STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
ALEX T. ZAKHARIA, M.D.,
Respondent.
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) Case No. 11-2190MPI
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RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing on January 5-6, February 3, March 9, May 14, and May 17, 2012.
APPEARANCES
For Petitioner: Debora E. Fridie, Esquire
Assistant General Counsel
Agency for Health Care Administration Fort Knox Building 3, Mail Station 3 2727 Mahan Drive
Tallahassee, Florida 32308
For Respondent: Alex T. Zakharia, M.D., pro se
245 Harbor Drive
Key Biscayne, Florida 33149-1217 STATEMENT OF THE ISSUES
The issues are whether Petitioner is entitled to repayment of Medicaid reimbursements that it made to Respondent, pursuant to section 409.913(11), Florida Statutes; and, if so, the amount of the repayment; the amount of any sanctions, pursuant to
section 409.913(15)-(17), Florida Statutes; and the amount of any investigative, legal, and expert witness costs, pursuant to section 409.913(23)(a), Florida Statutes.
PRELIMINARY STATEMENT
By letter dated August 9, 2005, Petitioner advised Respondent that, based on the results of an audit, Petitioner demanded repayment of $36,509.18 in overpaid claims for Medicaid reimbursements from March 1, 2001, through February 28, 2003.
Petitioner also demanded repayment of its investigative, legal, and expert witness costs, pursuant to section 409.913(23)(a), Florida Statutes, and imposed sanctions of a $1500 fine and a corrective action plan for a violation of Florida Administrative Code rule 59G-9.070(7)(e), pursuant to the authority of section 409.913(15)-(17), Florida Statutes.
Respondent timely requested a hearing. On September 16, 2005, Petitioner transmitted the file to the Division of Administrative Hearings (DOAH) where the file was assigned DOAH Case Number 05-3367MPI. Pursuant to discussions during a telephone conference on November 2, 2005, the Administrative Law Judge then assigned to the case entered an Order Closing File on November 10, 2005.
Pursuant to Agency's Motion to Reopen Proceeding filed on April 28, 2011, Petitioner requested that DOAH reopen the file. In its motion, Petitioner explained that the earlier case had
been closed to allow the parties to explore the possibility of settlement. Petitioner also noted that, in the interim, the First District Court of Appeal, in Agency for Health Care Admin. v. Custom Mobility, Inc., 995 So. 2d 984 (Fla. 1st DCA 2008), had reversed a final order of an Administrative Law Judge, thereby restoring Petitioner's ability to use its cluster- sampling formula in determining Medicaid overpayments.
On May 2, 2011, by Order Reopening Case Under New Case Number, the Administrative Law Judge then assigned to the case effectively reopened the case. Subsequently, the case was set for hearing on July 21-22, 2011, but, on June 27, 2011, Respondent filed a motion for continuance on the ground that a recently retained qualified representative needed time to prepare. The case was reset for hearing on September 6-7, 2011, but, on July 11, 2011, the parties filed a joint motion for continuance on the grounds that Respondent had recently provided Petitioner additional medical records and Petitioner's expert witness needed time to review them. The case was reset for hearing on January 5-6, 2012. Shortly prior to these hearing dates, the case was transferred to the undersigned Administrative Law Judge. The hearing took place as scheduled, but was not completed. Scheduling difficulties prevented the conclusion of the hearing on a more expedited schedule than that shown above.
At the hearing, Petitioner called four witnesses and offered into evidence 19 exhibits: Petitioner Exhibits 1-3, 4-6, 9-10, 11-21. Respondent called two witnesses and offered
into evidence four exhibits: Respondent Exhibits 1, 3, 5,
and 7. All exhibits were admitted except Respondent Exhibits 7 and 9, which are deemed withdrawn because Respondent failed to file them, as allowed by the Administrative Law Judge, within ten days after the end of the hearing, and Respondent Exhibits 6 and 8, which were proffered.
The court reporter filed the final volumes of the transcript on June 15, 2002. Petitioner filed its proposed recommended order on June 22, 2012. Respondent received an extension of time to file his proposed recommended order, and he filed it on July 23, 2012.
On June 22, 2012, Petitioner filed a letter covering an updated spreadsheet of claimed overpayments. This document, which is identified and admitted as ALJ Exhibit 1, supersedes Petitioner Exhibit 21. The spreadsheet revisions contained in ALJ Exhibit 1 reflect the overpayment determinations of Petitioner's expert witness (and Petitioner), but only to the extent that these determinations were more favorable to Respondent than those contained in Petitioner Exhibit 21. As a result, Petitioner reduced the claimed overpayment, after extension to the total population, to $31,390.30.
FINDINGS OF FACT
During the audit period of March 1, 2001, through February 28, 2003, Respondent practiced medicine in Miami and was an enrolled Medicaid provider with the specialties of vascular surgery, cardiovascular surgery, and thoracic surgery. At the time of the hearing, Respondent had not had a license to practice medicine for several years, nor was he an enrolled Medicaid provider.
Under the Medicaid Provider Reimbursement Handbook (Reimbursement Handbook) in effect during the audit period, "records must be accessible, legible and comprehensible[,]" and "[m]edical records must state the necessity for and the extent of services provided." Medicaid Handbook, pp. 2-45 through
2-46. "Medicaid payments for services that lack required documentation or appropriate signatures will be recouped." Id. at p. 2-47. "Medicaid may recoup payment for services or goods when the provider has incomplete records or cannot locate the records." Id. at p. 5-7.
Under the Florida Medicaid Physician Services, Coverage, and Limitations Handbook in effect during the audit period (Physicians Handbook), only the services shown in Appendix J are reimbursable. Physicians Handbook, p. 2-2. The Physicians Handbook adds:
Medicaid reimburses for services that are determined medically necessary and do not duplicate another provider's service. . . .
Id.
For Medicaid reimbursement, a physician must use the
service and procedure codes contained in the Physicians Current Procedural Terminology® (CPT).1/ Physicians Handbook, p. 3-1.
The CPT handbook provides important information for coding certain services, such as initial inpatient consultations and subsequent hospital care:
The extent of the history is dependent upon clinical judgment and on the nature of the presenting problem(s). The level of . . . services recognizes four types of history that are defined as follows:
Problem focused: chief complaint; brief history of present illness or problem.
Expanded problem focused: chief complaint; brief history of present illness; problem pertinent system review.
Detailed: chief complaint; extended history of present illness; problem pertinent system review extended to include a review of a limited number of additional systems; pertinent past, family, and/or social history directly related to the patient's problems.
Comprehensive: chief complaint; extended history of present illness; review of systems which is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems; complete past, family, and social history.
* * *
The extent of the examination performed is dependent on clinical judgment and on the nature of the presenting problem(s). The level of . . . services recognize four types of examination that are defined as follows:
Problem focused: a limited examination of the affected body area or organ system.
Expanded problem focused: a limited examination of the affected body area or organ system and other symptomatic or related organ system(s).
Detailed: an extended examination of the affected body area(s) and other symptomatic or related organ system(s).
Comprehensive: a general multi-system examination or a complete examination of a single organ system. . . .
* * *
Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by:
the number of possible diagnoses and/or the number of management options that must be considered;
the amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed, and analyzed; and
the risk of significant complications, morbidity, and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options.
* * *
Comorbidities/underlying diseases, in and of themselves, are not considered in selecting a level of . . . services unless their presence significantly increases the complexity of the medical decision making.
* * * Table 2. Complexity of Medical Decision Making
minimal minimal or none minimal straightforward limited limited low low complexity multiple moderate moderate moderate complexity extensive extensive high high complexity
When counseling and/or coordination of care dominates (more than 50%) the physician/patient and/or family encounter (face-to-face time in the office or other outpatient setting or floor/unit time in the hospital or nursing facility), then time may be considered the key or controlling factor to quality for a particular level of . . . services. . . . The extent of counseling and/or coordination of care must be documented in the medical record.
CPT handbook, pp. 5-7.
Petitioner's auditor selected a random sample of 30 recipients for the audit. For these recipients, the auditor identified 510 reimbursements from Petitioner to Respondent
during the audit period. Accordingly, Petitioner's auditor requested and received from Respondent the medical records pertaining to these 510 claims.
An MPI nurse reviewer employed by Petitioner examined the medical records and bills for these 510 claims. Next, Petitioner retained a cardiologist, Dr. Potu, who examined the medical records to determine the reimbursability of these 510 claims. As a cardiologist, Dr. Potu was not a "peer" of Respondent, as that word is defined in the Conclusions of Law.
On September 15, 2004, Petitioner issued to Respondent a Provisional Agency Audit Report (PAAR). In the PAAR, Petitioner stated that the audit of the 510 claims revealed that Petitioner had overpaid Respondent $11,172.70, which, following statistical analysis, extended to an overpayment of $37,427.80 for the total population.
After further review, on August 9, 2005, Petitioner issued the Final Audit Report (FAR). In the FAR, Petitioner stated that the final audit of the 510 claims revealed that Petitioner had overpaid Respondent $10,871.35, which extended to an overpayment of $36,509.18 for the total population.
Prior to the hearing, Petitioner retained a cardiovascular surgeon, Dr. Tomas Martin, to review Respondent's medical records and determine the reimbursability of the 510 claims. Dr. Martin is Respondent's "peer," as that word is
defined in the Conclusions of Law. Varying freely from the determinations of Dr. Potu, Dr. Martin offered testimony that was uninfluenced by the prior work of Dr. Potu.
After the hearing, Petitioner filed ALJ Exhibit 1 with a cover letter dated June 22, 2012. By this means, Petitioner revised its analysis of the 510 claims to conclude that Petitioner had overpaid Respondent $9069.56, which extended to an overpayment of $31,390.30 for the total population. As noted in the letter, this final revision incorporates the testimony of Dr. Martin, but only to the extent that it would raise the reimbursement amount allowed by Dr. Potu.
The sampling for the audit and extension performed in the FAR and ALJ Exhibit 1 are pursuant to accepted and valid statistical methodologies and consistent with generally accepted statistical methods.
Almost all of the 510 claims at issue in this case arose from procedures or services provided at the South Shore Hospital, which was located in Miami Beach. The hospital closed sometime after the audit period. Respondent testified that important evidence is no longer available to him, but the record does not support this claim.
Recipient 1 is A. H., who was 53 years old as of the first date of service. Petitioner claims a total overpayment of
$138.52 based on nine reimbursements.
On February 5, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. On the next day, Respondent billed a CPT code 36013 for an introduction of a catheter to the right heart or main pulmonary artery, which is the sole claim allowed in full for this recipient. For the next seven days, Respondent billed a CPT code 99233 for subsequent hospital care. Finally, on February 14, Respondent billed a CPT code 36010 for an introduction of a catheter to the superior or inferior vena cava.
Petitioner downcoded the first claim from CPT code 99255 to 99254. CPT code 99255 is for an "initial inpatient consultation" of a new or established patient. The consultation must include three elements: "a comprehensive history; a comprehensive examination; and medical decision making of high complexity." CPT code 99255 explains: "Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 110 minutes at the bedside and on the patient's hospital floor or unit."
CPT code 99254 requires the same consultation to satisfy the same three elements, except that the third element is reduced to "medical decision making of moderate complexity." CPT code 99254 explains: "Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 80
minutes at the bedside and on the patient's hospital floor or unit."
Petitioner has proved that the February 5 claim is properly a CPT code 99254. Suffering primarily from obesity and cellulitis, A. H. was admitted on February 5 with complaints of pain in her left lower extremity. The treating physician referred A. H. to Respondent for the placement of a central venous pressure (CVP) line with telemetry. In a consultative note of nine lines, Respondent advised against an upper body central line due to the patient's "severe obesity" and recommended instead a right femoral CVP line. Presumably, Respondent made the critical finding of "severe obesity" in a quick glance at the patient; it is likely that the medical decision making took much less than 80 minutes and unlikely that it was of moderate complexity.
As noted above, Respondent's claim the following day for a CPT code 36013, which is the introduction of a catheter, was allowed in full. Respondent testified that he was consulted on this patient, as was the case with many patients, for a broad range of cardiovascular issues, not merely for a catheterization. As was the case with all of these patients, though, the medical records do not support this claim of Respondent, whose credibility, as noted below, is very poor.
Petitioner downcoded the next seven claims, over the seven succeeding days, from CPT code 99233 to 99232. CPT code 99233 is for "subsequent hospital care, per day, for the evaluation and management of a patient." The care must include two of three elements: "a detailed interval history; a detailed examination; [and] medical decision making of high complexity." CPT code 99233 explains: "Usually, the patient is unstable or has developed significant complication or a significant new problem. Physicians typically spend 35 minutes at the bedside and on the patient's hospital floor or unit."
CPT code 99232 requires the same care to satisfy two of three elements: "an expanded problem focused interval history; an expanded problem focused examination; [and] medical decision making of moderate complexity." CPT code 99232 explains: "Usually, the patient is responding inadequately to therapy or has developed a minor complication. Physicians typically spend 25 minutes at the bedside and on the patient's hospital floor or unit."
Petitioner has proved that the seven claims from February 7-13 are properly CPT code 99232. According to Respondent's notes, the February 6 procedure was successful and "uneventful." There is no indication that the patient was "unstable" or had developed a "significant complication or . . . new problem." Neither the interval history nor the examination
was detailed, and the medical decision making was not of high complexity.
As noted above, Respondent's credibility is very poor.
He falsified progress notes to support his claims for upcoded services. These spurious records are conveniently identified in the exhibit binder because they are printed on yellow or orange pages.
Respondent did not explain why he failed to provide these clear, concise records--here, of daily visits at the bedside of A. H.--with the initial records that he provided Petitioner. Nor did Respondent explain why the progress notes are identical from day to day, as to A. H., and vary little from patient to patient. Also, these progress notes oddly state that
A. H. denied "limb pain," even though the main reason that A. H. was hospitalized was cellulitis in the left lower extremity.
But the improbable becomes the impossible on closer examination. As Dr. Martin pointed out, a cardiovascular surgeon, who was consulted merely to introduce a CVT line, does not daily visit the patient to look up her nose to report the pink color of her "bilateral nasal mucosa," examine her psychiatric status to report that she "appears sad with flat affect," and perform a neurological exam to report that her cranial nerves II through XII are grossly intact and she is appropriately sensitive to vibration. As Dr. Martin noted
dryly, these neurological findings would require a busy cardiovascular surgeon to hurriedly perform his daily rounds equipped with a small reflex hammer and a tuning fork.
Petitioner downcoded the last claim, on February 14, from CPT code 36010 to 99232. This appears to have been a mistaken billing by Respondent, as this is the date that A. H. was discharged--her cellulitis "improved," according to the discharge note written by her treating physician. She did not have a catheter introduced on the day of her discharge.
Petitioner has proved that it properly downcoded all of the claims discussed above.
Recipient 2 is N. R., who was 55 years old as of the first date of service. Petitioner claims a total overpayment of
$956.13 based on 19 reimbursements.
On October 26 and November 19, 2001, and February 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. On October 27, October 30, November 6, November 20, and December 10, Respondent billed a CPT code 36013, except for November 6 and December 10, for which he billed a CPT code 36010, which is an introduction of a catheter to the superior or inferior vena cava. On October 28-29, October 31, November 2-5, December 1, and December 3-9, Respondent billed a CPT code 99233. On November 21-30, Respondent billed a CPT code 99291, which is for the first 30-74
minutes of critical care, evaluation, and management of a critically ill or critically injured patient. Petitioner allowed in whole the billings for services on October 27 and 30, November 6, 20, and 21, and December 1 and 3-10.
Petitioner downcoded the first claim from CPT code 99255 to 99251. CPT code 99251 is for an "initial inpatient consultation" of a new or established patient. The consultation must include three elements: "a problem focused history; a problem focused examination; and straightforward medical decision making." CPT code 99251 explains: "Usually, the presenting problem(s) are self limited or minor. Physicians typically spend 20 minutes at the bedside and on the patient's hospital floor or unit."
Petitioner has proved that the October 26 claim is properly a CPT code 99251. The record contains relatively little information about N. R. during her hospitalizations. Suffering from multiple medical problems, including ascitis, liver failure, and edema of the feet, N. R. was a complicated patient, but, as Dr. Martin testified, Respondent's involvement on October 26 was to consult in preparation for nothing more than the insertion of an IV line. This consultation required no more than 20 minutes of straightforward medical decision making.
Petitioner downcoded to CPT code 99231 two claims, on October 28 and 29, that were billed as CPT code 99233. CPT code
99231 is for "subsequent hospital care, per day, for the evaluation and management of a patient." The care must include two of three elements: "a problem focused interval history; a problem focused examination; [and] medical decision making that is straightforward or of low complexity." CPT code 99231 explains: "Usually, the patient is stable, recovering or improving. Physicians typically spend 15 minutes at the bedside or on the patient's hospital floor or unit."
Petitioner has proved that these two claims from October 28 and 29 are properly CPT code 99231. This was routine followup by a consultant who had performed a routine procedure on a patient for whom he was not the primary caregiver. Respondent performed no more than a problem focused interval history and examination and engaged in medical decision making that was straightforward or of low complexity.
Petitioner allowed the claim billed as CPT code 36013 on October 30, but downcoded the claims billed on October 31 and November 2-5 from CPT code 99233 to 99231. Although the allowed procedure involved an introduction of a CVP line through the femoral artery, as Dr. Martin testified, the same reasons that justify the downcoding of subsequent hospital care on October 27 and 28 justify the downcoding of subsequent hospital care on October 31 and November 2-5.
Dr. Martin and Petitioner have coded the subsequent hospital care following an introduction of a catheter to the right heart or main pulmonary artery differently from patient to patient. For A. H., as noted above, and A. R., as noted below, Dr. Martin and Petitioner coded such care as CPT code 99232. However, for N. R. and, as noted below, M. M. and U. L.,
Dr. Martin and Petitioner coded such care as CPT code 99231. Although there is some factual variability among these two sets of patients, the better fit is CPT code 99232, but the Administrative Law Judge will not disturb the higher codes allowed by Dr. Martin in the cases of A. H. and A. R. Petitioner has proved that the claims billed on October 31 and November 2-5 are properly CPT code 99231.
Petitioner downcoded the claim billed on November 19 from CPT code 99255 to 99253. CPT code 99253 is for an "initial inpatient consultation" of a new or established patient. The consultation must include three elements: "a detailed history; a detailed examination; and medical decision making of low complexity." CPT code 99253 explains: "Usually, the presenting problem(s) are of moderate severity. Physicians typically spend
55 minutes at the bedside and on the patient's hospital floor or unit."
N. R. had taken a turn for the worse and had been transferred to ICU for profuse gastrointestinal bleeding. She
was hypotensive and in such respiratory distress as to require intubation. But the primary caregiver consulted with Respondent strictly for the purpose of obtaining IV access. Dr. Martin correctly testified that this service was of no more than low complexity. Petitioner has proved that the November 19 claim is properly a CPT code 99253.
Petitioner downcoded ten successive claims, from November 21-30, from CPT code 99291 to 99233. As noted by
Dr. Martin, CPT code 99291 is for the primary caregiver, not a consultant. Here, Respondent's procedure note states that the introduction of a catheter, which was allowed under CPT code 36013, was "[u]neventful." As noted above, Dr. Martin and Petitioner typically allowed, at most, CPT code 99232 for subsequent hospital care following an introduction of a catheter to the right heart or main pulmonary artery. Evidently due to the serious condition of N. R., they allowed a CPT code 99233 for the subsequent hospital care. Petitioner has proved that the ten successive claims, from November 21-30, are properly under CPT code 99233.
Lastly, Petitioner downcoded a claim billed on February 13, 2002, from CPT code 99255 to 99252. CPT code 99252 is for an "initial inpatient consultation" of a new or established patient. The consultation must include three elements: "an expanded problem focused history; an expanded
problem focused examination; and straightforward medical decision making." CPT code 99252 explains: "Usually, the presenting problem(s) are of low severity. Physicians typically spend 40 minutes at the bedside and on the patient's hospital floor or unit."
Petitioner proved, as Dr. Martin testified, that this was merely a consultation involving straightforward medical decision making, so Petitioner proved that the February 13 claim is properly a CPT code 99252.
Recipient 3 is M. W., who was 40 years old as of the first date of service. Petitioner claims a total overpayment of
$173.38 based on six reimbursements.
On November 7, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. For each of the next five days, Respondent billed a CPT code 99233 for subsequent hospital care.
Petitioner downcoded the first claim from CPT code 99255 to 99253. Respondent's consultation report states that he was consulted to provide a central venous line to provide IV access for treatment and, if necessary, resuscitation of a critically ill patient with gastrointestinal bleeding. As
Dr. Martin testified, the medical decision making is low, not high, so Petitioner proved that this claim is properly a CPT code 99253.
Petitioner downcoded the next five claims from CPT code 99233 to 99231. Again, as Dr. Martin testified, the complexity of the medical decision making imposed on Respondent, as a consultant called upon merely to provide IV access to the patient, is low, not high, and no more than a problem focused interval history and examination was required, so Petitioner proved that these claims are properly CPT code 99231.
Recipient 4 is R. M. Petitioner has not claimed any overpayments with respect to this patient.
Recipient 5 is D. D., who was 65 years old as of the first date of service. Petitioner claims an overpayment of
$77.85 based on one reimbursement.
On March 12, 2001, Respondent billed a CPT code 99255 for an initial inpatient consultation. On the next day, Respondent billed a CPT code 99291 for critical care. Of the 15 billings based on D. D., the March 13 billing is the sole one that Petitioner disallowed in whole or in part, as Petitioner downcoded it to 99232.
D. D. had been admitted from a nursing home with a malfunctioning gastrostomy tube. Respondent was consulted for venous access only. CPT code 99291 is not available for this level of consultation, which is properly coded CPT code 99232. Petitioner has proved that the March 13 claim is properly a CPT code 99232.
Recipient 6 is F. C. Petitioner has not claimed any overpayments with respect to this patient.
Recipient 7 is G. B. Petitioner has not claimed any overpayments with respect to this patient.
Recipient 8 is R. R., who was 64 years old as of the first date of service. Petitioner claims a total overpayment of
$245.50 based on four reimbursements.
On February 19, June 20, September 27, and October 18, 2002, Respondent billed a CPT code 99255 for an initial patient consultation. Petitioner downcoded these claims to CPT code 99252, except for the claim on June 20, which Petitioner downcoded to CPT 99253.
These various hospital admissions were due to fainting, irregular heart rate, and chest pain. During the initial patient consultation on February 19, Respondent determined that R. R. needed a pacemaker, subject to clearance from cardiology and internal medicine. Respondent was not the primary caregiver for this patient, and, as Dr. Martin noted, his notes for February 19 are not extensive. Absent evidence of more than straightforward medical decision making, Petitioner proved that the February 19 claim is properly a CPT code 99252.
During the next three initial patient consultations, as Dr. Martin testified, Respondent served merely as a consultant, not the primary caregiver. Petitioner proved that
the June 20 claim is properly no higher than a CPT code 99253, and the September 27 and October 18 claims are properly a CPT code 99252.
Recipient 9 is S. G., who was 66 years old as of the first date of service. Petitioner claims a total overpayment of
$131.78 based on two reimbursements.
On April 30 and October 3, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded each of these claims to CPT code 99252.
These hospital visits were to check the status of S. G.'s pacemaker. As Dr. Martin testified, the medical decision making was straightforward, not of high complexity, so Petitioner proved that the April 30 and October 3 claims are properly a CPT code 99252.
Recipient 10 is A. C., who was 73 years old as of the first date of service. Petitioner claims an overpayment of
$63.89 based on one reimbursement.
On November 17, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded this claim to CPT code 99252. As Dr. Martin testified, Respondent was consulted strictly for the purpose of establishing a central venous line. Petitioner has proved that the November 17 claim is properly a CPT code 99252.
Recipient 11 is T. F., who was 40 years old as of the first date of service. Petitioner claims a total overpayment of
$528.33 based on 29 reimbursements.
On July 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation, which Petitioner allowed. Respondent was consulted solely to provide IV access, so, as
Dr. Martin testified, the subsequent hospital care from
July 14-30 was properly a CPT code 99232. ALJ Exhibit 1 misses this testimony of Dr. Martin, so Respondent is entitled to reimbursement at CPT code 99232, not 99231, for the following dates: July 20-21, 23, 27, and 29, as Dr. Martin testified.
As of July 19, 2002, the difference in the amounts allowed for CPT code 99232 and 99231 was $11.65 ($29.73 less
$18.08). Multiplied by five dates of service, the sum amounts to $58.25, which is the amount by which Petitioner's claimed overpayment must be reduced.
On November 4 and December 25, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded these claims to CPT code 99253. As
Dr. Martin testified, Respondent was consulted for matters that required medical decision making of no more than low complexity, so Petitioner proved that these claims are properly CPT code 99253.
Petitioner likewise proved that the subsequent hospital care from December 26, 2002, through January 5, 2003, did not rise to CPT code 99233, as billed. However, ALJ Exhibit
1 fails to reflect Dr. Martin's testimony that all of the subsequent hospital care from December 26, 2002, through January 5, 2003, was CPT code 99232, so Respondent is entitled to reimbursement at this higher rate, not at the lower rate
borne by CPT code 99231, for December 26 and 29 and January 4-5.
During this period, the difference in the amount allowed for each CPT code 99232 and 99231 was $11.65 ($29.73 less $18.08). Multiplied by four dates of service, the sum amounts to $46.60, which is the amount by which Petitioner's claimed overpayment must be reduced.
Recipient 12 is V. D., who was 61 years old as of the first date of service. Petitioner claims an overpayment of
$1.00 based on one reimbursement.
On March 13, 2001, Respondent billed a CPT code 36013 for an introduction of a catheter in the right heart of main pulmonary artery. Petitioner downcoded this claim to CPT code 36010 for an introduction of a catheter in the superior or inferior vena cava. As Dr. Martin testified, this is a simple miscoding of the performed procedure, so Petitioner has proved that the March 13 claim is properly a CPT code 36010.
Recipient 13 is A. R., who was 87 years old as of the first date of service. Petitioner claims a total overpayment of
$85.28 based on eight reimbursements.
From April 21-28, 2002, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded each of these claims to CPT code 99232. The patient was very sick, suffering from heart failure and pneumonia, and she died on April 28. Dr. Martin gave due weight to the complexity of this unfortunate patient when he overrode the PAAR, which had downcoded the initial inpatient consultation to 99251, and allowed the billed CPT code 99255. Of course, Respondent received full reimbursement for the introduction of a central venous pressure line.
On the other hand, Respondent's standard, yellow progress notes of April 20, "2006," et seq. represent not only the usual departure from the professional and programmatic dictates of honesty, but also from good taste, given their preparation long after the patient had expired. As Dr. Martin noted, R. A. was in no condition to provide the detailed history that Respondent reported that he obtained on April 20--and again on April 21, 22, 23, 24, 25, 26, 27, and 28. Respondent prepared the fabrication in this case with an unscrupulous lack of care: on the day of A. R.'s death, Respondent's progress note repeats the fiction that A. R. was "resting comfortably, in
no acute distress," her vital signs were "stable," her heart displayed a "regular rate and rhythm," her lower extremities showed no signs of swelling, and she appeared "sad with flat affect."
As Dr. Martin testified, Respondent was consulted merely for the placement of a central venous line. The medical decision making for the subsequent hospital care was of no more than moderate complexity, and the interval histories and examinations were no more than expanded problem focused. Petitioner has proved that the April 21-28 claims are properly a CPT code 99232.
Recipient 14 is R. M., who was 70 years old as of the first date of service. Petitioner claims an overpayment of
$51.83 based on one reimbursement.
On January 31, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded this claim to a CPT code 99253. Again, Respondent was consulted for limited purposes that involved medical decision making of no more than low complexity. This time, Respondent's yellow progress notes reflect another aspect of their fabrication--that Respondent devoted little thought to his fraudulent effort. The progress note for January 31, 2002, reports that R. M.'s deep tendon reflexes were "equal in upper and lower extremities" and that the popliteal and pedal pulses
were "palpable bilaterally"--both findings quite impossible in a patient whose left leg had been previously amputated above the knee. Petitioner has proved that the January 31, 2002, claim is properly a CPT code 99253.
Recipient 15 is J. D., who was 63 years old as of the first date of service. Petitioner claims a total overpayment of
$130.00 based on nine reimbursements.
On January 7, 2002, Respondent billed a CPT code 92555 for an initial inpatient consultation. For the next eight days, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded the January 7 billing to CPT code 99254 and the ensuing billings to CPT code 99232.
J. D. was hospitalized for a slow heart rate with syncope and a likely staph infection. Respondent was consulted for a broad cardiovascular examination, which was appropriately coded at no higher than CPT code 99254, as it involved no more than moderate complexity. Respondent's recommendation to rule out sick sinus syndrome by conducting a 24-hour Holter and echocardiogram does not appear to have been the product of more than 80 minutes' time with the patient and on his hospital floor.
As Dr. Martin testified, the "moderate need for followup" justified no higher than a CPT code 99232 for the ensuing billings, as the medical decision making was of no more
than moderate complexity and the interval history and examination were expanded problem focused.
Recipient 16 is C. R., who was 39 years old as of the first date of service. Petitioner claims a total overpayment of
$122.48 based on four reimbursements.
On October 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Two days later, Respondent billed a CPT code 99233 for subsequent hospital care. One week later, Respondent billed a CPT code 36013 for an introduction of a catheter in the right heart or main pulmonary artery and a CPT code 36493 for repositioning a previously placed central venous catheter under fluoroscopic guidance.
Petitioner downcoded the initial inpatient consultation to CPT code 99252 and the subsequent hospital care to CPT code 99232. Petitioner disallowed the two billings on October 22 because they were allowed as part of another procedure on the same date for which Respondent was reimbursed.
As Dr. Martin explained, the limited scope of the initial consultation drives the downcoding of the initial patient consultation and subsequent hospital care. Petitioner has proved that these claims are properly CPT codes 99252 and 99232.
On October 22, Petitioner reimbursed Respondent
$210.53 for a billing under CPT code 36533, which is for the
"[i]nsertion of implantable venous access device, with or without subcutaneous reservoir." As Dr. Martin testified, this code includes CPT codes 36013 and 36493, so Petitioner has proved that the CPT codes 36013 and 36493 were properly disallowed.
Recipient 17 is J. G., who was 54 years old as of the first date of service. Petitioner claims a total overpayment of
$131.51 based on two reimbursements.
On May 27, 2001, Respondent billed a CPT code 99255 for an initial patient consultation, and, the next day, he billed a CPT code 99291 for critical care. Petitioner downcoded these claims to CPT codes 99253 and 99232. As Dr. Martin testified, Respondent was consulted to provide venous access, and Petitioner has proved that it properly downcoded both claims.
Recipient 18 is M. C., who was 26 years old as of the first date of service. Petitioner claims a total reimbursement of $196.94 based on ten reimbursements.
On August 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. For eight of the next nine days, Respondent billed a CPT code 99233 for subsequent hospital care.
Petitioner downcoded the August 13 claim to CPT code 99254 and the last four days of subsequent hospital care to CPT
code 99232. As Dr. Martin testified, the initial inpatient consultation was for a cardiac problem and involved medical decision making of moderate complexity, so that Petitioner properly downcoded the August 13 billing to CPT code 99254.
Dr. Martin testified that the subsequent hospital care from August 19-22 was CPT code 99231. However, in ALJ Exhibit 1 and its predecessor Petitioner Exhibit 21, Petitioner took the position that these billings should be reimbursed under CPT code 99232. Although it is difficult to find any basis in the record to support medical decision making that is more than straightforward or of low complexity, as well as an interval history and examination that is more than problem focused, the Administrative Law Judge declines to credit Dr. Martin's testimony over the position repeatedly taken by Petitioner as to these dates of service--namely, that they are properly CPT code 99232.
On January 25, 2003, Respondent billed a CPT code 99255 for an initial inpatient consultation. From January 26- 30, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner allowed the January 26 billing, but downcoded the January 25 billing to CPT code 99253 and the January 27-30 billings to CPT code 99232. Given the limited scope of Respondent's initial consultation, which was providing IV access, these downcodings are proper.
Recipient 19 is M. R., who was 57 years old as of the first date of service. Petitioner claims a total overpayment of
$676.97 based on 17 reimbursements.
On September 3, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. For the next two days, he billed a CPT code 99291 for critical care. For nine of the next ten days, Respondent billed a CPT code 99233 for subsequent health care. Petitioner downcoded the September 3 billing to CPT code 99252, the September 4-5 billings to CPT code 99231, and the remaining billings to CPT Code 99231.
As Dr. Martin testified, although the patient was very ill with metastatic ovarian carcinoma, Respondent's consultation was limited to providing IV access. Petitioner has proved that the downcodings set forth in the preceding paragraph were appropriate.
On September 6, Respondent billed CPT codes 36533, 36013, and 71090, which is for the insertion of a pacemaker. Petitioner disallowed CPT code 36013 because, as Dr. Martin testified, it is included in CPT code 36533.
On October 9, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. The next day, he billed a CPT code 36534, which is for the "[r]evision of implantable venous access device, and/or subcutaneous reservoir." Petitioner downcoded these billing to CPT codes 99253 and 36550,
which is the "[d]eclotting by thrombolytic agent of implanted vascular access device or catheter." As Dr. Martin testified, the October 9 date of service required medical decision making of no more than low complexity. As for October 10, Respondent only flushed a catheter, for which most practitioners would not bill. But, in any event, flushing a catheter constitutes no more than declotting a catheter; it is not revising a venous access device.
On December 4, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded the claim to CPT code 99253. As Dr. Martin testified, given the limited scope of the consultation, the medical decision making was of no more than low complexity, so Petitioner proved that the downcoding is appropriate. For the same reason, Petitioner proved that the downcoding of the claim on December 6 for subsequent hospital care from CPT code 99233 to 99231 was appropriate.
Recipient 20 is M. G., who was 64 years old as of the first date of service. Petitioner claims a total overpayment of
$253.58 based on eight reimbursements.
On August 8, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. On August 10 and 12, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded these claims to CPT codes 99253 and 99231.
Similarly, on October 5, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. On October 6-9, Respondent billed a CPT code 99233. Petitioner downcoded these claims to CPT codes 99253 and 99231. As Dr. Martin testified, Respondent's scope of consultation, which was providing IV access, justified no higher than the downcoded codes.
Recipient 21 is M. R., who was 56 years old as of the first date of service. Petitioner claims a total overpayment of
$85.95 based on two reimbursements.
On June 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. As of the first date of service of the consultation, the patient bore diagnoses of left lower extremity deep vein thrombosis and rule-out arterial embolus. Her left foot was painful and had been cold for four days. Her right femoral pulse was weak. The medical decision making was of moderate complexity, and Dr. Martin and Petitioner properly coded this as CPT code 99254.
On January 7, 2003, Respondent billed a CPT code 99245 for an "[o]ffice consultation for a new or established patient." The consultation must include three elements: "a comprehensive history, a comprehensive examination; and medical decision making of high complexity." CPT code 99245 explains: "Usually, the presenting problem(s) are of moderate to high severity.
Physicians typically spend 80 minutes face-to-face with the patient and/or family."
Dr. Martin and Petitioner downcoded this claim to CPT code 99243, which is an "[o]ffice consultation for a new or established patient." The consultation must include three elements: "a detailed history; a detailed examination; and medical decision making of low complexity." CPT code 99243 explains: "Usually, the presenting problem[s] are of moderate severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family."
As Dr. Martin testified, the January 7 office visit was routine followup and involved medical decision making of no more than low complexity.
Recipient 22 is I. M.-D., who was 50 years old as of the first date of service. Petitioner claims a total overpayment of $1608.56 based on 18 reimbursements.
On June 11, 2001, Respondent billed a CPT code 99255 for an initial inpatient consultation. For the ensuing 17 days, Respondent billed a CPT code 99291 for critical care. Petitioner downcoded these claims to CPT codes 99252 and 99231.
The scope of Respondent's consultation was providing IV access--specifically, in the form of a port-a-cath system. As Dr. Martin testified, the medical decision making was of low complexity, both at the initial and subsequent dates of service.
Petitioner proved that these claims are properly downcoded to CPT code 99252 and 99231.
Recipient 23 is H. M. Petitioner has not claimed any overpayments with respect to this patient.
Recipient 24 is M. M., who was 72 years old as of the first date of service. Petitioner has claimed a total overpayment of $86.20 based on two reimbursements.
On March 9, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Two days later, he billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded these claims to CPT codes 99252 and 99231.
The consultation was for the placement of a central venous pressure line and, as Dr. Martin testified, the medical decision making for the initial consultation was no more than straightforward. For the subsequent care, the medical decision making was no more than straightforward, and the interval history and examination were no more than problem focused.
Petitioner has proved that it properly downcoded these claims.
Recipient 25 is M. S., who was 61 years old as of the first date of service. Petitioner claims a total overpayment of
$739.92 based on nine reimbursements.
On May 25, 2001, Respondent billed a CPT code 99255 for an initial inpatient consultation. From May 29 through June 3, Respondent billed a CPT code 99291 for critical care.
Petitioner downcoded the first claim to CPT code 99252, the claims for May 29 and 30 to CPT code 99231, and the remaining claims to CPT code 99233. The initial consultation was merely to place a central line, so Petitioner has proved that this claim is properly a CPT code 99252.
For the reasons noted above, the subsequent hospital care does not qualify for CPT code 99291. Dr. Martin testified that the May 29-June 3 claims were all CPT code 99231, and he could not explain why the May 31-June 3 claims were CPT code 99233. The better fit is CPT code 99231, but the Administrative Law Judge will not disturb the higher codes allowed by ALJ Exhibit 1.
On June 6, 2001, Respondent billed CPT codes 60200 and 31645 for a tracheostomy with the insertion of a tracheostomy tube, incision of the isthmus thyroid, and bronchial washing. CPT code 60200 is for a "[e]xcision of cyst or adenoma of thyroid, or transection of isthmus," and CPT code 31645 is for endoscopy "with therapeutic aspiration of tracheobronchial tree, initial . . .." Petitioner downcoded the CPT code 60200 to a CPT code 31600, which is a "[t]racheostomy, planned," and disallowed the CPT code 31645.
As Dr. Martin testified, the tracheostomy performed by Respondent is a CPT code 31645, and the additional procedure is part of a planned tracheostomy. Petitioner has proved that
the June 6 claims are properly billed as a single CPT code 31600.
Recipient 26 is U. L., who was 35 years old as of the first date of service. Petitioner claims a total overpayment of
$973.03 based on 28 reimbursements.
On March 9, 2001, Respondent billed a CPT code 99291 for critical care. He billed the same code for March 11-15.
These dates of service involved subsequent hospital care following the introduction of a central line. As
Dr. Martin testified, the services involved medical decision making of no more than low complexity and no more than a problem focused interval history and examination. Petitioner has proved that these claims are properly a CPT code 99231.
On August 10, 2001, Respondent billed a CPT code 99255 for initial inpatient consultation, and, on the next day, he billed a CPT code 36013 for an introduction of a catheter. The inpatient consultation was in connection with the insertion of a central venous line, which, as Dr. Martin testified, involved medical decision making of no more than moderate complexity. Also, the proper code for the catheterization that Respondent performed was CPT 36010. Petitioner has proved that these claims are properly CPT codes 99254 and 36010.
From August 14-September 3, 2001, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner
downcoded August 14-24 to CPT code 99231, August 25-27 to CPT code 99232, and August 28-September 2 to CPT code 99231.
As Dr. Martin testified, CPT code 99231 is the proper coding for all dates of service, except August 25 and 26, for which CPT code 99232 is proper. Following up on the initial service of providing venous access involved no more than straightforward medical decision making and a problem focused interval history and examination for all these service dates, except for August 25 and 26, where the medical decision making rose to moderate complexity. Although Dr. Martin testified that CPT code 99231 is proper for August 27, the Administrative Law Judge will not disturb the higher code allowed by ALJ Exhibit 1.
Recipient 27 is J. T., who was 60 years as of the first date of service. Petitioner claims a total overpayment of
$838.54 based on five reimbursements.
On August 13, 2002, Respondent billed CPT codes 60200, 31600, and 31645 for an incision of the thyroid isthmus and bronchial washing. Petitioner downcoded the first claim to CPT code 31603, which is for "[t]racheostomy, emergency procedure; transtracheal." Petitioner disallowed the second and third claims.
As disclosed by Respondent's notes of August 12 and 13, the procedure of August 13 was an emergency tracheostomy, so Petitioner proved that it was properly billed as a CPT code
31603. As Dr. Martin testified, Respondent's notes do not mention a bronchoscopy, so Petitioner properly disallowed the CPT code 31645. Obviously, billing CPT code 31603, which is an emergency tracheostomy, precludes billing, for the same procedure, a CPT code 31600, which is a planned tracheostomy, so Petitioner properly disallowed CPT code 31600. Also, as
Dr. Martin testified, about 60 percent of all tracheostomies require dividing the isthmus, so, even when this procedure is performed, it is included in the tracheostomy code--here, CPT code 31603.
On September 27, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. This service was placing a central line, so, as Dr. Martin testified, the medical decision making was no more than straightforward, and Petitioner properly downcoded this claim to CPT code 99252.
On September 30, 2002, Respondent billed CPT codes 35206 for the repair of a blood vessel, upper extremity; 33208 for the insertion or replacement of pacemaker, atrial and ventricular; and 71090 for radiological supervision and interpretation, by fluoroscopy and radiography, for the insertion of a pacemaker.
As Dr. Martin testified, Respondent did not repair a blood vessel, so Petitioner properly disallowed CPT code 35206. The only vessel work performed by Respondent was properly part
of the insertion of the pacemaker. Also, as Dr. Martin testified, the radiological work in CPT code 71090 is not allowable to Respondent in the same procedure that he is billing for the insertion of a pacemaker. So, Petitioner properly disallowed CPT codes 35206 and 71090.
Dr. Martin testified that Respondent is allowed CPT code 33208 and noted that, after disallowing the pacemaker billed as CPT code 35206 on the same day, Petitioner improperly "halved" Respondent's reimbursement for this procedure. According to ALJ Exhibit 1, which is credited, the unreduced payment for CPT code 33208 is $297.92 Petitioner already allowed
$141.76 for the service, and Respondent is owed another $156.16 for this billing.
Recipient 28 is J. G., who was 60 years as of the first date of service. Petitioner disallowed a total overpayment of $78.41 based on two reimbursements.
On June 26 and July 10, 2001, Respondent billed a CPT code 99255 for initial patient consultations. Petitioner downcoded these claims to CPT code 99253.
As Dr. Martin testified, the June 26 consultation was for a central line, but was complicated by an infected abdominal wound, evidently the result of past surgery, according to Respondent's notes. Dr. Martin testified that this claim should be downcoded to CPT code 99254, not 99253, as reflected on ALJ
Exhibit 1. Respondent is owed the difference, if any,2/ between the procedure allowed by Petitioner--a CPT code 99253--and the amount that Dr. Martin testified that he should have been allowed--a CPT code 99254.
The July 10 consultation, which was strictly for the placement of a CVP line, appears relatively uncomplicated and, as Dr. Martin testified, Petitioner properly downcoded it to CPT code 99253.
Recipient 29 is A. B., who was 48 years old as of the first date of service. Petitioner claims a total overpayment of
$417.20 based on three reimbursements.
On April 18, 2002, Respondent billed a CPT code 35456, which is a balloon angioplasty. Petitioner disallowed the claim on the ground of a lack of documentation. As
Dr. Martin testified, Respondent's records contain no mention of this procedure, so Petitioner properly disallowed it.
On June 28, 2002, Respondent billed CPT codes 27880, which is an "amputation, leg, through tibia and fibula"; 27705, which is an osteotomy of the tibia; and 27707, which is an osteotomy of the fibula. As Dr. Martin testified, the procedures described under CPT codes 27705 and 27707 are included within CPT code 27880, so Petitioner properly disallowed the claims under these two codes.
Recipient 30 is V. B., who was 60 years old as of the first date of service. Petitioner claims a total overpayment of
$432.78 based on seven reimbursements.
On July 25, 2001, Respondent billed a CPT code 99255 for an initial inpatient consultation. From July 26-29, Respondent billed a CPT code 99291 for critical care.
Dr. Martin testified that he did not address the
July 25 claim because Petitioner had failed to include it in his folder. The basis for denial is upcoding, not the absence of documentation, so there appears to have been a miscommunication between Petitioner and its expert witness. As explained in the Conclusions of Law, the burden of proof and burden of going forward with the evidence remain with Petitioner, so Petitioner has failed to prove this downcoding. This results in the allowance of an additional $28.72, which is the difference between the $104.66 billed and the $75.94 allowed.
However, Dr. Martin testified that the subsequent care provided by Respondent, which could not qualify for CPT code 99291, could qualify for no more than CPT code 99232. Notes for this care are in the record, and Dr. Martin's testimony is credited. Petitioner has proved that the July 26-
29 claims are properly a CPT code 99232.
On June 20 and November 7, 2002, Respondent billed a CPT code 99255 for initial inpatient consultations. Petitioner
downcoded these claims to CPT code 99254. As Dr. Martin testified, the medical decision making on these consultations was of no more than moderate complexity, so Petitioner has proved that these claims are properly a CPT code 99254.
As noted above, the total overpayment stated in ALJ Exhibit 1 is $9225.56 must be reduced by the following sums:
$104.85 for Recipient 11 (two adjustments), $156.16 for Recipient 27, and $28.72 for Recipient 30.3/ Petitioner has thus proved a total overpayment on the 510 audited claims of $8935.83 ($9225.56 - $289.73), which Petitioner may extend, pursuant to the statistical methods used in the FAR and ALJ Exhibit 1, to the total population.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter.
§§ 120.569, 120.57(1), and 409.913(31), Fla. Stat.
Section 409.913(7)(e) provides that a Medicaid provider is obligated to present claims that are "true and accurate" and reflect services that are provided in accordance with all Medicaid "rules, regulations, handbooks, and policies and in accordance with federal, state, and local law."
Section 409.913(2) requires Petitioner to conduct audits to detect overpayments. Section 409.913(11) requires Petitioner to require repayment of "inappropriate" goods or services.
The burden of proof is on Petitioner to prove the material allegations by a preponderance of the evidence. Southpointe Pharmacy v. Dep't of Health & Rehab. Servs., 596 So. 2d 106, 109 (Fla. 1st DCA 1992). The sole exception is that the standard of proof is clear and convincing evidence for the fine that Petitioner seeks to impose. Dep't of Banking & Fin. v.
Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996).
Section 409.913(21) provides that Petitioner shall prepare and issue audit reports when determining overpayments. Section 409.913(22) provides that the audit report shall be "evidence of the overpayment."
Section 409.9131(5)(b) requires Petitioner to invoke "peer review" of the "appropriateness" of care when Petitioner has preliminarily determined that a physician provider has received an overpayment. Section 409.9131(2)(d) defines "peer review" to mean evaluation of the professional practices of a physician provider by a "peer" to assess the "appropriateness" of care. Section 409.9131(5)(a) defines a "peer" as a physician "who is, to the maximum extent possible, of the same specialty or subspecialty "
Petitioner does not dispute that it failed to conduct peer review prior to issuing the FAR. At that point, the only professional review of Respondent's medical records had been by
Dr. Potu, who is not a peer. Dr. Martin is a peer, but his participation commenced after the issuance of the FAR.
Seizing on this irregularity, Respondent moved to dismiss the case. The Administrative Law Judge denied this motion, but instead ruled that Petitioner was deprived of the benefit of section 409.913(22), which provides that the audit report is evidence of the overpayment. If the audit report is not prepared pursuant to the requirements of the statutes, then the report is not evidence of the overpayment.
Respondent is unsatisfied with the consequence of Petitioner's failure to obtain timely peer review, but the loss of the benefit of section 409.913(22) may be important. For instance, if the record otherwise lacks any evidence as to a particular service, a proper audit itself may provide sufficient evidence to allow Petitioner to meet its burden of proof. Many times, a proper audit alone may shift the burden of going forward to the provider. By its failure to obtain timely peer review prior to issuing the FAR, Petitioner has deprived itself of the evidentiary advantage afforded by section 409.913(22).
As noted in the Findings of Fact, Petitioner has proved a total overpayment of $8935.83 arising out of the 510 sampled claims.4/ The statistical methodologies used by Petitioner in the FAR and ALJ Exhibit 1 meet the requirements of section 409.913(20), which requires "accepted and valid"
statistical methods, in accordance with generally accepted statistical methods, in sampling and extending to the total population. As discussed at the hearing, Petitioner may apply the same extension methods to extend $8935.83 to the total population.
Section 409.913(15)(e) authorizes Petitioner to impose certain remedies if a provider is not in compliance with Medicaid laws. For a violation of section 409.913(15), section 409.913(16)(c) authorizes Petitioner to impose a fine of up to
$5000 per violation, which includes "each false or erroneous Medicaid claim leading to an overpayment" as a separate violation. Thus, Petitioner is authorized to impose the fine of
$1500 that it has requested.
Section 409.913(23)(a) authorizes Petitioner to recover "all investigative, legal, and expert witness costs if
. . . the agency ultimately prevailed." Petitioner prevailed and is entitled to these costs. In its proposed recommended order, Petitioner asked for leave to assess these costs, notify Respondent of the assessment, and transmit the case to DOAH for an evidentiary hearing, if Respondent identifies a material issue of fact and requests a formal hearing on the costs proposed to be assessed.
There is no reason for a corrective action plan because Respondent is no longer licensed to practice medicine.
It is RECOMMENDED that the Agency for Health Care Administration enter a final order requiring Respondent to repay Petitioner an overpayment extended by the accepted and valid statistical methods used in FAR and ALJ Exhibit 1 from the sampled overpayment of $8935.83,5/ to pay a fine of $1500, and to repay Respondent all of its investigative, legal and expert witness costs, which may be determined by subsequent DOAH hearing, if necessary.
DONE AND ENTERED this 16th day of August, 2012, in Tallahassee, Leon County, Florida.
S
ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2012.
ENDNOTE
1/ Although the audit period in this cases covers all or parts of three years and the CPT handbook is published annually, all of the CPT codes mentioned in the Findings of Fact are identical in the 2001, 2002, and 2003 editions of the CPT handbook.
2/ Based on the amount allowed in ALJ Exhibit 1--$77.99--it is possible that Respondent has already received this credit, and the exhibit mistakenly states that FAR adjustment as 99253 when, in reality, it is 99254.
3/ If Petitioner determines that it did not actually allow the sum corresponding to a CPT code 99254 for the June 26, 2001, claim on Recipient 28, it should add this sum to the sums stated in the preceding sentence.
4/ However, see endnotes 2 and 3, above.
5/ However, see endnotes 2 and 3, above.
COPIES FURNISHED:
Debora E. Fridie, Esquire
Agency for Health Care Administration Fort Knox Building 3, Mail Station 3 2727 Mahan Drive
Tallahassee, Florida 32308 debora.fridie@ahca.myflorida.com
Alex T. Zakharia, M.D.
245 Harbor Drive
Key Biscayne, Florida 33149
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
Elizabeth Dudek, Secretary
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1
Tallahassee, Florida 32308
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 26, 2012 | Agency Final Order | |
| Aug. 16, 2012 | Recommended Order | Agency proved overpayment as a result of miscoding of various procedures and services billed by physician-provider. Physician-provider liable for $1500 fine and costs. |
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