STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESUS S. RODRIGUEZ, M.D.,

Petitioner,

vs.

AGENCY FOR HEALTH CARE ADMINISTRATION,

Respondent.

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) Case No. 03-2300MPI

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RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on September 11, 2003, in Ft. Lauderdale, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Chris M. Morrison, Esquire

Marshall A. Adams, Esquire Broad and Cassel

One Financial Plaza, Suite 2700 Ft. Lauderdale, Florida 33394

For Respondent: Tom Barnhart, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

The issue for determination is whether Respondent may recover alleged overpayments of Medicaid claims that Respondent paid during the audit period from June 15, 2000, through

June 14, 2002, pursuant to Sections 409.907 and 409.913, Florida

Statutes (2000).

PRELIMINARY STATEMENT

By letter dated May 14, 2003, Respondent assessed Petitioner for alleged overpayments of Medicaid claims in the aggregate amount of $131,795.44. Petitioner requested an administrative hearing. Respondent referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner testified, presented the testimony of two other witnesses, and submitted 10 exhibits for admission into evidence. Respondent presented the testimony of two witnesses and submitted nine exhibits for admission into evidence. One of Respondent's exhibits included the deposition testimony of a peer reviewer and exhibits attached to the deposition.

The identity of the witnesses and exhibits and any attendant rulings are set forth in greater detail in the Transcript of the hearing filed on September 24, 2003. The ALJ granted the parties' stipulated motion for extension of time to file their respective Proposed Recommended Orders (PROs) on October 10, 2003. Each party timely filed its PRO.

On November 18, 2003, the ALJ issued a Notice of Official Recognition of a portion of the website of the American Medical Association (AMA) pertaining to the Code of Procedural

Terminology (the CPT). At the request of counsel for Petitioner, the ALJ conducted a telephone conference with the parties' counsel on November 20, 2003, to discuss the Medicaid claim forms submitted by Petitioner.

FINDINGS OF FACT

1. Petitioner has practiced psychiatry for over 38 years in West Virginia, Pennsylvania, and Florida. Petitioner has been continuously licensed in Florida as a medical doctor since September 26, 1978, pursuant to license number ME33464.

2. At some point in 1978 that is not identified more specifically in the record, Petitioner enrolled with the State of Florida (the state) as a provider of psychiatric services to Medicaid recipients in accordance with Title XIX of the Social Security Act, 42 United States Code (USC) Sections 1396 et seq.; and Sections 409.901 through 409.953, Florida Statutes (2000) (the Medicaid program). Petitioner's current Medicaid Provider Agreement is identified in the record as provider number 039231600. Petitioner provided psychiatric services to Medicaid recipients in the state from 1978 until sometime in 2003, when Petitioner voluntarily stopped seeing Medicaid patients as a result of this proceeding.

3. During the time that Petitioner provided psychiatric services to Medicaid recipients, the Medicaid agency for the state, as that term is used in Section 409.901(2), Florida

   Statues (2000), has been either the Department of Health and Rehabilitative Services (DHRS) or Respondent. DHRS administered the Medicaid program from 1978 through June 30, 1993. On

   July 1, 1993, Respondent became the Medicaid agency responsible for administering the Medicaid program.

4. The legislature transferred the entire Medicaid program from one agency within the executive branch to another, with no substantive changes. The transferring legislation, in relevant part, states:

   All powers, duties and functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds of the Medicaid program within DHRS, as well as the infrastructure and support services that support the program, including, but not limited to, investigative licensing, legal, and administrative activities are transferred by a Type 4 Transfer, as defined in Section 20.06(4), Fla. Stat., to AHCA. Such transfer shall take effect July 1, 1993. Any rules promulgated by or for the Medicaid program are included in such transfer. (emphasis supplied)

   
   

   Section 20.06(4), Florida Statutes (1993), defined a Type-4 Transfer as one that merges an identifiable program, activity, or function of an existing agency into a department, including the transfer of all powers, duties, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds.

5. Respondent is the successor agency to DHRS. Respondent assumed responsibility for operating the Medicaid program without any interruption in the program. Respondent's duties and responsibilities for the Medicaid program were substantively identical to those of DHRS. From 1978 through the date of the hearing, DHRS and Respondent performed the administrative duties of the state Medicaid agency.

6. On July 10, 2002, Respondent initiated an audit for the audit period from June 15, 2000, through June 14, 2002. With one exception that is discussed later in the Findings of Fact, Petitioner satisfied the requirements in Subsection 409.913(21), Florida Statutes (2000), for a prima facie case of overpayment.

7. Respondent initiated and completed its audit in accordance with Section 409.913, Florida Statutes (2000). Based on Petitioner's records, Respondent's auditor generated a random list of 30 Medicaid recipients that received services from Petitioner (the cluster sample). The auditor determined that Respondent overpaid Petitioner $22,360.34 for the 30 Medicaid recipients in the cluster sample. The auditor then used an approved formula to estimate an overpayment of $131,795.44 for the 2,239 Medicaid recipients that Petitioner treated during the audit period.

8. On October 24, 2002, Respondent issued a provisional letter requesting reimbursement of alleged overpayments in the

   amount of $131,795.44 and stating the grounds for the request. On May 14, 2003, Respondent issued a Final Agency Audit Report (FAAR) requesting reimbursement of the same assessed overpayment on the same grounds as those stated in the provisional letter.

9. Once Respondent makes a prima facie showing of overpayment, the burden of going forward with the evidence shifts to Petitioner. Petitioner does not challenge the method or procedure by which Respondent initiated and completed its audit. Rather, Petitioner challenges the grounds alleged in the FAAR to support the proposed overpayment.

10. The FAAR alleges grounds to support the proposed overpayment on page two under the caption of "Review Determination(s)." The FAAR alleges:

    Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some services for which you billed and received payment were not documented. Medicaid requires documentation of the services and considers payments made for services not appropriately documented an overpayment.

    
    

    Medicaid policy addresses the requirement that psychiatric services be paid only to physicians licensed to practice in this specialty. A psychiatrist must render all aspects of those services personally. The documentation you provided revealed that services rendered were psychiatric in nature though you billed and were paid for a non- psychiatric procedure codes [sic].

    Procedure codes 99201 -99215 [sic] are not psychiatric codes by description. They are office or other outpatient visits that may

    be performed by a licensed practitioner allowed by Medicaid on the procedure code file. Psychiatric services and reimbursement are clearly outlined in the Florida Medicaid Physicians Coverage and Limitations Handbook, page(s) 2-73. Payment made to you for these services is considered an overpayment.

    
    

    Respondent's Exhibit 3 (R-3) at 2.

    
    

11. The evidence further explains the grounds alleged in the FAAR. The essential allegations are that Petitioner violated three requirements imposed by rule.

12. First, Respondent alleges that Petitioner violated a requirement that psychiatrists must be certified by either the American Board of Psychiatry and Neurology or the American Osteopathic Board of Neurology and Psychiatry; or must have completed a psychiatric residency accredited by either the Accreditation Council for Graduate Medical Education (ACGME) or the Royal College of Physicians and Surgeons of Canada (the board certification or eligibility requirement). Second, Respondent alleges that Petitioner violated a requirement that providers must utilize compatible codes from the CPT when completing Health Care Finance Administration (HCFA) 1500 claim forms (the compatible codes requirement). Petitioner allegedly used non-psychiatric evaluation and management codes (E/M codes) together with psychotherapy diagnostic codes, identified in the record as ICD-9 codes. Third, Petitioner allegedly violated a

    requirement that psychiatrists must properly document the time actually spent in patient consultation in the medical records of each patient (the patient record time requirement).

13. Petitioner admits that he is not board-certified and has not completed a residency in psychiatry; that he used incompatible codes; and that he failed to document the records of the Medicaid recipients identified by Respondent with the time spent in consultation with each patient. Petitioner asserts that Respondent either is prevented by the judicial doctrine of equitable estoppel from seeking reimbursement or has waived its right to reimbursement by effectively condoning the claim process consistently employed by Petitioner for approximately 20 years. Petitioner further asserts that Respondent proposes agency action based either on an unadopted rule that affects the substantial interests of Petitioner or on non-rule policy that Respondent does not explicate with competent and substantial evidence. Finally, Petitioner asserts that recovering the alleged overpayment is not an appropriate remedy in light of the surrounding facts and circumstances.

14. For reasons stated in the Conclusions of Law, administrative bodies, including Respondent and DOAH, do not have authority to grant equitable relief such as estoppel or waiver. Equity is the exclusive province of the courts. However, DOAH does have authority to conduct a de novo review of

    an unadopted rule, non-rule policy, and the appropriateness of proposed agency action and to provide a remedy that may function as well as the equitable relief sought by Petitioner.

15. The requirements for board certification or eligibility and compatible codes are currently incorporated by references in Florida Administrative Code Rules 59G-4.001, 59G- 4.230, and 59G-5.020 to the Florida Medicaid Provider Reimbursement Handbook (the Reimbursement Handbook) and to the Florida Medicaid Physician Coverage and Limitations Handbook (the Coverage Handbook). The trier of fact first makes findings regarding the board certification or eligibility requirement and the compatible codes requirement. The trier of fact then makes findings relevant to the patient record time requirement.

16. When Petitioner first enrolled in the Medicaid program in 1978, DHRS did not require psychiatrists to be board- certified or board-eligible. DHRS first required psychiatrists to be board-certified or eligible when DHRS adopted former Florida Administrative Code Rule 10C-7.38 on January 1, 1980.

17. After January 1, 1980, DHRS had actual knowledge that Petitioner was neither board-certified nor board-eligible. However, DHRS continued to pay Medicaid claims from Petitioner for approximately 13 years.

18. After DHRS adopted former Florida Administrative Code Rule 10C-7.38, Petitioner reapplied to participate in the state

    Medicaid program. In response to the reapplication, DHRS issued two internal memoranda identified in the record as Petitioner's Exhibit 1 (P-1). The two memoranda demonstrate agency knowledge that Petitioner was neither board certified nor board eligible.

19. The first memorandum, dated June 4, 1980, recommended denial of Petitioner's reapplication on the specific ground that Petitioner was not board-certified or board-eligible. The comments section of the memorandum states, "Specialty Code 41 indicates psychiatry. Is the physician Board Eligible?" No date appears on the line captioned "Eligibility Date."

20. DHRS issued a second internal memorandum on June 27, 1980, that recommended approval of Petitioner's reapplication. The line for the "Eligibility Date" contains the notation "9/11/78."

21. The two memoranda state an interpretation by DHRS that the board certification or eligibility requirement applies only to "new psychiatrists" who enrolled in the Medicaid program after DHRS adopted former Florida Administrative Code Rule 10C-

    7.38 on January 1, 1980 (new providers). DHRS did not interpret the requirement to apply to existing psychiatrists, including Petitioner, who were enrolled in the state Medicaid program prior to the adoption of the rule on January 1, 1980 (existing providers).

22. DHRS stated its interpretation of former Florida Administrative Code Rule 10C-7.38 in other ways. On August 5, 1981, DHRS issued a form letter to all enrolled psychiatrists. The form letter expressly stated that the board certification requirement applied to "new individual psychiatric providers." In Fraga v. Department of Health and Rehabilitative Services,

    464 So. 2d 144, 147-148 (Fla. 3d DCA 1984), the Third District Court of Appeal found that the quoted phrase excluded an existing provider who was enrolled in the Medicaid program before DHRS adopted the requirement for board certification or eligibility on January 1, 1980.

23. Petitioner testified that he never "saw" the form letter dated August 5, 1981. However, Petitioner's testimony does not obviate the effect of the form letter as statement interpreting a valid, existing rule issued by the agency charged with responsibility for administering the rule. The statement of interpretation dated August 5, 1981, was in evidence in Fraga, and the same statement is in evidence in this proceeding.

24. DHRS also stated its interpretation of the rule requiring board certification or eligibility through a longstanding practice of paying claims from Petitioner for approximately 13 years when DHRS had actual knowledge that Petitioner did not meet the board certification or eligibility requirement. The longstanding practice of DHRS constitutes an

    administrative interpretation of a valid, existing rule by the agency responsible for administering the rule.

25. DHRS had actual knowledge that Petitioner utilized incompatible codes on Medicaid claim forms but consistently paid those claims from 1982 through June 30, 1993. Sometime in 1982, DHRS audited Petitioner and assessed an overpayment against Petitioner. DHRS instructed Petitioner to use non-psychiatric E/M codes because Petitioner did not meet the board certification or eligibility requirement for psychiatrists. Thereafter, Petitioner consistently utilized incompatible E/M codes and psychotherapy diagnostic codes on his Medicaid claims.

26. Petitioner utilizes incompatible codes only on Medicaid claims. On claims submitted to all other entities, Petitioner utilizes compatible CPT codes.

27. After the 1982 audit, DHRS did not direct Petitioner to stop submitting Medicaid claims with incompatible codes. For approximately 11 years, DHRS continued to pay Medicaid claims from Petitioner that included incompatible codes. The longstanding practice of paying Medicaid claims with incompatible codes constitutes a statement of non-rule policy by the agency responsible for administering the rule requiring compatible codes.

28. When Respondent assumed responsibility for administering the Medicaid program on July 1, 1993, Respondent

    had constructive knowledge of the administrative activities, records, and rules of DHRS, including the interpretation by DHRS of the rule requiring board certification or eligibility and the policy that directed Petitioner to use incompatible codes to complete his Medicaid claims. The legislative transfer of the Medicaid program from DHRS to Respondent included "any rules promulgated by or for the Medicaid program" and any "administrative activities." Administrative activities include the state Medicaid agency's interpretation of the rule requiring board certification or eligibility and the non-rule policy that directed Petitioner to use incompatible codes.

29. From July 1, 1993, through October 1996, Respondent stated its interpretation of the requirements for board certification or eligibility and compatible codes through a longstanding practice that was consistent with the previous longstanding practice of DHRS. Respondent paid Medicaid claims from Petitioner for approximately three years even though the claims utilized incompatible codes and Respondent had constructive knowledge that Petitioner was neither board- certified nor board-eligible. Respondent's longstanding practice of paying claims from Petitioner constitutes an administrative interpretation by Respondent of existing rules that Respondent is responsible for administering.

30. After October 1996, Respondent had actual knowledge that Petitioner was neither board-certified nor board-eligible, but Respondent continued to pay claims from Petitioner. On October 24, 1996, Petitioner reenrolled in the Medicaid program. Petitioner used a specialty code on the reenrollment agreement indicating that he was a physician. Petitioner did not utilize the specialty code for a psychiatrist because Petitioner did not satisfy the board certification or eligibility requirement. Thus, Petitioner did not represent in the reenrollment agreement that he qualified for reimbursement as a psychiatrist who was either board-certified or board-eligible.

31. Respondent did not reject the reenrollment agreement from Petitioner. Respondent accepted the agreement and, from October 24, 1996, through May 14, 2003, paid Medicaid claims from Petitioner that utilized incompatible codes, even though Respondent had actual knowledge that Petitioner was neither board certified nor board eligible. The longstanding practice of paying claims from Petitioner for over six years states an administrative interpretation of valid, existing rules by the agency responsible for administering the rules.

32. Between 1982 and May 13, 2003, the state Medicaid agency paid claims from Petitioner that utilized incompatible CPT codes while the state Medicaid agency knew, or should have known, that Petitioner was neither board-certified nor board-

    eligible. If 2,239 claims during the two-year audit period were a reliable indicator of the number of claims Petitioner submitted during the 21 years between 1982 and 2003, the state Medicaid agency would have paid approximately 23,499 claims that did not meet the requirements for board certification or eligibility and compatible codes. From 1993 through 2003, Respondent arguably would have paid 11,190 of that hypothetical number. Although the hypothetical number of claims from Petitioner is inherently inaccurate, the number does elucidate the repetitive and longstanding nature of the administrative practice of paying claims that did not meet the requirements for board certification or eligibility and compatible codes. It would be credulous to find that such a longstanding practice for such a large volume of claims was the result of oversight.

33. On May 14, 2003, Respondent repealed the agency's prior interpretation of the rules requiring board certification or eligibility and compatible codes. The repeal had the effect of applying new requirements for board certification or eligibility to existing providers and terminating the 1982 directive for Petitioner to use incompatible codes on his Medicaid claims. Respondent stated the repeal of its prior interpretations through enforcement action seeking recovery of alleged overpayments on the grounds alleged in the FAAR.

34. The repeal of the agency's prior interpretation of valid, existing rules requiring board certification or eligibility is itself a rule within the meaning of Subsection 120.52(15), Florida Statutes (2003). The repeal of Respondent's prior interpretation is generally applicable to all psychiatrists. Respondent does not seek to limit the interpretation of its rules to Petitioner. The repeal interprets law or policy of the agency and does not fall within any exception in Subsections 120.52(15)(a)-(c), Florida Statutes (2003).

35. The repeal of Respondent's prior interpretation of the requirements for board certification or eligibility does not merely explain or clarify the former interpretation. The repeal effectively creates new requirements for existing providers who enrolled in the Medicaid program prior to January 1, 1980. The new requirements require existing providers either to be board certified or board eligible. The repeal of Respondent's prior interpretation of an existing rule is intended by its own effect to require compliance or otherwise to have the force and effect of law.

36. Respondent did not promulgate the repeal of its prior interpretation of the rule requiring board certification or eligibility in accordance with the rulemaking procedures prescribed in Section 120.54, Florida Statutes (2003).

    Respondent's repeal of its prior interpretation of a valid existing rule is an unadopted rule that affects the substantial interests of Petitioner within the meaning of Subsection 120.57(1)(e), Florida Statutes (2003). Subsection 120.57(1)(e), Florida Statutes (2003), makes agency action based on an unadopted rule that affects Petitioner's substantial interests subject to de novo review.

37. Respondent's repeal of the directive in 1982 to use incompatible codes is not an unadopted rule. There is insufficient evidence to show that the repeal satisfies the test of general applicability in Subsection 120.52(15), Florida Statutes (2003).

38. The evidence does not show that DHRS directed any provider other than Petitioner to use incompatible codes when submitting Medicaid claims. The evidence does not show that either DHRS or Respondent paid claims utilizing incompatible codes other than the claims submitted by Petitioner from 1982 through 2003.

39. In the absence of evidence that the repeal of the prior direction to use incompatible codes satisfies the test of general applicability in Subsection 120.52(15), Florida Statutes (2003), the repeal is not a rule. Policy that does not satisfy the definition of a rule in Subsection 120.52(15), Florida Statutes (2003), is non-rule policy.

40. The non-rule policy that directed Petitioner to utilize incompatible codes was not incipient non-rule policy because the state Medicaid agency applied the non-rule policy to Petitioner from 1982 through May 13, 2003. At some point between 1982 and 2003, the non-rule policy shed its incipient character and emerged as non-rule policy established by a longstanding practice of paying claims from Petitioner that utilized incompatible codes.

41. Non-rule policy is not required to be promulgated in accordance with the rulemaking procedures prescribed in Section 120.54, Florida Statutes (2003), and is not an unadopted rule that is subject to de novo review in Section 120.57(1)(e), Florida Statutes. For reasons stated in the Conclusions of Law, however, Respondent must explicate the repeal of the non-rule policy with competent and substantial evidence that exposes and elucidates the reasons for the repeal.

42. A de novo review of the repeal of the board certification or eligibility requirement, shows that the unadopted rule is applied without due notice in violation of Subsection 120.57(1)(e)2.e, Florida Statutes (2003). On May 14, 2003, Respondent provided Petitioner with final notice that Respondent had repealed the prior interpretation of its rule. The repeal had the effect of imposing a new requirement for board certification or eligibility that was not previously

    imposed on existing providers under the previous interpretation of the existing rule. Respondent applied the repeal of its prior interpretation retroactively to the audit period from June 15, 2000, through June 14, 2002. Retroactive application of new requirements to existing providers who were not new providers on January 1, 1980, is not "due notice" within the meaning of Subsection 120.57(1)(e)2.e, Florida Statutes (2003).

43. Respondent retroactively repealed the prior non-rule policy that had directed Petitioner to use incompatible codes. On May 14, 2003, Respondent notified Petitioner that Respondent was repealing the prior non-rule policy and was applying the repeal retroactively to June 15, 2000. The notice of change in non-rule policy was not adequate notice because it deprived Petitioner of a reasonable opportunity to comply with a new requirement imposed by the change in non-rule policy.

44. The non-rule policy to use incompatible codes is further elucidated by the evolution of code system prescribed in the CPT. The CPT is a registered trademark of the AMA. The CPT is a listing of terms and identifying codes for reporting medical services and procedures. The purpose of the CPT is to provide a uniform language that accurately describes surgical and diagnostic services for effective communication.

45. The AMA first developed and published the CPT in 1966 and continues to update and revise the code system. In 1977,

    the AMA converted the CPT from a system of four-digit codes to the current five-digit system. In 1983, HCFA adopted the CPT as part of the HCFA Common Procedure Coding System (HCPCS).

    However, HCFA did not require state Medicaid agencies to use the HCPCS until sometime in October 1986.

46. The evidence does not show whether the state Medicaid agency mandated, either by rule or non-rule policy, that providers such as Petitioner use CPT codes prior to the time HCFA imposed the requirement in October 1986. DHRS instructed Petitioner to use incompatible codes sometime in 1982. Petitioner complied with that instruction until sometime in 2003. On or after October 1986, the state Medicaid agency presumably complied with HCFA's requirement to use the HCPCS. Between October 1986 and May 14, 2003, however, there is no evidence of actual notice to Petitioner that the state Medicaid agency had repealed the previous non-rule policy that directed Petitioner to use incompatible codes on Medicaid claim forms.

47. The unadopted rule repealing the prior interpretations of the requirements for board certification or eligibility is arbitrary or capricious within the meaning of 120.57(1)(e)2.d, Florida Statutes (2003). Similarly, repeal of the previous non- rule policy that had directed Petitioner to use incompatible codes is arbitrary or capricious when measured by standards established by case law discussed in the Conclusions of Law.

    The retroactive repeal of the previous interpretations of the requirements for board certification or eligibility and compatible codes bears no rational relationship to statutory standards that govern the operation of the Medicaid program.

48. The purposes for which Respondent is authorized to operate the Medicaid program are enumerated in Section 409.913, Florida Statutes (2000). In relevant part, Section 409.913, Florida Statutes (2000), authorizes Respondent to operate the Medicaid program to minimize "neglect of recipients."

49. There is no evidence that retroactive repeal of prior interpretations of the requirements for board certification or eligibility and compatible codes bears a rational relationship to the statutory purpose of minimizing the neglect of Medicaid recipients. Petitioner's qualifications to provide psychotherapy services to Medicaid recipients exceed the competency requirements of board certification or residency and are not diminished by the use of incompatible codes.

50. Petitioner has provided psychotherapy to patients for approximately 38 years. During that time, Petitioner was a Staff Psychiatrist at the Florida State Mental Hospital in Chattahoochee, Florida, for five years and served as the Chief of Psychiatry for more than five years. Petitioner supervised other psychiatrists in providing psychotherapy to approximately

    1,000 patients. Florida courts have accepted Petitioner as an expert in psychiatry on numerous occasions.

51. Petitioner has been licensed to practice medicine in the state since 1978, and is a Diplomate of the American Board of Forensic Examiners, and a Diplomate of the American College of Ethical Physicians. Petitioner has never had any administrative discipline action undertaken against his license, nor has he ever been the subject of a civil malpractice action.

52. During Petitioner's professional career, he has had hospital privileges with several hospitals. Petitioner's hospital privileges have never been reduced, suspended, or revoked.

53. A psychiatry residency lasts three years and provides experience and training in the field of psychiatry. Petitioner's experience as a psychiatrist of 38 years with hospital privileges at several hospitals exceeds the experience gained in a three-year residency.

54. Section 409.913, Florida Statutes (2000), authorizes Respondent to operate the Medicaid program to minimize "fraudulent and abusive behavior." There is no evidence that retroactive repeal of prior interpretations of the requirements for board certification or eligibility and compatible codes bears a rational relationship to the statutory purpose of minimizing "fraudulent and abusive behavior."

55. In relevant part, Subsection 409.913(1), Florida Statutes (2000), defines abuse to mean provider practices that are inconsistent with medical practices; result in unnecessary cost to the Medicaid program; or are not medically necessary. The same statute defines fraud, in relevant part, to mean intentional deception or misrepresentation that results in an unauthorized benefit to the provider. Finally, the statute defines medical necessity to mean goods or services that are provided in accordance with generally accepted standards of medical practice.

56. The diagnostic code that Petitioner entered on the HCFA 1500 indicated that Petitioner provided psychotherapy to Medicaid recipients. It is undisputed that the services provided were medically necessary, that Petitioner was competent to provide the services, and that Petitioner actually provided the services for which Petitioner claimed payment from Respondent. Petitioner spent from 40 to 60 minutes in consultation with each patient.

57. Section 409.913, Florida Statutes (2000) authorizes Respondent to operate the Medicaid program to "recover overpayments." The retroactive repeal of prior interpretations of the requirements for board certification or eligibility and compatible codes does not operate the Medicaid program to recover overpayments.

58. In relevant part, Subsection 409.913(1)(d), Florida Statutes (2000), defines the term "overpayment" 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.

    
    

    Cost reports are not at issue in this proceeding. For reasons previously stated, Respondent did not pay Medicaid claims as a result of fraud or abuse.

59. Respondent did not pay claims that allegedly failed to comply with the board certification or eligibility and compatible code requirements as a result of mistake. For reasons stated in previous findings and incorporated by this reference, Respondent knew or should have known that Petitioner was neither board-certified nor board-eligible and did not use compatible codes on the Medicaid claims that Respondent paid.

60. Petitioner's failure to comply with the requirements for board certification or eligibility and compatible codes did not make his Medicaid claims "improper" or based on "unacceptable practices" before Respondent repealed its prior interpretations of those requirements. The state Medicaid agency construed those claims to be proper and based on acceptable practices through a longstanding practice of paying Petitioner's claims for more than 20 years. That longstanding practice constitutes an administrative construction of what is

    proper and acceptable within the meaning of Subsection 409.913(1)(d), Florida Statutes (2000).

61. The patient record time requirement is neither an unadopted rule that is subject to de novo review nor a non-rule policy that Respondent must explicate with competent and substantial evidence. Respondent promulgated the patient record time requirement in a valid rule and did not change its interpretation of the rule. The rule provides Petitioner with adequate notice of the patient record time requirement.

62. Petitioner used the HCFA 1500 form to submit each Medicaid claim to Respondent. Petitioner utilized E/M code 99215 on virtually all of the HCFA 1500 claim forms. The CPT definition of E/M code 99215 includes a minimum time component for face-to-face consultation of 40 minutes. Petitioner accurately recorded the quantity of each meeting for which Petitioner utilized E/M code 99215 in the blank labeled "Days or Units." However, Petitioner did not make a separate entry on each HCFA 1500 form that documented the actual time spent in consultation with the Medicaid recipient. As the auditor testified:

    Q. Do you remember any time being documented on any of the claims that [Petitioner] submitted? (emphasis supplied)

    
    

    A. No, sir.

    
    

    Transcript (TR) at 41.

    
    

63. The failure to document the HCFA 1500 form with a separate entry disclosing the actual time spent in consultation with the Medicaid recipient does not violate the patient record time requirement and does not constitute "improper claiming" or "unacceptable practices." The HCFA 1500 claim forms do not contain a blank or space in which a provider, including Petitioner, can document the actual time spent in consultation with a recipient. Similarly, the patient record time requirement in Respondent's rule does not require a time entry on the HCFA 1500 claim form other than the time component included in the definition of E/M Code 99215. Thus, the HCFA 1500 claim forms themselves are not improper or unacceptable for lack of a separate entry that documents the actual time spent in consultation with each Medicaid recipient.

64. The failure to document the medical records of Medicaid recipients with the actual time spent in consultation is not "improper claiming" within the meaning of Subsection 409.913(1)(d), Florida Statutes (2000). Patient records are not "claims" submitted to Respondent.

65. The failure to document the medical records of Medicaid recipients with the actual time spent in consultation is an "unacceptable practice" for the purpose of determining whether payments from Respondent are "overpayments" defined in

    Subsection 409.913(1)(d), Florida Statutes (2000). Petitioner failed to comply with the patient record time requirement for four Medicaid recipients in the cluster sample of 30 Medicaid recipients.

66. The auditor who determined an overpayment for the 30 Medicaid recipients in the cluster sample prepared work papers in a spreadsheet format. The auditor and the parties refer to the work papers as a matrix, and they identified the matrix in the record as Respondent's Exhibit Four (R-4).

67. In relevant part, the matrix identifies each Medicaid recipient by name and recipient number, the dollar amount attributed to each deficiency for a particular recipient, and the type of deficiency. The matrix consists of 10 pages, containing 38 lines on each page and a total of 380 line items. Each page is organized into 15 columns.

68. The auditor included the failure to comply with the patient record time requirement in one column of the matrix labeled "No Doc." The auditor included the alleged failure to comply with the requirements for board certification or eligibility and compatible codes in another column of the matrix labeled "Inappropriate Billing." The columns labeled "No Doc." and "Inappropriate Billing" are the only columns in the matrix that contain line item entries for alleged overpayments.

69. The auditor reviewed the matrix during the hearing and testified that Petitioner failed to comply with the patient record time requirement for four Medicaid recipients in the cluster sample. The auditor identified the four Medicaid recipients by recipient numbers 745391003, 756171575, 812259217, and 85019288. For ease of reference, the trier of fact refers to the four recipients respectively as MR 1-4.

70. The matrix attributes $491.33 to the failure to document patient records for MR 1-4. The respective total dollar amounts attributed to MR 1-4 are $201.14, $58.95,

    $116.38, and $114.33. Individual entries for MR 1-4 appear in nine line items in the matrix.

71. The matrix column labeled "No Doc." includes a total dollar amount of $332.32 in alleged overpayments for recipient numbers 123389302 and 197813602. For ease of reference, the trier of fact respectively refers to these recipients as MR 5 and MR 6. The total dollar amount attributed to MR 5 is

    $301.39, and that for MR 6 is $30.93. Individual entries for MR

    
    

    5 and 6 appear in five line items in the matrix.

    
    

72. The auditor did not identify MR 5 and MR 6 as recipients for whom Petitioner failed to comply with the patient record time requirement. As the auditor explained:

    Q. So these four had both no time entry and no documentation?

    
    

    A. Right.

    
    

    TR at 38.

    
    

73. The column labeled "No Doc." includes $332.32 for alleged violations of documentation requirements other than the time record requirement. However, neither the matrix, the auditor, the Handbooks, nor the FAAR reveals the nature and scope of any documentation requirements other than the patient record time requirement. A registered nurse consultant testified that the column labeled "No Doc." included recipients for whom Petitioner failed to provide clinical records, but the nurse did not author or prepare the matrix and did not relate her testimony to specific recipient numbers in matrix. Nor does Respondent identify a rule or other requirement pertaining to clinical records.

74. Respondent failed to make a prima facie showing for

    
    

    $332.32, or approximately 1.5 percent, of the $22,360.34 in overpayments alleged for the cluster sample. Conversely, Respondent satisfied the requirement of a prima facie showing for $22,028.02 in alleged overpayments in the cluster sample. If the same percentage were used to reduce the total assessed overpayment of $131,795.44, the portion of the total assessed

    overpayment for which Respondent made a prima facie showing would be $129,818.51 (the adjusted assessment).

75. The overpayment for MR 1-4 in the amount of $491.33 for failure to comply with the patient record time requirement is approximately 2.2 percent of $22,028.02. If the same percentage were applied to the adjusted assessment of

    $129,818.51, it would show that $2,856.01 of the adjusted assessment is attributable to a violation of the patient record time requirement. The remainder of the adjusted assessment would be $126,962.50 and would be attributable to alleged violations of the requirements for board certification or eligibility and compatible codes.

76. The foregoing percentage analysis of the alleged overpayments is inherently inaccurate and may conflict with the actual formula utilized in the FAAR. However, the analysis does provide some basis for approximating the proportion of dollars attributable to each ground alleged in the FAAR. An alternative basis for comparison is that entries in the matrix for alleged violations of documentation requirements appear on 14 line items, while entries for alleged violations of the requirements for board certification or eligibility and compatible codes appear on all 380 lines.

77. Based on the foregoing percentage analysis, Petitioner failed to rebut evidence showing that approximately $2,856.01 in

    assessed overpayments is properly based on Petitioner's violation of the patient record time requirement. Petitioner did show that approximately $128,939.43 of the original assessment is not justified either because Respondent failed to make a prima facie showing; or because Respondent is applying an unadopted rule or non-rule policy without proper notice and in an arbitrary or capricious manner. Respondent did not adduce sufficient evidence to rebut the showing by Petitioner.

78. Irrespective of any previous findings, the proposed recovery of overpayments is based on an exercise of unbridled agency discretion. Handbooks incorporated by reference in relevant rules specifically authorize Respondent to permit a provider to recode and resubmit claims if the CPT code and the ICD-9 code are "incompatible," as they are in this case. Alternatively, the Handbooks give Respondent discretion to seek recovery of overpayments and to impose sanctions. However, the Handbooks prescribe no intelligible standards to guide Respondent in the exercise of its discretion.

79. A single peer reviewer designated by Respondent was the sole arbiter of agency discretion. After the auditor assembled the cluster sample, a registered nurse consultant reviewed the records of recipients included in the cluster sample, noted the alleged deficiencies, and sent the matter to a peer reviewer in Respondent's office in Tallahassee, Florida.

    The peer reviewer reviewed the case, disallowed all of the claims in the cluster sample, and determined that Respondent should seek recovery of the assessed amount.

80. The peer reviewer had sole discretion to adjust the claims, allow Petitioner to recode and resubmit the claims, or to seek recovery. No rule, policy, or Handbook provided standards to guide the peer reviewer in the exercise of his discretion. Respondent did not explicate standards to guide the peer reviewer in the exercise of his discretion through expert testimony, documentary opinions, or other appropriate evidence. Respondent acknowledges Petitioner could have used more appropriate CPT codes in completing the Medicaid claims, but Respondent does not identify those codes in the record.

81. The peer reviewer testified by deposition admitted in evidence without objection. The peer reviewer focused exclusively upon incompatibility between non-psychiatric E/M codes and diagnostic codes for psychotherapy. The peer reviewer exercised a reflexive denial based upon his perception of a mistake.

82. The peer reviewer denied the claims submitted by Petitioner without considering all of the surrounding facts and circumstances. The peer reviewer exercised ultimate authority to deny the claims without giving any consideration to the

    option of allowing Petitioner to adjust the codes and resubmit the claims.

83. Recovery of the alleged overpayments would impose a hardship on Petitioner as well as his patients. Recovery of the alleged overpayments would effectively put Petitioner "out of business." Recovery of the alleged overpayments would also have the effect of either denying psychotherapy to approximately 1,119 Medicaid recipients who relied each year of the audit period on Petitioner for psychotherapy; or defer psychotherapy to those individuals while they located an alternative source of psychotherapy and built a relationship with a new psychiatrist.

    CONCLUSIONS OF LAW

    
    

84. Petitioner argues that the decision in Fraga v.

    
    

    Department of Health and Rehabilitative Services, 464 So. 2d 144 (Fla. 3d DCA 1984) controls the outcome in this case. In Fraga, DHRS entered a final order directing Dr. Fraga to reimburse DHRS

    $38,252.75 in alleged overpayments for psychiatric services that Dr. Fraga provided to Medicaid recipients between January 1, 1980, and February 1982. Dr. Fraga appealed the final order and argued that DHRS was estopped from recovering the alleged overpayments. The court first affirmed the agency's final order but, on motion for rehearing, adopted the dissenting opinion of Chief Judge Schwartz as the majority view.

85. Dr. Fraga practiced psychiatry in Cuba, but left Cuba in 1967 and moved to Florida. He obtained a license to practice medicine in the state in 1973. Dr. Fraga did not seek board certification because his age precluded him from entering the required residency program.

86. From 1974 through 1979, Dr. Fraga provided psychiatric services to Medicaid recipients in Florida. In February 1980, DHRS sent Dr. Fraga a letter stating that only board-certified or board-eligible psychiatrists could bill Medicaid for psychiatric services under then newly adopted Florida Administrative Code Rule 10C-7.38. On August 5, 1981, DHRS issued another form letter stating that the requirement for board certification or eligibility applied to "new individual psychiatric providers." The court found that the quoted phrase "obviously" did not include Dr. Fraga. From January 1980 through February 1982, DHRS continued to pay Medicaid claims from Dr. Fraga and ignored several inquiries from Dr. Fraga seeking clarification from DHRS.

87. The dissenting opinion in Fraga that the majority eventually adopted is instructive. In relevant part, the court stated:

    It seems clear that these acts of . . . longstanding and unprotesting payment . . . should estop the state from asserting . . . that it had been wrong all along, and that Dr. Fraga is required to provide and it and

    its clients are entitled to receive

    $38,252.75 of concededly competent services for nothing. . . .(citations omitted) I am utterly dismayed that the majority has instead permitted the department's classic example of bureaucratic ineptitude and indifference, with its supremely adverse consequent effect upon an innocent citizen, not only to escape the censure it richly deserves, but actually to come out ahead.

    
    

    Fraga, 464 So. 2d at 147-148.

    
    

88. Unlike the court that estopped DHRS from collecting alleged overpayments in Fraga, DOAH does not have jurisdiction to provide equitable relief to Petitioner based on the judicial doctrines of equitable estoppel or waiver. Original jurisdiction in equity is the sole province of the circuit courts. In relevant part, Article V, Section 20(c)(3), of the Constitution of the State of Florida, provides that "Circuit courts shall have jurisdiction . . . in all cases in equity." However, DOAH does have authority to review Respondent's unadopted rule and non-rule policy and to provide an administrative remedy that may be as adequate as the equitable remedy provided by the court in Fraga.

89. DOAH has subject matter jurisdiction over those issues that do not involve equitable relief, and DOAH has personal jurisdiction over the parties. DOAH provided the parties with adequate notice of the administrative hearing. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

90. Respondent has the burden of proof. Respondent must show by a preponderance of the evidence that Respondent overpaid Petitioner for Medicaid claims and that recovery of the overpayment is reasonable. 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).

91. Respondent satisfied its burden of proof for that part of the assessed overpayment based on the patient record time requirement. Respondent made a prima facie showing, pursuant to the requirements prescribed in Section 409.913(21), Florida Statutes (2000), that Petitioner violated the patient record time requirement and that recovery of the overpayment is reasonable. Petitioner did not rebut the prima facie evidence submitted by Respondent.

92. Respondent did not make a prima facie showing that Petitioner violated documentation requirements other than the patient record time requirement. Petitioner submitted sufficient evidence to overcome Respondent's prima facie case for that part of the assessed overpayment that is based on the requirements for board certification or eligibility and compatible codes; Respondent did not rebut the evidence adduced by Petitioner.

93. The issues in this case do not involve written invoices or similar matters for which Section 409.913(21), Florida Statutes (2000), requires written proof rather than testimony. The issues in this case involve other matters for which Petitioner relied on a combination of documentary evidence, testimony, and findings by the court in Fraga. The trier of fact found that evidence to be credible and persuasive.

94. The trier of fact found Petitioner's testimony that DHRS instructed Petitioner in 1982 to use incompatible codes to be credible and persuasive. Petitioner's professional qualifications are considerable, and his professional career is impeccable. The details of Petitioner's testimony were consistent, and his demeanor was candid.

95. The trier of fact placed significant weight on evidence that Medicaid claims are the only claims for which Petitioner utilizes incompatible codes. Petitioner's office manager for the past seven years confirmed that office practice.

96. Petitioner's practice of submitting Medicaid claims with incompatible CPT codes is consistent with the concurrent evolution of CPT codes and agency policy. In 1966, the AMA first published CPT codes. In 1977, the AMA revised the CPT to adopt the five-digit code system that is central to this proceeding.

97. In 1978, Petitioner enrolled in the state Medicaid program. In January 1980, DHRS adopted a rule imposing board certification or eligibility as a condition of reimbursement to psychiatrists. In 1980, Petitioner reapplied to the state Medicaid program, and DHRS determined that the board certification requirement did not apply to Petitioner. In 1981, DHRS issued a form letter construing the board certification requirement to apply only to new providers and not to existing providers such as Petitioner. In 1982, DHRS directed Petitioner to use incompatible CPT codes on his Medicaid claim forms because he did not satisfy the requirement for board certification or eligibility. In 1986, HCFA required the state Medicaid agency to adopt the CPT through the HCPCS.

98. In 1993, the legislature transferred the state Medicaid program to Respondent. The transfer included the rules and administrative activities of DHRS.

99. From July 1993, to May 14, 2003, Respondent stated its interpretation of the requirements for board certification or eligibility and compatible codes through a longstanding practice of paying claims from Petitioner in the same manner that DHRS paid claims from 1980 through the first half of 1993. The longstanding practice of an administrative agency constitutes an administrative interpretation of the statutes that the agency administers. Fraga, 464 So. 2d at 147; Outdoor Advertising Art,

    Inc. v. Florida Department of Transportation, 366 So. 2d 114,

    
    

    115 (Fla. 1st DCA 1979).

    
    

100. On May 14, 2003, Respondent repealed its previous interpretation of the rule requiring board certification or eligibility. The repeal satisfied the definition of a rule in Section 120.52(15), Florida Statutes (2003), because Respondent intended the repeal to be generally applicable and to impose requirements on existing providers that were not imposed by Respondent's previous interpretation of the existing rule.

101. An agency statement that repeals the agency's prior interpretation of a rule is itself an invalid rule if the repeal satisfies the definition of a rule in Section 120.52(15), Florida Statutes (2003). Price Wise Buying Group v. Nuzum, 343 So. 2d 115, 116 (Fla. 1st DCA 1977)(declaratory statement that repeals the agency's prior interpretation of a rule is itself an invalid rule). See also Federation of Mobile Home Owners of Florida, Inc. v. Florida Manufactured Housing Association, Inc., 683 So. 2d 586, 590-591 (Fla. 1st DCA 1996)(repeal of existing promulgated rule is itself a rule); Florida Public Service Commission v. Central Corporation, 551 So. 2d 568, 571 (Fla. 1st DCA 1989)(temporary agency order is an unpromulgated rule because it is consistently applicable throughout its existence and imposes requirements previously "unimposed" by existing rule). Compare Regal Kitchens, Inc. v. Florida Department of

     Revenue, 641 So. 2d 158, 164 (Fla. 1st DCA 1994) (citing the decision in Price Wise for the proposition that an agency may not reject a widespread policy established by usage or stated by it and relied upon by the public).

102. Respondent did not promulgate the repeal of its prior interpretation of an existing rule in accordance with the rulemaking procedures prescribed in Section 120.54, Florida Statutes (2003). The repeal of Respondent's prior interpretation of an existing rule is an unadopted rule within the meaning of Subsection 120.57(1)(e), Florida Statutes (2003).

103. A de novo review of the unadopted rule shows that Respondent applied the unadopted rule without "due notice." Subsection 120.57(1)(e)2.e, Florida Statutes (2003). An administrative rule, including Respondent's unadopted rule, generally has only prospective application. Environmental Trust v. State, Department of Environmental Protection, 714 So. 2d 493, 498 (Fla. 1st DCA 1998). An exception exists if the rule merely clarifies an existing rule and does not establish new requirements. Id.

104. The repeal of Respondent's prior interpretation of an existing rule does not merely clarify the existing rule. The repeal has the effect of imposing new requirements for board certification or eligibility on existing providers such as

     Petitioner who were enrolled in the Medicaid program prior to adoption of the existing rule on January 1, 1980.

105. Respondent also repealed the non-rule policy established in 1982 when DHRS directed Petitioner to utilize non-psychiatric E/M codes and psychotherapy diagnostic codes. The repeal of non-rule policy is not generally applicable, within the meaning of Section 120.52(15), Florida Statutes (2003), and is not an unadopted rule that is subject to de novo review in Section 120.57(1)(e), Florida Statutes. However, Respondent must provide expose and elucidate its non-rule policy with competent and substantial evidence that explains the policy. McDonald v. Department of Banking and Finance, 346 So. 2d 569, 584 (Fla. 1st DCA 1977).

106. Respondent did not expose and elucidate any reasons that justified retroactive application of the repeal of non-rule policy. Retroactive application of the repeal in non-rule policy deprived Petitioner of a reasonable opportunity to comply with the new non-rule policy.

107. The retroactive repeal of the prior interpretation of an existing rule requiring board certification or eligibility and the retroactive repeal of the prior non-rule policy directing Petitioner to use incompatible codes on his Medicaid claims are arbitrary or capricious. Neither repeal bears any rational relationship to statutory standards prescribed in

     Section 409.913, Florida Statutes (2000). A rule and non-rule policy are arbitrary or capricious if either does not bear a rational relationship to statutory standards. Merrit v.

     Department of Business and Professional Regulation, Board of Chiropractic, 654 So. 2d 1051, 1054 (Fla. 1st DCA 1995); cf. Florida Beverage Corporation v. Wynne, 306 So. 2d 200, 202 (Fla. 1st DCA 1975)(finding a rule that bears a rational relationship to a legitimate purpose is not arbitrary or capricious).

108. The Handbooks incorporated by reference in Respondent's rules, in relevant part, grant discretion to Respondent to seek recovery of overpayments or to permit the provider to recode and resubmit claims whenever the CPT code and the ICD-9 code are "incompatible," as they are in this case. However, the Handbooks do not prescribe standards to guide Respondent in the exercise of its discretion. Respondent delegated the power to exercise agency discretion to a single peer reviewer without prescribing standards to guide the reviewer's discretion. Agency discretion that depends solely on the judgment of agency staff is arbitrary or capricious. Merrit, 654 So. 2d at 1054.

109. A principle purpose of Chapter 120 is to create transparency in administrative decision-making. In 1976, prior to the adoption of Section 120.57(1)(e), Florida Statutes, the Florida Supreme Court held that unwritten standards imposed by

     the Department of Revenue in connection with certain bond requirements were rules and were unenforceable because they had not been promulgated pursuant to Section 120.54, Florida Statutes. Straughn v. O'Riordan, 338 So. 2d 832, 834 n. 3 (Fla. 1976). The unwritten agency statements at issue in Straughn were requirements: which the chief of the sales tax bureau "considers"; for which the area supervisor "plays it by ear"; and for which the Department itself had developed a "rule of thumb." Straughn, 338 So. 2d at 833 and

     n. 2. In rejecting unwritten standards as invalid rules, the court observed that a principal goal of Chapter 120 is:

     . . . the abolition of "unwritten rules" by which agency employees can act with unrestrained discretion to adopt, change and enforce governmental policy. . . .

     
     

     Straughn, 338 So. 2d at 834 n. 3. The requirement to invalidate an unadopted rule is intended to:

     . . . close the gap between what the agency and its staff know about the agency's law and policy and what an outsider can know.

     
     

     McDonald, 346 So. 2d at 580.

     
     

110. In 1997, the First District Court of Appeal followed the 1976 holding in Straughn. The court held unwritten agency procedures to be statements of general applicability that were invalid rules. Department of Highway Safety and Motor Vehicles

     v. Schluter, 705 So. 2d 81, 84 (Fla. 1st DCA 1997).

111. The dissent in Schluter, in relevant part, argued that there was no agency statement because the agency had not reduced its procedures to writing. In rejecting the requirement that a statement be reduced to writing, the majority stated:

     The dissent's primary focus, as to the last three of the disputed procedures, appears to be that because none of the statements had been reduced to writing . . . they could not be considered to comply with section 120.52(15)'s definition of a rule. In espousing this position, [the dissent] has failed to cite any authoritative legislative or judicial source for [its] novel contention. Indeed, [its] reference to Straughn v. O'Riordan . . . supports an opposite conclusion. Nothing in Straughn reveals that the court's decision was influenced by the existence of written standards. In fact, the quotes from Straughn regarding "unwritten rules" and "invisible policy-making" strongly suggest the contrary.

     
     

     Even if it were possible to interpret Straughn as implying that the standards there attacked had been reduced to writing, any decision which requires a writing as a necessary ingredient of an unpublished rule is, in our judgment, clearly at variance with the legislative purpose behind the adoption of the 1974 Administrative Procedure Act. (citations omitted)

     
     

     Id.

     
     

112. Respondent properly should repeal old interpretations

of existing rules and non-rule policy that conflict with Respondent's current rules. However, Respondent should do so

prospectively rather than retroactively and in a manner that complies with the requirements of Chapter 120.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a Final Order requiring Petitioner to pay that part of the assessed overpayment attributable to the patient record time requirement; and denying Respondent's request to recover the remainder.

DONE AND ENTERED this 26th day of November, 2003, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 26th day of November, 2003.

COPIES FURNISHED:

Tom Barnhart, Esquire

Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

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

Chris M. Morrison, Esquire Marshall A. Adams, Esquire Broad and Cassel

One Financial Plaza, Suite 2700 Ft. Lauderdale, Florida 33394

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: 03-002300MPI

Orders for Case No: 03-002300MPI