STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
RONALD M. MARINI, D.M.D., P.A.,
Respondent.
/
Case No. 16-5641MPI
RECOMMENDED ORDER
Pursuant to notice, a final hearing in this cause was held by video teleconference between sites in Orlando and Tallahassee, Florida, on June 28 and 29, 2017, before Linzie F. Bogan, Administrative Law Judge of the Division of Administrative
Hearings.
APPEARANCES
For Petitioner: Ephraim Durand Livingston, Esquire1/
Kevin Douglas Dewar, Esquire
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308
For Respondent: Lance O. Leider, Esquire
Michelle Bedoya, Esquire The Health Law Firm
1101 Douglas Avenue
Altamonte Springs, Florida 32714
STATEMENT OF THE ISSUES
Whether Ronald M. Marini, D.M.D., P.A. (Respondent), received Medicaid overpayments that the Agency for Health Care Administration is entitled to recover; and whether sanctions and costs should be imposed against Respondent.
PRELIMINARY STATEMENT
Petitioner, Agency for Health Care Administration (Petitioner/Agency/AHCA), issued a Final Audit Report (FAR) dated September 19, 2014, informing Respondent that an audit of claims for the period March 1, 2010, through August 31, 2012, determined that Respondent was overpaid for Medicaid claims in the amount of
$590,008.15 (subsequently reduced to $513,246.91). The FAR also informed Respondent of the Agency’s intent to impose administrative sanctions and costs associated with the audit.
Respondent challenged the Agency action described in the FAR by timely filing a Petition for Formal Administrative Hearing.
On October 27, 2014, Petitioner referred this matter to the Division of Administrative Hearings (DOAH) for assignment of an Administrative Law Judge (ALJ). This matter was assigned DOAH Case No. 14-5049MPI. On October 30, 2014, upon motion of the parties, the file was closed and jurisdiction was relinquished to the Agency.
On April 8, 2015, the ALJ, upon motion of the parties, issued an Order Re-Opening File, and the matter was assigned DOAH
Case No. 15-1888MPI. On May 15, 2015, again upon motion of the parties, the file was closed and jurisdiction was relinquished back to the Agency.
On September 27, 2016, the ALJ, upon motion of the parties, issued an Order Re-Opening File, and the matter was assigned DOAH Case No. 16-5641MPI.
At the final hearing, Petitioner presented the testimony of Robi Olmstead and deposition testimony of expert/peer reviewer Dr. Mark Kuhl, D.M.D. Respondent testified on his own behalf and offered the testimony of Dr. W. Michael Ingalls, D.D.S., who was accepted as an expert.
Petitioner’s Exhibits 1 through 7, 9 through 15, 16.c, and
17 through 23 were admitted into evidence. Respondent’s Exhibits 1 through 22, 24 through 33, 52, 53, 57, 58, 68, 70, and 83 through 95 were admitted into evidence.
A three-volume Transcript of the final hearing was filed on July 28, 2017. The parties were given until August 11, 2017, to file proposed recommended orders (PRO). Petitioner and Respondent each filed a PRO and the same have been considered in preparing this Recommended Order.
FINDINGS OF FACT
The Medicaid program (Medicaid) is a federal and state partnership that funds health care services for qualified individuals.
Petitioner is the state agency charged with administering Medicaid in Florida. Petitioner is legally authorized to monitor the activities of Medicaid providers and to recover “overpayments.” Overpayments include reimbursement for services that are not medically necessary, as verified by records existing at the time of service. Petitioner is also empowered to impose sanctions and recover costs against offending providers.
During all times relevant hereto, Respondent was a Florida Medicaid provider authorized to provide dental care to Medicaid beneficiaries and to receive reimbursement for covered services.
The dental practice of Ronald M. Marini, D.M.D., P.A., is owned by Ronald M. Marini, D.M.D. Dr. Marini has continuously practiced dentistry since graduating in 1967 from the University of Pittsburgh School of Dental Medicine. Dr. Marini’s practice focuses primarily on the treatment of children who have dental coverage through Medicaid. Dr. Marini is not board-certified in any specialty.
Pursuant to what is commonly referred to as the “pay- and-chase” system, Petitioner pays Medicaid providers under an honor system for services rendered to Medicaid recipients. If Petitioner subsequently determines that the provider was paid for services rendered which were not in compliance with Medicaid
requirements, then Petitioner seeks reimbursement from the provider.
The Medicaid Provider Agreement is a voluntary contract between Petitioner and a Medicaid provider. Paragraph 3 of the Medicaid Provider Agreement states that “[t]he provider agrees to comply with local, state, and federal laws, as well as rules, regulations, and statements of policy applicable to the Medicaid program, including the Medicaid Provider Handbooks issued by AHCA.” During the audit period, Respondent was an enrolled Medicaid provider and had a valid Medicaid Provider Agreement with Petitioner.
By correspondence to Respondent dated February 27, 2014, Petitioner requested records related to claims billed to Medicaid by Respondent for the audit period March 1, 2010, through
August 31, 2012.
Respondent provided documents in response to Petitioner’s request for records. Petitioner completed a review of the records that Respondent submitted, and on July 9, 2014, issued a Preliminary Audit Report (PAR). Petitioner advised in the PAR that it believed Respondent was overpaid in the amount of
$590,008.15. In response to the PAR, Respondent submitted additional information to the Agency.
After receipt and evaluation of Respondent’s additional information, Petitioner issued its FAR finding that Respondent
was overpaid $590,008.15 during the audit period (later reduced to $513,246.91). The FAR also informed Respondent that Petitioner was imposing a fine of $118,001.63 as a sanction for violation of Florida Administrative Code Rule 59G-9.070(7)(e), and was seeking reimbursement of costs in the amount of
$2,223.64.
The FAR states six grounds on which Petitioner seeks to recoup monies paid to Respondent, and provides as follows:
The 2007 and 2011 Dental Services Coverage and Limitations Handbooks, page 2-2, specify that Medicaid reimburses for services that are individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, not in excess of the recipient's needs, and reflect the level of services that can be safely furnished. A review of your records by a peer consultant revealed that the level of service for some claims submitted was not supported by the documentation. The appropriate code was applied and the payment adjusted. Payments made to you for these services, in excess of the adjusted amount, are considered an overpayment.
The 2008 Florida Medicaid Provider General Handbook, pages 5-8 and 2-57, defines incomplete records as records that lack documentation that all requirements or conditions for service provision have been met. A review of your records revealed that documentation for some services for which you billed and received payment was incomplete or not provided. Payments made to you for these services are considered an overpayment.
The 2008 Florida Medicaid Provider General Handbook, page 5-4, states that when presenting a claim for payment under the
Medicaid program, a provider has an affirmative duty to present a claim for goods and services that are medically necessary. A review of your records revealed that the medical necessity for some claims submitted was not supported by the documentation.
Payments made to you for these services are considered an overpayment.
The 2008 Florida Medicaid Provider General Handbook, page 5-4, requires that when presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to present a claim that is true and accurate and is for goods and services that have actually been furnished to the recipient. A review of your records revealed that some services were double billed. Payments made to you for these services are considered an overpayment.
The 2008 Florida Medicaid Provider General Handbook, page 5-4, requires that when presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to present a claim that is true and accurate and is for goods and services that have actually been furnished to the recipient. A review of your records revealed that some services rendered were erroneously coded. The appropriate code was applied and the payment adjusted, if applicable. Payments made to you for these services, in excess of the adjusted amount, are considered an overpayment.
The 2007 and 2011 Dental Services Coverage and Limitations Handbooks, pages 2-
34 and 2-35 respectively, limit reimbursement for restorative services to essential services necessary to restore and maintain dental health; one restoration per tooth surface except for the occlusal surface of permanent maxillary 1st and 2nd molars; one resin restoration for a mesial or distal lesion; and one posterior one-surface resin restoration every three years per tooth
number or letter per tooth surface. A review of your dental records revealed that you billed and received payment for a restoration in excess of the maximum. Payment made to you for this service is considered an overpayment.
Mark Kuhl, D.M.D., was offered and accepted as Petitioner's expert in the areas of rendering dental care and dental medical necessity with respect to Medicaid overpayment cases. Dr. Kuhl was also offered and accepted as a peer reviewer pursuant to section 409.9131, Florida Statutes. Since 1985,
Dr. Kuhl has been continuously licensed to practice dentistry in the State of Florida. Dr. Kuhl is not board-certified in any specialty and operates a general dentistry practice where he treats pediatric patients.
W. Michael Ingalls, D.D.S., was offered and accepted as Respondent's “expert in dentistry with a focus on pediatric dentistry.” Dr. Ingalls was not, however, recognized as an expert as to matters pertaining to Medicaid coding for services rendered. Dr. Ingalls has practiced dentistry continuously since graduating from the University of Washington School of Dentistry in 1984. Dr. Ingalls has been board-certified by the American Board of
Pediatric Dentistry since 1997. Dr. Ingalls has owned and operated his own pediatric dental practice in Lake Mary, Florida, since 1987.
During the audit period, there were two versions of the Florida Medicaid Provider General Handbook in effect. As applied to the instant dispute, there are no material differences between the two General Handbooks so, unless otherwise indicated, they will collectively be referred to as the General Handbook.
During the audit period, there were also two versions of The Florida Medicaid Provider Dental Services Coverage and Limitations Handbook in effect. As applied to the instant dispute, there are no material differences between the two Dental Handbooks so, unless otherwise indicated, they will collectively be referred to as the Dental Handbook.
Missing or Incomplete Documentation
The General Handbook provides, in part, as follows:
When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to . . . present a
claim . . . that is for goods and services that . . . [a]re documented by records made at the time the goods or services were provided demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record.
The General Handbook also provides that “[m]edical records must state the necessity for and the extent of services provided [and] the following requirements may vary according to the service rendered:
Description of what was done during the visit;
History;
Physical assessment;
Chief Complaint on each visit; Diagnostic tests and results; Diagnosis;
Treatment plan, including prescription; Medications, supplies, scheduling frequency for follow-up or other services;
Progress reports, treatment rendered;
The author of each (medical record) entry must be identified and must authenticate his entry by signature, written initials or computer entry;
Dates of service; and Referrals to other services.
The General Handbook does not define what constitutes a medical record.
The General Handbook further provides that a Medicaid provider has an affirmative duty to provide services “in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state and local law.”
For the applicable audit period, section 466.018(3), Florida Statutes (2011), required, in part, that “[e]very dentist shall maintain written dental records and medical history records which justify the course of treatment of the patient.” Additionally, section 466.028(1)(m) subjects a dentist to disciplinary action for “[f]ailing to keep written dental records and medical history records justifying the course of treatment of the patient.”
Section 466.018(3) makes clear that dental records and medical history records must justify, or explain why, a particular course of treatment was undertaken by a dental care provider.
Respondent utilizes software to capture the services provided to his patients. The software has a “patient notes master” section, which allows the user to post narrative information about a patient, including information related to patient evaluation and insurance claims status. The software also has a “patient chart” section which reflects information such as dates of service, a description of services provided (with Current Dental Terminology codes, hereinafter CDT code(s)), the tooth and surface involved, and the treatment status of the affected tooth. The patient chart section also has a colorized tooth chart that visually depicts information found in the description, tooth, and surface sections of the patient chart.
The “patient notes master” section and all parts of the “patient chart,” collectively and substantively, comprise the patient medical record contemplated by the General and Dental Handbooks, respectively. There is nothing in Petitioner’s rules, regulations, General or Dental Handbooks, or section 466.018(3), that requires patient treatment information to be gleaned only from the patient notes section of a patient’s dental record.
Recipient 1 (Not in Patient Notes)
On January 14, 2011, patient K.A., who at the time was an existing patient, was treated by Respondent. According to the dental records, Respondent performed a “periodic oral evaluation [CDT code 0120],” took several x-rays, and removed “plaque, calculus and stains from the tooth structures in the primary and transitional dentition [CDT code 1120].” The results of the evaluation revealed that K.A. had “decay” in teeth “S” and “A.”
K.A. was given a topical fluoride treatment (CDT code 1203) and oral hygiene instructions (CDT code 1330). Petitioner denied treatment related to CDT codes 1203 and 1330 on the basis that there is no documentation in the “patient notes” to warrant payment for these services.
While it is true that the “patient notes” portion of Respondent’s dental record for K.A. offers no justification or otherwise documents the need for CDT codes 1203 and 1330, the “patient chart” portion of K.A.’s dental record clearly documents that these services were provided to K.A. Payment for these services should be allowed.
On February 15, 2012, K.A. was treated by Respondent.
According to the dental record, Respondent performed a “periodic oral evaluation [CDT code 0120],” took several X-rays, and removed “plaque, calculus and stains from the tooth structures in the primary and transitional dentition [CDT code 1120].” The
results of the evaluation revealed that K.A. had “decay” in teeth 14, 19 and 30. K.A. was given a topical fluoride treatment (CDT code 1203) and oral hygiene instructions (CDT code 1330).
Petitioner denied treatment related to CDT codes 0120, 1203 and 1330 on the basis that there is no documentation in the “patient notes” to warrant payment for these services.
While it is true that the “patient notes” portion of Respondent’s dental record for K.A. offers no justification or otherwise documents the need for CDT codes 0120, 1203 and 1330, the “patient chart” portion of K.A.’s dental record clearly documents that these services were provided by Respondent to K.A. Payment for these services should be allowed.
On March 9, 2012, K.A. was treated by Respondent.
According to the patient chart, Respondent applied a resin-based composite to K.A.’s teeth 14, 19 and 30 (CDT codes 2391 and 2392). Petitioner denied payment for treatment related to these services on the basis that there is no documentation in the “patient notes” to warrant payment.
While it is true that the “patient notes” portion of Respondent’s dental record for K.A. fails to mention that these services were provided, the “patient chart” portion of K.A.’s dental record clearly documents that these services were provided by Respondent to K.A. and payment for these services should be allowed.
Recipient 2 (Not in Patient Notes)
On April 5, 2011, E.B. was treated by Respondent.
According to the dental record, Respondent performed a “comprehensive oral evaluation [CDT code 0145]” and removed “plaque, calculus and stains from the tooth structures in the primary and transitional dentition [CDT code 1120].” E.B. was given a topical fluoride treatment (CDT code 1203) and oral hygiene instructions (CDT code 1330). Petitioner denied payment for the fluoride treatment on the basis that there is no documentation in the “patient notes” for these services.
While it is true that the “patient notes” portion of Respondent’s dental record for E.B. fails to mention the fluoride treatment, the “patient chart” portion of E.B.’s dental record clearly documents that these services were provided by Respondent to E.B. and payment for these services should be allowed.
Recipient 11 (Not in Patient Notes)
On April 26 and May 23, 2012, P.D. was treated by Respondent. According to the dental record, Respondent, during these visits, applied “resin-based composite – two surface, posterior [CDT code 2393],” to the distal and occlusal surfaces of teeth 4 and 5, and the mesial and occlusal surfaces of
tooth 3. Petitioner denied payment for treatment related to these services on the basis that there is no documentation in the “patient notes” to warrant payment.
While it is true that the “patient notes” portion of Respondent’s dental record for P.D. fails to mention that these services were provided, the “patient chart” portion of P.D.’s dental record clearly documents that these services were provided and payment for these services should be allowed.
Recipient 20 (Not in Record)
On February 7, 2012, M.J. was treated by Respondent.
According to the dental record, Respondent performed an “extraction, erupted tooth or exposed root [CDT code 7140]” for teeth D and E. Petitioner denied payment for treatment related to these services on the basis that there is no documentation in the patient record to warrant payment. The “patient chart” portion of M.J.’s dental record clearly documents that these services were provided and payment for the same should be allowed.
Recipient 23 (Not in Patient Notes)
On July 5, 2012, M.M. was treated by Respondent.
According to the dental record, Respondent applied a “resin-based composite – three surfaces, anterior [CDT code 2393]” to teeth E and F. The dental record also reflects that behavior management techniques (CDT code 9920) were applied during the procedure.
Petitioner denied payment for treatment related to these services on the basis that there is no documentation in the “patient notes” to warrant payment.
While it is true that the “patient notes” portion of Respondent’s dental record for M.M. fails to mention that these services were provided, the “patient chart” portion of M.M.’s dental record clearly documents that these services were provided and payment for these services should therefore be allowed.
Recipient 24 (Not in Patient Notes)
On October 19, 2010, A.M. was treated by Respondent.
According to the dental record, Respondent applied a “resin-based composite – two surfaces, posterior [CDT code 2392],” to teeth A and J. The dental record also shows that a “pulp cap – indirect [CDT code 3120]” was applied to tooth A. Petitioner denied payment for treatment related to the application of the pulp cap on the basis that there is no documentation of the same in the patient “notes.”
While it is true that the “patient notes” portion of Respondent’s dental record for A.M. fails to mention the application of a pulp cap, the “patient chart” portion of A.M.’s dental record clearly documents that this service was provided and payment for should therefore be allowed.
Recipient 25 (Not in Patient Notes)
On February 16, 2011, I.O. was treated by Respondent.
According to the dental record, Respondent applied a “resin-based composite – two surfaces, posterior [CDT code 2392],” to the occlusal/lingual and distal/buccal surfaces of tooth A.
Petitioner denied payment for these services on the basis that there is no documentation of the same in the “patient notes.”
While it is true that the “patient notes” portion of Respondent’s dental record for I.O. fails to mention that these services were provided, the “patient chart” portion of I.O.’s dental record clearly documents that these services were provided and payment for the same should be allowed.
Recipient 26 (Not in Patient Notes)
On November 1, 2010, C.R. was treated by Respondent.
According to the dental record, Respondent, during these visits, applied “resin-based composite – one surface, posterior [CDT code 2391],” to the occlusal surfaces of teeth L and S, and both the occlusal and buccal surfaces of teeth K and T. Petitioner denied payment for treatment related to the application of the resin- based composite to the occlusal surface for tooth S on the basis that there is no documentation of this service in the “patient notes.”
While it is true that the “patient notes” portion of Respondent’s dental record for C.R. fails to mention that this service was provided, the “patient chart” portion of C.R.’s dental record clearly documents that this service was provided and payment for the same should be allowed.
Services Billed at Lower Level
The Dental Handbook provides in part that “[a] comprehensive oral evaluation is used by a dentist when evaluating a patient comprehensively. This applies to new patients and to established patients who have a significant change in health conditions or who have been absent from treatment for three or more years.” The Dental handbook also states that “[a] provider may only be reimbursed for a comprehensive oral evaluation once every three years for the same recipient.” Respondent contends that Petitioner erroneously adjusted payment for this service because the comprehensive evaluations were conducted more than three years apart.
Recipient 20 – J.M.
On February 2, 2012, Respondent treated J.M. For this service date, Respondent billed for a comprehensive oral evaluation (CDT code 0150). According to J.M.’s dental record, Respondent previously performed a comprehensive evaluation on January 5, 2009. J.M.’s dental record also indicates that between these dates, Respondent treated her on seven different occasions. While it is true that the time between comprehensive evaluations is more than three years, Petitioner properly adjusted payment for the February 2, 2012, service because J.M. was not absent from treatment during this interval.
Recipient 22 – S.M.
On July 18, 2011, Respondent treated S.M. For this service date, Respondent billed for a comprehensive oral evaluation (CDT code 0150). According to S.M.’s dental record, Respondent previously performed a comprehensive evaluation on January 14, 2011. Petitioner adjusted the July 18, 2011, service to a “periodic oral evaluation [CDT code 0120],” which reimburses at a lower rate. Respondent does not dispute that Petitioner properly adjusted the reimbursement rate for this service.
Not Medically Necessary
Applicable Medicaid regulations require that “medical necessity” be documented by specific records made at the time the services were provided, and that the records fully identify the medical basis and the need for the services. In other words, a provider must document the rationale for conducting a particular service at the time of making the decision to perform the same. Petitioner asserts that Respondent failed to submit sufficient documentation to establish that the disputed charges were for "medically necessary" services.
FAR Finding No. 3 involves CDT codes 0240, 0250 and 0260. These codes reflect services for radiograph/diagnostic imaging procedures that “[s]hould be taken only for clinical reasons as determined by the patient’s dentist.” According to the Dental Handbook, these radiographs will not, however, be
reimbursed for caries (decay) detection. The Dental Handbook also states that “[r]eimbursement for a complete series of intraoral radiographs is limited to once in a three (3) year period, per recipient.”
Petitioner asserts that Respondent failed to establish that the use of CDT codes 0240, 0250, and 0260 was medically necessary for certain claims related to patients 1, 5, 8, 9, 10, 14, 20, 22, 26, 31, and 32. Respondent contends that services related to the disputed charges were necessary to monitor growth and development and screen for oral pathology because children’s dentition is rapidly changing during early adolescence. In other words, Respondent suggests that medical necessity exists for the radiographs essentially for no other reason than because the child is of a particular age.
According to Dr. Kuhl, the ADA Guidelines, which are authoritative and instructive, provide that for radiographs to be medically necessary there should be sufficient documentation in the dental record to indicate the specific, individualized indication for why Respondent billed for the radiograph procedure and any results that were obtained pursuant to that procedure. Dr. Kuhl testified that Respondent’s dental records for each of the disputed claims provide no indication for or need as to why the X-rays were taken.
According to Respondent’s expert, Dr. Ingalls, the standard of care for taking occlusal X-rays is that they are to be taken “when there was decay present or trauma had occurred” and that they are not taken simply as screening X-rays. The following testimony from Dr. Ingalls is instructive:
Q: Okay. If you were to take an intraoral occlusal radiograph, would you document why you took it?
A: I would have a description of what was found from taking it, which would say why you took it. You’d have a reason to take it to begin with and then you write a comment of what was found.
Q: And do you write that in the narrative form?
A: I have it in the narrative form. Sometimes, again, if I gave you an example, a child comes who’s fallen and hit their front teeth on the floor at home and displaced or broken a tooth or even the parent was concerned with bleeding from the gumline, I would take an occlusal radiograph to record what was there, partly to assure that there was nothing that required treatment and also to provide a baseline for future comparison where I would take future occlusal radiographs to monitor any changes over time. And I would have a record of that traumatic incident, every part of it; where it occurred, how it occurred, all of the examination findings around it on a trauma evaluation and the outcome of the findings in the x-ray and any treatment plan and instructions given to the parent.
Q: Would you say that approach to medical records is standard?
A: Within my specialty, that is the guideline that is taught to us that we follow so that we do not miss anything.
Hearing Transcript pp. 411-413.
The opinions of Dr. Kuhl and Dr. Inglass are consistent and provide that a medical basis and need for the X-rays at issue must be established and documented, and that the X-rays in question are not to be used as a screening device as suggested by Respondent.
Recipient 1
Recipient 1, K.A., had four claims that were denied as to CDT codes 0240, 0250, and 0260. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims.
Recipient 5
Recipient 5, S.C., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim.
Recipient 8
Recipient 8, D.C., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim.
Recipient 9
Recipient 9, D.D., had two claims that were denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims.
Recipient 10
Recipient 10, G.D., had two claims that were denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims.
Recipient 14
Recipient 14, E.E., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim.
Recipient 20
Recipient 20, M.J., had six claims that were denied as to CDT codes 0240, 0250, and 0260. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims.
Recipient 22
Recipient 22, K.A., had two claims that were denied.
Each claim was billed using CDT code 0250. The dental records for
this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims.
Recipient 26
Recipient 26, C.R., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim.
Recipient 31
Recipient 31, J.R., had two claims that were denied.
Each claim was billed using CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of these claims.
Recipient 32
Recipient 32, J.R., had a single claim that was denied as to CDT code 0240. The dental records for this recipient provided no indication why the X-rays needed to be taken. Accordingly, Petitioner properly denied payment of this claim.
Erroneous Coding
According to the Dental Handbook, “[s]ealants are applied to pits and fissures of permanent teeth to prevent caries [and] [t]he enamel surface of the tooth may be mechanically or chemically[,] or mechanically and chemically prepared.” The
Dental Handbook also states that “[s]ealants applied to deciduous (primary) teeth will not be reimbursed by Medicaid.” CDT code D1351 (sealant – per tooth) describes this service as “[mechanically and/or chemically prepared enamel surface sealed to prevent decay.”
As for resin restorations, the Dental Handbook provides that “Medicaid may reimburse for . . . [r]esin restorations . . . [and that] [t]he fee for resin restorations includes local anesthesia, tooth preparation, routine lining and base, polishing, and the use of any adhesive, such as amalgam bonding agents.” As a restriction on the use of resin restorations, the Handbook provides that “[r]esin restorations may be used to restore carious lesions that extend into the dentin or areas that are deeply eroded into dentin.” CDT codes 2391/2392 provide that the resin composite is “[u]sed to restore a carious lesion into the dentin or a deeply eroded area into the dentin.”
In comparing sealant and resin restoration services, it is evident that sealants are for the enamel surface of the tooth whereas restorations, when undertaken to eliminate carious lesions, are appropriate only when the lesions extend into the dentin. In understanding the sealant and restoration provisions of the Dental Handbook, it is also evident that in order to be reimbursed for either CDT code 2391 or 2392 there must be sufficient justification of carious intrusion into the dentin and
in the absence of such justification it may be appropriate to adjust the service to CDT code 1351, unless, of course, the service relates to a deciduous tooth.
FAR finding No. 5 involves CDT codes 2391, 2392 and 1351 and applies to recipients 8, 13, 19, 22, 23, 24, 26, 28, 29, and 32.
Petitioner, based on Dr. Kuhl’s analysis, adjusted reimbursement for CDT codes D2391 and D2392 downward to CDT code D1351 when the following criteria were present: X-rays did not show any decay, Respondent’s dental record for the recipient did not specifically indicate that any decay was removed, Respondent’s dental record for the recipient stated that only a “flowable” resin was used, and Respondent’s dental record for the recipient did not indicate that anesthesia was used.
Dr. Kuhl evaluated the criteria and, when all four were met, he concluded that it was very likely that any decay present did not extend into the dentin as required for CDT code descriptions and applicable Florida Medicaid Handbooks.
Dr. Kuhl’s protocol for identifying claims that do not meet the requirements for codes 2391 and 2392 is consistent with the requirements of Florida Medicaid Handbooks and is credited.
There are, however, instances where Dr. Kuhl made downward adjustments for claims when, according to the requirements of the Dental Handbook, the claims should not have been paid.
Recipient 8
For recipient 8, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 6 through 11. This opinion is credited. Dr. Kuhl erred, however, in adjusting these claims to CDT code 1351 because the teeth involved in these claims (A, J, K, L, S, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied.
Recipient 13
For recipient 13, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 8 through 13, 18, 20, 21, and 24 through 26. This opinion is credited. Dr. Kuhl erred, however, in adjusting claims 8, 9, 12, 13, and 24 through 26 to CDT code 1351 because the teeth involved in these claims (A, I, J, K, S, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. As for claims 10, 11, 18, 20, and 21, Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved in these claims are eligible for reimbursement when sealants are applied under appropriate circumstances.
Recipient 19
For recipient 19, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 1 through 5. This opinion is credited. Dr. Kuhl erred, however, in adjusting these claims to CDT code 1351 because the teeth involved in these claims (A, B, J, K, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied.
Recipient 22
For recipient 22, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code D2391 or D2392 for claims 10, 11, 13, 15, and 16. This opinion is credited. As for claims 10, 11, 13, and 16, Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved in these claims are eligible for reimbursement when sealants are applied under appropriate circumstances. Claim 15 involved tooth 20, which is not identified in the Dental Handbook as a tooth that is eligible for reimbursement when a sealant is applied. Accordingly, claim 15 should be denied.
Recipient 23
For recipient 23, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either
CDT code D2391 or D2392 for claims 13 through 15, and 17. This opinion is credited. Dr. Kuhl erred, however, in adjusting these claims to CDT code 1351 because the teeth involved in these claims (K, L, S, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied.
Recipient 24
For recipient 24, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 13, 17, and 21. This opinion is credited. Dr. Kuhl erred, however, in adjusting claims 13 and 17 to CDT code 1351 because the teeth involved in these claims (A and J) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. As for claim 21, Dr. Kuhl correctly adjusted this claim downward from CDT code 2392 to CDT code D2940 because the patient record reflects that a sedative filling was applied and not a resin-based composite restoration as billed.
Recipient 26
For recipient 26, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 9 through 11. This opinion is credited. Dr. Kuhl erred, however, in adjusting these claims to
CDT code 1351 because the teeth involved (K, L, and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied.
Recipient 28
For recipient 28, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 8, 9, and 11. This opinion is credited. Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved (3, 14,
and 30) are eligible for reimbursement when sealants are applied under appropriate circumstances.
Recipient 29
For recipient 29, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 4, 5, 8, and 10. This opinion is credited. Dr. Kuhl erred, however, in adjusting claims 8
and 10 to CDT code 1351 because the teeth involved in these claims (K and T) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. As for claims
4 and 5, Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved in these claims
(3 and 19) are eligible for reimbursement when sealants are applied under appropriate circumstances.
Recipient 32
For recipient 32, Dr. Kuhl determined that Respondent’s dental record for this patient does not support the use of either CDT code 2391 or 2392 for claims 9 through 12, 28, 30, and 32. This opinion is credited. Dr. Kuhl erred however in adjusting claims 11 and 32 to CDT code 1351 because the teeth involved in these claims (J and S) are deciduous teeth that are not eligible for reimbursement when sealants are applied. In accordance with the Dental Handbook, these claims should be denied. As for claims 12 and 28, Dr. Kuhl correctly adjusted these claims downward to CDT code 1351 because the permanent teeth involved in these claims (14 and 30) are eligible for reimbursement when sealants are applied under appropriate circumstances. As for claim 30, Dr. Kuhl erred in adjusting this claim downward to CDT code 1351 because it involves tooth 30 which was addressed in claim 12. The Handbook provides that “[s]ealants may be reimbursed once per three years, per tooth.” The date of service for claim 12 is October 19, 2010, and the date of service for claim 30 is March 28, 2012. Claim 30 was not submitted more than three years after claim 12, and it should therefore be denied.
Duplicate Claims
Certain claims were denied by Petitioner as being duplicates of other claims. These claims relate to FAR finding No. 4, which involves CDT Codes 2391, 2392, and 1351.
Recipient 8
For recipient 8, claims 12 and 13 were billed and reimbursed under CDT code 2391 for teeth K and T. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because tooth K was addressed in claim 8 (as previously discussed) and tooth T was addressed in claim 11 (as previously discussed),
Dr. Kuhl correctly opined that claims 12 and 13 are duplicate claims that should be denied.
Recipient 13
For recipient 13, claims 14 through 17, and 19, were billed and reimbursed under CDT code 2391 for teeth K, T,
3 and 30. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because tooth K was addressed in claim 12 (as previously discussed), tooth T was addressed in claim 13 (as previously discussed), tooth 3 was addressed in claim 18 (as previously discussed), and tooth 30 was addressed in claim 11 (as previously discussed), Dr. Kuhl correctly opined that claims 14 through 17, and 19 are duplicate claims that should be denied.
Recipient 19
For recipient 19, claim 6 was billed and reimbursed under CDT code 2391 for tooth K. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to this tooth. Because tooth K was addressed in claim 8 (as previously discussed), Dr. Kuhl correctly opined that this claim is a duplicate claim that should be denied.
Recipient 22
For recipient 22, claims 12 and 14 were billed and reimbursed under CDT code 2392 for teeth 14 and 15. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because the patient record does not support the use of code 2391, it also does not support the use of code 2392. Because tooth 14 was addressed in claim 11 (as previously discussed) and tooth 15 was addressed in claim 13 (as previously discussed), Dr. Kuhl correctly opined that claims 12 and 14 are duplicates that should be denied.
Recipient 23
For recipient 23, claim 16 was billed and reimbursed under CDT code 2391 for tooth T. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to this tooth. Because tooth T was
addressed in claim 15 (as previously discussed), Dr. Kuhl correctly opined that this claim is a duplicate that should be denied.
Recipient 26
For recipient 26, claims 13 and 14 were billed and reimbursed under CDT code 2391 for teeth K and T. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to these teeth. Because tooth K was addressed in claim 9 (as previously discussed) and tooth T was addressed in claim 10 (as previously discussed),
Dr. Kuhl correctly opined that claims 13 and 14 are duplicates that should be denied.
Recipient 28
For recipient 28, claim 10 was billed and reimbursed under CDT code 2391 for tooth 3. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 for services related to this tooth. Because tooth 3 was addressed in claim 8 (as previously discussed), Dr. Kuhl correctly opined that this claim is a duplicate that should be denied.
Recipient 29
For recipient 29, claims 6 and 7 were billed and reimbursed under CDT code 2392 for teeth 3 and 14. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used
CDT code 2391 for services related to these teeth. Because the patient record does not support the use of CDT code 2391, it also does not support the use of CDT code 2392. Because tooth 3 was addressed in claim 4 (as previously discussed) and tooth 14 was addressed in claim 15 (as previously discussed), Dr. Kuhl correctly opined that claims 6 and 7 are duplicates that should be denied.
Recipient 32
For recipient 32, claims 13 and 31 were billed and reimbursed under CDT code 2391 for teeth 19 and 30, and claim 29 was billed and reimbursed under CDT code 2392 for tooth 14. As previously noted, Dr. Kuhl correctly opined that Respondent improperly used CDT code 2391 and 2392 for services related to these teeth. Because tooth 14 was addressed in claim 28 (as previously discussed) tooth 19 was addressed in claim 10 (as previously discussed), and tooth 30 was addressed in claims 12 and 30 (as previously discussed), Dr. Kuhl correctly opined that claims 13, 29, and 31 are duplicates that should be denied.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569, 120.57(1) and 409.913(31), Fla. Stat. (2016).2/
As the party asserting the overpayment, Petitioner bears the burden of proof to establish the alleged overpayment by
a preponderance of the evidence. See Southpointe Pharmacy v.
Dep't of HRS, 596 So. 2d 106, 109 (Fla. 1st DCA 1992);
S. Med. Servs. v. Ag. for Health Care Admin., 653 So. 2d 440, 441
(Fla. 3d DCA 1995) (per curiam).
The statutes, rules, and the Medical Provider Handbooks in effect during the period for which the services were provided govern the outcome of the dispute. Toma v. Ag. for Health Care
Admin., Case No. 95-2419 (Fla. DOAH July 26, 1996; Fla. AHCA
Sept. 24, 1996).
The Medicaid program is the federal-state medical assistance program authorized by Title XIX of the Federal Social Security Act, pursuant to which the State of Florida provides medical goods and services to eligible indigent recipients.
§ 409.901(15), Fla. Stat.
Petitioner is the State of Florida agency designated to administer the Medicaid program in the State of Florida.
§§ 20.42; 409.901(2), (14); and 409.902, Fla. Stat.
Among other statutory duties, Petitioner oversees the activities of Medicaid providers; conducts reviews, investigations, and audits of Medicaid providers to identify fraud, abuse, and overpayments; issues audit reports with Medicaid overpayment determinations; recovers Medicaid overpayments; and imposes sanctions upon Medicaid providers for fraud, abuse, and overpayments. § 409.913, Fla. Stat.
Petitioner is authorized to seek repayment of overpayments that it may have made for goods or services reimbursed under the Medicaid program. § 409.913(10), (11)(a), (15)(j) and (30), Fla. Stat.
Section 409.913(7)(e) and (f) requires providers to present claims for reimbursement in accordance with all Medicaid rules, regulations, and handbooks and appropriately document goods and services supplied by them.
Section 409.913(20) provides that "[w]hen making a determination that an overpayment has occurred, the agency shall prepare and issue an audit report to the provider showing the calculation of overpayments."
Section 409.913(21) provides that "[t]he audit report, supported by agency work papers, showing an overpayment to a provider constitutes evidence of the overpayment." Consistent with this language, Petitioner can establish a prima facie case by proffering a properly supported audit report, which must be received in evidence. Colonial Cut-Rate Drugs v. AHCA, Case
No. 03-1547MPI (Fla. DOAH Mar. 14, 2005; Fla. AHCA May 27, 2005).
To be eligible for coverage by Medicaid, a service must be “medically necessary,” which is defined in section 409.913(1)(d) 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.
For the purposes of determining Medicaid reimbursement, Petitioner is the final arbiter of medical necessity.
§ 409.913(1)(d), Fla. Stat.
Petitioner’s interpretation of its administrative rules and incorporated handbooks is entitled to great deference. Colonnade Med. Ctr., Inc. v. Ag. for Health Care Admin., 847 So.
2d 540 (Fla. 4th DCA 2003). Even if the Agency’s interpretation of its own rules and incorporated handbooks is merely one of several reasonable alternatives, the interpretation must stand even though it may not appear as reasonable as some other alternative. Duke's Steakhouse Ft. Myers, Inc. v. G5 Properties, LLC, 106 So. 3d 12 (Fla. 2d DCA 2013). The Agency’s
interpretation of its statutes and rules only needs to be a permissible one and should not be overturned unless clearly erroneous. Id.
As determined in the Findings of Facts, Petitioner met its burden of proof and established for those claims identified herein that Respondent was paid for claims that failed to comply with the laws, rules, and regulations governing Medicaid providers.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order that:
Revises the Final Audit Report consistent with the Findings of Fact and Conclusions of Law set forth herein;
Recalculates the total overpayment consistent with the Findings of Fact and Conclusions of Law set forth herein;
Requires Respondent to pay interest at the statutorily mandated rate on the recalculated overpayment; and
Requires Respondent to pay a fine in the amount of
20 percent of the recalculated overpayment.
Pursuant to section 409.913(23)(a), Petitioner is entitled to recover all investigative, legal and expert witness costs.
Petitioner has documented costs of $2,223.64, but advises that “[a]dditional costs have been incurred in preparing for and attending the final hearing.” Jurisdiction is retained to determine the amount of appropriate costs, if the parties are unable to agree. Within 30 days after entry of the final order, either party may file a request for a hearing on the amount.
Failure to request a hearing within 30 days after entry of the final order shall be deemed to indicate that the issue of costs has been resolved.
DONE AND ENTERED this 29th day of August, 2017, in Tallahassee, Leon County, Florida.
S
LINZIE F. BOGAN
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 August, 2017.
ENDNOTES
1/ Mr. Livingston is still counsel of record in this proceeding. However, it appears as though Mr. Livingston is now with a different agency. Based on his eServe registration, a copy of this Recommended Order is provided to Mr. Livingston at his new address.
2/ All subsequent references to Florida Statutes will be to 2016, unless otherwise indicated.
COPIES FURNISHED:
Christopher Edward Brown, Esquire The Health Law Firm
1101 Douglas Avenue
Altamonte Springs, Florida 32714 (eServed)
Kevin Douglas Dewar, Esquire
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
Ephraim Durand Livingston, Esquire Office of Financial Regulation Suite 615
1313 Tampa Street
Tampa, Florida 33602 (eServed)
Douglas James Lomonico, Esquire Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
Gregory L. Pitt, Esquire
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
Lance O. Leider, Esquire The Health Law Firm
1101 Douglas Avenue
Altamonte Springs, Florida 32714 (eServed)
Michelle Bedoya, Esquire The Health Law Firm
1101 Douglas Avenue
Altamonte Springs, Florida 32714 (eServed)
William Roberts, Acting General Counsel Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
Richard J. Shoop, Agency Clerk
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
Justin Senior, Secretary
Agency for Health Care Administration Mail Stop 1
2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
Shena L. Grantham, Esquire
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
Tallahassee, Florida 32308 (eServed)
Thomas M. Hoeler, Esquire
Agency for Health Care Administration Mail Stop 3
2727 Mahan Drive
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 |
|---|---|---|
| Oct. 27, 2017 | Agency Final Order | |
| Aug. 29, 2017 | Recommended Order | Respondent received Medicaid overpayments that Petitioner is entitled to recover. Petitioner is also entitled to recover its costs and impose sanctions against Respondent. |
AGENCY FOR HEALTH CARE ADMINISTRATION vs RONALD M. MARINI, D.M.D., P.A., 16-005641MPI (2016)
AGENCY FOR HEALTH CARE ADMINISTRATION vs ALPHA DENTAL SERVICES, INC., 16-005641MPI (2016)
DEPARTMENT OF HEALTH, BOARD OF DENISTRY vs MARISA FRANCESCHI, D.D.S., 16-005641MPI (2016)
DEPARTMENT OF HEALTH, BOARD OF DENTISTRY vs THOMAS P. FLOYD, D.M.D., 16-005641MPI (2016)
