STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAZHAR G. NAWAZ, M. D.,

Petitioner,

vs.

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

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) Case No. 03-1607MPI

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on September 22, 2003, in Tallahassee, Florida, before Fred L. Buckine, an Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mazhar G. Nawaz, pro se

206 West Oak Street, Suite C Kissimmee, Florida 34741

For Respondent: Debora Fridie, Esquire

Agency for Health Care Administration Fort Knox Building III, Mail Station 3 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner received Medicaid overpayments and, if so, the total amount of the overpayments. Petitioner agreed at the onset of the hearing not

to contest the findings of the Agency that Petitioner received Medicaid monies to which he was not entitled. Therefore, the issue remaining for determination is:

Whether Respondent calculated the overpayment amount of

$52,850.82 using a valid statistical formula and a valid sample of recipients and claims during the audit period of March 1, 2000, through March 1, 2002.

PRELIMINARY STATEMENT

Respondent, Agency for Health Care Administration (the "Agency"), is the agency responsible for administering the Florida Medicaid program. Petitioner, Mazhar G. Nawaz, M.D., is enrolled as a Medicaid physician provider.

On January 22, 2003, the Agency issued a Final Agency Audit Report (FAAR), covering the audit period of March 1, 2000, through March 1, 2002, that set forth the basis upon which the Agency determined that Petitioner had been overpaid $52,850.82 for medical claims submitted.

The specific issues raised in the FAAR are:

1. Whether Petitioner billed Medicaid and was overpaid by Medicaid for services rendered by non-Medicaid providers who were employed by Petitioner, specifically two PAs and an ARNP who were not enrolled in the Medicaid program.

   
   

2. Whether Petitioner billed Medicaid and was overpaid by Medicaid for services that were not documented in accordance with Medicaid policy and procedures.

3. Whether Petitioner billed Medicaid and was overpaid by Medicaid for services, for which documentation provided supported a lower level of care than the level of care for which Petitioner billed and received payment.

   
   

4. Whether Petitioner billed Medicaid and was overpaid by Medicaid for services that were not listed in the provider handbook as covered by Medicaid.

   
   

5. Whether Petitioner billed Medicaid and was overpaid by Medicaid for services that were erroneously coded on the submitted claims.

   
   

6. Whether Petitioner billed Medicaid and was overpaid by Medicaid for conducting procedures that Petitioner was not licensed to perform.

The request of Petitioner for a hearing was referred to the Division of Administrative Hearings on May 1, 2003. The Notice of Hearing, entered on May 14, 2003, scheduled the final hearing for July 9 and 10, 2003, in Orlando, Florida.

On May 15, 2003, Respondent filed a motion for change of venue to Tallahassee, Florida. On May 19, 2003, an Amended Notice of Hearing was entered, changing the venue of the final hearing to Tallahassee, Florida. On July 2, 2003, Respondent filed a Motion to Continue, which was granted, rescheduling the final hearing for September 22 and 23, 2003.

On September 2, 2003, Respondent filed its Motion to Allow Expert Testimony by Deposition in Lieu of Trial Testimony, which was granted by Order dated September 18, 2003.

At the final hearing on September 22, 2003, and before testimony was proffered, the Agency moved to amend the FAAR (Respondent's Exhibit R-2) due to a scrivener's error. On page 2 of the FAAR, under the section "Review Determination," were scrivener's errors in paragraph 1, sentences one and two that read, "Medicaid policy addresses the requirements for a physician to be enrolled in and participate in the Medicaid program. You billed and received payment for services when the physician rendering the service was not a Medicaid provider." In sentences one and two, the words "physician assistant" and "advanced registered nurse practitioner" should have been included with the word "physician." The corrected sentences read: "Medicaid policy addresses the requirements for a physician and physician assistant [PA] and advanced registered nurse practitioner [ARNP] to be enrolled in and participate in the Medicaid program. You billed and received payment for

services when the physician and physician assistant and advanced registered nurse practitioner rendering the service were not a Medicaid provider." Petitioner and the Agency stipulated that Petitioner was enrolled in the Medicaid program as a Medicaid provider, but his two PAs and his ARNP were not enrolled in the Medicaid program as Medicaid providers. Based upon the stipulation of the parties, the motion to amend the FAAR to correct the scrivener's error was granted.

Prior to testimony being proffered, Petitioner agreed not to contest the Agency's findings with regard to what is set forth in the FAAR, based upon the determination of the Agency that Petitioner was overpaid by Medicaid and received monies to which he was not entitled as an enrolled Medicaid provider. The following enumerated stipulation of the parties is accepted:

1. Medicaid policy specifies how medical records must be maintained. Some services for which Petitioner billed and received payment were not documented. Medicaid requires documentation of the services and considers payment made for services not appropriately documented as overpayment.

   
   

2. Medicaid policy defines the varying levels of care and expertise required for evaluation and management procedure codes for office visits. The documentation provided by the Petitioner supports a lower level of office visit than the one for which he billed and received payment. The difference between the amount that the Petitioner (was) paid and the correct payment for the appropriate level of service is considered an overpayment.

   
   

3. Medicaid policy requires that payments be made only for those services listed in the provider handbook. The Petitioner billed and received payment for services that, when reviewed by a physician consultant, indicated that the services was [sic] not Medicaid covered. Payment made to Petitioner for those services are considered overpayments.

   
   

4. Some services rendered were erroneously coded on the submitted claim. The appropriate code was applied and the payment adjusted. The difference between the amount paid and the payment for the

   correct service is considered an overpayment.

   
   

5. Medicaid policy requires that providers be licensed to perform specific procedures. The provider billed and received payment for conducting procedures that he/she was not licensed to perform. Payments made to the provider for those services are considered overpayments.

Based upon the stipulation by the Parties, the issues to be determined are:

1. The findings of the Agency that the two PAs and the ARNP, rather than Petitioner, performed the services at issue as overpayments; and

2. [T]he Agency's calculation of the Medicaid overpayment based upon the random sample of recipients and claims and the statistical formula for cluster sampling.

Petitioner testified in his own behalf. Petitioner's Exhibit P-11 was admitted in evidence. The Agency presented the testimony of three witnesses: Hector Tapining, Agency employee and Medicaid analyst; Phyllis Stiver, Agency employee and registered nurse; and Ian McKeague, Ph.D., Agency expert witness in the area of statistical analysis.

Respondent's composite Exhibits R-1 through R-31 were accepted in evidence. Official Recognition was requested and taken of: (1) Medicaid handbooks promulgated under the Florida Administrative Code; (2) The Advanced Registered Nurse

Practitioner Coverage and Limitations Handbook; (3) the Physician Coverage and Limitation Handbook; (4) the Physician Assistant Coverage and Limitation Handbook; (5) the Medicaid Provider Reimbursement Handbook; and (6) Child Health Check-Up.

At the conclusion of the Agency's case-in-chief, Petitioner motioned for a continuance of the final hearing so that Petitioner might subpoena his two PAs and his ARNP employees to give testimony regarding their roles in providing Medicaid services to Petitioner's Medicaid patients.

Petitioner's motion for continuance was granted, and the final hearing was continued until October 28, 2003. On October 24, 2003, the one-volume Transcript was filed. On

October 24, 2003, the Agency filed a copy of Petitioner's letter expressing his desire not to go forward with the continuation of the final hearing scheduled for October 28, 2003. The

October 28, 2003, hearing was cancelled, and by separate order, the parties were required to file their proposed recommended orders not later than November 12, 2003. On November 3, 2003, the Agency moved for an extension of time to file a proposed recommended order, and by order of November 5, 2003, the extension was granted extending the time to December 12, 2003, thereby waiving the time for this Recommended Order. See Fla. Admin. Code R. 28-106.216.

A Transcript of the final hearing was filed on October 24, 2003. Petitioner did not file a proposed recommend order. The Proposed Recommended Order filed by the Agency was considered by the undersigned in preparing this Recommended Order.

FINDINGS OF FACT

Based upon observation of the witnesses while testifying, the documentary materials received in evidence, official recognition granted, evidentiary rulings made, and the entire record compiled herein, the following relevant and material facts are established.

1. The Agency is charged with administration of the Medicaid program in Florida pursuant to Sections 409.907 and 409.913, Florida Statutes (2003).

2. Among its administrative duties, the Agency operates a program to oversee the activities of Florida Medicaid providers to ensure that fraudulent and abusive behavior and neglect occur to the minimum extent possible and to recover overpayments and impose sanctions as appropriate.

3. "Overpayment" is statutorily defined to mean "any amount that is not authorized to be paid by the Medicaid Program, whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse or mistake." § 409.913(1)(d), Fla. Stat. (2000).

4. The FAAR, covering the audit period of March 1, 2000, through March 1, 2002, together with the Agency's work papers, set out a Medicaid overpayment amount of $52,850.82 that the Agency seeks to recoup from Petitioner.

5. Petitioner is a physician enrolled in the Medicaid program under provider number 0580091-00, who operated under his provider number during the audit period of March 1, 2000, through March 1, 2002, under the auspices of a standard Medicaid provider agreement. As a part of the Medicaid provider agreement, the provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, and statements of policy.

6. Petitioner participated in the Medicaid program during the FAAR period of March 1, 2000, through March 1, 2002, and received payment for the services that the Agency now questions and are the subject of the audit.

7. During the above audit period, the applicable statutes, rules, and Medicaid handbooks required Petitioner to retain all medical, fiscal, professional, and business records on all services provided to a Medicaid recipient. Petitioner had to retain these records for at least five years from the date of services.

8. The Florida Medicaid program prepares and furnishes handbooks to all enrolled Medicaid providers, including

   Petitioner. These handbooks set forth the Medicaid policies with regard to services rendered and billed by providers.

   Petitioner had a duty to make sure that each claim submitted was true and accurate and was for goods and services that were provided, by an enrolled Medicaid provider, in accordance with the requirements of Medicaid rules, handbooks, and policies, and in accordance with federal and state law.

9. Medicaid providers who do not comply with the Medicaid documentation and record retention policies hereinabove may be subject to administrative sanctions and/or recoupment of Medicaid payments. Medicaid payments for services that lack required documentation and/or appropriate signatures will be recouped.

10. Mr. Hector Tapining (Mr. Tapining) and Phyllis Stiver (Nurse Stiver), registered nurse consultant for Medicaid Program Integrity, conducted an on-site visit to Petitioner's office and requested records. From the files of Petitioner, Mr. Tapining generated a random list of 30 Medicaid recipients (the cluster sample) who had received services by Petitioner during the two- year audit period of March 1, 2000, through March 1, 2002. The Agency thereafter generated worksheets reflecting: (1) the total number of Medicaid recipients during the audit period;

    (2) total number of claims made by Petitioner, with dates of medical services provided; (3) the total amount of money paid

    Petitioner during the audit period; and (4) the analyst's worksheets representing his review of each recipient's claim(s) for the audit period. Additional Agency-generated worksheets reflected: (1) the total number of Medicaid recipients during the audit period; (2) the total number of claims of Petitioner, with dates of service; (3) the total amount of money paid to Petitioner during the audit period; and (4) the analyst's worksheets representing his review of each recipient's claim(s) for the audit period. Mr. Tapining provided the worksheets to Nurse Stiver for her review of compliance with Medicaid enrollment and documentation. Mr. Tapining provided the worksheets to E. Rawson Griffin, III, M.D. (Dr. Griffin), the medical records consultant, for his review and evaluation of appropriate billing codes.

11. The formula used by the Agency is a valid statistical formula, the random sample used by the Agency was statistically significant, the cluster sample was random, and the algebraic formula and the statistical formula used by the Agency are valid formulas.

12. Dr. Griffin, after review of 30 patient records, concluded that Petitioner engaged in a general pattern of over coding at the highest level of code (99205) for services rendered that appeared to be rather straight-forward and simple for the medical services rendered at the time of each visit.

    Over coding is the term employed when supporting documentation for medical billing does not support the billing code chosen and assigned by the provider. In his review, Dr. Griffin saw no middle codes (99213s and/or 99214s) billed by Petitioner.

    Dr. Griffin opined that it was extraordinary that Petitioner would see and service 30 patients on their first visits, who at that time presented a complaint necessitating a medical necessity level code 99205, the highest level of Medicaid service.

13. Continuing, Dr. Griffin explained that over coding is entering in the patient's billing statement a code higher than the patient's medical complaint and the Patient's recorded medical necessity warranted for the visit or visits (1st, 2nd, 3rd, etc.) on the date those services were provided by Petitioner. In Dr. Griffin's opinion, Medicaid billing codes are to be determined by consideration of the following medical factors: (1) the patient's particular medical complaint and the degree of complexity of that complaint at the time of the initial visit, (2) the type of and the complexity of medical examinations and the tests necessarily required to be administered based upon the type and complexity of the initial complaint, and (3) the resulting interpretations of the tests and the examinations administered for treatment of the complaint. It is only after completion of the above analysis

    and documentation in the patient's medical records, would a code 22915 billing be appropriate.

14. Dr. Griffin's analysis of the cluster sample of

    
    

    30 Medicaid records of patients serviced by Petitioner resulted in his down coding Petitioner’s billing as shown below.2

    I.D. Number Service Date Code Billed Adjustment

    
    

    B.K.	1	03-29-2000	215	(5)	214
    B.K.	1	07-19-2000	214		213
    	1	08-17-2000	214		213
    	1	12-11-2000	215		214
    	1	02-22-2001	215		214
    	1	05-23-2001	214		213
    	1	06-24-2001	214		212
    J.A.C.	4	No date	215		214
    J.R.	5	10-02-2000	215		213
    B.F.	6	07-25-2000	215		213
    F.H.	8	04-10-2000	215		213
    F.H.	8	05-04-2000	214		213	(2	visits)
    D.C.	9	01-23-2000	215		213
    T.M.	10	06-07-2000	215		213
    T.M.	10	06-28-2000	214		213
    D.W.	13	01-12-2000	215		213
    P.L.	14	01-10-2000	214		213
    I.H.	15	12-18-2000	215		213
    M.V.	17	04-10-2000	215		213
    R.R.	21	04-17-2001	214		213
    S.K.	25	11-20-2000	212		211
    A.H.	26	12-19-2000	215		212
    T.P.	27	02-20-2000	215		213
    M.R.	28	11-14-2002	215		214
    E.C.	29	04-28-2000	214		213
    E.C.		07-03-2000	214		213
    		12-28-2000	214		212
    		01-02-2000	214		212
    		01-23-2000	214		212
    		02-06-2000	214		212
    		04-03-2000	214		212	(6	visits)
    R.S.	30	04-16-2001	215		213

15. Nurse Stiver reviewed the cluster sample of

    
    

    30 Medicaid records of patients serviced by Petitioner for compliance with Medicaid policy(s) to ensure that services billed are the services for which Medicaid pays and are services that meet all aspects of the Medicaid policy(s) as specified in the Medicaid Handbook.

16. Medicaid policy, regarding provider enrollment, requires (all) providers who services Medicaid patients to be (individually) enrolled in the Medicaid program as providers before providing service and billing Medicaid for those services. The Agency verifies the education, credentials, and criminal background of each enrollee to ensure the safety of Medicaid recipients. The individual provider enrollment is required as a condition precedent for providers to bill Medicaid for services and to be paid by Medicaid for those services. The enrollment requirement includes PAs and ARNPs.

17. Nurse Stiver's review of Petitioner's documents sought to ascertain whether each provider who actually rendered services had executed a voluntary enrollment contract agreement between the Agency and that provider. In these contract agreements, the provider agrees to comply with all laws and rules pertaining to the Medicaid program when furnishing a service or goods to a Medicaid recipient, and the Agency agrees to pay a sum, determined by a fee schedule, payment methodology,

    or other manner, for the service or goods provided to the Medicaid recipient.

18. The Medicaid Handbook requires separate and/or individual enrollment of each and every entity that provides Medicaid service(s) to Medicaid recipients. The mandatory enrollment includes a provider(s) who makes written entries on and/or signs Medicaid documents. Should the medical service provider and the provider documenting the Medicaid recipient's medical files and the provider billing Medicaid for services rendered be different providers, each provider must be individually enrolled in the Medicaid program. Within a chain of provider entities, the failure of one provider entity to be enrolled entitles the Agency to full recoupment of all Medicaid payments made to the enrolled Provider.

19. Nurse Stiver applied the above analysis to the cluster sample of 30 Medicaid recipients' records recovered from Petitioner's files and to the Agency's worksheets. Nurse Stiver's review and her investigation revealed specific instances in which the paid billing claims evidenced that Petitioner's non-enrolled PAs and/or Petitioner's non-enrolled ARNP either provided the medical services or documented the medical services provided to the Medicaid recipients as shown below:

Patient Service Date(s) Services and/or documentation

1. J.A. (stipulation)

   
   

2. Stipulation3

3. B.F. 11 visits-serviced Provider not enrolled

4. M.R. 7 visits-serviced Provider not enrolled

   
   

5. F.H. 11 visits-serviced Provider not enrolled

   
   

6. through 12. Stipulations

   
   

   13.	D.W.		2 visits-serviced	Provider	not	enrolled
   14.	through	17.	Stipulations
   18.	L.A.		5 visits-serviced	Provider	not	enrolled
   19.	and 20.		Stipulations
   21.	R.R.		3 visits-serviced	Provider	not	enrolled
   22.	and 23.		Stipulations
   24.	L.S.		1 visit-serviced	Provider	not	enrolled
   25.	S.K.		3 visits-serviced	Provider	not	enrolled
   26.	through	28.	Stipulations
   29.	E.C.		12 visits-serviced	Provider	not	enrolled
   30.			Stipulation

   1. After the review and examination of the claims submitted within the cluster sample, Nurse Stiver concluded the above services billed to the Agency were not performed by Petitioner. She opined that either or both of Petitioner's employees, Justo Lugo and Phillip Nguyen (PAs) and/or Andrea McDonald (ARNP) provided or assisted in providing services. As non-enrolled providers in the Medicaid program, the PAs and the ARNP’s participation in providing services to Medicaid recipients and/or participation in assisting Petitioner in providing medical services and/or participation in Petitioner's billing Medicaid for medical services to Medicaid recipients violated Medicaid policy.

   2. Respondent established that the Medicaid program payments for services provided by an individual not enrolled as a provider in the Medicaid program are overpayments of which the Agency is entitled to full recoupment.

   3. After the reviews and the analysis by Nurse Stiver and Dr. Griffin, using the Agency's formula for calculating the extrapolated overpayments, the Agency determined overpayment in the amount of $64,453.74 to have occurred. Based upon these findings, the Agency issued a Preliminary Agency Audit Report (PAAR) letter setting out the overpayment amount of $64,453.74 and inviting Petitioner to submit additional documentation.

   4. Petitioner's additional documentation submittals were reviewed by the Agency. The post-PAAR review resulted in a reduction of overpayment to $52,850.82 as the total overpayment for all claims considered, and sought to be recovered from Petitioner by the Agency.

   5. The Agency's worksheets resulting in the $52,850.82 overpayment included: (1) the medical record review summary;

      (2) a spreadsheet setting out the names of the recipients, the dates of service, the procedure billed, the amount paid by the Agency, the amount allowed by the Agency, and the resulting overpayment; (3) the overpayment calculation using cluster sampling; (4) the patient worksheets, or claims; and (5) the procedure code summary of the claims in the universe, as defined in Section 409.913, Florida Statutes (2000).

   6. The formula used by the Agency is a valid statistical formula, the random sample used by the Agency was statistically significant, the cluster sample was random, and the algebraic formula and the statistical formula used by the Agency are valid formulas.

   7. The Agency's data and calculations were reviewed by Ian McKeague, Ph.D. (Dr. McKeague). He reproduced the calculations and concluded that $52,850.82 is the correct overpayment amount made by Medicaid to Petitioner.

   8. Petitioner produced neither written authority nor expert testimony contesting the validity of the statistical formula and Dr. McKeague's resulting calculation of overpayment.

   9. Nurse Stiver, with over 14 years employment with the Agency, worked with the Medicaid policies and handbooks. She worked with Mr. Tapining on the audit of Petitioner documents. Specifically, she reviewed Petitioner's records for compliance with Medicaid policy, to ensure that the services billed are the services Medicaid paid for and that those services met all aspects of Medicaid policy.

   10. Nurse Stiver's investigation and review revealed specific instances in which the paid claims show that the PAs and/or the ARNP, not Petitioner himself, provided the services to Medicaid patients.

   11. In each case where the Agency determined Petitioner was not entitled to payment, Nurse Stiver reviewed the medical records and determined that the ARNP or one of the PAs, who were not enrolled in the Medicaid program, actually rendered services to Medicaid recipients. Her determination was based upon her many years of nursing experience that the person rendering the services is the person who documents the services rendered. From her review, it appeared that the ARNP or a PA (not enrolled), not Petitioner, documented the service billed to and paid by Medicaid. Services rendered by an ARNP or a PA who is

       not enrolled as a provider in the Medicaid program cannot be compensated by the Medicaid program.

   12. Petitioner argued that he provided all Medicaid services billed to Medicaid and, on those rare occasions reviewed by Nurse Stiver, his employees (either the ARNP or the PAs), who by happenstance would be present in the treatment room, aided him by merely documenting services he himself rendered to the Medicaid patients. Petitioner presented an alternative argument that on other of those rare occasions reviewed by Nurse Stiver, his employees would be in the room when Petitioner actually provided services to Medicaid patients, and, while he was providing those services, he would simultaneously dictate to his employee who would transcribe his dictations on the Medicaid forms. Petitioner elected not to compel attendance by subpoena of his employees, even though the final hearing was continued to provide Petitioner an opportunity to do so.

   13. Petitioner's argument, that the proposed testimony by his employees would have been sufficient to challenge the Agency determination that Petitioner's billing was for services performed by a provider who was not enrolled in the Medicaid program, is without a foundation in fact and rejected.

   14. The Medicaid Provider Reimbursement Handbook provides, in part, that "Records must be retained for a period of at least

       five years from the date of service." The handbook goes on to provide in pertinent part:

       PAs must meet the general Medicaid provider enrollment that are contained in Chapter 2 of the Medicaid Provider Reimbursement Handbook, HFCA-1500 and Child Health Check- Up 221. In addition, PAs must follow the specific enrollment requirements that are listed in this section.

       
       

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       PAs must meet the provider requirements and qualification and their practice must be fully operational before they can be enrolled as Medicaid providers.

       
       

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       If a PA is employed by or contracts with a physician who can enroll as a Medicaid provider, the physician must enroll as a group provider and the PA must enroll as a treating provider within the group.

       
       

       * * *

       
       

       Services provided by a PA under the direct supervision of a physician may be billed using the physician's provider number instead of the PA's provider number. Direct physician supervision means the physician: (*) Is on the premises when the services are rendered, and (**) reviews, signs, and dates the medical record.

       
       

       * * *

       
       

       Medical records must state the necessity for and the extent of services provided. The following minimum requirements may vary according to the services rendered:

       
       

       * * *

       Note: See the service-specific Coverage and Limitations Handbook for record keeping requirements that are specific to a particular service.

       
       

       Providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid Payments.

       
       

       Medicaid payments for services that lack required documentation or appropriate signatures will be recouped.

       
       

       Note: See Chapter 5 in this handbook for information on administrative sanctions and Medicaid payment recoupment.

       
       

   15. Petitioner, by signing a Medicaid provider agreement, agreed that all submissions for payment of claims for services will constitute a certification that the services were provided in accordance with local, state, and federal laws, as well as rules and regulations applicable to the Medicaid program, including the Medical Provider Handbooks issued by the Agency.

       CONCLUSIONS OF LAW

       
       

   16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

   17. Respondent is the Agency required to operate a program to oversee the activities of Florida Medicaid recipients, and providers and their representatives, to ensure that fraudulent and abusive behavior and neglect of recipients occur to the

       minimum extent possible, and to recover overpayments and impose sanctions as appropriate. § 409.913, Fla. Stat. (2000).

   18. In implementing its duty, the Agency is given supplemental authority to conduct investigation of Medicaid fraud and abuse, including physicians-providers of goods or services, in accordance with the supplemental authority of Section 409.9131, Florida Statutes (2000). Should a conflict occur between the provisions, Section, 409.9131, Florida Statutes (2000), provisions shall control. § 409.9131(1), Fla. Stat. (2000).

   19. Respondent has the burden of proving by a preponderance of the evidence that Petitioner was overpaid for services delivered to Medicaid recipients. See South Medical Services, Inc. v. Agency for Health Care Administration, 653 So. 2d 440, 441 (Fla. 3d DCA 1995); Southpointe Pharmacy v. Department of Health and Rehabilitative Services, 596 So. 2d 106, 109 (Fla. 1st DCA 1992).

   20. Petitioner argued that on some occasions the PAs and ARNP assisted him by documenting the services provided or transcribing his dictation on the medical forms. However, Petitioner provided no evidence of specific instances in which he provided the services and the PAs or ARNP merely acted as transcribers.

   21. The Agency properly concluded and Petitioner did not contest the fact that Medicaid overpaid Petitioner for the following reasons:

       1. Petitioner billed Medicaid for services not documented in accordance with Medicaid policy. The Agency is entitled to recoup the monies paid as an overpayment.

          
          

       2. Petitioner billed Medicaid for services, for which documentation provided supported a lower level of care than the ones for which the Petitioner billed and received payment. The Agency is entitled to recoup the difference between the amount of money that the Petitioner was paid and the correct payment for the appropriate level of service.

          
          

       3. Petitioner billed Medicaid for services not listed in the provider handbook as covered by Medicaid. The Agency is entitled to recoup the monies paid as an overpayment.

          
          

       4. Petitioner billed Medicaid for services erroneously coded on the submitted claim. The Agency is entitled to recoup the difference between the amount of money that Petitioner was paid and the payment for the correct service.

          
          

   22. By undisputed evidence, the Agency proved that Petitioner's employees, rather than Petitioner, performed the services for Medicaid recipients at issue as overpayments.

   23. The Agency's calculation of the Medicaid overpayment based upon the random sample or recipients and claims and the statistical formula for cluster sampling is a valid statistical sampling.

   24. The formula used by the Agency is a valid statistical formula, the random sample used by the Agency was statistically significant, the cluster sample was random, and the algebraic formula and the statistical formula used by the Agency are valid formulas.

   25. The audit process by the Agency that led to its assertion of overpayment was initiated by the Agency in accordance with Section 409.913, Florida Statutes (2000); and it was completed in accordance with Section 409.913, Florida Statutes (2000 and 2002), and Section 409.9131, Florida Statutes (2000 and 2002). The Agency met its burden of proof, as is reflected in the Findings of Fact set forth above, that Petitioner was overpaid the total of $52,850.82 for Medicaid claims paid to Petitioner during the audit period.

   26. The Agency is entitled to recover 100 percent of the monies paid to Petitioner for the services to Medicaid recipients rendered by the PAs and the ARNP who were not enrolled in the Medicaid program as providers.

   27. Section 409.913(22)(a), Florida Statutes (2000), provides:

       In an audit or investigation of a violation committed by a provider which is conducted pursuant to this section, the agency is entitled to recover up to $15,000 in investigative, legal, and expert witness costs if the agency's findings were not

       contested by the provider or, if contested, the agency ultimately prevailed.

       
       

   28. The Agency, as the prevailing party, in an audit investigation finding that the Petitioner/provider committed a violation, is entitled to investigative, expert witness, and legal costs associated therewith.

   29. In the Proposed Recommended Order filed by the Agency, it was requested that the Division of Administrative Hearings retain jurisdiction "on the issue of adjudicating the Agency's costs until such time as there may be proper notice to Petitioner of a hearing on that issue." No such authority is provided in Section 409.913(22), Florida Statutes (2000). Therefore, once the Agency has "ultimately prevailed" in this case, it may then determine the amount of its investigative, legal and expert witness costs associated with "ultimately prevailing" in this matter and assess those costs against Petitioner. Should Petitioner dispute the cost determination assessed by the Agency and raise disputed issues of material fact, the Agency may at that time refer the matter to the Division of Administrative Hearings.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Care Administration, enter a final order requiring Petitioner,

Mazhar G. Nawaz, M.D., to repay Respondent the principal amount of $52,850.82 plus interest as provided in Section 409.913, Florida Statutes (2002).

DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida.

S

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2004.

ENDNOTES

1/ Petitioner's Exhibit P-1 contained names of 101 insurances companies Petitioner had and/or does have business dealing with in his medical practice. Petitioner's Exhibit P-1 does not satisfy the evidentiary requirement imposed upon Petitioner by Section 409.913(21), Florida Statutes.

2/ Dr. Griffin's review and reduction from codes under which Petitioner billed and received payment were coded billings contained in the records of 30 patients. Dr. Griffin reduced each coded billing as follows: 16 visits were coded 215 and were reduced to 214 codes (one patient had seven visits);

11 visits were coded 215 and were reduced to 213 code visits; and 15 visits were coded 214 and were reduced as follows:

15 visits (one patient two visits and another patient six visits) coded 215 of which nine were reduced to 213 code visits

and six reduced to 212 visits. Review of each patient's record revealed that the medical services allegedly provided were:

(1) not coded for the patient's particular medical complaint and the degree of complexity of that complaint at the time of the initial visit, (2) not coded for the type of and the complexity of medical examinations and the tests necessarily required to be administered based upon the type and complexity of the initial complaint, and (3) not coded for the resulting interpretations of the tests and the examinations administered for treatment of the complaint.

3/ The parties stipulated that Petitioner's Medicaid recipient records reviewed by Dr. Griffin and his findings of over coding would not be contested. In those instances of over coding and "documentation-signature," Petitioner would challenge only the "documentation-signature" records through the testimony of his employees. Petitioner elected not to provide evidence to documentation-signature findings. Therefore, all "documentation-signature" records are unrefuted, and Respondent

is entitled to recoup the entire amount of money paid Petitioner by Medicaid for all services Petitioner provided to those Medicaid recipients.

COPIES FURNISHED:

Debora Fridie, Esquire

Agency for Health Care Administration Fort Knox Building III, Mail Station 3 2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Mazhar G. Nawaz

206 West Oak Street, Suite C Kissimmee, Florida 34741

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

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-001607MPI

Orders for Case No: 03-001607MPI