STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
AGENCY FOR HEALTH CARE ADMINISTRATION,
Petitioner,
vs.
FERNANDO V. DE LA CRUZ,
Respondent.
/
Case No. 17-5904MPI
RECOMMENDED ORDER
On April 5, 6, 12, and 13 and May 15, 2018, Robert E. Meale, administrative law judge of the Division of Administrative Hearings (DOAH), conducted the final hearing by videoconference in Lauderdale Lakes and Tallahassee, Florida.
APPEARANCES
For Petitioner: Joseph G. Hern, Esquire
Bradley Stephen Butler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
For Respondent: Bernard M. Cassidy, Esquire
Lubell Rosen
200 South Andrews Avenue, Suite 900 Fort Lauderdale, Florida 33301
STATEMENT OF THE ISSUES
Pursuant to section 409.913(15), (16), and (17), Florida Statutes; Florida Administrative Code rule 59G-9.070; and the Final Audit Report issued on November 17, 2015 (FAR), the issues
are whether Petitioner overpaid Medicaid reimbursements to Respondent during the audit period of January 1, 2011, through February 28, 2014 (Audit Period), and, if so, the amount of the total overpayments; whether Petitioner may impose a fine against Respondent and, if so, the amount of the fine; and whether Petitioner may recover costs from Respondent and, if so, the amount of the costs.
PRELIMINARY STATEMENT
As stated in the FAR, Petitioner sought to recover total overpayments of Medicaid reimbursements of $134,897.22, a fine of $26,979.44, and costs of $1087.52.
On December 12, 2015, Respondent filed a request for a formal administrative hearing. On July 12, 2016, Petitioner transmitted the file to DOAH, where it was opened as
Case 16-3888MPI. On January 6, 2017, the parties filed a Joint Motion to Relinquish Jurisdiction based on settlement negotiations. On January 9, 2017, the administrative law judge entered an Order Closing File and Relinquishing Jurisdiction.
On October 26, 2017, Petitioner filed a Motion to Reopen File on the ground that negotiations had failed to produce a settlement. On October 27, 2017, the administrative law judge entered an Order Reopening File as Case 17-5904MPI. After one continuance, the hearing took place on the dates set forth above.
In an Amended Joint Prehearing Stipulation, which was filed on March 28, 2018 (Stipulation), Petitioner reduced the alleged total overpayments and fine and increased the alleged costs. As updated, the overpayments, after extension, total $128,731.71, the fine is $26,979.44, and the costs are $3016.12. In the Stipulation, Respondent conceded Petitioner's denial of four claims, which are identified below.
At the start of the hearing, Respondent conceded Petitioner's downcoding of Claim 3-1 and denial of Claims 9-1, 11-1, 18-1, 33-6, 33-8, and 33-11. During the hearing, Petitioner's peer reviewer changed his opinion as to certain claims; this testimony is noted below in connection with the relevant claims, and Respondent conceded the denial or adjustment proposed by Petitioner of Claims 1-1, 4-1, 10-2, 10-5, 14-3,
15-2, and 33-3.
At the hearing, Petitioner called three witnesses and offered into evidence 17 exhibits: Petitioner Exhibits 1 through 17. Respondent called one witness and offered into evidence no exhibits. All exhibits were admitted.
The court reporter filed the final volume of the transcript on June 20, 2018. The parties filed proposed recommended orders by July 23, 2018.
FINDINGS OF FACT
Respondent became a physician in Cuba in 1974. Prior to coming to the United States, Respondent provided medical services in Mozambique for five years in an HIV control program. In 1991, Respondent came to the United States, where he obtained his medical license in 1994.
Respondent concentrates his practice in family medicine.
Most of the hospitalizations discussed below took place at Hialeah Hospital, although some of them took place at the University of Miami Hospital. At all material times, Respondent was an enrolled Medicaid provider who submitted to Petitioner claims for reimbursement for medical assistance or services provided to Medicaid recipients or patients.
By letter dated March 12, 2015, to Respondent, Petitioner advised that it was reviewing Respondent's Medicaid claims for the Audit Period "to determine whether the claims were billed and paid in accordance with Medicaid policy." To conduct this review, Petitioner employed a peer reviewer, David
Liebert, M.D. Dr. Liebert concentrates his practice in family medicine and, for over 30 years, has been board certified by the American Board of Family Medicine.
After completing the audit, Petitioner issued the FAR, which states that, after a review of a random sample of 35 recipients, on whose account Respondent had submitted 147 claims,
Petitioner had found overpayments of $5196.84 or approximately
$35.35 per claim. Extending this finding by the 4424 claims that Respondent submitted during the Audit Period, the FAR states that the total overpayments, after extension, are $156,400.08, within a 50% confidence interval, or $134,897.22, within a 90% confidence interval. The FAR adds a fine of 20% of $134,897.22, or $26,979.44.
Prior to the hearing, Dr. Liebert reexamined the medical records and altered certain of his findings. As a result, Petitioner reduced the total overpayments, after extension, from
$134,897.22 to $128,731.71 and the alleged fine to $25,746.34. Based on this reexamination, on January 24, 2018, Petitioner completed a Documentation Worksheet for Imposing Administrative Sanctions (Sanctions Worksheet), which asserts that 97 of the 147 audited claims were erroneous.
The applicable Medicaid Provider Agreement,
paragraph 5(b), requires the provider to "[k]eep, maintain, and make available in a systematic and orderly manner all medical and Medicaid-related records as AHCA requires for a period of at least five (5) years." The applicable Florida Medicaid Provider General Handbook, page 2-55, requires that a provider "retain all medical-related records as defined in [rule] 59G-1.010(154)
F.A.C. and medical records as defined in [rule] 59G-1.010(160)
F.A.C. on all services provided to a Medicaid recipient. . . .
The records must be accessible, legible and comprehensible." The Florida Medicaid Provider General Handbook, page 2-56, requires the provider to retain medical records for five years from the date of service (DOS).
The Florida Medicaid Provider General Handbook, page 2-56, states that the medical records "must state the
necessity for and extent of services provided." Information to be incorporated into medical records includes a description of what was done during the visit. This information must include the history, the physical assessment, the chief complaint, diagnostic tests and results, diagnoses, the treatment plan with any prescriptions, scheduling for additional services, progress reports, dates of service, referrals, and anything else "specific to a particular service." The handbook warns that a failure to comply with recordkeeping requirements may result in the recoupment of reimbursements and sanctions.
The 2010 Physician Services Coverage and Limitations Handbook was in effect during the Audit Period ("Coverage and Limitations Handbook"). Findings as to the fees corresponding to a particular code will refer to the fees in effect as of the DOS at issue.1/
Addressing primarily the principle of medical necessity, but also the appropriate level of service (LOS), the Coverage and
Limitations Handbook warns that services may be reimbursed only if they are:
necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; [b]e individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient’s needs; [b]e consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational; [r]eflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; and [b]e furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider.
Coverage and Limitations Handbook, pp. 2-2 through 2-3.
The Coverage and Limitations Handbook directs the provider to assign to each reimbursement claim a code from the Current Procedural Terminology (CPT), which is published annually by the American Medical Association (AMA).2/ Each code is assigned a reimbursement fee, which may change within the Audit Period. Coverage and Limitations Handbook, p. 2-2; Fee Schedules.
Codes in this case fall under the Evaluation and Management (E/M) section of the CPT.3/ The E/M section is divided into two subsections: a brief subsection on green-tinted pages called "Evaluation and Management (E/M) Services Guidelines"
(E/M Guidelines) and the longer, main subsection on white pages called "Evaluation and Management," which sets forth the
E/M codes (E/M Codes).
The E/M Guidelines defines terms such as "chief complaint" and "history of present illness." The E/M Guidelines also identifies the elements of a family history, social history, and past history, as well as the systems that may be reviewed for a history, and the body areas and organ systems that may be examined for an examination. Most importantly, the E/M Guidelines states the requirements for determining the level of a history, an examination, and medical decision making.
In setting forth the individual codes, the E/M Codes highlights in bold the specific components of each code. For most codes in this case, the components are the history, the examination, and medical decision making. The E/M Codes is organized by type of service. Three categories capture all but one reimbursement claim in this case: "Office or Other Outpatient Services," "Hospital Observation Services," and "Hospital Inpatient Services." The first category is further divided into "New Patient" and "Established Patient" subcategories. The second and third categories are further divided into initial care, subsequent care, and discharge services.
At the start of each category and subcategory in the E/M Codes is a statement of general information. Under each code description, nonboldface provisions identify the number of components required among the three components listed (i.e., two or three) and other general information that does not rise to the level of requirements, but may assist in confirming the correct coding of a difficult-to-code patient encounter.
The general information included in the E/M Codes includes substantive provisions for applying the codes. For example, the general information requires that, for Initial Observation Care and Initial Hospital Care, the billed services must be provided on the date of admission to observation status or inpatient status. CPT, pp. 12-14. Also, for Subsequent Observation Care and Subsequent Hospital Care, the general information limits the data forming a history or examination to that which has accrued since the preceding billed DOS.4/ For a history, the codes themselves reinforce this point by using the term "interval history" for the codes under Subsequent Observation Care and Subsequent Hospital Care, but merely "history" for the codes under Initial Observation Care and Initial Hospital Care.5/
Preliminarily, the E/M Guidelines acknowledges that the scope of the history taken by or for a provider generally is "dependent upon clinical judgment and on the nature of the
presenting problem(s)." The CPT does not elaborate upon the provider's "clinical judgment," but recognizes five levels of a presenting problem: minimal, self-limited or minor, low severity, moderate severity, and high severity. CPT, p. 6.6/ Obviously, clinical judgment may drive a higher level of history than indicated by the nature of the presenting problem.7/
The CPT recognizes four levels of history:
CPT, p. 8.
The 14 systems available for review are:
Constitutional symptoms (fever, weight loss, etc.)
Eyes
Ears, nose, mouth, throat
Cardiovascular
Respiratory
Gastrointestinal
Genitourinary
Musculoskeletal
Integumentary (skin and/or breast)
Neurological
Psychiatric
Endocrine
Hematologic/lymphatic
Allergic/immunologic
CPT, p. 6.
The higher levels of history logically add criteria.
A problem focused history requires only a chief complaint and a brief history of the present problem. An expanded problem focused history requires these criteria and a review of a system pertinent to the problem. A detailed history requires a chief complaint, an extended history of the present problem, a review of a system pertinent to the problem, a review of a limited number of additional systems, and a review of the pertinent past,11/ family,12/ and social history13/ (PFSH).14/ A comprehensive history requires a chief complaint, an extended history of the present problem, a review of all systems, and a complete PFSH.
E/M Guidelines explains each criterion. The chief complaint is "a concise statement describing the symptom, problem, condition, diagnosis, or other factor that is the reason for the encounter, usually stated in the patient's words." CPT,
p. 4. The history of the present problem is "a chronological description of the development of the patient’s present illness from the first sign and/or symptom [or from the previous
encounter] to the present" that "includes," in "significant
. . ." relation to the "presenting problem," a "description of location, quality, severity, [duration,]15/ timing, context, modifying factors, and associated signs and symptoms." CPT,
p. 6. A review of systems is "an inventory of body systems obtained through a series of questions seeking to identify signs and/or symptoms that the patient may be experiencing or has experienced." CPT, p. 7.
For all history criteria, the patient, patient's family member or nurse, or other third party with access to the patient may provide items of history to the physician: in these instances, directly or indirectly,16/ the patient relates the history to the physician. A provider also may obtain history from data, such as clinical reports or imaging studies, or analysis, such as impressions, found elsewhere in the patient's medical records.17/
There are three words and one phrase concerning history that the CPT could have defined, but did not, although the lack of definitions may not have been inadvertent. The words are a "brief" or "extended" history of the problem, a "review" of a system, and a review of a "limited number" of additional systems.
CPT provisions addressing history, examination, and medical decision making are supplemented by the 1997 Documentary Guidelines for Evaluation and Management Service (Documentary
Guidelines) issued by the Centers for Medicare and Medicaid Services (CMS). After notice to the parties, without objection, the administrative law judge has taken official notice of the Documentary Guidelines for the limited purpose of providing context for certain provisions of the CPT.18/
The Documentary Guidelines distinguishes between a brief and extended history based on "the amount of detail needed to accurately characterize the clinical problem(s)." Documentary Guidelines, p. 7. Relying on the above-listed details, such as the location, severity, or duration of symptoms or signs, the Documentary Guidelines requires that a brief history of the present problem include only one of these details and that an extended history of the problem include at least four details "or the status of at least three chronic or inactive conditions." Documentary Guidelines, p. 7. As noted above,19/ the Documentary Guidelines may not supply a numerical threshold, but the Documentary Guidelines illustrates one means by which to distinguish a brief from an extended history of the problem and prompts consideration of whether, depending on the facts of a patient encounter, a chronic or inactive condition, if medically relevant, may be part of a history of the problem.
Ultimately, the distinction between a brief or extended history is based on the facts of an individual history, including the number of history details, and the circumstances surrounding
each patient encounter, including the level of the history relative to the complexity of the medical decision making and nature of the presenting problem, the frequency of patient encounters relative to the variability of the history between encounters, and the actual and reasonable amount of time spent by the physician on the key components relative to the amount of time typically spent on these components for the subject code.
A review of a system refers to physician's collection and analysis of data for one of the 14 systems set forth above. The CPT states that a review of a system is to "define the problem, clarify the differential diagnosis, identify needed testing, or serve as baseline data on other systems that might be affected by any possible management options." CPT, p. 9. In general, a "review" occurs when the history obtained is sufficient to help the physician perform any of these four tasks. Ultimately, the determination of whether sufficient physician activity has taken place to constitute a review is based on the circumstances surrounding each patient encounter, including the level of the history relative to the complexity of the medical decision making and nature of the presenting problem, the frequency of patient encounters relative to the variability of the history between encounters, and the actual and reasonable amount of time spent by the physician on the key components
relative to the amount of time typically spent on these components for the subject code.
A "limited number of additional systems" could mean as few as one additional system. For the Documentary Guidelines, a "limited number" means two systems.20/ Ultimately, the determination of whether a physician has reviewed a limited number of additional systems is based on the circumstances surrounding each patient encounter, including the level of the history relative to the complexity of the medical decision making and nature of the presenting problem, the frequency of patient encounters relative to the variability of the history between encounters, and the actual and reasonable amount of time spent by the physician on the key components relative to the amount of time typically spent on these components for the subject code.
For an expanded problem focused history, the CPT requires only that the reviewed system be pertinent, not the most pertinent. The Documentary Guidelines states that the system to be reviewed must be "the system directly related to the problem(s)." Documentary Guidelines, p. 8. Although more than one system can be directly related to a problem, important practical considerations support the AMA's decision to require only that the reviewed system be "pertinent," rather than the "most pertinent."
Textually, the modifier, "pertinent," which applies to the review of one system, as required for an expanded problem focused level of history, does not apply to the review of "additional systems," as required for a detailed level of history. Logic may suggest that the physician review first all pertinent systems before reviewing additional systems, but the CPT does not so provide.
As it does for the history, the CPT first acknowledges that the level of examination generally is "dependent upon clinical judgment and on the nature of the presenting problem(s)" and then identifies four levels for examination:
The CPT identifies seven body areas that may be the subject of an examination:
Head, including the face
Neck
Chest, including breasts and axilla
Abdomen
Genitalia, groin, buttocks
Back
Each extremity
CPT, p. 9.
The CPT identifies 11 organ systems that may be the subject of an examination:
Eyes
Ears, nose, mouth, and throat
Cardiovascular
Respiratory
Gastrointestinal
Genitourinary
Musculoskeletal
Skin
Neurologic
Psychiatric
Hematologic/lymphatic/immunologic CPT, p. 10.21/
Again, the higher levels of examination add criteria.
A problem focused examination requires a limited examination of an affected body area or organ system. An expanded problem focused examination requires a limited examination of an affected body area or organ system and a limited examination of one or more other symptomatic or related organ systems. A detailed examination requires an extended examination of an affected body area or organ system and an extended examination of one or more other symptomatic or related organ systems. A comprehensive examination requires a general multi-system examination or a complete examination of a single system.
Unlike a history, an examination may not be based on data and analysis derived from a source other than the patient or a patient representative; an examination instead requires direct, physical contact with the patient by the provider. An examination requires that the provider, relying on his education, training, talent, experience, and judgment, learn what he can of the patient's health through the use of the provider's senses--as in touching, observing, listening, and even smelling. As noted in the Documentary Guidelines, the sole exception to the requirement of direct, physical contact with the patient is that the provider may be credited for vital signs taken by staff, as long as the vitals are incorporated into the medical records. Documentary Guidelines, p. 13.
There are four words concerning examination that the CPT could have defined, but did not and, again, the lack of definitions may not have been inadvertent.22/ The words are "limited" and "extended" and the singular (plural) versions of "area(s)" and "system(s)."
Except for the general multi-system examination, which is not found in any of the patient encounters in this case, the CPT recognizes three types of examination: limited, extended, and complete. A complete examination of an organ system implies an examination of all elements of one organ system, but the
minimum requirements of limited and extended examinations are not as easily defined.23/
Ultimately, the distinction between a limited or extended examination is based on the circumstances surrounding each patient encounter, including the level of the examination relative to the complexity of the medical decision making and nature of the presenting problem, the frequency of patient encounters relative to the variability of the examination between encounters, and the actual and reasonable amount of time spent by the physician on the key components relative to the amount of time typically spent on these components for the subject code.
The CPT fails to explain the use of the alternatives of the singular and plural version of "body area(s)" or "organ system(s)." The expanded problem focused examination calls for a limited examination of the "affected body area or organ system" and "other symptomatic or related organ system(s)." The detailed examination calls for an extended examination of the "affected body area(s)" and "other symptomatic or related organ system(s)." Obviously, for an expanded problem focused examination, the CPT requires a limited examination of the--or one--affected body area or organ system, but the CPT also requires a limited examination of one or more additional areas or systems. For a detailed examination, the CPT requires an extended examination of one or more affected body areas or organ systems and one or more
additional areas or systems. Each reference to one or more areas or systems requires a determination of the number of areas or systems that must be examined.
Ultimately, the determination of the number of body areas or organ systems that must be examined is based on the circumstances surrounding each patient encounter, including the level of the examination relative to the complexity of the medical decision making and nature of the presenting problem, the frequency of patient encounters relative to the variability of the examination between encounters, and the actual and reasonable amount of time spent by the physician on the key components relative to the amount of time typically spent on these components for the subject code.
The Documentary Guidelines provides detailed checklists for the examination of a single organ system or the general
multi-system examination.24/ Documentary Guidelines, pp. 11-42. As noted above,25/ the quantitative thresholds in the Documentary Guidelines are inapplicable to the present case, but these detailed checklists are useful as extensive enumerations of potential elements of an examination. Also, by organizing the checklists by organ systems, the Documentary Guidelines suggests which elements of an examination are relevant to particular organ systems.
The CPT contains a table for determining the complexity of medical decision making (fourth column) based on the presence of two of three factors (first through third columns). The table states:
Number of Diagnoses | Amount and/or | Risk of Compli- | Type of |
or Management | Complexity of | cations and/or | Decision- |
Options | Data To Be Reviewed | Morbidity or Mortality | making |
minimal | minimal or none | minimal | straight- forward |
limited | limited | low | low complexity |
multiple | moderate | moderate | moderate complexity |
extensive | extensive | high | high complexity |
The CPT explains that medical decision making "refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by:"
The number of possible diagnoses and/or the number of management options that must be considered
The amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed, and analyzed
The risk of significant complications, morbidity, and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s), and/or the possible management options
The CPT adds, "[c]omorbidities/underlying diseases, in and of themselves, are not considered in selecting a level of E/M services unless their presence significantly increases the complexity of the medical decision making." CPT, p. 10.
However, medical decision making does not include the interpretation of tests and studies,26/ although the interpretative reports themselves constitute part of the data to be reviewed by the provider.
The Documentary Guidelines states that the number of diagnoses or management options is based on the number and types of problems addressed during the patient encounter, the complexity of establishing a diagnosis, and the management decisions that are made by the physician. The Documentary Guidelines notes that decision making is easier for a diagnosed problem than for a problem that has been identified, but not yet diagnosed. The number and types of diagnostic tests may be indicative of the complexity of medical decision making. Problems that are resolving are less complex than those that are worsening or staying the same. The complexity of the data depends on the types of diagnostic tests that have been ordered and reviewed. Indications of the complexity of medical decision
making include discussions between the provider and the physician who ordered or interpreted the tests and the provider's personal
examination of an interpreted test. Documentary Guidelines, pp. 43 et seq.
The Documentary Guidelines states that the amount and complexity of data to be reviewed is based on the diagnostic testing ordered or reviewed. Indications of higher complexity include discussions between the provider and the physician who performed or interpreted the test and the provider's personal examination of the image, tracing, or specimen. Documentary Guidelines, p. 45.
The Documentary Guidelines states that the risk of significant complications, morbidity, or mortality is based on the risks associated with the presenting problem, the diagnostic procedures, and the possible management options. The Documentary Guidelines includes a matrix for determining the risk of complications, morbidity, or mortality. The overall risk is determined by the highest level risk in any one of three categories: presenting problem, diagnostic procedure ordered, and management options selected.27/
The other components, which are called "contributory" components, are generally not as important as the "key" components of the history, the examination, and medical decision making. The first two contributory components--counseling and coordination of care--may not be present in every patient encounter. "Counseling" is defined as "a discussion with a
patient and/or family" concerning one or more of the following: diagnostics, prognosis, risks and benefits of treatment options, instructions for follow-up, risk reduction, and patient and family education. CPT, p. 6.
The third contributory component, the nature of the presenting problem, is present in every patient encounter. As noted above, the level of history and examination must be commensurate with the nature of presenting problem.
The nature of the presenting problem and average time28/ are useful to confirm the coding of a patient encounter based on the history, the examination, and medical decision making. CPT,
p. 9. However, neither of these contributory components drives a particular LOS, so it is improper to substitute time for analysis of the history and examination components29/ or the nature of the presenting problem for analysis of the medical decision making component.
For "Initial Observation Care," the CPT provides three
codes:
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the problem(s) requiring admission to "observation status" are of low severity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the problem(s) requiring admission to "observation status" are of moderate severity.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the problem(s) requiring admission to "observation status" are of high severity.
For "Subsequent Observation Care," the CPT provides
three codes:
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the patient is stable, recovering or improving. Physicians typically spend 15 minutes at the bedside and on the patient's hospital floor or unit.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the parent's and/or family's needs.
Usually, the patient is responding inadequately to therapy or has developed a minor complication. Physicians typically spend 25 minutes at the bedside and on the patient's hospital floor or unit.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the patient is unstable or has developed a significant complication or a significant new problem. Physicians typically spend 35 minutes at the bedside and on the patient's hospital floor or unit.
For "Observation Care Discharge Services," the CPT provides one code:
For "Initial Hospital Care," the CPT provides three codes:
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of low severity. Physicians typically spend 30 minutes at the bedside and on the patient's hospital floor or unit.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 50 minutes at the bedside and on the patient's hospital floor or unit.
patient, which requires these 3 key components:
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of high severity. Physicians typically spend 70 minutes at the bedside and on the patient's hospital floor or unit.
For "Subsequent Hospital Care," the CPT provides three
codes:
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the patient is stable, recovering or improving. Physicians typically spend 15 minutes at the bedside and on the patient's hospital floor or unit.
of a patient, which requires at least 2 of these 3 key components:
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the parent's and/or family's needs.
Usually, the patient is responding inadequately to therapy or has developed a minor complication. Physicians typically spend 25 minutes at the bedside and on the patient's hospital floor or unit.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the patient is unstable or has developed a significant complication or a significant new problem. Physicians typically spend 35 minutes at the bedside and on the patient's hospital floor or unit.
For "Hospital Discharge Services," the CPT provides two
codes:
Other relevant codes are for an encounter with a new patient in an office or other outpatient setting. These codes
are:
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of moderate to high severity.
Physicians typically spend 45 minutes face-to-face with the patient and/or family.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of moderate to high severity.
Physicians typically spend 60 minutes face-to-face with the patient and/or family.
Also at issue are four codes for an encounter with an established patient in an office or other outpatient setting. These codes provide:
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of
the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of moderate to high severity.
Physicians typically spend 25 minutes face-to-face with the patient and/or family.
Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs.
Usually, the presenting problem(s) are of moderate to high severity.
Physicians typically spend 40 minutes face-to-face with the patient and/or family.
One claim involves code 93000, which provides:
Petitioner and Dr. Liebert repeatedly misinterpreted the above-stated codes in two respects. First, several of these codes require "at least" two of three components. Despite the quoted language, these are two-component codes because the CPT establishes minimum conditions for a specific reimbursement; a code requiring "at least" two components is satisfied by a patient encounter with only two components. Additionally, the
CPT does not specify the circumstances under which a two- component code might require three components.30/ Except perhaps for alerting the over-cautious reader that the satisfaction of three components does not preclude the use of a two-component code, "at least" is surplusage.
Petitioner and Dr. Liebert took a different view. They conceded that a two-component code requires only two components for coding, but read into the CPT the requirement of some performance of the third component in order for a patient encounter to satisfy a two-component code. Pet.'s proposed recommended order, ¶ 44.
Petitioner's proposed recommended order cites as authority CPT Appendix C31/--more particularly, a disclaimer at the start of Appendix C. As cited by Petitioner's proposed recommended order, the disclaimer states: "The three components (history, examination, and medical decision making) must be met and documented in the medical record to report a particular level of service." CPT, p. 562. This would be an odd location for language to override the clear provisions of the two-component codes themselves. In any event, the modest role intended for this passage is revealed by the disclaimer immediately preceding
it:
Of utmost importance is that these clinical examples are just that: examples. A particular patient encounter, depending on
the specific circumstances, must be judged by the services provided by the physician for that particular patient. Simply because the patient's complaints, symptoms, or diagnoses match those of a particular clinical example does not automatically assign that patient encounter to that particular level of service.
CPT, p. 562.32/
Petitioner's argument that two-component codes require some activity in the third component is not only unsupported in the CPT, but makes no practical sense. Petitioner's argument requires a lower level of history or examination33/ below problem focused because, if its argument impliedly requires a problem focused history or examination, the argument plainly is reading the two-component language in the codes to require three components. In practice, though, there is no lower level of history or examination than problem focused because it is impossible to take any history without also obtaining a chief complaint and a brief history of the problem, and it is impossible to conduct any examination without conducting a limited examination of the affected body areas or organ systems.
Also, Petitioner and Dr. Liebert repeatedly misinterpreted codes 99238 and 99239. As cited above, these codes are succinct and rely solely on time spent on "discharge day management." The general information for this subsubcategory states that these codes "are used to report the total duration of
time spent by a physician for final hospital discharge of a patient." CPT, p. 16. These codes "include, as appropriate, final examination of the patient, discussion of the hospital stay, . . . instructions for continuing care to all relevant caregivers, and preparation of discharge records, prescriptions and referral forms." Id. Seizing upon illustrative language in the general information, Petitioner and Dr. Liebert incorrectly denied claims for these codes when discharge services did not include the services provided as examples. But, as two-component codes require only two components, so 30 minutes or less in any discharge services satisfies code 99238, and more than 30 minutes in any discharge services satisfies code 99239.
Recipients and claims are identified by number. For example, Claim 1-1 is the first claim submitted by Respondent within the Audit Period on account of Recipient 1.
Respondent billed Claim 1-1, for November 17, 2011, under code 99220. Petitioner denied the claim for insufficient documentation34/ and illegible documentation. At hearing, Respondent conceded the denial of Claim 1-1,35/ so Petitioner overpaid Respondent $78.10.
Respondent billed Claim 2-1, for January 30, 2013, under code 99205. Petitioner downcoded the claim to code 99203.
Claim 2-1 is for an office visit. For patient encounters in his office, Respondent used a software program
called Practice Fusion, which facilitated the production of typed notes, rather than the handwritten notes that document Respondent's patient encounters in a hospital.36/
Dr. Liebert testified that the examination was comprehensive, the history was detailed, and the medical decision making was moderately complex. Respondent testified that the examination and history were comprehensive and the medical decision making was highly complex.
Recipient 2 was a 36-year-old male who visited Respondent's office as a new patient. His major presenting problem was elevated blood pressure, although he also presented with a cyst on his forehead, for which Respondent referred him to a dermatologist. Contrary to the testimony of Dr. Liebert and Respondent, the history was neither detailed nor comprehensive; it was no more than expanded problem focused.
The note states that Recipient 2 has high blood pressure that is asymptomatic. Recipient 2 reported changes in his visual acuity, occasional dizziness and lightheadedness, which he attributed to his eyeglasses and problems with his vision. The remainder of the software-generated note documents what Respondent did not explore:
Rest of 12 systems reviewed and no changes. Allergies: Not known. Developmental history: Not recorded. Family health history: Noncontributory. Major events: Arterial Hypertension, Vision problems.
Nutrition history: Not recorded. Ongoing medical problems: Not recorded. Preventive care: Not recorded. Social history: Denies smoking, alcohol nor drug abuse.
"No changes" has little meaning for a new patient, such as Recipient 2, due to the absence of any documented baseline history. So, the useful history captured by this note clearly pertains to the integumentary, eyes, and cardiovascular systems and possibly pertains to the neurological and allergic/immunologic systems. Whether the chief complaint were the hypertension or the cyst, it is a stretch to find even a brief history of the problem, such as how long the patient has had the high blood pressure or cyst and how fast the blood pressure has elevated or how fast the cyst has grown. Clearly, though, there was no extended history of the present illness nor a PFSH, so the history could not qualify as detailed.
Both physicians agree that the examination was comprehensive, but, again assigning as much weight as possible to their testimony, it is impossible to find that the examination was more than detailed. The examination was neither a general multi-system examination nor a comprehensive examination of a single organ system. On its face, the examination lacked the depth of a comprehensive examination of the myriad elements that constitute a single organ system. The examination did not constitute a general multi-system examination, as it touched on
only three of seven body areas (counting the heart as the chest) and of five of 11 organ systems (counting the abdomen as gastrointestinal and not counting the ear due to the omission of the nose, mouth, and throat, which are part of the organ system that includes the ear). For vitals, the note shows blood pressure of 167/91 and a pulse of 64, but no temperature or respiration rate. Treating the examination as detailed also requires considerable deference to Respondent's clinical judgment over the minor nature of the presenting problems.
The medical decision making was no more than straightforward. The number of diagnostic or management options, especially after treatment of the cyst was referred to another physician, was minimal, the amount or complexity of data was minimal, and the risk of complications was no greater than low, as later confirmed by the lab reports that revealed nearly entirely normal results. Because medical decision making is driven by the two lowest rankings among these three factors, the medical decision making here was straightforward.
Claim 2-1 should have been billed at code 99202, so Petitioner overpaid Respondent the difference between codes 99205 and 99202.
As noted above, Respondent conceded Petitioner's downcoding of Claim 3-1 from code 99223 to code 99222, so Petitioner overpaid Respondent $31.71.
Respondent billed Claims 4-1, 4-2, 4-3, and 4-4 for March 3 through 6, 2013, under codes 99222, 99231, 99232, and 99238, respectively. Petitioner allowed Claim 4-2, but denied the remaining claims for insufficient documentation. At hearing, Respondent conceded the denial of Claim 4-1, so Petitioner overpaid Respondent $158.58.
Recipient 4 presented at the hospital with a displaced fracture of his left elbow following a fall. Respondent cleared the patient for surgery, which was performed by another physician on March 4.
For Claim 4-3, which is on the day after the surgery, Dr. Liebert testified that the history was problem focused, but neither the examination nor medical decision making was documented. Respondent testified the history was problem focused and that he conducted an examination, but it was not documented. Respondent testified that the medical decision making was moderately complicated.
The history was problem focused. The administrative law judge is unable to credit Respondent's testimony of a routine examination conducted five years earlier. The notes do not support much in the way of medical decision making, except that the patient was suffering from hypoglycemia, and Respondent prescribed him a "low dose" of insulin. The medical decision making was straightforward based on a minimal number of
diagnostic or management options, a minimal amount or complexity of data, and a minimal risk of complications following routine surgery.
Claim 4-3 should have been billed at code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231.
For Claim 4-4, on March 6, Respondent failed to perform even "30 minutes or less" of discharge services because the patient was discharged late in the evening of March 7, not
March 6, as billed, so Petitioner overpaid Respondent $80.79.
Respondent billed Claims 5-1 and 5-2 for December 4 and 5, 2012, under codes 99223 and 99233, respectively. Petitioner denied the first claim for insufficient documentation and downcoded the second claim to code 99231.
For Claim 5-1, Dr. Liebert testified that there was no note for this patient encounter. Respondent testified that he initially encountered Recipient 5 on December 4 at 11:00 p.m., but admitted that no note documents this encounter. There are no medical records evidencing a patient encounter with Respondent on December 4. Additionally, other records document that
Recipient 5 was admitted on December 3, so a code for Initial Hospital Care on December 4 would not apply. Petitioner therefore overpaid Respondent $102.37 for Claim 5-1.
For Claim 5-2, Dr. Liebert testified that the history and examination were problem focused. Respondent testified that the history was expanded problem focused, the examination was problem focused, and the medical decision making was moderately complex.
Recipient 5 delivered a baby on December 3, and, post- delivery, had presented with hypertension, possibly indicative of pre-eclampsia. Respondent's note on December 5 at 2:00 a.m. recounts the chief complaint and brief history of the problem. The note is difficult to follow, but appears to include a problem pertinent system review. However, the note clearly does not include either an extended history of the present problem or a review of a limited number of additional systems, so the history was expanded problem focused, as Dr. Liebert testified.
The note documents vital signs, including blood pressure, and a brief examination of the neurological system, as well as other systems, but clearly does not document an extended examination of these systems, so the examination was expanded problem focused.
Regardless of the complexity of the medical decision making, the patient encounter on December 5 should have been billed at code 99232, so Petitioner overpaid Respondent the difference between codes 99233 and 99232 for Claim 5-2.
Respondent billed Claims 6-1 through 6-5 for January 23 through 28, 2012, omitting only January 24. Respectively, Respondent billed these patient encounters under codes 99223, 99233, 99232, 99232, and 99238. Petitioner allowed the first two claims, but denied the remaining claims for insufficient documentation.
For Claim 6-3, on January 26, Dr. Liebert testified that there was no evidence of an examination or medical decision making, only a history. Respondent admitted that he did not conduct an examination, but testified that the history was problem focused, and the medical decision making was of low complexity based on a limited number of diagnostic or management options, a limited amount or complexity of data, and a high risk of complications.
Recipient 6, a 58-year-old male, was admitted to the hospital with three diagnoses: syncope (loss of consciousness associated with low blood pressure), low blood sugar, and closed head trauma from a fall at a train station. By January 25, imaging studies had been unremarkable, but two other conditions had been identified: uncontrolled diabetes and essential hypertension. Although the syncope had alleviated, the blood sugar had elevated and was uncontrolled. Reimbursed for a patient encounter at code 99233 for January 25, Respondent determined that Recipient 6 had improved sufficiently to be
transferred from the intensive care unit to the "step-down unit," which resembles what other hospitals refer to as a progressive care unit.
Respondent's medical note for January 26, at 9:00 p.m., is brief. The note mentions that the patient had had elevated blood sugar during the day. There is a comment about the patient's stool. These notations document a problem focused history because they cover the chief complaint and a (very) brief history of the problem.
By this time, a consulting endocrinologist was responsible for treating the patient's problem with blood sugar. The other original problems had been addressed in terms of the closed head trauma and syncope, and there is no indication that Respondent was addressing the high blood pressure. Dr. Liebert is thus correct; there is no indication of any medical decision making by Respondent on January 26. Petitioner therefore overpaid Respondent $36.61 for Claim 6-3.
For Claim 6-4, on the following day, Recipient 6 remained clinically stable and was ready for discharge. Respondent admitted that he performed no examination, but testified that the history was problem focused, and the medical decision making was of low complexity. Dr. Liebert testified that Respondent performed no medical decision making. Again, Dr. Liebert is correct; there is no indication of any medical
decision making by Respondent on January 27. Petitioner therefore overpaid Respondent $36.61 for Claim 6-4.
For Claim 6-5, on the discharge date of January 28, Respondent performed no more than 30 minutes of discharge services, including reconciling medications and counseling the patient about his newly discovered diabetes. Claim 6-5 was thus properly billed as code 99238, so Petitioner did not overpay Respondent.
Respondent billed Claims 7-1 through 7-5 for June 20 through 24, 2013, respectively. Respondent billed these patient encounters under 99222, 99233, 99232, 99232, and 99238, respectively. Petitioner allowed each claim except Claim 7-5 for code 99238 on the date of discharge.
Dr. Liebert complained that the medical records failed to document any final examination or discussion of the hospital stay; he added that the records were not a note, but an order. However, the order documents no more than 30 minutes of discharge services, including the reconciling of medications and directing of the patient to make an appointment for followup in one week. Claim 7-5 was thus properly billed as code 99238, so Petitioner did not overpay Respondent.
Respondent billed Claims 8-1 through 8-5 for August 25 through 29, 2012, respectively. Respondent billed these patient encounters under 99223, 99233, 99233, 99232, and 99238,
respectively. Petitioner allowed each claim except Claim 8-5 for code 99238 on the date of discharge.
This is the same situation as Claim 7-5. On the date of discharge, Respondent performed no more than 30 minutes of discharge services, including reconciling medications, so
Claim 8-5 was properly billed as code 99238, and Petitioner did not overpay Respondent.
Respondent billed Claims 9-1 through 9-6 for November 2 and 3 and November 7 through 10, 2011, respectively. Respondent billed these patient encounters under 99223, 99232, 99231, 99231, 99231, and 99238, respectively. Petitioner denied each claim for insufficient documentation.
Recipient 9 was admitted to the hospital on November 2 with a hypertensive emergency and intracerebral bleeding. As noted above, Respondent conceded Petitioner's denial of Claim
9-1, so Petitioner overpaid Respondent $96.27.
For Claim 9-2, Dr. Liebert found evidence of only a problem focused history. He testified that there was no evidence of an examination or medical decision making. Respondent claimed that the history was expanded problem focused, and the medical decision making was moderately complex. The medical records support Dr. Liebert's findings, so Petitioner overpaid Respondent
$36.61 for Claim 9-2.
For Claim 9-3, on November 7, Dr. Liebert testified that he found a problem focused history, no examination, and straightforward medical decision making. Respondent's note does not indicate what he may have reviewed that qualifies as history. The note describes the examination as "no [changes]," but this comment has little meaning because Respondent had not previously conducted an examination of the patient. Missing two components,
Claim 9-3 does not qualify for reimbursement under the
two-component codes under the Subsequent Hospital Care group. Petitioner therefore overpaid Respondent $20.36 for Claim 9-3.
The situation is precisely the same for Claims 9-4 and 9-5 as it is for Claim 9-3, so Petitioner overpaid Respondent
$20.36 for Claim 9-4 and $20.36 for Claim 9-5.
For Claim 9-6, on November 10, Respondent performed discharge services of no more than 30 minutes, including reconciling medications and counseling the patient about what she needed to do to control her blood pressure, so Claim 9-6 was properly billed as code 99238, and Petitioner did not overpay Respondent.
Respondent billed Claims 10-1 through 10-5 for November 25 through 29, 2011, respectively. Respondent billed these patient encounters under 99223, 99233, 99232, 99231, and 99239, respectively. Petitioner allowed Claim 10-1, downcoded Claim 10-2 to code 99231, and denied the remaining claims for
insufficient documentation; however, during the hearing,
Dr. Liebert changed his opinion and testified that Claim 10-5 should be downcoded to code 99238.
On November 25, Recipient 10 was admitted to the hospital complaining of abdominal pain, nausea, and vomiting. Her history included a gastric bypass.
For Claim 10-2, Respondent conceded the downcoding, so Petitioner overpaid Respondent $78.10.
For Claim 10-3, on November 27, Dr. Liebert testified that the history was problem focused, and the medical decision making was of low complexity, but he found no documentation of an examination. These findings are correct. The note shows that the patient was feeling better, afebrile, and without chest pain. The history included several more items, but it is unnecessary to consider them, as the history was at least problem focused, and it would not matter if it were higher: as Respondent conceded, there was no examination, and the medical decision making was straightforward due to a minimal risk of complications and minimal number of diagnostic or management options, if not also a minimal amount or complexity of data. The straightforward medical decision making coupled with a history of any level generates a code 99231. During his testimony, Respondent conceded that he should have billed Claim 10-3 as a code 99231,
not a code 99232. Petitioner therefore overpaid Respondent the difference between a code 99232 and a code 99231 for Claim 10-3.
For Claim 10-4, on November 28, Dr. Liebert testified that the history was problem focused, but there was no documentation of an examination or any medical decision making. From Respondent's testimony, which noted that the reports and studies had been normal and the patient was feeling well, it is impossible to find medical necessity for continued hospitalization. At any rate, there was no examination and no medical decision making, so Petitioner overpaid Respondent $20.36 for Claim 10-4.
For Claim 10-5, on November 29, Dr. Liebert properly changed his opinion. Code 99238 was appropriate because Respondent performed discharge services of no more than 30 minutes. At hearing, Respondent conceded the downcoding. Petitioner therefore overpaid Respondent the difference between codes 99239 and 99238.
Respondent billed Claims 11-1 through 11-8 for
April 29 through 30, May 2 through 3, May 5, May 7 through May 8, and May 11 2011, respectively. Respondent billed the initial patient encounter under code 99223 and the remaining encounters under code 99232. Petitioner denied all of the claims for insufficient documentation. As noted above, Respondent conceded Claim 11-1, so Petitioner overpaid Respondent $96.37.
Recipient 11, a 47-year-old female, was admitted to the hospital due to uncontrolled hypertension, chest pain, and weakness on the left side of her body. She also suffered from uncontrolled diabetes, cerebellar ataxia associated with multiple sclerosis, abdominal pain, and a migraine headache.
Dr. Liebert's characterization of the patient encounters for Claims 11-2 through 11-8 is credited over the contrary testimony of Respondent. Dr. Liebert found no evidence of any examinations by Respondent. For Claim 11-2, the history was problem focused, and the medical decision making was moderately complex, which generates a code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. For Claim 11-3, the history was expanded problem focused, and the medical decision making was moderately complex, which generates a code 99232, so Respondent appropriately billed Claim 11-3, and Petitioner did not overpay Respondent. For Claim 11-4, the history was expanded problem focused, and the medical decision making was of low complexity, which generates a code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. For Claim 11-5, the history was problem focused, and the medical decision making was of low complexity, which generates a code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. For Claim 11-6, the history was expanded problem focused, and the medical decision
making was of low complexity, which generates a code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. For Claim 11-7, the history was expanded problem focused, and the medical decision making was of low complexity, which generates a code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. And for Claim
11-8, the history was expanded problem focused, and the medical decision making was moderately complex, which generates a
code 99232, so Respondent correctly billed Claim 11-8, and Petitioner did not overpay Respondent.
Respondent billed Claims 12-1 through 12-12 for January 20, 21, 23, 24, 26, 27, and 30, February 21, and March 6 through 9, 2013, respectively. Respondent billed these patient encounters under codes 99223, 99233, 99232, 99231, 99232, 99239, 99215, 99214, 99223, 99233, 99232, and 99238, respectively. Petitioner allowed Claims 12-8 and 12-9, denied Claims 12-1 and 12-2 for illegibility, denied Claims 12-3, 12-4, and 12-12 for insufficient documentation, and downcoded the remaining claims, as indicated below.
On January 19, 2013, Recipient 12 arrived at the hospital with a recent onset of shortness of breath and coughing with blood and was admitted as an inpatient on the following day. Respondent testified to an extensive examination, but the note does not bear this out. Instead, it appears that Respondent or a
nurse took the vital signs of the patient. Otherwise, no other evidence of an examination is present in the note. Likewise, a legible word or two in the note touches on the patient's history of congestive heart failure. But, on the whole, this sketchy, difficult-to-read note cannot earn Respondent more than a problem focused history and problem focused examination. Because the lowest code for Initial Hospital Care--code 99221--requires at least a detailed history and a detailed examination, Petitioner properly denied Claim 12-1, so Petitioner overpaid Respondent
$231.07.
Recipient 12 had received a pacemaker several years earlier. On January 20, a cardiologist assumed responsibility for treating Recipient 12's congestive heart failure.
For Claim 12-2, on January 21, Respondent's note likewise reveals the patient's vital signs. There appears to be a section marked in handwriting, "PE," for "physical examination," but not a word following this notation is legible. Immediately following Respondent's handwritten note is an easy- to-read record of a physical examination taken on the same day by a physician whom Respondent describes as his "medical assistant." Respondent testified that he "reviewed" this note, but it is clear that he did not conduct the examination, so his examination for January 21 did not rise above problem focused.
There is nothing legible in Respondent's note that suggests a history. From other records, it appears that Respondent attended to a neck mass, ordering a scan and a biopsy, so the medical decision making was at least straightforward. The problem focused examination and straightforward medical decision making generate a code 99231, so Petitioner overpaid Respondent the difference between codes 99233 and 99231 for Claim 12-2.
For Claim 12-3, on January 23, Respondent conceded that there was no documentation of an examination. He testified that he was still awaiting the results of the biopsy, but the history included the results of the CT scan of the neck. The history was expanded problem focused, but the medical decision making remained straightforward, so as to generate a code 99231. Petitioner therefore overpaid Respondent the difference between codes 99232 and 99231 for Claim 12-3.
For Claim 12-4, for January 24, Respondent again conceded that there was no documentation of an examination. For history, he claimed that he reviewed three conditions: the neck mass, congestive heart failure, and pneumonia. But these conditions describe the nature of the presenting problem, not the history. There appears to have been no history for this patient encounter, so Petitioner overpaid Respondent $44.13 for Claim 12-4.
For Claim 12-5, on January 26, Dr. Liebert conceded that the documentation justifies a code 99231 based on a problem focused history, problem focused examination, and straightforward medical decision making. Rather than focus on the history and examination, Respondent focused on the presenting problems to support his claim of medical decision making of moderate complexity, but the number of diagnostic or management options was minimal, the amount or complexity of data was minimal, and the risk of complications was minimal. Petitioner thus overpaid Respondent $36.30 for Claim 12-5.
For Claim 12-6, for January 27, Respondent performed no more than 30 minutes of discharge services, including writing prescriptions, conducting a patient conference to instruct him to make a followup appointment, and reconciling medications. At this point, the biopsy report had not been issued, so the conference with the patient would not have taken long.
Petitioner therefore overpaid Respondent $38.86 for Claim 12-6.
For Claim 12-7, for January 30, Recipient 12 visited Respondent's office as an established patient. The Practice Fusion note documents a history and an examination. Respondent obtained the patient's vital signs, but not his temperature and respiration rate. The history records no chest pain, no shortness of breath, and no cough, but unpersuasively states that Respondent reviewed the "rest of 12 systems." The note adds that
the PFSH is unchanged, although from what is unclear. On its face, the results of the examination of numerous body areas were unremarkable.
The purpose of the January 30 office visit was for Respondent to tell the patient that the biopsy report showed a suspected carcinoma and to refer him to a specialist at another hospital. The automated note would seem to signal a reversal in Respondent's customary hospital practice, where he routinely took a low-level history, but sometimes not an examination. For this office visit, except for the claim of a review of the "rest of 12 systems," which is discredited, the history is fairly typical, but the examination is uncharacteristically in-depth, especially given the limited purpose of the visit. Of course, Recipient 12 had had little opportunity to have developed other problems; he had completed an eight-day hospitalization only three days earlier.
On these facts, it is more likely than not that, in keeping with his practice, Respondent conducted a low-level examination, not a high-level examination, as documented by his automated note. The examination was limited to the neck mass and perhaps elements of the cardiovascular and respiratory organ systems and did not extend to such obscure findings, as reported, that the nose contained normal turbinates and the acuity of the patient's hearing was within normal limits.
For Claim 12-7, Dr. Liebert testified that the history was expanded problem focused and the examination was comprehensive. His testimony on the history is credited, but not his testimony on the examination, which, as detailed above, does not rise above expanded problem focused.
For Claim 12-7, Dr. Liebert testified that the medical decision making was moderately complex. The delivery of a biopsy report and referral to a specialist do not require much, if any, medical decision making. To assign as much weight as possible to Dr. Liebert's generous characterization of the medical decision making, it can be characterized as of low complexity.
Supporting this finding is Respondent's testimony. To the extent that Respondent sought to import the complexity of medical decision making from the cancerous neck mass, the testimony is discredited due to the referral to a specialist. However, Respondent testified also that the "big issue" was when to resume anticoagulants, which was within his professional responsibility, although there is no evidence that he had more than a limited number of data or management options or that the available data was more than limited in amount or complexity.
An expanded problem focused history, expanded problem focused examination, and medical decision making of low complexity generate a code 99213, so Petitioner overpaid
Respondent the difference between code 99215 and 99213 for Claim 12-7.
Claims 12-10, 12-11, and 12-12 for March 7 through 9, 2013, respectively, are for the final three days of a hospitalization that started on March 6 with complaints of shortness of breath and chest pain.
For Claim 12-10, Dr. Liebert testified that the history and examination were problem focused, and the medical decision making was of moderate complexity. Respondent testified that the history and examination were expanded problem focused. It is hard to read Respondent's note, but it appears to contain no more than a few words of history and examination, so
Dr. Liebert's testimony is credited. Claim 12-10 should have been billed at code 99231, so Petitioner overpaid Respondent
$72.14.
For Claim 12-11, Dr. Liebert testified that the history and examination were problem focused, and the medical decision making was of low complexity. Arguing for an expanded problem focused history and examination, Respondent admitted that Recipient 12 was feeling better, as evidenced by his discharge on the following day. Dr. Liebert's testimony is credited, so the claim should have been billed at code 99231, and Petitioner overpaid Respondent $36.30.
For Claim 12-12, Respondent provided no more than 30 minutes of discharge services, including reconciling medications, and properly billed Claim 12-12 as code 99238, so Petitioner did not overpay Respondent.
Respondent billed Claims 14-1 through 14-3 for September 21 through 23, 2013, respectively. Respondent billed these patient encounters under codes 99223, 99233, and 99239, respectively. Petitioner downcoded the claims to codes 99222, 99231, and 99238, respectively.
Recipient 14 was admitted to the hospital with complaints of low blood sugar, dizziness, blurred vision, weakness, shortness of breath, and fever. A new problem was the onset of diabetes. For Claim 14-1, Dr. Liebert noted that the more extensive history and examination taken on September 21 were done by the emergency room physician, not Respondent. As discussed above, Respondent may be credited with history not taken by him, but not an examination. Thus, as Dr. Liebert testified, the history was comprehensive, but the examination conducted by Respondent did not rise above problem focused. It appears from the medical records that Respondent was aware of the diabetes from September 21, so the number of management options was multiple, the amount or complexity of data was limited, and the risk of complications was moderate, confirming Dr. Liebert's testimony that the medical decision making was of moderate
complexity. Because the lowest code under Initial Hospital Care, which requires three components, requires at least a detailed history and examination and straightforward medical decision making, Claim 14-1 is not entitled to reimbursement due to the low level examination. Petitioner therefore overpaid Respondent
$231.07 for Claim 14-1.
For Claim 14-2, the examination was a limited examination of the cardiovascular, respiratory, gastrointestinal, and neurologic organ systems, which was expanded problem focused. However, the history was, as described by Dr. Liebert, only problem focused, and, as Respondent conceded, the medical decision making was of low complexity, so Claim 14-2 should have been billed at code 99231, and Petitioner overpaid Respondent
$72.14.
For Claim 14-3, Respondent performed no more than 30 minutes of discharge services, including reconciling medications and writing a prescription for diabetes medications, so this claim should be billed at code 99238. During the hearing, Respondent conceded the downcoding. Petitioner therefore overpaid Respondent $38.86 for Claim 14-3.
Respondent billed Claims 15-1 through 15-7 for February 9 through 15, 2014, respectively. Respondent billed these patient encounters under codes 99223, 99233, 99232, 99233, 99231, 99231, and 99238, respectively. Petitioner allowed
Claim 15-7, downcoded Claims 15-1 and 15-2 to codes 99222 and 99232, respectively, and denied the remaining claims for insufficient documentation. As noted above, Respondent conceded in the Stipulation the denial of Claims 15-3, 15-5, and 15-6, so Petitioner overpaid Respondent $36.88, $20.05, and $20.05, respectively, on these three claims.
Recipient 15 was admitted into the hospital complaining of chest pain. For Claim 15-1, evidently crediting Respondent's testimony that he performed the history and examination signed by the emergency room physician, Dr. Liebert testified that the history and examination were comprehensive and the medical decision making was moderately complex. Respondent's testimony is identical. This testimony is credited. Claim 15-1 should have been billed at code 99222, so Petitioner overpaid Respondent $31.31.
For Claim 15-2, Dr. Liebert testified that the history was expanded problem focused, the examination was problem focused, and the medical decision making was moderately complex, so that the claim should have been billed at code 99232. Again, Dr. Liebert seems to be crediting Respondent for a history taken by another physician. More clearly, Respondent's brief note does not describe any physical examination, but a moderate amount of data was developed by lab reports and management options were multiple, so Claim 15-2 satisfied the two-component code 99232.
During the hearing, Respondent conceded the downcoding. Petitioner therefore overpaid Respondent $16.30 for Claim 15-2.
For Claim 15-4, Dr. Liebert testified that the history was problem focused, no examination took place, and no medical decision making took place. Respondent admitted that he did not conduct an examination, but claimed that he reviewed a problem pertinent system in connection with a new chief complaint--pain in the patient's left leg that was determined to be deep vein thrombosis. Respondent is correct; the history was expanded problem focused. Respondent testified that the medical decision making was of low complexity due to a limited number of diagnostic or management options, a minimal amount or complexity of data, and a high risk of complications. Respondent's testimony is credited as to the medical decision making, so the claim should have been billed at code 99231. Petitioner therefore overpaid Respondent the difference between codes 99233 and 99231 for Claim 15-4.
Respondent billed Claims 16-1 and 16-2 for
December 31, 2012, and January 1, 2013, respectively. Respondent billed these patient encounters under codes 99222 and 99232, respectively. Petitioner downcoded Claim 16-1 to code 99221 and denied Claim 16-2 for insufficient documentation.
Recipient 16 presented at the hospital with a fractured left forearm from a motor vehicle collision.
Respondent testified that he would have done the examination himself due to the necessity of clearing the patient for surgery under general anesthesia, but the more extensive examination is signed, as is typical, by an emergency room physician; Respondent's testimony is rejected. As is often the case, Respondent's note contains only a brief history consisting of a chief complaint and brief history of the problem and does not mention an examination. As noted above, the Initial Hospital Care codes are three-component codes, so the omission of an examination precludes any reimbursement. Petitioner therefore overpaid Respondent $71.01 for Claim 16-1.
For Claim 16-2, Respondent's note discloses a problem focused history and no examination. Dr. Liebert testified that he found no evidence of medical decision making. Respondent testified that the surgery had been deferred to this day, and the patient would remain hospitalized until the following day for pain management. Dr. Liebert is correct. Even though the Subsequent Hospital Care codes are two-component codes, there was no examination or medical decision making on this DOS, so Petitioner overpaid Respondent $80.43 for Claim 16-2.
Respondent billed Claim 17-1, for April 18, 2012, under code 99223. Petitioner denied Claim 17-1 for insufficient documentation.
Recipient 17 was admitted to the hospital on April 16 and seen by Respondent, as a consultant, on April 18. As
Dr. Liebert noted, the note may support a billing under Initial Inpatient Consultation, but not under Initial Hospital Care. The CPT requires that "initial inpatient encounters by physicians other than the admitting physician" be billed under Initial Inpatient Consultation (codes 99251 through 99255) or Subsequent Hospital Care (codes 99231 through 99233). CPT, p. 14.
Respondent testified that Recipient 17 had been admitted for mental health issues, and Respondent served only as a medical consultant. Respondent's note includes a reason for the consultation, but it is illegible. Recipient 17 was an alcoholic and presented with a productive cough.
Respondent took an extensive history that includes PFSH. It is difficult to find an extended history of the present illness, but the history qualifies as detailed. Respondent also conducted an extensive examination that appeared to cover the affected body area or organ system and other related organ systems, although in the form of a limited, not extended, examination, so as to qualify for expanded problem focused. Respondent had a minimal number of diagnostic or management options, minimal amount or complexity of data, and minimal risks of complication, so the medical decision making was straightforward. Claim 17-1 should have been billed at code
99252. Because Petitioner has denied Claim 17-1, Petitioner must recalculate the overpayment based on the reimbursement amounts for the billed code 99223 and the correct code 99252.
Respondent billed Claim 18-1, for May 16, 2012, under code 99223. Petitioner denied the claim for insufficient documentation. At hearing, Respondent conceded the denial of Claim 18-1, so Petitioner overpaid Respondent $96.27.
Respondent billed Claims 19-1 through 19-3 for July 30 through August 1, 2012, respectively. Respondent billed these patient encounters under codes 99220, 99225, and 99217, respectively. Petitioner allowed Claims 19-1 and 19-3, but downcoded Claim 19-2 to code 99224.
Recipient 19 presented at the hospital on July 30 complaining of abdominal pain after the removal of her gallbladder. For Claim 19-2, Dr. Liebert testified that the history and examination were problem focused, and the medical decision making was straightforward. Respondent testified that the medical decision making was of low complexity. For
code 99224, medical decision making that is straightforward or low in complexity supports code 99224. Respondent testified that the history and examination were extended problem focused.
The history was that the patient's pain was "stable," and had not had a bowel movement, but she did not have a headache. The examination was that the patient's abdomen was
soft, but with diffused tenderness; her lungs were clear; and her heart rate was rhythmic. Also, the patient was not feverish, although other vitals were missing. Because it included a problem pertinent system review--i.e., the bowels--the history was expanded problem focused. Because it included a limited exam of other related organ systems--i.e., respiratory and cardiovascular--the examination was expanded problem focused.
Claim 19-2 was therefore properly billed at code 99225, so Petitioner did not overpay Respondent.
Respondent billed Claims 20-1 through 20-3 for
January 5 through 7, 2014, respectively. Respondent billed these
patient encounters under codes 99223, 99232, and 99238, respectively. Petitioner allowed Claims 20-1 and 20-3 and denied Claim 20-2 for insufficient documentation.
Recipient 20 presented at the hospital on January 5 complaining of abdominal pain after the removal of her gallbladder. For Claim 20-2, Respondent's note reflects a problem focused history, but neither an examination nor medical decision making. Respondent testified that he had ordered lab reports in the morning and was awaiting the results, so his plan was merely to continue present treatment. He admitted that there had been no examination, but testified, unpersuasively, that the medical decision making was straightforward. Lacking two components, the patient encounter cannot be billed under
Subsequent Hospital Care, so Petitioner overpaid Respondent
$34.88 for Claim 20-2.
Respondent billed Claims 21-1 through 21-4 for February 18, 19, 22, and 23, 2011, respectively. Respondent billed these patient encounters under codes 99222, 99232, 99231, 99238, respectively. Petitioner allowed Claim 21-1 and denied the remaining claims for insufficient documentation.
Recipient 21 was admitted to the hospital presenting with a recent onset of diabetes, elevated blood sugar, and hypertension. She was placed on an insulin drip. For
Claim 21-2, Dr. Liebert testified that there was no documented examination, and the history was expanded problem focused. He added that the medical decision making was of low complexity. Respondent admitted that he had performed no examination, but claimed that the history was detailed, and the medical decision making was highly complex.
The medical decision making was of low complexity.
Although the risk of complications from uncontrolled diabetes was moderate or high, there were a limited number of diagnostic or management options and a limited amount or complexity of data.
The history described in Respondent's note for February 19, which contains only 11 lines, was not more than expanded problem focused. The note does not contain an extended history of the present problem, a review of a limited number of
systems in addition to the problem pertinent system, or a PFSH. These findings support a code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231 for Claim 20-2.
For Claim 21-3, for February 22, 2011, Dr. Liebert testified that there was no documented examination, the history was problem focused, and the medical decision making was of low complexity. Respondent agreed, and their testimony is credited. Therefore, Respondent properly billed Claim 21-3 as code 99231, and Petitioner did not overpay Respondent.
For Claim 21-4, Respondent performed no more than 30 minutes of discharge services, including writing a prescription and reconciling medications. Respondent properly billed
Claim 21-4 as code 99238, so Petitioner did not overpay Respondent.
Respondent billed Claims 22-1 and 22-2 for November 17 and 18, 2011, respectively. Respondent billed these patient encounters under codes 99220 and 99217, respectively. Petitioner allowed Claim 22-1, but denied Claim 22-2 for insufficient documentation.
Recipient 22 was admitted on observation status on November 17 complaining of chest pain. Claim 22-2 is for Respondent's discharge services, including reconciling
medications. Respondent therefore properly billed Claim 22-2 as code 99217, and Petitioner did not overpay Respondent.
Respondent billed Claims 23-1 through 23-3 for February 17 through 19, 2011, respectively. Respondent billed these patient encounters under codes 99219, 99214, and 99217, respectively. Petitioner allowed Claim 23-1 and denied Claims 23-2 and 23-3 for insufficient documentation.
Respondent misbilled Claim 23-2 under an Office or Other Outpatient Services code when clearly Recipient 23 had been admitted to observation status, as reflected by the medical records and codes billed by Claims 23-1 and 23-3. The issue is whether Claim 23-2 supports a code within the Subsequent Observation Care subcategory of Hospital Observation Services.
Dr. Liebert testified that the documentation of the patient encounter on February 18 reflected no examination, a problem focused history, and straightforward medical decision making. Respondent did not claim to have performed an examination and conceded that the medical decision making was of low complexity, which is treated the same as straightforward medical decision making for this group of codes. Respondent testified that the history was expanded problem focused, but, again, this makes no difference because the proper code is driven by the lower of the history or medical decision making, and medical decision making that is straightforward or low supports
only the lowest of the codes in this two-component group. This patient encounter should have been billed at code 99224.
Petitioner therefore should adjust the reimbursement for Claim 23-2 for a code 99224, not the billed code 99214.
Recipient 23 was discharged on February 19, and Respondent performed discharge services, including a face-to-face interview and the delivery of prescriptions. Claim 23-3 was properly billed as code 99217, and Petitioner did not overpay Respondent.
Respondent billed Claims 25-1 through 25-4 for March 31 and April 2, 4, and 5, 2012, respectively. Respondent
billed these patient encounters under code 99223 for Claim 25-1 and code 99233 for the remaining claims. Petitioner allowed Claim 25-1, but downcoded Claims 25-2 and 25-4 to code 99231 and
Claim 25-3 to code 99232.
Recipient 25 was admitted to the hospital on March 31 with chief complaints of shortness of breath and respiratory insufficiency associated with chronic obstructive pulmonary disease. For Claim 25-2, Dr. Liebert testified that the examination and history were problem focused, and the medical decision making was moderately complex. Respondent testified that the history and examination were extended problem focused and the decision making was of low complexity. Covering the cardiovascular, respiratory, musculoskeletal, and neurologic or
psychiatric organ systems, the examination constituted a limited examination of the affected organ systems plus other related organ systems, so it was expanded problem focused. The history qualified as expanded problem focused because Respondent reviewed the problem pertinent system--that is, the respiratory system.
The medical decision making is harder to assess.
On March 31, at Respondent's direction, a physician at the University of Miami examined Recipient 25's pulmonary function. Later, a psychiatrist also provided a consultation due to the patient's depression. Pulmonary consultative care continued, but psychiatric consultative care appears not to have continued. If the pulmonary and psychiatric components were eliminated, Recipient 25 presented with uncomplicated, relatively minor problems, mainly hypertension, morbid obesity, and abnormal blood chemistry. But, even with the consultations, Respondent remained responsible for the daily care of this complicated patient, so Dr. Liebert, who unlikely missed the pulmonary consultative care, is correct; the medical decision making was moderately complex.
Because Respondent did not bill April 1, two days' accumulation of data required analysis in medical decision making. Claim 25-2 should have been billed at code 99232, so Petitioner overpaid Respondent the difference between codes 99233 and 99232.
For Claim 25-3, on April 4, Dr. Liebert testified that the history and examination were expanded problem focused, and
the medical decision making was moderately complex. Respondent testified that the examination was expanded problem focused, but the history was comprehensive, and the medical decision making was highly complex, even though he testified that the patient's respiratory condition was improving and Respondent had consulted with another specialist for low sodium in the blood. The history lacked an extended history of the present illness or any analysis of the PFSH, so it was expanded problem focused. Regardless of the complexity of the medical decision making, an expanded problem focused history and expanded problem focused examination support a code 99232, so Petitioner overpaid Respondent $15.86 for Claim 25-3.
For Claim 25-4, Dr. Liebert testified that the history and examination were problem focused, and the medical decision making was of low complexity. Respondent testified that the history and examination were expanded problem focused, and the medical decision making was moderately complex. The note reports vitals, an absence of shortness of breath, rhythmic beating of the heart, a soft abdomen, and no edema in the extremities, so as to support an expanded problem focused examination. However, the history was limited to a statement that the patient was feeling better and her sodium levels had returned to normal, so as to have been problem focused. The medical decision making was of low complexity, so this claim should have been billed at
code 99231. Petitioner therefore overpaid Respondent $32.10 for Claim 25-4.
Respondent billed Claims 26-1 through 26-3 for January 8 through 10, 2012, respectively. Respondent billed these patient encounters under codes 99220, 99213, and 99217, respectively. Petitioner downcoded Claim 26-1 to code 99219 and denied Claims 26-2 and 26-3 for insufficient documentation.
Recipient 26 was admitted to the hospital on observation status with chief complaints of nausea with vomiting and difficulty with urinating due to a likely urinary tract infection. Dr. Liebert testified that the history and examination were comprehensive, and the medical decision making was moderately complex. As to the last component, Dr. Liebert explained that, although the number of diagnostic options were multiple, the amount and complexity of the data was limited, and the risk to the patient was moderate. Respondent's only dispute was with the medical decision making, but he mistakenly claimed that the amount of data was high due to all of the lab work that he ordered. However, the data from such lab work is credited on the receipt of the lab reports, not on the ordering of lab reports. Dr. Liebert's testimony is credited. Claim 26-1 should have been billed at code 99219, so Petitioner overpaid Respondent
$20.12 for Claim 26-1.
Respondent misbilled Claim 26-2 as an office visit.
The patient remained in the hospital on January 9, so any code would be from the codes under the group for Subsequent Observation Care. Respondent admitted that he performed no examination, but claimed that the history was expanded problem focused, and the medical decision making was of low complexity. The medical decision making was of low complexity because the number of diagnostic or management options was minimal, and the risk of complications was minimal.
The barely readable note consists of five lines. The only mention of any item of history pertaining either to the vomiting or urinary tract infection was that the patient was tolerating feeding; based on the note, the history was problem focused. However, the lab reports were received on January 9, which raised the history to expanded problem focused.
In the absence of an examination and the presence of any level of history, the lowest level of medical decision making drives the coding of Claim 26-2, which should have been billed at code 99224. Petitioner therefore must adjust its payment to Respondent to reflect the difference between codes 99213 and 99224 for Claim 26-2.
For Claim 26-3, Respondent performed discharge services, including prescribing an antibiotic and reconciling
medications. Claim 26-3 was properly billed as code 99217, so Petitioner did not overpay Respondent.
Respondent billed Claims 27-1 through 27-11 for September 28, October 25, and December 29, 2012; May 22, June 20, August 8, October 16, and November 26, 2013; and January 24 and February 25, 2014, respectively. Respondent billed the first
two patient encounters, a diagnostic test, and a third patient encounter under codes 99205, 99214, 93000, and 99215, respectively. Respondent billed the remaining patient encounters under code 99214. Allowing Claims 27-2 and 27-5 through 27-11, Petitioner downcoded Claim 27-1 from code 99205 to 99204, denied Claim 27-3 for insufficient documentation, and downcoded
Claim 27-4 to code 99214.
Recipient 27 presented at Respondent's office with a chief complaint of an unsteady gait since back surgery in Cuba in 1987. For Claim 27-1, Dr. Liebert testified that the history and examination were comprehensive, and the medical decision making was moderately complex. Respondent differed only as to the medical decision making, which he labeled as highly complex. Their joint testimony as to the history and examination is credited.
The number of diagnostic or management options was multiple, the amount or complexity of data was limited, and the risk of complication was moderate, so the medical decision making
was moderate. Claim 27-1 should have been billed at code 99204, so Petitioner overpaid Respondent $16.64.
Claim 27-3 is for an electrocardiogram administered during the patient's second office visit, which was on
October 25, 2012. Code 93000 is for a routine electrocardiogram with at least 12 leads, interpretation, and report. CPT, p. 472. Respondent met the requirements for this billing, so Petitioner did not overpay Respondent for Claim 27-3.
For Claim 27-4, the patient's chief complaint was a thigh lesion. Dr. Liebert testified that the history was detailed, examination was comprehensive, and the medical decision making was moderately complex. Respondent testified that the history was comprehensive, and the medical decision making was highly complex. Dr. Liebert's description of the examination is credited.
The Practice Fusion medical note indicates, for history, that the patient recalls a positive pap smear and a negative mammogram. Also, the patient's hypertension is controlled, and her back pain is partly relieved by her current treatment. The note states that Recipient 27 walks with difficulty and suffers from weakness in her legs. For PFSH, the note reports no changes, as it does for the "rest of systems." Dr. Liebert's characterization of this history as detailed is generous, but sustainable.
The medical decision making was straightforward, not moderately complex, as Dr. Liebert testified. The lesion was caused by herpes simplex, and the patient was prescribed an antiviral agent. The number of diagnostic or management options and amount or complexity of data were minimal, and the risk of complications was low.
Claim 27-4 should have been billed at code 99214, so Petitioner overpaid Respondent $18.82.
Respondent billed Claims 28-1 and 28-2 for July 5 and 6, 2013, respectively. Respondent billed these patient
encounters under codes 99223 and 99238, respectively. Petitioner allowed Claim 28-1 and denied Claim 28-2 for insufficient documentation.
Recipient 28 was admitted to the hospital on inpatient status on July 5. For Claim 28-2, Respondent performed no more than 30 minutes of discharge services, including writing a prescription and reconciling medications. Claim 28-2 was properly billed as code 99238, so Petitioner did not overpay Respondent.
Respondent billed Claims 29-1 through 29-6 for December 4 through 9, 2012, respectively. Respondent billed these patient encounters under codes 99223, 99233, 99232, 99232, 99232, and 99238, respectively. Petitioner downcoded Claim 29-1
to 99221, denied Claim 29-2 for insufficient documentation, and allowed the rest of the claims.
Recipient 29 presented at the hospital complaining of abdominal pain, nausea, vomiting, and diarrhea. A gastrointestinal consultant recommended a colonoscopy, but Recipient 29 declined to consent to the procedure. For Claim 29-1, Dr. Liebert testified that the history and
examination were detailed, and the medical decision making was highly complex. Respondent testified that the history and examination were comprehensive, and the medical decision making was highly complex.
For a comprehensive history, a provider must review all body systems and obtain a complete PFSH. The note
documents review of seven of 14 systems that are available for review: general (or constitutional), head, ears, eyes, nose and throat (counts as two systems), respiratory, cardiovascular, gastrointestinal, and neurological. Among the systems
omitted are genitourinary, musculoskeletal, endocrine, hematologic/lymphatic, and allergic/immunologic. This was a detailed history because it included a limited number of pertinent additional systems.
The bar is equally high for a comprehensive examination, which must constitute a general multisystem examination or a complete examination of a single organ system.
As noted above, the CPT identifies seven body areas and 11 organ systems. The note documents an examination of one body area--the head--and three or four organ systems--ears, nose, mouth and throat, cardiovascular, skin, and possibly respiratory. The examination omitted important body areas and organ systems and did not approach a complete examination of a single organ system, so the examination was detailed.
A detailed history and examination and medical decision making of any level of complexity generate a code 99221, so Petitioner overpaid Respondent $52.01 for Claim 29-1.
For Claim 29-2, Dr. Liebert testified that the examination was not documented, the history was "perhaps" expanded problem focused, and the medical decision making was straightforward. Respondent did not testify that he conducted an examination, but claimed that the history was expanded problem focused, and the medical decision making was of low complexity. For the group of codes under Subsequent Hospital Care, there is no difference between medical decision making that is straightforward or of low complexity. Essentially, the two physicians agreed37/ that Claim 29-2 should have been billed at code 99231, so Petitioner overpaid Respondent the difference between codes 99233 and 99231.
Respondent billed Claims 30-1 and 30-2 for October 26 and 27, 2012, respectively. Respondent billed these patient
encounters under codes 99220 and 99217, respectively. Petitioner downcoded Claim 30-1 to 99218 and denied Claim 30-2 for insufficient documentation.
Recipient 30 presented at the hospital complaining of an infection in her left breast, not long after delivering a baby. The emergency room physician conducted the examination. Dr. Liebert testified that Respondent did not perform an examination, the history was detailed, and the medical decision making was of low complexity. Respondent confirmed that he did not perform the examination and claimed that the history was only expanded problem focused, but the medical decision making was moderately complex. The group of codes under Initial Observation Care are three-component codes, so the absence of an examination precludes any reimbursement. Petitioner therefore overpaid Respondent $85.91 for Claim 30-1.
For Claim 30-2, Respondent performed discharge services, including writing a prescription, so Respondent properly billed Claim 30-2 as code 99217, and Petitioner did not overpay Respondent.
Respondent billed Claims 31-1 through 31-3 for January 23 through 25, 2012, respectively. Respondent billed these patient encounters under codes 99223, 99233, and 99233, respectively. Petitioner allowed Claim 31-1, denied Claim 31-2 for insufficient documentation, and downcoded Claim 31-3 to
code 99232. As noted above, Respondent conceded the denial of Claim 31-2 and the downcoding of Claim 31-3, so Petitioner overpaid Respondent $52.46 for Claim 31-2 and $13.86 for Claim 31-3.
Respondent billed Claims 32-1 and 32-2 for December 19 and 20, 2013, respectively. Respondent billed these patient encounters under codes 99220 and 99217, respectively. Petitioner allowed Claim 32-1 and denied Claim 32-2 for insufficient documentation.
For Claim 32-2, Respondent performed discharge services, including writing a prescription, so Claim 32-2 was properly billed as code 99217, and Petitioner did not overpay Respondent.
Respondent billed Claims 33-1 and 33-16 for July 12 through 16, 18, 19, 24 through 29, and July 31 through August 2, 2013, respectively. Respondent billed these patient encounters under codes 99223, 99233 (two), 99232 (three), 99233 (three), 99232 (three), 99231 (three), and 99238, respectively. Petitioner allowed Claims 33-1, 33-4, 33-5, 33-10, 33-14, and
33-16, denied Claims 33-6 through 33-9, 33-11 through 33-13, and 33-15 for insufficient documentation, and downcoded Claims
33-2 and 33-3 to code 99232. As noted above, Petitioner withdrew its objection to Respondent's coding of Claim 33-2, so Petitioner did not overpay Respondent. Respondent conceded the downcoding
of Claim 33-3 and the denial of Claims 33-6, 33-8, and 33-11. Petitioner therefore overpaid Respondent $35.8438/ for Claim 33-3,
$80.43 for Claim 33-6, $116.27 for Claim 33-8, and $80.43 for Claim 33-11.
The claims remaining in dispute are thus Claims 33-7, 33-9, 33-12, 33-13, and 33-15.
Recipient 33 presented at the hospital with acute liver failure, renal failure, and respiratory failure three days after cosmetic surgery to correct a leaking breast implant. For Claim 33-7, on July 19, which was one week after admission,
Dr. Liebert testified that there was no documentation of an examination or medical decision making, and the history was problem focused. As Respondent testified, there was documentation of an examination; his note includes the vital signs, but the examination, Respondent conceded, did not rise above a problem focused. The history was expanded problem focused, as Respondent testified. The note indicates that the patient was feeling better, but running a low-grade fever, and lab reports indicated low levels of magnesium and a liver condition. As Respondent testified, there was a moderate amount of data to assimilate, multiple diagnostic or management options, and a moderate risk of complications, so the medical decision making was moderately complex. Claim 33-7 should have been
billed at code 99232, so Petitioner overpaid Respondent the difference between codes 99233 and 99232.
For Claim 33-9, on July 25, Respondent explained that the patient had had an allergic reaction to antibiotics in the form of a skin rash. She had improved sufficiently to be transferred to the medical floor. As Respondent testified, the history and examination were expanded problem focused, and the medical decision making was moderately complex, so Claim 33-9 should have been billed at code 99232. Petitioner therefor overpaid Respondent the difference between codes 99233 and 99232 for Claim 33-9.
For Claim 33-12, on July 28, the patient had recovered normal renal and kidney function and was feeling better, alert and oriented, although she continued to have a skin rash in her groin and breast. Respondent and Dr. Liebert agreed that the history was expanded problem focused, and the medical decision making was of low complexity. Respondent testified to having performed an examination, but it is not apparent in the note, and Dr. Liebert's testimony that there was no examination is credited. Claim 33-12 should have been billed at code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231.
For Claim 33-13, on July 29, there was no documentation of any history or medical decision making, as
Dr. Liebert testified, so Petitioner properly denied this claim. Petitioner therefore overpaid Respondent $44.13 for Claim 33-13.
For Claim 33-15, on August 1, Dr. Liebert testified that the history was expanded problem focused, the examination was not documented, and the medical decision making was of low complexity. Respondent testified that the patient had just undergone a procedure to remove the recently repaired breast implant, which was confirmed, upon removal, to have been infected. Respondent testified that the history and examination were expanded problem focused, and the medical decision making was of low complexity. The note reveals nothing of an examination, so, given the low complexity of the medical decision making coupled with any level of history, Claim 33-15 was properly billed as code 99231, and Petitioner did not overpay Respondent.
Respondent billed Claims 34-1 through 34-4 for November 23 through 26, 2013, respectively. Respondent billed these patient encounters under codes 99223, 99233, 99232, and 99238, respectively. Petitioner allowed Claims 34-1 and 34-2 and denied Claims 34-3 and 34-4 for insufficient documentation.
Recipient 34 presented at the hospital complaining of pain in the lower abdomen following a hysterectomy one month earlier. She was diagnosed to have a urinary tract infection and a liver mass.
For Claim 34-3, Dr. Liebert testified that the history was expanded problem focused, but there was no documentation of an examination or medical decision making. Respondent testified that the history was expanded problem focused, and the medical decision making was of low complexity. On this DOS, Respondent was determining whether the liver mass was a hemangioma. Respondent also discussed the case with a gastrointestinal specialist. The number of diagnostic or management options was limited, the amount or complexity of data was limited, and the risk of complications was limited, so Respondent is correct: the medical decision making was of low complexity. Claim 34-3 should have been billed at code 99231. Petitioner therefore overpaid Respondent the difference between codes 99232 and 99231 for
Claim 34-3.
For Claim 34-4, Respondent provided no more than 30 minutes of discharge services, including reconciling medications and writing a prescription. Claim 34-4 was properly billed as code 99238, so Petitioner did not overpay Respondent.
Respondent billed Claims 35-1 through 35-5 for February 17 through 21, 2014, respectively. Respondent billed these patient encounters under codes 99223, 99232 (three), and 99238, respectively. Petitioner allowed Claim 35-1, denied Claims 35-2, 35-3, and 35-5 for insufficient documentation, and downcoded Claim 35-4 to code 99231.
Recipient 35 presented at the hospital with respiratory insufficiency and congestive heart failure. He also was on a blood thinner. For Claim 35-2, Dr. Liebert testified that the history was problem focused, but the examination and medical decision making were not documented. Respondent testified that the history and examination were expanded problem focused, and the medical decision making was moderately complex. There is no documentation of an examination, and the history was not more than problem focused. The patient had already improved sufficient to be transferred to a unit with a lower level of care. The medical decision making was straightforward.
Claim 35-2 should have been billed at code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231.
For Claim 35-3, Dr. Liebert testified that the examination was not documented, the history was problem focused, and the medical decision making was of low complexity. Respondent testified that the history and examination were expanded problem focused, and the medical decision making was moderately complex. The note does not indicate any examination and supports no more than a problem focused history and medical decision making of low complexity. Claim 35-3 should have been billed at code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231.
For Claim 35-4, Dr. Liebert testified that the history and examination were problem focused, and the medical decision making was straightforward. The note supports this testimony, so Claim 35-4 should have been billed at code 99231. Petitioner therefore overpaid Respondent $16.83 for Claim 35-4.
For Claim 35-5 on February 21, Respondent performed no more than 30 minutes of discharge services, including reconciling medications and writing prescriptions, so Claim 35-5 was properly billed as code 99238, and Petitioner did not overpay Respondent.
Petitioner's Sanctions Worksheet contains five statements with boxes, each of which has been checked, even though the fifth statement, which has been omitted below, applies only when the sanction under consideration is suspension or termination from the Medicaid program, which is not at issue in the present case. The statements are:
I have considered the seriousness & extent of the violation.
I have considered whether the violation is continuing after written notice.
I have considered whether the violation impacted the quality of medical care provided to Medicaid recipients.
I have considered whether the licensing agency in any state in which the provider operates or has operated has taken any action against the provider.
The record discloses no evidence, whether documented or not, of any consideration given by Petitioner to these factors, which militate uniformly in favor of Respondent. First, the overbilled claims were numerous, but not serious. For the most part, Respondent seems to have fallen prey to the
not-uncommon tendency to code based entirely on the nature of the problems presented--the coding "principle" most apparent in Appendix C of the CPT, as well as in earlier versions of the CPT itself.39/ In any event, Respondent's upcoding solely from his misapplication of the CPT, not from the dangerous practice of a physician's alteration of medical records to satisfy the requirements of a higher code.40/
Second, there is no evidence of continued violations by Respondent of Medicaid reimbursement provisions after written notification to him of his improper or excessive claims in this case.
Third, Respondent's violations had no impact on the quality of medical care provided to his patients. To the contrary, a detailed examination of the medical records reveals that Respondent consistently met the challenge of serving a socio-economic cohort of patients much in need of medical attention. In particular, Respondent must be commended for his care of Recipient 33, who was initially classified as in critical condition with only a guarded prognosis. Respondent diligently
addressed the myriad problems of a very ill patient who, in surprisingly short order, responded to his care.
Fourth, there is no history of disciplinary action against Respondent's license.
As discussed in the Conclusions of Law, a fifth factor, omitted from the Sanctions Worksheet, is whether the provider has a prior history of criminal or administrative violations related to programs for the delivery of health care. There is no such prior history.
As explained in the Conclusions of Law, based on the foregoing considerations, the maximum fine that Petitioner may impose on Respondent is the lesser of: 1) $100 per violation among the audited claims only41/ or 2) 5% of the total overpayments, after extension.
CONCLUSIONS OF LAW
DOAH has jurisdiction. §§ 120.569, 120.57(1), and 409.913(31), Fla. Stat. (2018).
Petitioner has the burden of proving the facts supporting overpayments and costs by a preponderance of the evidence and the facts supporting the fine, due to its penal nature, by clear and convincing evidence. § 120.57(1)(j); Dep't
of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996).
Petitioner is authorized to audit providers who have received reimbursements of medical assistance and to seek repayment of overpayments. § 409.913(2), (7)(e), (11), (12)(a), (15)(f), (16)(j), (20), (21), (22), and (31). When an alleged overpayment is based on a determination of medical necessity, quality of care, or appropriateness, Petitioner must engage peer review prior to the initiation of any formal proceedings against the provider. § 409.9131(5)(b). Petitioner satisfied its statutory duty by retaining Dr. Liebert, who is a peer of Respondent. § 409.9131(2)(c).
For the overpayment issue, at least, the purpose of the hearing is to determine the proper amount of total overpayments. The scope of the hearing permits a finding of an overpayment on a specific claim that exceeds the amount of the overpayment found in the FAR or determined by the peer reviewer. The scope of the hearing even permits a finding, however unlikely, that the total overpayments exceed those stated in the FAR or determined by the peer reviewer. The scope of the hearing on the overpayment issue is derived, not from the FAR, but from the March 12, 2015, letter from Petitioner advising Respondent of the commencement of an audit to determine the total overpayment of all Medicaid claims submitted during the Audit Period. See Dep't of Rev. v. Reyes, 181 So. 3d 1270 (Fla. 1st DCA 2015).42/
Petitioner contends in its proposed recommended order that a properly supported final audit report, once admitted into evidence, establishes a prima facie case of the overpayment set forth in the FAR. By statute, a properly supported final audit report "constitutes evidence of the overpayment." § 409.913(22). Omitting the crucial words, "prima facie," section 409.913(22) provides merely that a properly supported final audit report, such as the FAR, must be admitted and considered in determining overpayments. Other statutes similarly provide for the admission of certain evidence, but do not attempt to assign the weight to be given to such evidence. Section 409.913(20) provides: "In meeting its burden of proof in any administrative or court proceeding, [Petitioner] may introduce the results of [its] statistical [extension and other] methods and its other audit findings as evidence of overpayment." Section 409.913(5) provides that the findings of a peer-review organization as to medical necessity "are admissible . . . as evidence of medical necessity or the lack thereof."
Petitioner contends in its proposed recommended order that its interpretation of its governing laws is entitled to deference. The administrative law judge is unaware of case law requiring such deference in an administrative proceeding. By statute, an agency has considerable authority to reject or modify an administrative law judge's conclusions of law within its
substantive jurisdiction, but not the administrative law judge's findings of fact and other conclusions of law. § 120.57(1)(l). Significant statutory conditions attach even to an agency's displacement of an administrative law judge's interpretation of statutes or rules within the substantive jurisdiction of the agency: the agency must find that its interpretation of such a statute or rule is as, or more, reasonable than the administrative law judge's interpretation, and the agency must state with particularity its reasoning. Id. The existence of this statutory process provides an agency with ample authority to correct an administrative law judge's unreasonable or incorrect conclusions of law as to statutes or rules within the agency's substantive jurisdiction. Applying an implied deference doctrine at the level of the administrative hearing would inappropriately limit the reach of these express provisions of section 120.57(1)(l).
Petitioner notes that a provider must contemporaneously document all billed services. § 409.913(7)(f). The documentation requirement clearly attaches to the submission of a claim for reimbursement, but Petitioner contends that it also serves as a condition precedent to reimbursement in an administrative proceeding. Petitioner also seeks to limit the evidence used for coding a billed service to contemporaneous documentation. As a practical matter, especially given the time
that elapses between a billed service and an administrative proceeding to recover overpayments, documentation may be the only evidence, although sometimes providers supplement contemporaneous documentation with supplemental responses during the audit.
In any case, these contentions of Petitioner conflict with the de novo nature of an administrative hearing.
§ 120.57(1)(k). A de novo hearing means to try the matter anew, as though it has not been heard previously and no decision has been rendered. Lee v. St. Johns Cnty. Bd. of Cnty. Comm'rs, 776 So. 2d 1110, 1113 (Fla. 5th DCA 2001). Statutes and rules govern the submission of documentation while the agency processes the matter, so as to structure the means by which a provider may try to inform the agency's decisionmaking process prior to transmittal of the case to DOAH. But these statutes and rules may not, by implication, be extended to govern the de novo administrative hearing, such as by limiting the evidence that may be presented or considered in the hearing. H.B.A. Corp. v. Dep't
of HRS, 482 So. 2d 461, 468 (Fla. 1st DCA 1986) (dictum) (in a proceeding to establish a Medicaid per diem reimbursement rate based on allowable costs of a nursing home, rule requiring the furnishing of evidence to agency within 30 days of exit conference construed not to apply to de novo hearing). See also TR & SNF, Inc. v. Ag. for Health Care Admin., 238 So. 3d 934, 935
n.1 (Fla. 1st DCA 2018) (per curiam) (in a disciplinary
proceeding to revoke a license, nursing home's evidence must be considered by administrative law judge, even though not timely produced while agency processing case prior to transmittal to DOAH). Compare Universal Ins. Co. v. Warfel, 82 So. 3d 47 (Fla. 2012) (statutory presumption for use in sinkhole claims process inapplicable to circuit court action on homeowner's policy).
The Findings of Fact provide the information necessary for Petitioner to recalculate the amount of total overpayments for the 35 audited recipients and, by extension, for all claims submitted during the Audit Period. If a disputed issue of material fact emerges in this process, Petitioner may remand the case to the administrative law judge for a formal hearing; provided, however, Respondent may not litigate the random selection of the 35 audited recipients or the statistic formula used for the extension because it has failed to litigate these issues in the present proceeding.
Petitioner also seeks a fine equal to 20% of the total overpayment, after extension. For the fine, Petitioner's proposed recommended order relies on Florida Administrative Code Rule 59G-9.070(7)(e), which, for a first offense, provides for a fine of $1000 per claim found to be in violation, and rule 59G-9.070(4)(a), which caps the fine at 20% of the total overpayments, after extension.
Petitioner's authority to impose a fine rests on section 409.913(16)(c) and (17) and rule 59G-9.070(7)(e).
Section 409.913(16)(c) mandates that Petitioner impose a
fine of $5000 for each "false or erroneous Medicaid overpayment to a provider", but the flush language at the end of
section 409.913(16) authorizes the Secretary not to impose any sanction, if the Secretary determines that the imposition of a sanction is not in the best interest of the Medicaid program.
Even if the Secretary chooses not to exercise the authority not to impose any sanction, Petitioner's authority to impose a fine is circumscribed by Section 409.913(17), which states:
In determining the appropriate administrative sanction to be applied, . . . the agency shall consider:
The seriousness and extent of the violation or violations.
Any prior history of violations by the provider relating to the delivery of health care programs which resulted in either a criminal conviction or in administrative sanction or penalty.
Evidence of continued violation within the provider’s management control of Medicaid statutes, rules, regulations, or policies after written notification to the provider of improper practice or instance of violation.
The effect, if any, on the quality of medical care provided to Medicaid recipients as a result of the acts of the provider.
Any action by a licensing agency respecting the provider in any state in which the provider operates or has operated.
* * *
The agency shall document the basis for all sanctioning actions and recommendations.
Unlike the decision not to impose any sanction, which is left to the discretion of the Secretary, the application of these five statutory factors is mandatory. These factors serve an important practical function. Due to the large number of overpayments in a typical overpayment case, section 409.913(16)(c) grants Petitioner the right to impose a substantial fine. For instance, as noted above, at the start of the hearing, Petitioner had determined a total overpayment, after extension, of about $128,000 based on 97 violations among only the audited claims;43/ at $5000 per violation, 97 violations would earn a fine of nearly $500,000--almost four times greater than the overpayment itself. Consideration of these five statutory factors ensures that Petitioner will tailor the fine to the offender's circumstances.
On its face, the Sanctions Worksheet seems responsive to section 409.913(17). Unfortunately, with one apparent exception, Petitioner's consideration of these statutory factors in this case has amounted to nothing more than checking the boxes
beside each factor, including one, omitted above, that applies only to proposed suspensions and terminations.
The lone apparent exception pertains to the one statutory factor that is omitted from the Sanctions Worksheet. Prior administrative violations of provisions of the Medicaid program, as described by section 409.913(17)(b), are incorporated into rule 59G-9.070(7)(e), which provides a $1000 fine per violation for a first offense, a $2500 fine per violation for a second offense, and a $5000 fine per violation for a third or subsequent offense. Even for this factor, under its rule, Petitioner's consideration is more apparent than real. On the not-unusual facts set forth above--97 violations among the audited claims supporting total overpayments, after extension, of
$128,000--a first-time violator would pay the same fine as a fifth-time violator: the first-time violator's tentative fine would be $97,000, and the fifth-time violator's fine would be
$485,000; but, under the 20% cap, each violator be fined $25,600.
If applied, section 409.913(17) assures that fines will be tailored to the egregiousness of the violations. Here, each of the five applicable statutory factors militates in Respondent's favor. Petitioner's proposed fine treats Respondent the same as a provider with four prior offenses, the same as a provider who fraudulent altered his medical records to justify upcoding and, in so doing, caused injury to his patients, the
same as a provider whose license has been repeatedly disciplined, the same as a provider who continued the same upcoding violations after receiving a written warning from Petitioner, and the same as a provider guilty of all of these practices. Agency action in the form of a fine may not be based on such a rule, given the mandates of section 409.913(17).44/
The application of section 409.913(16) and (17) to the present facts generates the fine set forth in the Findings of Fact.45/
Petitioner is also entitled to "all investigative, legal, and expert witness costs" because the "agency ultimately prevailed." § 409.913(23)(a). There are no cases under
section 409.913(23)(a), but a party prevails when it prevails on "significant issues in the litigation." See, e.g., Zhang v.
D.B.R. Asset Mgmt., 878 So. 2d 386 (Fla. 3rd DCA 2004) (per curiam). The point from which to measure a party's success is not the FAR, but, given the nature of the administrative proceeding, the March 17, 2015, audit letter, which first raised the issue of the recovery of a potential overpayment. It is from this letter, not the FAR, that Petitioner's costs begin to accrue. Therefore, to prevail, Petitioner must establish a substantial overpayment; it is irrelevant that, following the administrative proceeding, Petitioner's proof may secure a lower total overpayment than that set forth in the FAR.
"Costs" include "salaries and employee benefits and out-of-pocket expenses." § 409.913(23)(b). Like the fine, however, costs are not merely a matter of arithmetic. Costs must be "reasonable in relation to the seriousness of the violation and must be set taking into consideration the financial resources, earning ability, and needs of the provider, who has the burden of demonstrating such factors." § 409.913(23)(b). Also, under certain circumstances, the provider may be allowed to pay costs by installments, rather than in a lump sum.
§ 409.913(23)(c).
As requested by Petitioner, the administrative law judge will relinquish jurisdiction to Petitioner to allow the parties to attempt to agree on costs in accordance with these statutory principles. If they are unable to do so, Petitioner may remand the case to the administrative law judge to conduct an evidentiary hearing on costs.
It is
RECOMMENDED that the Agency for Health Care Administration enter a final order directing Respondent to reimburse Petitioner for the total overpayments, based on the Findings of Fact as to the audited claims and as extended to all claims submitted on behalf of all recipients during the Audit Period, pursuant to Petitioner's statistical methodology; directing Respondent to pay
a fine equal to $100 per violation among the audited claims or, if less, 5% of the total overpayments, as extended; and providing the parties a reasonable period of time to agree on costs in accordance with the statutory principles set forth above--failing which, Petitioner will remand the case to the administrative law judge for a determination of costs.
DONE AND ENTERED this 7th day of August, 2018, in Tallahassee, Leon County, Florida.
S
ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2018.
ENDNOTES
1/ In the interest of expedience, this recommended order relies on Petitioner's Claims Spreadsheet for the approved fees, rather than the Fee Schedule.
2/ All references to the CPT are to the 2011 edition of the CPT. Two other editions of the CPT applied during the Audit Period, but no material differences exist as to the codes at issue.
3/ In this recommended order, "E/M section" and "CPT" are used interchangeably.
4/ For "Subsequent Hospital Care," the E/M Codes states:
All levels of subsequent hospital care include reviewing the medical record and reviewing the results of diagnostic studies and changes in the patient's status (i.e., changes in history, physical condition and response to management) since the last assessment by the physician.
CPT, p. 15. (The E/M Codes provide similarly for "Subsequent Observation Care." CPT, p. 13.) The last clause, "since the last assessment by the physician," modifies the medical records, including diagnostic studies, and changes in the patient's status, so a provider may be credited only for the incremental additions to the history or examination since the preceding history or examination. Medical decision making is not amenable to such an incremental approach. As long as they remain medically relevant, the number of diagnostic or management options and the amount or complexity of the data may necessarily be derived from information that has provided the grounds for determinations of the complexity of medical decision making in earlier, billed patient encounters.
5/ As noted elsewhere, the CPT is well drafted, but not without its flaws, mostly in the form of inconsistent use of nomenclature. It is thus of no particular significance that the appropriate codes fail to refer to an "interval examination."
6/ A "minimal" presenting problem means that the physician's presence may not be required, but service is provided under a physician's supervision. A "self-limited or minor" presenting problem means that the problem "runs a definite and prescribed course," is transient, and is unlikely to alter health status permanently or has a good prognosis. A "low severity" presenting problem means that the problem carries a low risk of morbidity without treatment, little or no risk of mortality without treatment, and little risk of less than full recovery without functional impairment. A "moderate severity" presenting problem means that the problem poses a moderate risk of morbidity without treatment, moderate risk of mortality without treatment, and uncertain prognosis or increased probability prolonged functional impairment. And a "high severity" presenting problem means that the problem poses a high to extreme risk of morbidity without treatment, moderate to high risk of mortality without treatment, or high probability of severe, prolonged functional impairment.
CPT, p. 7.
7/ Arguably, the requirement of medical necessity may prevent an excessive disparity between the level of history and the presenting problem.
8/ The CPT uses "problem" and "illness" synonymously in this context. For ease of reference, all references to the "history of the present problem" in this recommended order include "history of the present illness."
9/ This is an example of inconsistency in drafting in the CPT. A problem focused level calls for a brief history of the present "illness or problem." For no apparent reason, the CPT omits "problem" from the higher levels of history.
10/ For no apparent reason, the CPT fails to combine a "review of systems that is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems" into a "review of all body systems."
11/ "Past history" is a "review of the patient's past experiences with illnesses, injuries, and treatments." CPT, p. 6.
12/ "Family history" is a "review of medical events in the patient's family." CPT, p. 5.
13/ "Social history" is an "age appropriate review of past and current activities," including marital status and living arrangements, employment and employment history, use of drugs, alcohol and tobacco, education level, and sexual history. CPT,
p. 6.
14/ The Documentary Guidelines relieves the provider of the necessity of a PFSH for an "interval history." Documentary Guidelines, p. 9. Although changes in family history are unlikely in a brief interval between billed patient encounters, changes in past or social history, even if unlikely, might be important--e.g., a patient with a serious skin infection or open wound swam in the water of a pond or public pool or a patient with a serious respiratory condition resumed smoking or began work that exposes him to air contaminants.
15/ The bracketed text is not included in the CPT, but is included in the otherwise-identical Documentary Guidelines. Documentary Guidelines, p. 7.
16/ All references in this section to the "patient" include family members, nurses, and other third parties who relay to the physician what the patient has related to them.
17/ A chief "complaint" suggests that the source of the information is the patient because a complaint is expressed by the patient, as distinguished from an underlying problem, which objectively refers to the patient's illness, injury, or condition. Although undefined for history, for medical decision making, a "problem" is "a disease, condition, illness, injury, symptom, sign, finding, complaint, or other reason for the encounter." CPT, p. 7. However, the above-quoted explanatory text for this criterion recognizes that a statement of the problem, which does not require a communication from the patient, may satisfy the criterion of the chief complaint, so the chief complaint may be obtained from the data and analysis.
For the same reason, a history of the present "problem" suggests that the source of this information may be obtained from the data and analysis. The explanatory text for this criterion addresses signs and symptoms. Symptoms emphasize the patient's subjective perspective, but signs, like problems, emphasize objective conditions that do not require the patient's description to the physician or physician's staff.
A review of systems neither justifies nor precludes the use of data and analysis to supplement history from the patient. The explanatory text for this criterion contemplates an interrogation of the patient, which obviously treats the patient as the source of history. Because data and analysis are acceptable sources of information for the other history criteria and the criterion itself does not preclude the use of data and analysis, Respondent may satisfy this criterion from the data and analysis.
18/ The Documentary Guidelines offers interpretive guidance for matters not addressed in the CPT as to history, exam, and medical decision making and may lead to a clearer understanding of the corresponding provisions of the CPT. The Documentary Guidelines also defines quantitatively certain criteria with the history and examination components. The numerical thresholds may not be applied in this case because Petitioner has not adopted them by rule, and the flexibility of the CPT in these matters may be preferred over the more quantitative approach of the Documentary Guidelines, as discussed below. The numerical thresholds and definitions are thus provided merely as context.
19/ See endnote 18 above.
20/ The Documentary Guidelines specifies "two to nine" systems as a limited number of additional systems. Documentary Guidelines,
8.
21/ The Documentary Guidelines identifies the same organ systems, except that it recognizes separate genitourinary systems based on gender and omits the gastrointestinal system. Documentary Guidelines, p. 10.
22/ By contrast, the CPT seems inadvertently to use inconsistently "body area" and "organ system." For the problem focused examination, a limited examination must be conducted of the affected "body area or organ system." For an expanded problem focused examination, a limited examination must be conducted of the affected "body area or organ system" and other "organ system(s)," omitting "body areas" for no apparent reason. For a detailed examination, an extended examination must be conducted of the affected "body area(s)" and other "organ systems," and the distinction appears meaningless. For a comprehensive examination, a complete examination must be conducted of a single "organ system," omitting "body area" for no apparent reason. This variability in nomenclature in the CPT is inadvertent.
23/ The Documentary Guidelines departs from the CPT in describing examination levels, so it is of little use in construing the examination component, except, as set forth below, in listing numerous potential elements of an examination.
24/ For example, for the hematologic/lymphatic/immunologic system, the Documentary Guidelines identifies 20 elements under 12 organ systems or body areas:
System/Body Area Elements of Examination Constitutional ● Measurement of any three of the
following seven vital signs:
sitting or standing blood pressure, 2) supine blood pressure,
pulse rate and regularity,
respiration, 5) temperature,
6) height, 7) weight (May be measured and recorded by ancillary staff)
General appearance of patient (e.g., development, nutrition, body
habitus, deformities, attention to grooming)
Head and Face ● Palpation and/or percussion of
face with notation of presence or absence of sinus tenderness
Eyes ● Inspection of conjunctivae and lids
Ears, Nose, ● Otoscopic examination of Mouth and Throat external auditory canals and
tympanic membranes
Inspection of nasal mucosa, septum and turbinates
Inspection of teeth and gums
Examination of oropharynx (e.g. oral mucosa, hard and soft palates, tongue, tonsils and posterior pharynx
Neck ● Examination of neck (e.g., masses, overall appearance, symmetry, tracheal position, crepitus)
Examination of thyroid (e.g., enlargement, tenderness, mass)
Respiratory ● Assessment of respiratory effect
(e.g., intercostal retractions, use of accessory muscles, diaphragmatic movement)
Auscultation of lungs (e.g., breath sounds, adventitious sounds, rubs)
Cardiovascular ● Auscultation of heart with
notation of abnormal sounds and murmurs
Examination of peripheral vascular system by observation (e.g., swelling, varicosities) and palpation (pulses, temperature, edema, tenderness)
Gastrointestinal ● Examination of abdomen with
notation of presence of masses or tenderness
Examination of liver and spleen
Lymphatic ● Palpation of lymph nodes in neck, axillae, groin and/or other location
Extremities ● Inspection and palpation of
digits and nails (e.g., clubbing, cyanosis, inflammation, petechiae, ischemia, infections, nodes)
Skin ● Inspection and/or palpation of skin and subcutaneous tissue (e.g., rashes, lesions, ulcers, ecchymoses, bruises)
Neurological/ Brief assessment of mental status Psychiatric including
Orientation to time, place and person
Mood and affect (e.g., depression, anxiety, agitation)
Id. at pp. 29-30.
For the respiratory system, the Documentary Guidelines identifies 24 elements under 11 body areas or systems:
System/Body Area Elements of Examination Constitutional ● Measurement of any three of the
following seven vital signs:
1) sitting or standing blood pressure, 2) supine blood pressure,
pulse rate and regularity,
respiration, 5) temperature,
6) height, 7) weight (May be measured and recorded by ancillary staff)
General appearance of patient (e.g., development, nutrition, body habitus, deformities, attention to grooming)
Ears, Nose, ● Inspection of nasal mucosa, Mouth and Throat septum and turbinates
Inspection of teeth and gums
Examination of oropharynx (e.g. oral mucosa, hard and soft palates, tongue, tonsils and posterior pharynx
Neck ● Examination of neck (e.g., masses, overall appearance, symmetry, tracheal position, crepitus)
Examination of thyroid (e.g., enlargement, tenderness, mass)
Examination of jugular veins (e.g., distention, a, v or cannon a waves)
Respiratory ● Inspection of chest with
notation of symmetry and expansion
Assessment of respiratory effect (e.g., intercostal retractions, use of accessory muscles, diaphragmatic movement)
Percussion of chest (e.g., dullness, flatness, hyperresonance)
Palpation of chest (e.g., tactile fremitus)
Auscultation of lungs (e.g., breath sounds, adventitious sounds, rubs)
Cardiovascular ● Auscultation of heart with
notation of abnormal sounds and murmurs
Examination of peripheral vascular system by observation (e.g., swelling, varicosities) and palpation (pulses, temperature, edema, tenderness)
Gastrointestinal ● Examination of abdomen with
notation of presence of masses or tenderness
Examination of liver and spleen
Lymphatic ● Palpation of lymph nodes in neck, axillae, groin and/or other location
Musculoskeletal ● Assessment of muscle strength
and tone (e.g., flaccid, cog wheel, spastic) with notation of any atrophy and abnormal movements
Examination of gait and station
Extremities ● Inspection and palpation of
digits and nails (e.g., clubbing, cyanosis, inflammation, petechiae, ischemia, infections, nodes)
Skin ● Inspection and/or palpation of skin and subcutaneous tissue (e.g., rashes, lesions, ulcers)
Neurological/ Brief assessment of mental status Psychiatric including
Orientation to time, place and person
Mood and affect (e.g., depression, anxiety, agitation)
Id. at pp. 39-40.
For the most extensive statement of examination items, the Documentary Guidelines sets forth the elements for a general multi-system examination:
System/Body Area Elements of Examination Constitutional ● Measurement of any three of the
following seven vital signs:
1) sitting or standing blood pressure, 2) supine blood pressure,
pulse rate and regularity,
respiration, 5) temperature,
6) height, 7) weight (May be measured and recorded by ancillary staff)
General appearance of patient (e.g., development, nutrition, body habitus, deformities, attention to grooming)
Eyes ● Inspection of conjunctivae and lids
Examination of pupils and irises (e.g., reaction to light and accommodation, size and symmetry)
Ophthalmoscopic examination of optic discs (e.g., size, C/D ratio, appearance) and posterior segments (e.g., vessel changes, exudates, hemorrhages)
Ears, Nose, ● External inspection of ears and Mouth and Throat nose (e.g., overall appearance,
scars, lesions, masses)
Otoscopic examination of external auditory canals and tympanic membranes
Assessment of hearing (e.g., whispered voice, finger rub, tuning fork)
Inspection of nasal mucosa, septum and turbinates
Inspection of lips, teeth and gums
Examination of oropharynx (e.g. oral mucosa, salivary glands, hard and soft palates, tongue, tonsils and posterior pharynx
Neck ● Examination of neck (e.g., masses, overall appearance, symmetry, tracheal position, crepitus)
Examination of thyroid (e.g., enlargement, tenderness, mass)
Respiratory ● Assessment of respiratory effect
(e.g., intercostal retractions, use of accessory muscles, diaphragmatic movement)
Percussion of chest (e.g., dullness, flatness, hyperresonance)
Palpation of chest (e.g., tactile fremitus)
Auscultation of lungs (e.g., breath sounds, adventitious sounds, rubs)
Cardiovascular ● Palpation of heart (e.g.,
location, size, thrills)
Auscultation of heart with notation of abnormal sounds and murmurs
Examination of:
carotid arteries (e.g., pulse, amplitude, bruits)
abdominal aorta (e.g., size, bruits)
femoral arteries (e.g., pulse amplitude, bruits)
pedal pulses (e.g., pulse amplitude)
extremities for edema and/or varicosities
Chest (Breasts) ● Inspection of breasts (e.g.
symmetry, nipple discharge)
Palpation of breasts and axillae (e.g., masses or lumps, tenderness)
Gastrointestinal ● Examination of abdomen with (Abdomen) notation of presence of masses or
tenderness
Examination of liver and spleen
Examination for presence or absence of hernia
Examination (when indicated) of anus, perineum and rectum, including sphincter tone, presence of hemorrhoids, rectal masses
Obtain stool sample for occult blood test when indicated
Genitourinary MALE:
Examination of scrotal contents (e.g., hydrocele, spermatocele, tenderness of cord, testicular mass)
Examination of the penis
Digital rectal examination of prostate gland (e.g., size, symmetry, nodularity, tenderness)
FEMALE
Pelvic examination (with or without specimen collection for smears and cultures), including
Examination of external genitalia (e.g., general appearance, hair distribution, lesions) and vagina (e.g., general appearance, estrogen effect, discharge, lesions, pelvic support, cystocele, rectocele)
Examination of urethra (e.g. masses, tenderness, scarring)
Examination of bladder (e.g., fullness, masses, tenderness)
Cervix (e.g., general appearance, lesions, discharge)
Uterus (e.g., size, contour, position, mobility, tenderness, consistency, descent or support)
Adnexa/parametria (e.g., masses, tenderness, organomegaly, nodularity
Lymphatic Palpation of lymph nodes in two or
more areas:
Neck
Axillae
Groin
Other
Musculoskeletal ● Examination of gait and station
Inspection and/or palpation of digits and nails (e.g., clubbing, cyanosis, inflammatory conditions, petechiae, ischemia, infections, nodes)
Examination of joints, bones and muscles of one or more of the following six areas: 1) head and neck; 2) spine, ribs and pelvis;
3) right upper extremity; 4) left upper extremity; 5) right lower extremity; and 6) left lower extremity. The examination of a given areas includes:
Inspection and/or palpation with notation of presence of any misalignment, asymmetry, crepitation, defects, tenderness, masses, effusions
Assessment of range of motion with notation of any pain, crepitation or contracture
Assessment of stability with notation of any dislocation (luxation), subluxation or laxity
Assessment of muscle strength and tone (e.g., flaccid, cog wheel, spastic) with notation of any atrophy and abnormal movements
Skin ● Inspection of skin and subcutaneous tissue (e.g., rashes, lesions, ulcers)
Palpation of skin and subcutaneous tissue (e.g., induration, subcutaneous nodules, tightening)
Neurologic ● Test cranial nerves with
notation of any deficits
Examination of deep tendon reflexes with notation of pathological reflexes (e.g., Babinski)
Examination of sensation (e.g., by touch, pin, vibration, proprioception)
Psychiatric ● Description of patient's
judgment and insight
Brief assessment of mental status including:
orientation in time, place and person
recent and remote memory
mood and affect (e.g., depression, anxiety, agitation)
Id. at pp. 13-16.
25/ See endnote 18 above.
26/ A provider may report separately those tests and studies for which a CPT code has been assigned, and the interpretation of the results of diagnostic tests and studies may be reported under the appropriate CPT code with modifier 26. CPT. p. 6.
27/ To illustrate a minimal risk level, the Documentary Guidelines specifies the presenting problem as one self-limited or minor problem, such as a cold or insect bite; the diagnostic procedures as lab tests requiring venipuncture, chest x rays, EKG/EEG, urinalysis, or ultrasound; and the management options as rest, gargles, bandages, or dressings.
To illustrate a low risk level, the Documentary Guidelines specifies the presenting problem as at least two self-limited or minor problems, one stable chronic illness, such as well- controlled hypertension or non-insulin dependent diabetes, or one acute uncomplicated illness or injury, such as cystitis, allergic rhinitis, or a simple sprain; the diagnostic procedures as physiological tests not under stress, such as pulmonary function tests, noncardiovascular imaging studies with contrast, such as a barium enema, superficial needle biopsies, clinical lab tests requiring arterial puncture, or skin biopsies; and management options as over-the-counter drugs, minor surgery with no identified risk factors, physical or occupational therapy, or IV fluids without additives.
To illustrate a moderate risk level, the Documentary Guidelines specifies the presenting problem as one or more chronic illnesses with mild exacerbation, progression, or side effects of treatment, at least two stable chronic illnesses, an undiagnosed new problem with an uncertain prognosis, such as a lump in the breast, an acute illness with systemic symptoms, such as pneumonitis or colitis, or an acute complicated injury, such as a head injury with brief loss of consciousness; the diagnostic procedures as physiological tests under stress, such as a cardiac stress test or fetal contraction stress test, diagnostic endoscopies with no identified risk factors, deep needle or incisional biopsies, cardiovascular imaging studies with contrast and no identified risk factors, such as an arteriogram or cardiac catheterization, or obtaining fluid from a body cavity, such as a lumbar puncture; and management options as minor surgery with identified risk factors, elective major surgery with no identified risk factors, prescription drug management, therapeutic nuclear medicine, IV fluids with additives, or closed treatment of a fracture without manipulation.
To illustrate a high risk level, the Documentary Guidelines specifies the presenting problem as one or more chronic illnesses with severe exacerbation, progression, or side effects from treatment, acute or chronic illnesses or injuries that pose a threat to life or bodily function, such as multiple trauma, pulmonary embolus, severe respiratory distress, progressive severe rheumatoid arthritis, psychiatric illness with potential threat to self or others, acute renal failure, or an abrupt change in neurologic states, such as a seizure, transient ischemic attack, weakness, or sensory loss; the diagnostic procedures as cardiovascular imaging studies with contrast with identified risk factors, cardiac electrophysiological tests, diagnostic endoscopies with identified risk factors, or discography; and management options as elective major surgery with identified risk factors, emergency major surgery, parenteral controlled substances, drug therapy requiring intensive monitoring for toxicity, or a decision not to resuscitate or to de-escalate care due to a poor prognosis.
Documentary Guidelines, p. 47.
28/ For instance, for code 99233, the CPT provides an average of
35 minutes, but warns that "the specific times expressed in the visit code descriptors are averages and, therefore, represent a range of times that may be higher or lower depending on actual clinical circumstances." CPT, p. 7.
29/ Time is the sole or controlling component on three occasions:
1) when most of the service is counseling or coordinating care, CPT, p. 10; 2) when the service is billed as a prolonged service code--i.e., codes 99354 through 99357; and 3) when the service is a discharge service at the conclusion of codes under Hospital Inpatient Services--i.e., codes 99238 and 99239.
30/ It is impossible to discount the possibility of careless drafting.
31/ Located over 500 pages from the operative provisions cited above, Appendix C is titled, "Clinical Examples." Applicable to E/M services, Appendix C offers illustrations under various codes for various specialties. For instance, under code 99231, for "Family Medicine/Internal Medicine," Appendix C offers: "Subsequent hospital visit for a 4-year-old female, admitted for acute gastroenteritis and dehydration, requiring IV hydration; now stable." Obviously, such an illustration ignores the components of history and examination.
Even as to medical decision making, Appendix C does not appear to address, at least directly, the number of diagnoses or management options or the amount or complexity of the data. The cited illustration, as well as the other illustrations, address more directly the risk of complications, but actually may address most directly the nature of the presenting problem.
32/ The CPT actually tries a third time to set forth how many components are needed to satisfy a two-component code and fails again! The E/M Guidelines concludes by noting that some codes require all three components and some codes require only two of three components. The E/M Guidelines correctly places the subcategory of Subsequent Hospital Care among the two-component codes, but incorrectly places the category of Hospital Observation Services among the three-component codes, even though the subcategory, Subsequent Observation Care, requires only two components. CPT, p. 9.
33/ The missing component will invariably be history or examination because, if medical decision making is absent, the patient encounter lacks medical necessity.
34/ As used in this recommended order, "insufficient documentation" includes no documentation.
35/ In his proposed recommended order, Respondent seems to have forgotten his concession because he argues that Claim 1-1 should not be denied, but should only be downcoded from code 99220 to 99219. Disregarding Respondent's concession, Claim 1-1 must be denied on two grounds. First, Initial Observation Care must take place on the "same date of initiating 'observation status.'" CPT, p. 13. Recipient 1 was admitted to observation status on November 16, 2011, and Claim 1-1 is for a patient encounter of November 17, 2011. It is not possible merely to move Claim 1-1 to November 16 without risking multiple reimbursements for the same services: the record does not indicate whether one or more other physicians billed for November 16 and, if so, what codes they billed. Second, treating Recipient 1's date of admission as November 17, the Initial Observation Care codes are three- component codes with high levels of history and examination for even the lowest code. As discussed elsewhere, Respondent must personally perform the examination, other than taking vitals. As Dr. Liebert testified, the documentation reveals no examination performed by Respondent and certainly no history approaching detailed, as required for code 99218, which is the lowest code in the Initial Observation Care group.
36/ Automated notes are legible and allow the easy entry of comments, some of which may be prompted by the program. More particularized statements of history in automated notes are generally reliable due to the uniqueness of each patient's history. The same may not be true of statements of examination in automated notes, where most patients may be served by stock phrases, such as "Chest--symmetric, normal respiratory effort."
37/ This assumes, of course, that Dr. Liebert were to subscribe to the conventional view that two-component codes require only two components.
38/ It is unclear why code 99233 billed on July 13 at $114.27 and the same code billed the next day at $116.27. As noted above, this recommended order relies on Petitioner's Claims Spreadsheet, not the Fees Schedules, for the appropriate fees for each code, as of its billing date. After it reacquires jurisdiction, Petitioner may wish to recheck the fees shown on the Claims Spreadsheet for accuracy.
39/ In its fourth edition, the CPT predicated reimbursement rates primarily on the nature of the problem presented. See, e.g., Ag. for Health Care Admin. v. Cabrera, 1994 Fla. Div. Adm. Hear. LEXIS 5127, DOAH Case 92-1898 (DOAH Jan. 24, 1994; AHCA June 7,
1994). It may not be coincidental that this coding methodology was in place when Respondent became a physician in Florida.
40/ See Lars Noah, "Pigeonholing Illness: Medical Diagnosis as Legal Construct," 50 Hastings L.J. 241, 300-01 (Jan. 1999).
41/ This recommended order finds 74 violations: 29 denials,
42 downcodings, and three adjustments to coding for which it is unclear if the erroneously coded claim originally submitted resulted in more or less reimbursement than the amount to which Respondent is entitled based on the correct coding. The denials are Claims 1-1, 4-1, 4-4, 5-1, 6-3, 6-4, 9-1, 9-2, 9-3, 9-4, 9-5, 10-4, 11-1, 12-1, 12-4, 14-1, 15-3, 15-5, 15-6, 16-1, 16-2, 18-1, 20-2, 30-1, 31-2, 33-6, 33-8, 33-11, and 33-13. The downcodings are Claims 2-1, 3-1, 4-3, 5-2, 10-2, 10-3, 10-5, 11-1, 11-4, 11- 5, 11-6, 11-7, 12-2, 12-3, 12-5, 12-6, 12-7, 12-10, 12-11, 14-2, 14-3, 15-1, 15-2, 15-4, 21-2, 25-2, 25-3, 25-4, 26-1, 27-1, 27-4, 29-1, 29-2, 31-3, 33-3, 33-7, 33-9, 33-12, 34-3, 35-2, 35-3, and 35-4. The adjustments are Claims 17-1, 23-2, and 26-2.
These 74 violations support a fine of $7400 without regard to the 5% cap. For the purpose of calculating the fine in this case, the violations may not be extended from the 147 audited
claims to the 4424 claims actually submitted during the Audit Period. Petitioner has not demonstrated that its statistic formula for extending overpayments may be used, at all or with equal confidence, to extend erroneous claims or violations, nor has Petitioner demonstrated, by any standard of proof, that half of the actual claims are erroneous due to the fact that half of the audited claims are erroneous.
42/ Undoubtedly, when requesting a hearing, a provider is asking merely whether the overpayment cited in the final audit report is too high and is not asking for a global or all-inclusive redetermination of the total overpayment.
This issue arises in child support. In Newberry v.
Newberry, 831 So. 2d 749 (Fla. 5th DCA 2002), a father filed a petition to change the residence of one of his three children from the mother's home to his home and to reduce the child support accordingly. The mother filed no counterpetition. After trial, the court denied the request for a change in residence, but ordered an increase in child support. The Newberry majority reversed the trial court on due process grounds. In dissent, Judge Sharpe stated that the child support guidelines requires a "global recalculation of child support each time the issue is raised." Id. at 755 (Sharpe, J., dissenting).
Administrative child support follows Judge Sharpe's dissent due largely to the statutory genesis of the agency's claim, as opposed to the inclusion of the claim in a petition filed by a private party. In Department of Revenue v. Reyes, 181 So. 3d 1270 (Fla. 1st DCA 2015), the court reversed the administrative law judge, who had held that a father's request for a hearing on a proposed final administrative support order limited the issue to whether the child support proposed by the department was excessive. Relying in part on Newberry, the administrative law judge ruled that the father's request for hearing did not raise the global issue of a recalculation of the child support, regardless of the amount of proposed child support. The court reasoned instead that the statutory notice of proceeding to establish child support order, which is issued by the department prior to proposed agency action, adequately notified the father of the broad scope of the hearing that he was requesting or, in other words, "put the global issue of his child support obligation on the table." Id. at 1273.
The March 12, 2015, audit letter serves the same purpose as the notice of proceeding to establish child support order: the audit letter notifies the provider that the scope of the agency
activity, which extends to the formal hearing at DOAH, is a global determination of total overpayments during the Audit Period. Reinforcing this letter are myriad provisions advising providers of the existence and scope of Petitioner's audits of Medicaid reimbursements. See, e.g., Florida Medicaid Provider General Handbook (2008), pp. 68 et seq.; § 409.913(2), (7),
and (11), Fla. Stat. Obviously, if the total overpayments, after extension, may exceed the total overpayments, after extension, stated in the FAR or by the peer reviewer, then the overpayment of an individual claim may exceed the amount of the overpayment of that claim determined in the FAR or by the peer reviewer.
A separate issue is whether an administrative law judge may code a claim outside of the range of codes adopted by the two expert witnesses. After carefully reviewing their testimony, Dr. Liebert and Respondent established themselves as expert witnesses in family medicine, not CPT coding. The administrative law judge was inclined to defer to instances where the experts agreed to a particular code, but sometimes their agreement was without reasonable basis. Even assuming that the expertise of these physicians were to extend to coding, a fact finder is free to reject even unchallenged expert testimony. See, e.g., Dep't of Agr. & Consumer Servs. v. Borgoff, 35 So. 3d 84, 88 (Fla. 4th DCA 2010).
43/ In calculating the fine per violation, Petitioner is limited to the violations proved among the audited claims and may not, by extension, determine the total violations among all of the claims submitted during the Audit Period. See endnote 41 above.
44/ See § 120.57(1)(e)1.
45/ Unlike an appellate court, which, pursuant to section 120.68(6)(e), may not disturb an agency's lawful exercise of discretion, an administrative law judge is assigned the task of determining, de novo, the appropriate penalty, regardless of the appropriateness of the agency's exercise of discretion in proposing a penalty. Again, section 120.57(1)(l) indirectly recognizes this authority by providing that an agency may not reduce or increase a recommended penalty without a review of the complete record and stating with particularity its reasons for doing so. The existence of this statutory process, like the statutory process governing the interpretation of statutes and rules within the substantive jurisdiction of the agency, militates against an implication of deference by the administrative law judge to the agency's exercise of its discretion in proposing a fine.
COPIES FURNISHED:
Bradley Stephen Butler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Bernard M. Cassidy, Esquire Lubell Rosen
200 South Andrews Avenue, Suite 900 Fort Lauderdale, Florida 33301 (eServed)
Joseph G. Hern, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
James Zubko Ross, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Ellery W. Sedgwick, Esquire
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)
Stefan Grow, General Counsel
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Justin Senior, Secretary
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1
Tallahassee, Florida 32308 (eServed)
Shena Grantham, Esquire
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308 (eServed)
Thomas M. Hoeler, Esquire
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 |
|---|---|---|
| Oct. 03, 2018 | Agency Final Order | |
| Aug. 07, 2018 | Recommended Order | Pet. proved overpayments of Medicaid claims for 35 patients during audit period & may extend this total to all claims during audit period. Pet may impose fine of lesser of $100 per violation re 35 patients or 5% of extended overpayment. |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs THOMAS PATRICK TREVISANI, M. D., 17-005904MPI (2017)
MICHAEL RAYMOND ROSS vs AGENCY FOR HEALTH CARE ADMINISTRATION, 17-005904MPI (2017)
AGENCY FOR HEALTH CARE ADMINISTRATION vs MEDI-FLO CARE, INC, 17-005904MPI (2017)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ERIC N. GROSCH, M.D., 17-005904MPI (2017)
