STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
vs.
Petitioner,
Case No. 14-3183
DAVID VINE, D.D.S.
Respondent.
/
RECOMMENDED ORDER
Pursuant to notice, on December 19, 2014, a final hearing was conducted pursuant to sections 120.569 and 120.57(1), Florida Statutes (2014), before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings ("DOAH"). The hearing was conducted by video teleconference at sites in Miami and Tallahassee, Florida.
APPEARANCES
For Petitioner: Jeffries H. Duvall, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
For Respondent: David Vine, D.D.S., pro se
Sheridan Center, Suite 403
400 Arthur Godfrey Road Miami Beach, Florida 33140
STATEMENT OF THE ISSUES
The issues in this case are whether the Agency for Health Care Administration ("AHCA") is entitled to repayment of
Medicaid reimbursements that it made to Respondent, pursuant to section 409.913(11), Florida Statues; if so, the amount of the repayment; the amount of any sanctions that should be imposed pursuant to subsections 409.913(15) through (17); and the amount of any investigative, legal, and expert witness costs that AHCA is entitled to recoup pursuant to section 409.913(23).
PRELIMINARY STATEMENT
On March 22, 2013, AHCA issued a Final Audit Report ("FAR") in which it asserted that Respondent, David Vine, D.D.S., a Medicaid provider, had been overpaid $102,444.33 for services not covered by Medicaid. The FAR also sought to impose an administrative fine of $20,488.86 and assessed $576.83 in costs for conducting the audit. Respondent filed a Petition for Formal Administrative Hearing on April 17, 2013.
On July 11, 2014, the matter was referred to DOAH to conduct a hearing pursuant to sections 120.569 and 120.57(1). On July 28, 2014, after granting the parties additional time to identify dates on which to hold the final hearing, the
undersigned scheduled the final hearing for September 15 and 16, 2014. On July 30, 2014, Respondent's counsel was granted leave to withdraw for good cause shown.
On September 3, 2014, the undersigned granted Respondent's unopposed motion for a continuance to enable him to retain counsel, and the hearing was rescheduled for November 10, 2014.
Due to a scheduling conflict with another case, the undersigned issued an Order on October 17, 2014, re-scheduling the final hearing in this proceeding for December 19, 2014.
On November 18, 2014, AHCA filed a Notice of Intent to Seek Investigative, Legal and Expert Witness Costs.
The final hearing was held on December 19, 2014. AHCA presented the testimony of Robi Olmstead and Kristopher Creel, both of whom are employed with AHCA's Bureau of Medicaid Program Integrity. AHCA's Exhibits 1 through 6 and 9 through 16 were admitted into evidence without objection. Additionally, pursuant to AHCA's motion, the undersigned took official recognition of the versions of the following laws and rules in effect between February 1, 2010, and March 1, 2011: chapters
393, 408, and 409, Florida Statutes; Florida Administrative Code Chapter 59G; the Medicaid Provider General Handbook; the Florida Medicaid Provider Reimbursement Handbook (CMS-1500); the Florida Medicaid Dental Services Coverage and Limitations Handbook; and the Florida Medicaid Dental Fee Schedules. Respondent testified on his own behalf and presented the testimony of Cynthia Almora. Respondent's late-filed Exhibits 1 and 2 were admitted into evidence over objection.
On January 8, 2015, AHCA filed a Motion for Assessment of Costs, seeking to recover its investigative, legal, and expert
witness costs incurred as a result of the audit and this proceeding.
The one-volume Transcript of the final hearing was filed on January 16, 2015. Pursuant to Respondent's unopposed motion, the parties were granted an extension of time until February 4, 2015, to file proposed recommended orders. AHCA's Proposed Recommended Order was timely filed on February 4, 2015, and Respondent's Proposed Recommended Order was filed on February 5, 2015. Both proposed recommended orders were duly considered in preparing this Recommended Order.
FINDINGS OF FACT
The Parties
AHCA is the agency responsible for administering the Medicaid Program in the State of Florida, pursuant to section 403.902, Florida Statutes.
During all times relevant to this proceeding, Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered services rendered to Medicaid recipients.
AHCA's Agency Action
Pursuant to its statutory authority to oversee the integrity of the Medicaid program in Florida, AHCA conducted an audit of Respondent's claims for Medicaid reimbursement for the period from February 1, 2010, to March 1, 2011, to verify that
claims paid by AHCA to Respondent under the Medicaid program did not exceed the amount authorized by Medicaid law and applicable rules.
As a result of the audit, AHCA determined it was entitled to reimbursement from Respondent for $102,444.33 that it paid to him for services not covered under the Medicaid program. AHCA also sought to impose sanctions consisting of a
$20,488.86 administrative fine and investigative, legal, and expert witness costs.
Respondent requested an administrative hearing under sections 120.569 and 120.57(1) to challenge the overpayment determination and imposition of sanctions.
Evidence Adduced at Final Hearing
At the final hearing, AHCA presented the testimony of Robi Olmstead, an administrator with AHCA's Bureau of Medicaid Program Integrity ("MPI"). Olmstead's responsibilities include supervising AHCA's staff performance of MPI audits. As a result of her employment with AHCA in this position for several years, Olmstead is very familiar with, and knowledgeable about, conducting MPI audits.
No evidence was presented to show that Olmstead is a licensed physician, has any substantive medical or dental knowledge, or is a medical or dental services expert.
Olmstead did not serve as a peer reviewer for AHCA in determining or describing the nature or determining medical necessity of the specific procedures at issue in this proceeding, and she was neither proffered nor accepted as a peer reviewer or expert witness for these purposes at the final hearing.
Description of the Audit and Overpayment Determination
Olmstead described the audit of Respondent's claims at issue in this case.
For reasons unspecified in the record, AHCA initiated an audit of the Medicaid claims for which Respondent had been paid.1/
Using AHCA's data support system, investigator Theresa Mock2/ accessed the complete universe of Medicaid claims paid to Respondent.3/ Mock selected the period from February 1, 2010, to March 1, 2011, as the Audit Period ("Audit Period")4/ and selected a statistically-based claim sampling program——in this case, cluster5/ sampling——to perform the audit.
A computer-generated representative sample, consisting of 30 Medicaid recipients for whom Respondent had billed claims during the Audit Period and been paid, was identified. AHCA contacted Respondent by demand letter, requesting that he submit documents to substantiate the claims.
In response, Respondent provided documents consisting of his records of service and billing for each claim for each of the 30 recipients. Mock forwarded the records to AHCA's peer review coordinators, who, in turn, forwarded them to Dr. Mark Kuhl, AHCA's peer reviewer for this audit.6/
Kuhl reviewed the records and prepared worksheets reflecting his determination regarding the nature of the service rendered for each claim and whether such claim was eligible for payment under the Medicaid program.
Respondent's records and Kuhl's worksheets were sent to Mock, who, based on Kuhl's determination regarding the nature and eligibility of each claim, calculated that Respondent had been overpaid by a total of $85,582.02, or $355.11211618 per claim, for the sampled claims.
To extrapolate the total probable overpayment to Respondent for all claims, Mock applied the statistical formula for cluster sampling7/ to the calculated overpayment amount of
$85,582.02 for the representative sample. This yielded a total extrapolated overpayment amount of $102,444.33, within a
95 percent probability that the actual overpayment amount was equal to or greater than that amount.
In a Preliminary Audit Report ("PAR") dated December 12, 2011, AHCA notified Respondent that it had
determined that he had been overpaid by $102,444.33 and gave him
the options of paying that amount or submitting further documentation to support the claims identified as overpayments in the PAR.
Respondent provided additional information in an effort to support these claims; however, AHCA apparently found the information insufficient to support changes to its previous determination that Respondent had been overpaid by $102,444.33.
On March 22, 2013, AHCA issued a Final Audit Report ("FAR") stating its determination that Respondent had been overpaid by $102,444.33. The following explanation in the FAR was provided as the basis for AHCA's overpayment determination:
REVIEW DETERMINATIONS
A review of your dental records revealed that some services rendered were erroneously coded on the submitted claim. The procedure code that would accurately reflect the service provided is not covered by Medicaid. The payment for those claims is considered an overpayment.
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 sufficiently. Therefore, the payment for those claims is considered an overpayment.
A review of your records indicated that some procedure codes were double billed in error. In those instances, the amount paid for the second (duplicate) procedure is considered an overpayment.
The FAR also notified Respondent that AHCA had assessed an administrative fine of $20,488.86 and audit costs of
$576.83.
In sum, the FAR notified Respondent that he was required to remit a total of $123,510.02.
The FAR also notified Respondent that AHCA was entitled to recover all investigative, legal, and expert witness costs.
Following issuance of the FAR, Respondent provided additional records to support claims that AHCA asserted were ineligible for payment. After considering these records, AHCA determined that some of these claims had not been overpaid, and on June 17, 2014, performed another calculation of the alleged overpayment for the entire universe of Respondent's claims using the cluster sampling formula. AHCA ultimately determined that Respondent had been overpaid by a total of $102,410.79, the alleged overpayment amount at issue in this proceeding.
Requirements for Payment of Claims by Medicaid
To be eligible for coverage by Medicaid, a procedure must be "medically necessary," which is defined as follows:
“Medical necessity” or “medically necessary” means any goods or services necessary to palliate the effects of a terminal condition, or to prevent, diagnose, correct, cure, alleviate, or preclude deterioration of a condition that threatens life, causes pain or suffering, or results in illness or
infirmity, which goods or services are provided in accordance with generally accepted standards of medical practice.
§ 403.913(1)(d), Fla. Stat. (2010).8/
AHCA is the final arbiter of medical necessity for purposes of determining Medicaid reimbursement. Id.
The statute expressly requires that determinations of medical necessity be made by a licensed physician employed by or under contract with the agency——i.e., a peer reviewer——based on information available at the time the goods or services are provided. Id.
To ensure that services rendered by a provider are correctly billed to and paid by Medicaid, the provider must identify the services by referring to specific codes corresponding to the specific procedure or service rendered. If services rendered are incorrectly coded on a provider's billing submittals, they may be determined ineligible for payment by Medicaid.
Applicable Medicaid Handbooks, Codes, and Fee Schedules
To guide and inform providers regarding the types of services that are covered by the Medicaid program and how to correctly bill Medicaid for those services, AHCA has adopted several documents by rule through incorporation by reference.
The documents incorporated by reference that are applicable to this case are the Florida Medicaid Provider
General Handbook (July 2008)9/; the Florida Medicaid Dental Services Coverages and Limitations Handbook (January 2006)10/; the Florida Medicaid Provider Reimbursement Handbook,
CMS-1500 (July 2008)11/; the Dental Oral/Maxillofacial Surgery Fee Schedule (effective January 1, 2010)12/; and the Dental General Fee Schedule (effective January 1, 2010)13/.
Additionally, AHCA rule14/ refers to "CPT" codes, which are the Current Procedural Terminology® codes developed and kept up-to-date by the American Medical Association. These codes, which are published, are used by AHCA to identify the specific services rendered by providers for purposes of determining whether the service is covered by Medicaid. In this proceeding, AHCA provided, for admission into evidence, excerpts from the 2010 CPT codes, which were in effect during the Audit Period.
AHCA rules adopted in the Florida Administrative Code do not expressly define, incorporate, or otherwise refer to "CDT" codes, which are the Current Dental Terminology© codes published by the American Dental Association.
The Florida Medicaid Dental Services Coverages and
Limitations Handbook (January 2006) was in effect during the Audit Period. This handbook refers to the Current Dental Terminology© codes, but does not specify the version of the CDT codes by year that were applicable to that version of the handbook.15/
AHCA provided, as exhibits, portions of the 2011/2012 CDT codes.16/
The Specific Claims at Issue
Respondent's records and other documentation regarding the services for which he submitted claims for payment under Medicaid were admitted into evidence at the final hearing.
The claims at issue in this proceeding are identified on worksheets prepared by Kuhl, who reviewed Respondent's records and documents provided in response to AHCA's demand letter. Kuhl's worksheets were admitted into evidence.
These worksheets document, for each claim reviewed, Kuhl's determination regarding the nature of the service rendered by Respondent and whether the claim was eligible for payment under the Medicaid program.
As noted above, Kuhl did not testify at the final hearing. Accordingly, the sole evidence in the record regarding Kuhl's determinations consists of the notations on his worksheets and Ms. Olmstead's testimony regarding his conclusions.
As discerned from Kuhl's worksheets, Kuhl determined that Respondent had been overpaid for three reasons: (1) for some claims, Respondent did not provide records, such as x-rays or other documents, to support or verify that he had, in fact, rendered the service; (2) for some claims, Respondent billed
twice (i.e., duplicate-billed) and was paid twice for the same service rendered to a recipient; and (3) for some claims, Respondent performed, and billed for, procedures that were not medically necessary so were not payable by Medicaid. Each of these bases is addressed below.
Lack of Documentation to Support Claims
Based on his review of Respondent's records, Kuhl determined that Respondent did not provide adequate documentation to support some claims for which he was paid. For each such claim, Kuhl wrote on the applicable worksheet next to the applicable claim: "not in the record" or "not in record."
As noted above, Respondent subsequently submitted additional documentation for some claims. Based on Kuhl's worksheets and this additional documentation, AHCA determined that Respondent had been overpaid a total of $3,091.91 for the sampled claims as a result of his failure to provide supporting information. The table below summarizes AHCA's overpayment determinations for the sampled claims on this basis.
Undocumented Claims
Recipient No. | No. of Claims Overpaid | Amount of Overpayment |
1 | 2 | $8.00 |
17 | 2 | $3.00 |
21 | 3 | $1,120.75 |
26 | 1 | $4.00 |
28 | 3 | $1,956.16 |
Total Amount of Overpayment $3,091.91
Double-billed Claims
Kuhl determined that for some claims, Respondent duplicate-billed and was paid twice for the same service. For each such claim, Kuhl wrote on the applicable worksheet next to the applicable claim, what appears to be a notation stating "duplicate charge amt" or "duplicate charge out."17/ Either way, it is clear from the worksheets that Kuhl determined that Respondent had duplicate-billed for certain services rendered to certain recipients.
Based on Kuhl's worksheets and Respondent's billing records, AHCA determined that due to duplicate billing, Respondent had been overpaid a total of $30.00 for the sampled claims. The table below summarizes AHCA's overpayment determinations for the sampled claims on this basis.
Duplicate-Billed Claims
Recipient No. | No. of Claims Double-Billed | Amount of Overpayment |
8 | 1 | $27.00 |
9 | 1 | $3.00 |
Total Amount of Overpayment $30.00
Claims for Face Bone Graft and Lower Jaw Graft
Three Medicaid billing codes are implicated in this proceeding: CPT codes 21210 and 21215, and CDT code D7953.
The 2010 version of CPT code 21210 is defined as "graft, bone; nasal, maxillary, or malar areas (includes
obtaining graft)." The notations on AHCA's spreadsheet summarizing its overpayments refer to this procedure, in lay terms, as a "face bone graft."
The 2010 version of CPT code 21215 is defined as "mandible (includes obtaining graft)." The notations on AHCA's spreadsheet summarizing its overpayments refer to this procedure, in lay terms, as a "lower jaw bone graft."
Respondent billed and was paid for 44 claims under CPT code 21210 for face bone grafts and 25 claims under CPT code 21215 for lower jaw bone grafts.
For each claim identified on Kuhl's worksheets as either "21210 ## ## Face Bone Graft" or "21215 ## ## Lower Jaw Bone Graft," Kuhl made the notation "correct code = D7953 = bone graft place in ext site at time of ext" or a similar notation to that effect.
For each such claim, Kuhl checked the "deny" option on the worksheet. Below the "deny" option, Kuhl made the following or a similar notation: "as it was stated by Robi Olmstead it is a non-covered procedure" or "if a non-covered procedure."
CDT code D7953 is defined in the 2011-201218/ version of the CDT codes as:
Osseous autograft, allograft, or non-osseous graft is placed in an extraction or implant
removal site at the time of the extraction or removal to preserve ridge integrity (e.g., clinically indicated in preparation for implant reconstruction or where alveolar contour is critical to planned prosthetic reconstruction). Membrane, if used, should be reported separately.
Olmstead testified that the D7953 procedure is not medically necessary so is not covered by Medicaid. According to Olmstead, the D7953 procedure is not considered medically necessary because "most often sufficient bone will be regenerated or, you know, you won't really need it unless you [are] getting implants are (sic) [or] dentures, and it's just not always——infrequently medically necessary to do this according to some of the literature, and so Medicaid, you know, as they're allowed to do, has decided not to cover this procedure, and it's clearly not covered except for the oral surgeon19/ under these two codes, but again, it still has to be medically necessary."
Olmstead testified that the absence of D7953 as a listed procedure on the Dental General Fee Schedule (January 2010) and the Dental Oral/Maxillofacial Surgery Fee Schedule (January 2010) further evidences that D7953 is not covered by Medicaid.
Kuhl did not make any express finding on his worksheets that the D7953 procedure is not medically necessary.
Indeed, Olmstead acknowledged that Kuhl's worksheets did not state that the D7953 procedure is not medically necessary.
Kuhl also did not make any express finding on his worksheets that the CPT code 21210 and CPT code 21215 procedures were not medically necessary.
Based on Kuhl's worksheets, AHCA determined that for each claim Respondent billed under CPT codes 21210 or 21215, the claim was not covered by Medicaid, so should not have been paid.
The table below summarizes AHCA's determinations of overpayment, on the basis of lack of medical necessity, for the sampled claims for CPT Code 21210 for face bone grafts performed by Respondent.
CPT Code 21210 - Face Bone Graft
Recipient No. | No. of Claims for CPT Code 21210 | Total Amount of Overpayment for Recipient |
1 | 1 | $1,089.75 |
2 | 1 | $ 544.88 |
4 | 4 | $3,814.13 |
5 | 2 | $1,634.63 |
6 | 1 | $1,089.75 |
7 | 1 | $1,089.75 |
9 | 3 | $2,724.38 |
10 | 1 | $1,089.75 |
11 | 6 | $4,903.89 |
12 | 1 | $1,089.75 |
17 | 2 | $1,634.63 |
19 | 2 | $1,634.63 |
20 | 1 | $1,089.75 |
21 | 2 | $1,634.6320/ |
22 | 1 | $ 544.88 |
23 | 3 | $1,847.07 |
24 | 1 | $1,089.75 |
25 | 6 | $5,448.76 |
26 | 3 | $3,269.25 |
29 | 1 | $1,089.75 |
30 | 1 | $1,089.75 |
The table below summarizes AHCA's determinations of overpayment, on the basis of lack of medical necessity, for the sampled claims for CPT Code 21215 for lower jaw bone grafts performed by Respondent.
CPT Code 21215 - Lower Jaw Bone Graft
Recipient No. | No. of Claims for CPT Code 21215 | Total Amount of Overpayment for Recipient |
1 | 5 | $8,591.22 |
2 | 1 | $1,909.16 |
4 | 1 | $1,909.16 |
5 | 1 | $1,909.16 |
8 | 3 | $4,772.90 |
11 | 2 | $3,818.32 |
14 | 1 | $1,909.16 |
15 | 1 | $1,909.16 |
16 | 2 | $3,818.32 |
17 | 1 | $1,909.16 |
18 | 2 | $3,817.82 |
22 | 1 | $1,909.16 |
27 | 2 | $2,863.74 |
28 | 2 | $1,909.16 |
Findings Regarding Alleged Overpayment
The undersigned determines that the record evidence supports AHCA's determinations that Respondent was overpaid in the amount of $3,091.91 for claims for which he did not provide required documentation.
The undersigned determines that the record evidence supports AHCA's determinations that Respondent was overpaid in the amount of $30.00 for claims for which he duplicate-billed Medicaid.
As previously noted, the Florida Medicaid Dental
Services Coverages and Limitations Handbook (January 2006) was in effect during the Audit Period. However, AHCA did not provide, as part of its evidence, pertinent excerpts of this version of the handbook referencing the CDT codes in effect during the Audit Period. AHCA also failed to provide the version of the CDT codes in effect during the Audit Period.
Thus, the undersigned is left without any evidence regarding the nature or description of procedure D7953 as it was defined under the version of the CDT codes in effect during the Audit Period.
Accordingly, the undersigned is unable to verify the correctness of Kuhl's notations stating that CDT code D7953, rather than CPT codes 21210 or 21215, was the correct notation for the procedures Respondent performed.
As discussed above, AHCA's audit supervisor, Robi Olmstead, testified regarding the nature of the procedure identified in D7953 and distinguished that procedure from the procedures to which CPT codes 21210 and 21215 apply. However, there is no evidence establishing that she was competent to testify about the medical nature of the D7953 procedure, how it
substantively differs from the other procedures at issue as defined in CPT codes 21210 or 21215, whether or not the procedures Respondent performed were medically necessary, or whether the D7953 procedure is medically necessary. As such, the undersigned finds her testimony unpersuasive to show that the procedures Respondent performed and billed under CPT codes 21210 and 21215 were not medically necessary and therefore not billable to Medicaid, that D7953 was the correct billing code for the procedures Respondent performed, and that the procedure corresponding with code D7953 is not medically necessary.21/
AHCA chose not to present testimony by its peer reviewer, Dr. Mark Kuhl, at the final hearing.22/ Although Kuhl's worksheets were admitted into evidence, they do not provide a credible, independently verifiable explanation for his conclusion that Respondent incorrectly billed a particular procedure by using either CPT code 21210 or 21215 instead of CDT code D7953. Moreover, the worksheets contain notations, discussed above, which indicate or appear to indicate that Kuhl relied on Olmstead's direction that the bone graft procedures for which Respondent billed were not medically necessary.
Olmstead is not competent to determine medical necessity, and Kuhl's apparent reliance on her direction regarding medical necessity is directly contrary to section 409.913(1)(d), which expressly requires that "[d]eterminations
of medical necessity must be made by a licensed physician employed by or under contract with the agency." As such, the undersigned finds Kuhl's worksheets unpersuasive to show that the procedures Respondent performed and billed under CPT codes 21210 and 21215 were not medically necessary and therefore not billable to Medicaid, that D7953 was the correct billing code for the procedures Respondent performed, and that the procedure corresponding with code D7953 is not medically necessary.
For these reasons, it is determined that AHCA has not proven, by a preponderance of the competent substantial evidence in the record, that Respondent was overpaid for the claims he billed for bone grafts using CPT codes 21210 and 21215.
Based on the foregoing, it is determined that AHCA overpaid Respondent in the total amount of $3,121.91.
Determination of Administrative Fine
As found above, Respondent was overpaid in the amount of $3,091.91 for undocumented claims.
Pursuant to Florida Administrative Code Rule 59G- 9.070(7), sanctions are required to be imposed for failure to furnish all Medicaid-related records to be used by AHCA in determining whether Medicaid payments are or were due.
Under rule 59G-9.070(7)(d), a $2,500 fine is to be imposed for the first offense23/ of failing to furnish all Medicaid-related records.
AHCA proved that Respondent was paid for undocumented claims, and Respondent does not appear to challenge that. Accordingly, it is determined that sanctions consisting of a
$2,500 administrative fine should be imposed for this violation. Duplicate-billed Claims
As found above, Respondent was overpaid in the amount of $30.00 for duplicate-billing of services.
AHCA did not present any evidence that Respondent engaged in a "pattern of erroneous claims." Rather, the evidence indicates that Respondent inadvertently duplicate- billed for services rendered to two recipients for a total of
$30.00. Moreover, in its Proposed Recommended Order, AHCA did not cite and otherwise discuss any basis for the imposition of an administrative fine for Respondent's duplicate-billing.
Therefore, it is determined that no administrative fine should be imposed for Respondent's violations consisting of two incidents of duplicate billing.
CONCLUSIONS OF LAW
DOAH has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
AHCA is authorized to recover Medicaid overpayments and to impose sanctions as appropriate. § 409.913, Fla. Stat. An "overpayment" includes "any amount that is not authorized to
be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake."
§ 409.913(1)(e), Fla. Stat.
AHCA also is authorized to "require repayment for inappropriate, medically unnecessary, or excessive goods or services from the person furnishing them, the person under whose supervision they were furnished, or the person causing them to be furnished." § 409.913(11), Fla. Stat.
"Medically necessary" goods or services are:
any goods or services necessary to palliate the effects of a terminal condition, or to prevent, diagnose, correct, cure, alleviate, or preclude deterioration of a condition that threatens life, causes pain or suffering, or results in illness or infirmity, which goods and services are provided in accordance with generally accepted standards of medical practice.
For purposes of determining Medicaid reimbursement, the agency is the final arbiter of medical necessity.
Determinations of medical necessity must be made by a licensed physician employed by or under contract with the agency and must be based upon information available at the time the goods or services are provided.
§ 403.913(1)(d), Fla. Stat.
AHCA has the burden of establishing an alleged Medicaid overpayment by a preponderance of the evidence. S. Medical Servs., Inc. v. Ag. for Health Care Admin., 653 So. 2d
440, 441 (Fla. 3d DCA 1995); Southpointe Pharmacy v. Dep't of
HRS, 596 So. 2d 106, 109 (Fla. 1st DCA 1992).
Although AHCA bears the ultimate burden of persuasion, section 409.913(22), Florida Statutes, provides that "[t]he audit report, supported by agency work papers, showing an overpayment to the provider constitutes evidence of the overpayment." Thus, AHCA can make a prima facie case by proffering a properly supported audit report, which must be
received in evidence. See Maz Pharm., Inc. v. Ag. for Health Care Admin., Case No. 97-3791, 1998 Fla. Div. Adm. Hear. LEXIS
6245, *6-*7 (Fla. DOAH Mar. 20, 1998)(emphasis added); see also Full Health Care, Inc. v. Ag. for Health Care Admin., Case
No. 00-4441, 2001 WL 729127, *8-9 (Fla. DOAH June 25, 2001; Fla.
AHCA Sept. 28, 2001).
AHCA established a prima facie case of overpayment and proved, by a preponderance of the evidence, that Respondent was overpaid in the total amount of $3,121.91: $3,091.91 for claims for which he failed to provide required documentation, and
$30.00 for duplicate-billed claims.
AHCA failed to establish a prima facie case, and failed to prove by a preponderance of the evidence, that Respondent was overpaid for claims billed under CPT codes 21210 or 21215. AHCA's Final Audit Report and work papers were admitted as evidence of overpayment, but as discussed herein,
they were not "properly supported" by competent or persuasive evidence showing that Respondent was overpaid for performing bone graft procedures that were not medically necessary.24/
Thus, AHCA is not entitled to reimbursement from Respondent for the claims he billed using CPT codes 21210 and 21215.
AHCA is authorized to impose sanctions on a provider, including administrative fines. § 409.913(16), Fla. Stat.
To impose an administrative fine, AHCA must establish factual grounds for doing so by clear and convincing evidence. Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 935 (Fla. 1996); see also
Dep't of Child. & Fams. v. Davis Fam. Day Care Home, 2015 Fla. LEXIS 578 (Fla. Mar. 26, 2015). In Slomowitz v. Walker, 429 So.
2d 797, 800 (Fla. 4th DCA 1983), the court explained that:
clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Id.
See In re Davey, 645 So. 2d 398, 404 (Fla. 1994); Westinghouse
Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991).
Florida Administrative Code Rule 59G-9.070 provides in pertinent part:
(1) Purpose: This rule provides notice of administrative sanctions imposed upon a provider, entity, or person for each violation of any Medicaid-related law.
* * *
(3) Definitions:
* * *
(b) “Claim” is as defined in Section 409.901(6), F.S., and includes the total monthly payment to a provider for per diem payments and the payment of a capitation rate for a Medicaid recipient.
* * *
(f) “Fine” is a monetary sanction. The amount of a fine shall be as set forth within this rule.
* * *
(h) “Offense” means the occurrence of one or more violations as set forth in a final audit report. For purposes of the progressive nature of sanctions under this rule, offenses are characterized as “first”, “second”, “third”, or “subsequent” offenses; subsequent offenses are any occurrences after a third offense.
* * *
“Pattern of erroneous claims” is defined as when more than 5% of the claims reviewed are found to contain an error or the reimbursements for the claims found to contain an error are more than 5% of the total reimbursement for the claims reviewed.
“Provider” is as defined in Section 409.901(17), F.S., and includes all of the provider’s locations that have the same base provider number (with separate locator codes).
* * *
(n) “Sanction” shall be any monetary or non-monetary disincentive imposed pursuant to this rule; a monetary sanction may be referred to as a “fine.”
(q) “Violation” means any omission or act performed by a provider, entity, or person that is contrary to Medicaid laws, the laws that govern the provider’s profession, or the Medicaid provider agreement.
For purposes of this rule, each day that an ongoing violation continues and each instance of an act or omission contrary to a Medicaid law, a law that governs the provider’s profession or the Medicaid provider agreement shall be considered a “separate violation”.
For purposes of determining first, second, third or subsequent offenses under this rule, prior Agency actions during the preceding five years will be counted where the provider, entity, or person was deemed to have committed the same violation.
* * *
(7) Sanctions: In addition to the recoupment of the overpayment, if any, the
Agency will impose sanctions as outlined in this subsection. Except when the Secretary of the Agency determines not to impose a sanction, pursuant to Section 409.913(16)(j), F.S., sanctions shall be imposed as follows:
* * *
(c) For failure to make available or furnish all Medicaid-related records, to be used in determining whether and what amount should have or should be reimbursed: For a first offense, $2,500 fine per record request and suspension until the records are made available; if after 10 days the violation continues, an additional $1,000 fine per day; and, if after 30 days the violation remains ongoing, termination. For a second offense, $5,000 fine per record request and suspension until the records are made available; if after 10 days the violation continues, an additional $2,000 fine per day; and if after 30 days the violation remains ongoing, termination. For a third or subsequent offense, termination (Section 409.913(15)(c), F.S.);
* * *
(h) For false or a pattern of erroneous Medicaid claims:
* * *
2. For a first offense of a pattern of erroneous claims, $1,000 fine per claim found to be erroneous. For a second offense of a pattern of erroneous claims, $2,500 fine per claim found to be erroneous. For a third or subsequent offense of a pattern of erroneous claims, $5,000 fine per claim found to be erroneous (Section 409.913(15)(h), F.S.)[.]
For the reasons addressed above and pursuant to this rule, it is determined that Respondent should be assessed an administrative fine of $2,500 for the first offense of failing to furnish all available Medicaid-related records to be used in determining whether and what amount should have or should be
reimbursed.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA issue a final order finding that Respondent was overpaid, and therefore is liable for reimbursement to AHCA, the total amount of $3,121.91; imposing an administrative fine of $2,500; and remanding the matter to the Division of Administrative Hearings for an evidentiary hearing on the recovery of AHCA's costs, if necessary.
DONE AND ENTERED this 29th day of May, 2015, in Tallahassee, Leon County, Florida.
S
CATHY M. SELLERS
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 29th day of May, 2015.
ENDNOTES
1/ AHCA is authorized to initiate audits without stating its basis for doing so. It is required to conduct at least five percent of its audits on a random basis. § 409.913(2), Fla. Stat.
2/ Theresa Mock, who is no longer employed with AHCA and who did not testify at the final hearing, conducted the audit of the Medicaid claims submitted by, and paid to, Respondent.
3/ Respondent was paid for a total of 302 claims. Of these,
241 were sampled for the audit.
4/ According to Olmstead, an Audit Period typically consists of a claim period spanning more than the previous 12 months, and typically consists of a two- to three-year period. Here, the Audit Period spanned a 13-month period because Respondent only had been enrolled as a Medicaid provider since February 26, 2010.
5/ A cluster is comprised of all claims relating to an individual recipient in the sample population.
6/ AHCA chose not to present Kuhl's testimony at the final hearing. See infra note 24.
7/ The following cluster sampling formula was used to extrapolate the total overpayment amount:
8/ The Audit Period spanned from February 1, 2010, to March 1, 2011. Accordingly, the 2009 and 2010 versions of section 409.913, Florida Statutes, apply to this proceeding. This statutory section was not amended during the 2010 legislative session so, as a practical matter, the 2009 and 2010 versions of the statute are the same.
9/ Incorporated by reference in rule 59G-5.020(1). 10/ Incorporated by reference in rule 59G-4.060(2). 11/ Incorporated by reference in rule 59G-4.001(1). 12/ Incorporated by reference in rule 59G-4.002.
13/ Incorporated by reference in rule 59G-4.002.
14/ Rule 59G-1.010(59).
15/ The version of the Handbook available on the internet, to which AHCA generally referred in its Proposed Recommended Order, is the November 2011 version, which was not in effect during the Audit Period, so is not applicable to this proceeding. The November 2011 version refers to the 2009/2010 CDT codes, but that reference appears to have been added in the November 2011 version of the Handbook. It was not included in the 2006
version, so the undersigned is unable to determine which CDT codes were referenced in the 2006 version of the Handbook.
Under any circumstances, AHCA has not shown that the 2011/2012 CDT codes are applicable to this proceeding.
16/ See supra note 15.
17/ The undersigned found a portion of this notation illegible and did not have the benefit of Kuhl's testimony regarding what he wrote.
18/ In order to analyze and address a key issue in this case—— i.e., whether Respondent incorrectly billed for, and thus was improperly paid for, certain bone graft procedures——all references herein to CDT code D7953 are to that procedure as it was defined in the 2011-2012 version of the CDT codes. However, as discussed herein, there is no competent, persuasive evidence showing that the definition of the D7953 procedure in the
2011-2012 CDT codes is the same as was included in the version of the CDT codes in effect during the Audit Period, and, as discussed herein, AHCA failed to provide the version of the CDT codes in effect during the Audit Period.
19/ Respondent is not an oral surgeon.
20/ The overpayment for recipient no. 21 for face bone grafts does not include a claim for which Respondent did not submit documentation to support payment; that claim is included in the table summarizing undocumented claims.
21/ The fee schedules that Olmstead cited as evidence that D7953 is not a covered procedure are hearsay that cannot form the sole basis of a finding of fact in this proceeding. In deeming Olmstead's testimony unpersuasive, the undersigned has assigned no weight to these fee schedules.
22/ AHCA chose not to present Kuhl's testimony at the hearing because Respondent stipulated that he did not challenge the "correctness" of Kuhl's conclusions as stated on the worksheets. However, this is a de novo proceeding in which the undersigned is charged with determining anew whether Respondent was overpaid. The undersigned finds Kuhl's worksheets unpersuasive to prove that Respondent was incorrectly paid, and therefore
liable for reimbursement, for the face bone grafts and lower jaw bone grafts for which he submitted claims.
23/ Pursuant to rule 59G-9.070(3)(q)2., Respondent's failure to provide documentation to support Medicaid claims is considered a "first offense" because he has not had any prior offenses.
Under this rule, prior agency actions for violations in the preceding five years are counted for purposes of determining whether the offense is a "first" offense or subsequent offense.
24/ AHCA posits, in its Proposed Recommended Order, that "the trier of fact should not presume to substitute his or her own perceived expertise for that of the experts who have provided a medical opinion in a matter." The undersigned notes that in this case, because Kuhl did not testify, no expert provided a medical opinion. As discussed herein, Kuhl's worksheets did not state his medical opinion regarding whether the D7953 procedure was medically necessary or whether CPT procedures 21210 or 21215 were medically necessary, but instead appeared to rely on Olmstead's direction regarding medical necessity. Further, AHCA failed to provide the correct CDT codes applicable to this proceeding. Accordingly, AHCA's case fails due to lack of competent, persuasive evidence——not due to the undersigned substituting her "perceived expertise" for that of AHCA's medical expert.
COPIES FURNISHED:
Jeffries H. Duvall, Esquire
Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
David Vine, D.D.S Sheridan Center, Suite 403
400 Arthur Godfrey Road Miami Beach, Florida 33140 (eServed)
Elizabeth Dudek, Secretary
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1
Tallahassee, Florida 32308 (eServed)
Debora E. Fridie, Esquire
Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 22, 2015 | Agency Final Order | |
| May 29, 2015 | Recommended Order | Petitioner proved that Respondent was overpaid for certain Medicaid charges, but failed to prove that he was overpaid for other Medicaid charges. Petitioner proved that administrative fine should be assessed. |
AGENCY FOR HEALTH CARE ADMINISTRATION vs RONALD M. MARINI, D.M.D., P.A., 14-003183MPI (2014)
IRENE REYNOLDS vs AGENCY FOR HEALTH CARE ADMINISTRATION, 14-003183MPI (2014)
DEPARTMENT OF HEALTH, BOARD OF DENISTRY vs ADOLFO DE CESPEDES, D.D.S., 14-003183MPI (2014)
BOARD OF DENTISTRY vs. RONALD L. ASKOWITZ, 14-003183MPI (2014)
