoutsouris provided sufficient documentation for a third party to find that the appropriate medical necessity existed to enable payment of Dr.
Tsoutsouris' claims.").
17/ They tend to have a patient population that, compared to the patient population of other primary care providers, is a "little sicker" and more apt to present with "multiple problems."
18/ In taking such action, AHCA was exercising its statutory authority under Section 409.913(2), Florida Statutes, to "conduct . . . audits . . . to determine possible . . . overpayment . . . in the Medicaid program." The purpose of the audit was to ascertain whether Petitioner was overpaid for services he billed Medicaid during the Audit Period, not to determine whether there were any services Petitioner provided during the Audit Period for which he could have billed Medicaid but did not.
19/ Petitioner and his office manager, Daniel Edward, testified that there were "travel sheets," prepared by Petitioner, that contained additional information regarding the claims in the "cluster sample." These "travel sheets," however, were not provided to AHCA at any time in advance of the hearing in this case, nor were offered into evidence at hearing. (Even if they had been offered into evidence, they would have been "excluded from consideration" pursuant to Section 409.913(21), Florida Statutes, because they were not "exchanged" with AHCA 14 days before the hearing.)
20/ These records included handwritten notes difficult, and in many instances impossible, to read because of their poor legibility.
21/ In the undersigned's view, Dr. Thacker's changing his opinion, in Petitioner's favor, on the "medical necessity" of certain claimed services, after having the opportunity to speak with Petitioner, if anything, serves to bolster, not (as Petitioner has suggested) lessen, Dr. Thacker's credibility as a witness inasmuch as it shows Dr. Thacker's open and fair- mindedness.
22/ Petitioner's billings were "extremely skewed to the higher levels," particularly the 99205 and 99215 "E/M" code levels.
23/ That testimony may be self-serving, however, is not a basis on which to find it inadmissible and to not consider it at all. See Harmon v. State, 854 So. 2d 697, 699 (Fla. 5th DCA 2003)("Simply because the statement may be self-serving is not a sufficient basis to exclude it."); Schwarz v. State, 695 So. 2d 452, 455 (Fla. 4th DCA 1997)("[S]elf-serving statements are not per se inadmissible."); Alexander v. State, 627 So. 2d 35, 43 (Fla. 1st DCA 1993)("The mere fact that statements are self- serving is not, in and of itself, a sufficient evidentiary basis for their exclusion from evidence. No legal principle excludes statements or conduct of a party solely on the ground that such statements or conduct is self-serving."); Martuccio v.
Department of Professional Regulation, Board of Optometry, 622 So. 2d at 609 ("Persons having a pecuniary or proprietary interest in the outcome of litigation are not disqualified from testifying under the Florida Evidence Code. Interest merely goes to the credibility of the evidence."); and Tri-State Systems, Inc. v. Department of Transportation, 500 So. 2d 212,
215 (Fla. 1st DCA 1986)("The hearing officer likewise erred in rejecting the testimony because it came from Tri-State employees and was not corroborated by the DOT personnel involved. Testimony by an interested party, even though self- serving, is legally competent to establish a fact if the fact finder is persuaded as to its truthfulness.").
COPIES FURNISHED:
Garnett Chisenhall, Esquire
Agency for Health Care Administration Fort Knox Executive Center
2727 Mahan Drive, Mail Station 3
Tallahassee, Florida 32308
Anthony L. Conticello, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3
Tallahassee, Florida 32308
Daniel C. Minkes, Esquire 9765 184th Street
Miami, Florida 33157
Jules G. Minkes, D.O. 11760 Southwest 72nd Place Pinecrest, Florida 33156
Lealand McCharen, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3
Tallahassee, Florida 32308
Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431
2727 Mahan Drive
Tallahassee, Florida 32308
Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116
2727 Mahan Drive
Tallahassee, Florida 32308
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 10, 2004 | Agency Final Order | |
| Jan. 28, 2004 | Recommended Order | The Respondent met its burden of proving that Petitioner, an osteopathic internist, had received Medicaid overpayments during the audit period totaling $70,629.68. |
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