Findings Of Fact On August 23, 1995, the undersigned entered a Recommended Order in DOAH Case 94-1365. The Petitioner in that proceeding was Billy Beeks, M.D., and the Respondent was the Agency for Health Care Administration (AHCA). At issue in that proceeding was whether Dr. Beeks had been overpaid by the Medicaid program. The Recommended Order contained extensive findings of fact, including findings as to the appropriate levels at which certain services should have been billed to the Medicaid program by Dr. Beeks. It was concluded that because certain of his services were billed at levels higher than justified by Medicaid protocol, Dr. Beeks had been overpaid by the Medicaid program. Because the calculation of such overpayments are done by computer, it was recommended that the overpayment be recalculated based on the findings of fact contained in the Recommended Order. On October 19, 1995, Douglas M. Cook, Director of AHCA, entered a Final Order in DOAH Case 94-1365. That Final Order adopted the findings of fact and conclusions of law contained in the Recommended Order and provided, in pertinent part, as follows: The dollar amount of the overpayment liability shall be calculated based on the findings and conclusions made by the hearing officer. The amount of the overpayment claimed by AHCA at the beginning of the hearing in DOAH Case 94-1365 was $50,852.56. An overpayment to Medicaid is calculated by computer using a statistical analysis of a sampling of the provider's billings to Medicaid. AHCA asserted that the level at which Dr. Beeks had billed Medicaid for certain of these services in the sample was excessive. It was found in that underlying proceeding that while Dr. Beeks had billed certain of his services at excessive levels as asserted by AHCA, some of the challenged billings were not excessive and others were not as excessive as asserted by AHCA. Logically, one would expect that the recalculation of overpayment would result in a smaller figure than that claimed prior to the hearing. Following the entry of the Final Order, Vickie Givens, an employee of AHCA, made a detailed analysis of the evidence presented at the formal hearing, including the deposition of Joni Leterman, M.D.. Ms. Givens compared her analysis with the findings of fact contained in the Recommended Order and discovered certain billings by Dr. Beeks that she believed should have been included in the Recommended Order as being excessive. 1/ These billings were not included in the Recommended Order and, consequently, were not incorporated by reference into the Final Order. Thereafter the overpayment was recalculated by an appropriately trained AHCA employee. As instructed, this employee included in the recalculation of the overpayment the additional billings for the services identified by Ms. Givens, but not included in the Recommended Order. AHCA staff recalculated the amount of the overpayment to Dr. Beeks to be $51,745.13, which is slightly higher than the amount claimed prior to the hearing in DOAH Case NO. 94-1365. The figure that resulted from this recalculation was higher than it would have been had these additional billings not been included.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order that adopts the findings of fact and conclusions of law contained herein and that the Agency recalculate the total amount of the overpayment during the audit period based solely on the findings of fact contained in the Recommended Order in DOAH Case 94-1365. DONE AND ENTERED this 8th day of July, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1996.
Findings Of Fact Respondent is Hooshang Hooshmand, a licensed physician at all times relevant to these proceedings. He was issued license number ME 0021496 by the State of Florida. Medicare is a program of the U.S. Department of Health and Human Resources which is administered by the Health Care Financing Administration (HCFA). The program allows for third party payment, by the federal government, for diagnostic programs and medical treatments administered on an inpatient and outpatient basis to individuals eligible for medicare coverage. Among providers of medical services, only licensed physicians may be paid by the program for rendition of services. Others who may be reimbursed include health care professionals, such as durable medical equipment suppliers, as well as patients themselves in the instance of medical services rendered by a nonparticipating physician. On October 9, 1987, in the United States District Court for the Southern District of Florida, Respondent was convicted, after a jury trial, of ten counts of submission of fraudulent medicare claims in violation of Title 18, U.S.C. Section 287 and Section 2. He was also convicted on 11 counts of devising a scheme to defraud by mail, the U.S. Department of Health and Human Resources in violation of Title 18, U.S.C., Section 1341 and Section 2. Respondent's sentence upon his conviction included a term of 18 months imprisonment and five years probation upon completion of imprisonment and any parole period; payment of restitution in the amount of $3,101.24; payment of a fine of $250,000; payment of an assessment of $300; performance of 5,000 hours of community service during the five year probationary period following imprisonment. The verdict and sentence are presently on appeal to the United States Circuit Court of Appeals for the Eleventh Judicial Circuit. The expert testimony of Michael Gutman, M.D., a specialist in forensic psychiatry in the State of Florida, establishes that the practice of medicine in Florida encompasses not only a physician's technical competence; but also the relationship between a physician and the patient. Such a relationship is based upon trust and honesty. While the physician's expectation of payment for services is part of the patient/physician relationship, fraudulent billing for those services by the physician to either the patient or a third party payor directly affects the practice of medicine through its impact on that relationship. A fraudulent billing scheme, such as that of which Respondent was convicted, introduces dishonesty to the physician/patient relationship and prevents a proper evaluation of the patient in favor of a methodology permitting fraudulent billing. Such methodology would necessarily be one chosen to permit fraudulent billing in a way which would escape detection; a choice not necessarily in the best interest of the patient. Gutman's testimony also provides an adequate record upon which to find that fraud, such as that reflected by Respondent's criminal conviction, also directly relates to the ability to practice medicine because the physician's professional judgement and ethical standards are involved. Such judgement has a direct bearing on the ability to practice medicine. How that judgement is exercised could very well affect the life of the patient in some situations. While it is found Respondent's conviction of fraud in the use of the billing apparatus in his practice directly relates to professional judgement and the ability to practice medicine, there has been no showing that the Respondent's judgemental aberration at that time detrimentally affected his patients' health or his technical competence. In mitigation of the charge in the administrative complaint, Respondent provided testimony of witnesses establishing his technical competence and expertise in his areas of specialization; his extremely impressive professional credentials; the high regard in which he is held by certain of his peers and patients; and his previously unblemished record in the practice of medicine. Respondent also provided testimony of witnesses establishing the complexity of medicare billing and the fact that many physicians, while holding ultimate responsibility for the accuracy of such billing, delegate this task to subordinates. Testimony of Respondent establishes that the complexity of medicare procedures played a major role in his violation of the legal requirements in that system of reimbursement and is partially to blame for his criminal conviction. The testimony of Eleanor Breckner, offered by Petitioner to rebut Respondent's testimony, is not credited. In addition to Beckner's demeanor while testifying, her testimony is diminished in view of her admission that she committed perjury and embezzlement on previous occasions. Beckner also admitted to incidents of attempted suicide indicative of mental instability. Her testimony is not credited with any probative value.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent pay an administrative fine of $2,500 and that his license be placed on probation for a period of two years upon terms and conditions to be established by the Board of Medicine. It is further recommended that a condition of such probation require the satisfactory completion by Respondent of a course of study designed to provide him the information and skills necessary to properly comply with medicare reimbursement procedures. DONE AND ENTERED this 3rd day of March, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-4. Addressed. 5.-6. Unnecessary to result. 7. Addressed in part, remainder unnecessary. 8-10. Unnecessary to result. 11. Addressed in part; remainder unnecessary. 12.-14. Unnecessary to result. Addressed in part; remainder unnecessary. Adopted by this reference. Rejected, not supported by the evidence. Unnecessary to result. 19.-20. Not supported by the weight of the evidence. Unnecessary to result; also cumulative. Adopted by this reference. Rejected as cumulative. Not supported by the weight of the evidence. Unnecessary to result and not relevant. 26.-27. Unnecessary to result. Unnecessary to result and cumulative. Addressed in part; remainder unnecessary to result. 30.-31. Unnecessary to result; cumulative. 32. Reject, not supported by weight of the evidence. 33.-36. Rejected, not relevant. 37.-41. Unnecessary to result. 42.-43. Addressed in part, remainder unnecessary. 44.-45. Unnecessary to result reached. 46. Addressed in part, remainder unnecessary. 47.-50. Unnecessary to result. Unnecessary and cumulative. Unnecessary to result. Rejected on basis of relevancy. 54.-56. Addressed in part, remainder unnecessary. Unnecessary to result reached. Rejected, not relevant. Unnecessary to result reached. Rejected, not relevant. 61.-67. Unnecessary to result reached. Rejected, not credible and not supported by the weight of the evidence. Also a legal conclusion. Addressed. Unnecessary to result. Adopted by this reference. Adopted in substance. Rejected as a legal conclusion. PETITIONER'S PROPOSED FINDINGS 1.-7. Adopted in substance. 8.-9. Addressed. COPIES FURNISHED: Jonathan King, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Joesph C. Jacobs, Esq. Melissa Fletcher Allaman, Esq. 305 South Gadsden Street P.O. Box 1170 Tallahassee, FL 32302-1170 Roy L. Glass, Esq. 3000-66th Street North Suite B St. Petersburg, FL 33710
Findings Of Fact At all times relevant hereto, respondent, Ronald L. Askowitz, held dentist license number DN 0003884 issued by petitioner, Department of Professional Regulation, Board of Dentistry (DPR or the Board). Dr. Askowitz is a 1960 graduate of the Medical College of Virginia. Since 1965, he has practiced dentistry in the South Dade County area. Presently, he is engaged in the practice of general dentistry in Perrine, Florida. When the events herein occurred in 1984 and 1985, respondent's practice consisted of approximately forty percent Medicaid patients and sixty percent private pay patients. In order to be reimbursed for providing services to Medicaid patients, Dr. Askowitz was required to obtain a Medicaid provider number from the State of Florida and to adhere to then existing regulations. Among other things, respondent had to submit a dental remittance voucher to the Department of Health and Rehabilitative Services (HRS) as a prerequisite to reimbursement. Respondent has conceded that he completed and signed all vouchers himself. After HRS reviewed the voucher, a check would be issued to respondent reimbursing him at the fixed Medicaid rate. 2/ On average, Dr. Askowitz received around $1,000 per month for treating Medicaid patients. He did not differentiate between Medicaid and private pay patients in terms of quality of care. Because of unusually high billings for three surface amalgam restorations which exceeded the normal statewide range, the HRS computer "kicked out" respondent's name for further review by the Auditor General's Medicaid fraud unit. Thereafter, the billing records of thirty-one patients were picked at random and manually reviewed by the unit to ensure their accuracy. Eventually, this sample was reduced to seventeen files. Because of apparent irregularities in the files, an HRS dental consultant and two Medicaid special investigators visited each of the seventeen patients in the Miami area in August, 1985. The consultant performed an examination of the patients' teeth and compared the work he saw with the billings submitted by Dr. Askowitz to verify whether all billed work had actually been performed. Finding that many of the services for which respondent had been paid had not been performed, the consultant concluded that Dr. Askowitz had filed reports he knew to be false, that deceptive or untrue representations in the practice of dentistry had been made, that the patients had been financially exploited, and that respondent had engaged in fraud, deceit or misconduct in the practice of dentistry. Armed with the results of the unit's investigation, the State Attorney thereafter filed an information charging Dr. Askowitz with numerous counts of public assistance fraud. He was arrested on May 16, 1986. On October 17, 1986 respondent entered a plea of nolo contendere to seventeen counts of public assistance fraud. Adjudication was withheld and respondent was placed on five years' probation and required to provide 300 hours of community service. The probation term can be reduced to two years if all special conditions are met. In addition, Dr. Askowitz was required to make a voluntary $15,000 payment to the Medicaid Fraud Control Unit and a $20,000 payment to the Florida Medicaid Program. After the plea was entered, petitioner initiated this proceeding charging respondent with various violations of Chapter 466, Florida Statutes (1985), all of which relate to his billings on sixteen Medicaid patients. In general terms, respondent submitted Medicaid bills for various services rendered on these patients (mainly surface fillings), but in actuality all such services had not been performed. A more complete analysis of these billings is found in petitioner's exhibits 3, 4 and 5 received in evidence. As a result of these claims, Dr. Askowitz received some $3,412 in overpayments during a ten month period. He has not denied his wrongdoing. It is noted, however, that Dr. Askowitz actually saw every patient in question, and that all work actually performed was necessary. In addition, there is no allegation or evidence that Dr. Askowitz performed any work in a negligent or shoddy manner. Finally, the parties have stipulated that there is no issue regarding respondent's competency. At final hearing, respondent stated he was "frustrated" with HRS because he had not been paid for all of the services that he had rendered. Consequently, he filed these claims. He is now sorry he did so, and has paid a dear price for his misdeeds. He described the notoriety surrounding his arrest as having a devastating effect on his practice. Nonetheless, he still desires to continue his practice of dentistry. Indeed, Dr. Askowitz still operates an office, serving primarily patients from the middle and lower income classes. His Medicaid provider number has continued to remain valid, and he is the only dentist in the Perrine area who treats Medicaid patients. He has completed his community service hours by providing free dental care to residents of a drug and alcoholic treatment center. He has no prior disciplinary action against him over a career spanning some twenty-two years. Testimony by other dentists also established that respondent is highly regarded from a professional standpoint, and that he has done a creditable community service by treating numerous patients from the lower income stratum.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of all charges, and that his license be placed on probation for three years. DONE AND ORDERED this 21st day of August, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1987.
The Issue The issues to be resolved in this proceeding concern whether the Respondent Agency must be reimbursed by the Petition for purported overpayments regarding Medicaid claims, as delineated in the Respondent's Final Agency Audit Report of December 12, 2003, related to the audit period of July 1, 2000 through July 31, 2002.
Findings Of Fact The Agency is responsible for administering the Florida Medicaid program. The Agency is thus charged with a duty to recover overpayments to medical service providers enrolled in that program. The term "overpayment" means any amount not authorized to be paid by the Medicaid program, whether paid as a result of inaccurate reporting or improper reporting of costs, improper claims, unacceptable practices, fraud, abuse, or by mistake. See § 409.913.(1).(d), Fla. Stat. The Petitioner, Maria Lourdes Burgos, M.D., is a pediatrician duly licensed in the State of Florida, practicing as an authorized Medicaid provider for purposes of the relevant portions of Chapter 409, Florida Statutes, at times pertinent hereto. During the period July 1, 2000 through July 31, 2002, (the audit period) the Petitioner had a valid Medicaid provider agreement with the Respondent Agency. During the period of the audit the Petitioner provided services to Medicaid recipients or patients and submitted claims for those services and was compensated for those services. This case is a result of the Agency's attempt to recover purported overpayments from Dr. Burgos. In choosing to become a Medicaid provider, a physician such as Dr. Burgos must assume the responsibilities enumerated in Section 409.913(7), Florida Statutes (2004), which provided generally that such a provider had an affirmative duty to supervise the provision of such services and be responsible for the preparation and submission of claims. The claims are required to be true and accurate, the services are required to actually have been furnished to the recipient by the provider submitting the claim; the services are required to be medically necessary, of a comparable quality to those furnished to the general public by the provider's peers; and to have been provided in accordance with all applicable provisions of Medicaid rules, regulations, handbooks, and policies. They must be in accordance with federal, state, and local law. Additionally, the provision of medical services are required to be documented by records made contemporaneously with the provision of the services, demonstrating the medical necessity for them and the medical basis and specific need for them must be properly documented in the recipient's medical record. The "audit period" involved in this proceeding is July 1, 2000 through July 31, 2002. The Medicaid program reimbursed Dr. Burgos in excess of $43,238.57 in payments pursuant to the Medicaid program during that audit period. The Final Agency Audit Report is in evidence as Respondent's Exhibit One and the calculations pertaining to the overpayment amount are included in that report as part of Respondent's Exhibit One in evidence. The Agency contends that $43,238.57 is an overpayment and subject to recoupment because of Medicaid policy, as alleged in the Final Agency Audit Report (FAAR). Medical records reveal that some services billed, and for which payment was received, were not documented and that documentation provided supported a lower level of office visits than the one for which the Medicaid program was billed and for which payment was received by the Petitioner; and, because payments can be made only for those services listed in the provider handbook, that the Petitioner billed and received payments for services not covered by Medicaid as overpayments. The Agency furnishes all authorized Medicaid providers a manual entitled The Physician Coverage and Limitations Handbook (Handbook). The Handbook contains the requirements demanded of Medicaid providers and it and the procedure code manual (CPT) manual that was in effect during the audit period is in evidence in this proceeding. The handbook has been incorporated by reference in Florida Administrative Code Rule 59G-4.230. This handbook sets forth Florida Administrative Code Rule 59G-4.230 and sets forth pertinent applicable Medicaid policies and claims processing requirements applicable to this proceeding. Upon convening of the audit procedure, the Agency requested certain records from the Petitioner and the Petitioner fully complied with the relevant requirements of Chapter 409, Florida Statutes, submitting copies of all records dealing with the recipients who where the subject of the audit. See Exhibit Eight in evidence. The Petitioner, in effect, does not dispute the statistical methodology employed by the agency, but does dispute the manner in which it was applied to certain procedure codes (CPT codes) and the result of the overpayment calculations. Additionally, for every office visit that the Petitioner had with Medicaid patients, she personally made an individual judgment about the level of service that she provided and accordingly billed for that level of care and treatment provided. She was consistent in this in her billing practices as to both Medicaid and non-Medicaid patients. In some instances, regarding the audited Medicaid patient/recipient records, it was demonstrated by the Petitioner that the patient presented with somewhat more complexity as to medical condition that the CPT code, postulated by the Agency as applicable, represented that thus she billed for the higher code (as for instance a "99215" instead of a "99213) or "99214"). Some of these medical judgment calls made by the Petitioner were shown to be appropriate and justified and some where shown by the Respondent's evidence, chiefly the testimony of Dr. Larry Deeb, the Respondent's expert, to be not really appropriate and that they should have been coded and therefore billed at a lower level. In any event, based upon the testimony of Dr. Larry Deeb, as well as the Petitioner's testimony, the submission of both a "well child" checkup billing and a "sick office visit" billing was appropriate and consistent with good medical practice under the circumstances demonstrated by the Petitioner's testimony and her records. Thus it was inappropriate for the Agency to automatically claim an overpayment due for those billings, based upon only its policy interpretation. Additionally, based upon Ms. Mocks testimony, it is apparently an Agency policy or practice in conducting audits, and in recouping overpayments, that when errors are discovered in the audit or in the billing records which happen to be in favor of the practitioner (the Petitioner) that the Agency does not provide a credit applied to any alleged overpayment. It would seem that fundamental fairness dictates that both credits and overpayments be weighed against each other in calculating the ultimate amount of any overpayment, if one exists. In any event, based upon Dr. Deeb's testimony and the Petitioner's testimony, with regard to the random sample of patients and their medical records submitted, reviewed and involved in this dispute, the evidence demonstrates that the Petitioner was not overpaid as to the following amounts and patients/recipients: Recipient Date of CPT Disallowed/ Number Service Billed and Paid Adjusted Amount 1 12/05/00 99215 $37.59 09/05/01 99215 $60.95 2 03/05/01 99214 $15.11 3 09/19/00 99215 $13.01 4 04/04/01 99215 $60.95 5 09/15/00 99214 $15.11 05/10/01 W9881 $22.70 6 01/14/02 99215 $14.52 8 11/08/01 99214 $15.11 9 05/03/01 99205 $87.24 10 05/03/01 99205 $87.241/ 11 04/04/02 90669 $ 0.002/ 04/04/01 W9881 $37.81 04/04/01 99214 $46.42 12 10/18/01 99214 $15.11 01/18/02 99215 $29.63 01/30/02 99215 $14.52 05/20/02 99214 $15.11 13 08/14/00 99215 $13.01 14 01/31/01 99214 $15.11 08/27/01 99214 $15.11 05/13/02 99214 $24.58 15 10/17/00 99356 $50.94 Recipient Date of CPT Disallowed/ Number Service Billed and Paid Adjusted Amount 10/19/00 99233 $12.53 16 10/13/00 99215 $57.14 17 05/10/01 99215 $60.95 12/11/01 W9881 $37.81 12/11/01 99214 $46.42 20 12/22/00 99205 $17.02 22 11/19/01 99223 $42.04 11/20/00 99239 $11.53 23 03/27/02 W1998 $ 0.003/ 04/03/02 99356 $49.72 04/22/02 99215 $ 0.004/ 04/29/02 99214 $13.86 05/10/02 99215 $ 0.005/ 24 08/12/01 99356 $ 0.006/ 08/15/01 99239 $12.06 25 09/30/01 99223 $22.71 10/01/01 99233 $12.66 26 12/03/01 99356 $49.257/ 12/06/01 99239 $12.06 12/14/01 99205 $18.12 01/16/02 99215 $29.63 01/23/02 99215 $29.638/ 28 10/13/01 99431 $ 0.009/ Recipient Number Date of Service CPT Disallowed/ Billed and Paid Adjusted Amount 10/14/02 99233 $12.66 10/15/01 99239 $12.06 29 02/28/02 99356 $ 5.4210/ 03/01/02 99233 $13.80 03/02/02 99239 $13.66 03/06/02 99205 $18.67 29 03/13/02 99215 $14.52 11. The Petitioner in its Proposed Recommended Order has agreed that other than the above (Proposed Recommended Order paragraph 10 patients and amounts) that the Petitioner agrees with the Agency's review and the overpayment calculations on a per office visit basis. Additionally, however, as referenced above, there were additional health insurance claim forms which were, or should have been, submitted to the Agency, representing claims for payment for dates of service that clearly fall within the relevant audit period, that were never compensated by the Agency's contracted agent. The alternative is that the claim forms for some reason were not actually submitted. Unfortunately, neither the Petitioner's records and testimony nor the Agency records can clearly show whether the claim forms were actually submitted or not. It is apparently not possible to retrieve that information from the Agency's claim filling and payment-related computer programming system, for reasons not understood by either party or the judge. There is thus no clear explanation of record concerning why these claims were not paid earlier, even though they fall within the audited period. It is clear, however, that the additional claims referenced in the Petitioner's Exhibit Seven, admitted as a late exhibit herein, do relate to that audit period and represent medical services provided by the Petitioner within that audit period. Since that audit period and the claims referenced in evidence are the subject of a "proceeding" and are pending a "court or hearing decision . . ." or, alternatively and admittedly somewhat speculatively, could be subject of a "system error on claim that was originally filed within (12) months from date of service," it appears patently apparent that fundamental fairness dictates that these health insurance claim forms related to the same audit period should be considered and a determination made as to whether and how much of those claims should be reimbursed to the Petitioner for the medical services they represent. Thus, especially as to exception (2) to the twelve- month filing requirement listed in the above-reference handbook, Exhibit Seven has been admitted into evidence and the claim forms represented therein should be considered and the amounts payable to the Petitioner should be credited against the resultant overpayment amounts calculated as a result of these Findings of Fact.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Respondent, Agency for Health Care Administration, re-calculate the amount of overpayment in a manner consistent with the above Findings of Fact and Conclusions of Law, excluding from the amount of overpayment those amounts determined above to have not constituted overpayments. It is further RECOMMENDED that the Respondent calculate the amount of reimbursement not provided pursuant to the recently submitted or re-submitted (but never paid) Exhibit Seven health insurance claim forms, and as for the reasons indicted in the above Findings of Fact and Conclusions of Law, and credit that additional amount of reimbursement against the overpayment calculation amount in arriving at the new overpayment due from the Petitioner to the Respondent. The Petitioner shall repay the Respondent the re-calculated monetary amount of overpayment within a reasonable period of time and by reasonable installment payments, agreed to by both parties, but shall not be obligated to pay other costs or fees related to this matter. DONE AND ENTERED this 4th day of November, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2005.
Findings Of Fact The Respondent, Jack P. Randall, is a chiropractic physician licensed to practice in the State of Florida. He holds license number 2770. On August 8, 1978, a federal grand jury filed an indictment in the United States District Court for the Northern District of Alabama, charging the Respondent with 29 counts of willfully making a false, fictitious and fraudulent statement and representation as to material facts in a matter within the jurisdiction of the United States Department of Health, Education and Welfare, Health Care Financing Administration (formerly Social Security Administration) in violation of 18 U.S.C. 1001 which states: "Whoever, in any manner within the jurisdiction of any department or agency of the United States knowingly and wilfully falsifies, conceals or covers up by any trick, scheme of device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years or both." This indictment asserts that on 29 occasions between December, 1976, and January, 1978, the Respondent requested payment from the United States for chiropractic services performed on patients when such services were not actually performed. On October 25, 1978, in the United States District Court for the Northern District of Alabama, the Respondent was convicted of 24 of the 29 counts in the indictment, and sentenced to imprisonment for a period of one year, and fined the sum of $5,000, to be followed by a suspended sentence of four years during which time the Respondent would be placed on probation. Each of the 24 counts upon which the Respondent was convicted directly relates to the practice of chiropractic. Thereafter, the Respondent appealed his conviction to the United States Court of Appeals for the Fifth Circuit. By its opinion filed on April 19, 1979, the verdict and judgment against the Respondent was affirmed. Certified copies of the indictment, the verdict and judgment, and the appellate opinion were received in evidence in support of the Administrative Complaint. In his defense, the Respondent asserted that the representation he received from his attorney was ineffective, and that the trial court would not let him employ another attorney. However, these matters are collateral to the issues presented in this proceeding. If they consist of a remedy, the Respondent must pursue it in court and not here.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that license number 2770 held by the Respondent, Jack P. Randall, be revoked. THIS RECOMMENDED ORDER entered on this 15th day of May, 1981. COPIES FURNISHED: Tina Hipple, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jack P. Randall 3244 Seminole Avenue Macon, Georgia 31204 WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May,1981
The Issue Whether Respondent, Florida Hospital Orlando (Respondent or FHO), was overpaid by Medicaid for care provided to patients in the amount of $34,644.10, as alleged by Petitioner, Agency for Health Care Administration (Petitioner or AHCA); or, as Respondent maintains, such care was medically necessary and supported by the record presented in this cause. Petitioner also maintains an administrative fine in the amount of $2,000.00 is warranted in this matter and that it is entitled to recover costs associated with the case in the sum of $7,635.27.
Findings Of Fact Petitioner is the state agency charged with the responsibility of monitoring the Medicaid Program in Florida. Centers for Medicare and Medicaid Services (CMS) is the federal agency which administers Medicare, Medicaid, and the State Children's Health Insurance Program. CMS initiated an audit of Respondent’s Medicaid claims and contracted with Booz Allen Hamilton (BAH), a Medicaid Integrity Contractor, to perform the audit. At all times material to the instant audit, Respondent was enrolled as a Medicaid provider, governed by a Medicaid Provider Agreement, and subject to all pertinent Medicaid rules and regulations related to the provision of Medicaid goods and services to Medicaid recipients/patients. Respondent was required to retain records documenting goods and services billed to the Medicaid program for a period of not less than five years. All of the disputed claims occurred within that five-year period. BAH requested medical records pertinent to the claims and FHO produced medical records in response to BAH’s audit. Respondent intended to produce all of its medical records as requested by BAH. Respondent's Medicaid Provider No. was 0010129001. All services provided to Medicaid patients are billed and identified by patient name, date of service, and provider. For purposes of confidentiality, the names of patients are redacted in audit proceedings. All goods and services billed to Medicaid must be medically necessary. If an audit determines that goods or services billed to Medicaid were, in fact, not medically necessary, Petitioner is entitled to recover monies paid as an overpayment claim against the Medicaid provider. The amount of the alleged overpayment is the subject of this proceeding. Before a Medicaid provider is authorized to bill Medicaid for medical goods and services rendered to a patient, several checks are considered. First, the patient must be Medicaid-eligible. There is no dispute that all recipients of care in this case were Medicaid-eligible patients. Second, before an inpatient stay is reimbursable, a Medicaid provider must seek prior authorization. To do so, at all times material to this case, AHCA enlisted the assistance of, and contracted with, KePro South (KePro) to perform utilization management for inpatient hospital services for Medicaid recipients. This meant the Medicaid provider contacted KePro by e-mail through a system known as "I-Exchange." In this case, FHO followed the protocol and requested prior approval for all of the claims at issue that required prior approval. All claims at issue were either approved by KePro or were exempt from the authorization requirement. Petitioner agrees that Respondent followed all of the protocols for approval of claims through the KePro system. Respondent agrees that all claims at issue as identified in the final audit report (FAR) were billed and paid. KePro approval does not mean goods and services billed to Medicaid are, in fact, medically necessary. All patient records for the claims at issue have been re-visited in the course of this case and have been thoroughly debated by doctors for both parties. In summary, AHCA's expert, Dr. Ferdinand Richards, opined that the records for the disputed claims do not support the "medical necessity" for the claims paid by Medicaid. In contrast, Dr. John Busowski and Dr. Ross Edmundson opined that the disputed claims were accurately billed and all care rendered was medically necessary. Medicaid has a "pay and chase" policy of paying Medicaid claims submitted by providers. Audits performed after-the-fact reconcile the amounts paid to providers with the amounts that were payable under the Medicaid guidelines, pertinent rules, and law. The Medicaid provider agreement executed between the parties governs the contractual relationship between FHO and AHCA. The parties do not dispute that the provider agreement, together with the pertinent laws or regulations, control the billing and reimbursement of the claims that remain at issue. The provider agreement pertinent to this case was voluntarily entered into by the parties. Although Respondent claims it could not negotiate the terms of the agreement, it is undisputed that Respondent agreed to be bound by the agreement. Respondent was not obligated to become a Medicaid provider. Any Medicaid provider whose billing is not in compliance with the Medicaid billing policies may be subject to the recoupment of Medicaid overpayments. Medicaid providers are aware that they may be audited. Audits are to assure that providers bill and receive payment in accordance with applicable rules and regulations. Respondent does not dispute Petitioner's authority to perform audits. If services rendered in this case were medically necessary, Petitioner does not dispute the amount billed as accurately reflecting the services. There is no question that Respondent provided the services identified in the disputed claims. For billing purposes, this case centers on three types of billing practices dictated by the medical circumstances of the patient. A Medicaid patient may be treated in an emergency room setting and once the presenting condition is addressed the stay may be considered outpatient, observation, or inpatient depending on the nature of the patient’s illness. Outpatient services may also be appropriate when a patient presents for a scheduled test or procedure. Observation services may be appropriate when additional time is needed to evaluate a patient’s condition. Inpatient care is dictated when the patient requires medical services or treatments because the severity of an illness or condition dictates an intensity of care that could not be provided at a less acute level. The levels of care at issue in this case are defined and specified in the Medicaid Hospital Services Coverage and Limitation Handbook and by Florida Administrative Code Rule. In this case, the disputed claims center on whether the claims were billed at the appropriate level of care. That is, if billed at the inpatient level should the claim have been billed as observation or outpatient? If billed as observation, should the claim have been billed as outpatient? Each disputed claim is listed and explained below. Each claim is described and evaluated based upon the medical documentation available to the treating physician at the time the services were rendered. The expert opinions of the parties’ witnesses have been fully considered and weighed in reaching the findings noted. The first five claims, identified as Adventist-FL-3006, 6, 7, 8, 9 and 11, concerned a three-year-old patient with Acute Lymphocytic Leukemia. The child required five separate intravenous chemotherapy treatments. The five claims ($1,503.04 per day) were billed at an inpatient rate. For each of the claims, the patient’s hospital stay was for less than 24 hours, the patient had no significant complications from the treatments, and was able to return home at the conclusion of the treatment. Based upon the weight of the persuasive evidence in this case, it is determined that these claims should have been billed as scheduled outpatient services. Petitioner is entitled to recoup the difference between the inpatient rate and an outpatient rate for these five claims. The amount of the overpayment is $7,515.20. Claim Adventist-FL-3006-21 concerned a 40-year-old morbidly obese female who went to the hospital emergency room (ER) on July 28, 2007. This patient complained of shortness of breath and chest pains. By history, it was known this patient had bipolar disorder, sarcoidosis, hypertension, and a record of being non-compliant with medications. A pulmonary function test was administered by ER staff and it was discovered the patient was at 50 percent of the expected function level. Although the initial admission to inpatient status was well documented, the record in this case is deficient, and the physicians who reviewed the record could not indicate why a four-day admission was required for this patient. Once the patient was provided a treatment for asthma (including IV steroids) and the evaluation for congestive heart failure proved negative, the patient should have been discharged. Based upon the weight of the persuasive evidence in this case, it is determined that this claim should be discounted to only two days of inpatient stay and not the four days billed. The exact amount of the overpayment for this claim cannot be determined from the evidence but is less than the $5,723.60 claimed by Petitioner. Claim Adventist-FL-3006-22, involved the same patient as described in paragraph 14. Less than two months after the visit described above, the patient returned to the ER with mild wheezing, and the patient was admitted for three days as an inpatient. Given the history of this patient, and the lack of significant change to the presenting symptoms, it is determined that the weight of the persuasive evidence would require this claim to be reduced to two days of observation, not inpatient services. This patient did not have a medical condition to justify a three-day stay. It may have been that the patient needed a place to stay, and her shortness of breath was a convenient excuse for her to seek medical attention; in any event, she did not have a medical condition of the acuity requiring a multi-day inpatient stay. Respondent does not turn patients away. Nevertheless, Medicaid does not provide for housing of patients who need care other than to meet medical needs. It is undoubted Respondent provided a meaningful service to this patient, but the level of medical care is not supported by the record in this case. AHCA is entitled to recover $2,717.52 for this claim. The next disputed claim, Adventist-FL-3006-30, concerned a 31-year-old male who went to the ER after having thrown-up blood. The patient reported a history of blood in his stools and gastro-esophageal reflux disease. Although the patient’s vital signs were normal, and there was no evidence of bleeding in the ER, the patient was admitted to the intensive care inpatient unit (ICU) and monitored. After a period of time in the ICU, it was noted that the patient’s hemodynamic was stable and he was moved to a “step down” inpatient room. The weight of the persuasive evidence would require this claim to be reduced to two days of observation services not the two days of inpatient billed. The record does not support any acuity requiring intensive care services. Moreover, the endoscopy resulted in normal findings. Had the endoscopy been performed on admission, the normal findings could have ruled out the need for inpatient services. In this case, the treating physician did not think the patient’s condition required an emergency endoscopy. Based upon that determination and the patient’s normal hemoglobin and hematocrit, it was unlikely the patient required more than observation. Giving Respondent the benefit of the doubt with regard to this claim, and assuming this patient required more care than observation to rule out a more acute illness, that determination could have easily been concluded within a one-day inpatient stay. AHCA accepts a two-day observation stay for this patient thereby reducing the overpayment to $2,716.18 for this claim. Adventist-FL-48 claim was a 44-year-old male who, while working on a ladder, touched a live electrical wire. This patient was taken by rescue squad to the ER and presented with atrial fibrillation. The patient was admitted to inpatient status, and it was recommended he be given a full cardiac work- up. At some point during his ER stay, and prior to the cardiac testing, the patient returned to a normal cardiac rhythm. Against the recommendation of medical staff, the patient left the hospital. Approximately three days later this patient returned to the ER and requested the cardiac testing he had declined on his prior visit. When he returned, the patient had a normal heart rhythm, had no other symptoms to suggest a cardiac irregularity, and had normal vital signs. Instead of billing the cardiac testing as outpatient services, the patient was admitted for inpatient status and given the full complement of cardiac tests to rule out any adverse cardiac condition resulting from the electrical shock. The weight of persuasive evidence supports that the testing should have been given with this patient in an outpatient status. There was no medical instability supporting a more acute setting for the testing that was done. The overpayment for this claim is $1,503.04. The patient described in Adventist-FL-78 claim was a 63-year-old female who went to the ER with stomach discomfort, nausea, and headache. It was feared the patient was in a cardiac-related condition as the patient had multiple risk factors including atrial fibrillation. By history, the patient had suffered a heart attack in the recent past, and the ER physician rightly admitted the patient for inpatient care to perform a cardiac work-up and to rule out any cardiac event. The inpatient stay was for a 24-hour period so that the testing could be concluded. The weight of persuasive evidence supports this stay. Respondent has shown the medical necessity for the treatment provided for this patient. Adventist-FL-96 claim concerned a patient with a significant bone marrow disorder similar to leukemia. The patient had had a bone marrow transplant. Upon admission to the hospital he suffered nausea, vomiting, and abdominal pain. He was admitted for a one-day inpatient stay and treated for dehydration. He was given a white blood count test and once stabilized was discharged (within 24 hours) with the recommendation that the patient return to his regular provider in Tampa. The weight of persuasive evidence supports this stay. Respondent has shown the medical necessity for the treatment provided for this patient. The patient in Adventist-FL-98 claim was a 45-year-old male with a history of Chronic Obstructive Pulmonary Disease (COPD), smoking, and alcohol abuse. The patient had a history of hospitalizations related to COPD and upon admission complained of shortness of breath. At the time of admission, the patient had normal vital signs, acceptable oxygen saturation levels, no wheezing, and a chest x-ray that showed no acute abnormalities. The weight of persuasive evidence supports the finding that a level of care of observation, and not inpatient, was the correct level Respondent should have billed for this patient. The patient had no medical acuity to support a one-day inpatient stay. AHCA is entitled to recover the overpayment in the amount of $1,358.09. AHCA no longer disputes Adventist-FL-154 claim. Consequently, the overpayment associated with the audit must be reduced by $3,856.68. It is determined Respondent accurately billed for this claim. Similarly, Respondent no longer disputes claims Adventist-FL-155-156. These claims should have been billed as observation, not inpatient stays. Accordingly, Petitioner is entitled to recover the overpayment associated with these claims in the amount of $2,672.98. The patient associated with Adventist-FL-180 claim was a 53-year-old female with a history of breast cancer and metastatic disease. On the date of her admission, she had had radiation therapy. She suffered nausea and vomiting and presented to the ER. She received an IV of fluids and IV Zofran, felt better, and left the hospital against medical advice. In total, the patient was in the hospital approximately three hours or less. The claim billed her admission as inpatient. This claim should have been billed as observation. Accordingly, the weight of persuasive evidence supports that an overpayment occurred with regard to this claim. Petitioner is entitled to recover the difference between inpatient and observation for this patient. The amount of the overpayment is unknown. With regard to Adventist-FL-230 claim, this patient was a 58-year-old male complaining of shortness of breath with a history of atrial fibrillation. The patient was admitted for a five-day inpatient admission. Respondent was paid for a four-day inpatient stay because that length of stay was approved by KePro. Petitioner disputes that an inpatient stay was required. The weight of persuasive evidence supports an inpatient stay of three days. The patient had stabilized, testing had been completed, and there was no significant medical basis for an inpatient stay beyond that point. The amount of the overpayment is unknown as the audit sought reimbursement at an observation rate. Although not entitled to the four days of inpatient as billed for this patient, Respondent has established it was entitled to a three- day inpatient compensation based upon the medical necessity established for this patient. Respondent, and other providers may adjust Medicaid billings after-the-fact to conform to medical necessity for any claim filed. In this case, Respondent did not review its claims once KePro approval had been secured. That is to say, if the KePro approval was documented, Respondent did not question the claim for medical necessity once treatment was given. Billings were adjusted to conform to KePro approval, but were not questioned or re-visited as to whether the appropriate level of acuity was documented. Petitioner asserts that Respondent failed to submit the complete medical records for Adventist-FL-98 claim until after the audit was issued. Respondent’s response that it provided all medical records timely to the auditor, BAH, is accepted. It is unlikely the records of one claim would have been omitted from the hundreds of pages of records given to the auditor. BAH conducted their audit over an extensive period of time. The Interim Audit Report was issued on October 4, 2010. The overpayment at that time was alleged to be $42,848.29. That amount was also noted in the FAR dated November 16, 2010. Concurrent with the FAR, Petitioner announced its intention to impose sanctions against FHO. The July 20, 2011, audit report reduced the overpayment to $38,790.68, but again claimed Petitioner was entitled to impose sanctions. The June 12, 2012, audit report further reduced the overpayment to $38,500.78. Subsequent to the hearing, Petitioner acknowledged that the overpayment should be reduced another $3,856.68 to $34,644.10. Petitioner incurred investigative and legal costs in connection with this case in the amount of $7,635.27. Respondent has not challenged the reasonableness of that amount. Petitioner seeks sanctions against Respondent in the amount of $2,000.00. Respondent submitted records to BAH for 285 claims that had to be reviewed. Of that total, only those claims addressed above remain at issue. Ninety-four percent of the claims reviewed/audited by BAH were resolved without dispute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order adjusting the recoupment for the Medicaid overpayment as indicated in the foregoing findings of fact, imposing a sanction in the amount of $500.00, and recovering its costs in the amount of $7,635.27. DONE AND ENTERED this 4th day of September, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 4th day of September, 2013. COPIES FURNISHED: John D. Buchanan, Jr., Esquire Henry, Buchanan, Hudson, Suber, and Carter, P.A. Post Office Drawer 14079 2508 Barrington Circle (32308) Tallahassee, Florida 32317-4079 David W. Nam, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
The Issue Whether Medicaid overpayments were made to Petitioner and, if so, what is the total amount of these overpayments.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the stipulations of fact set forth in the parties' March 5, 2002, Joint Prehearing Stipulation: Petitioner Petitioner was incorporated in 1989 by Mr. Taylor. It operated Choice Pharmacy, a pharmacy located at 9920 Northwest 27th Avenue in Miami, Florida, from around the time of its incorporation until approximately 1999. The Provider Agreement During the period from September 10, 1997, through August 31, 1998, Petitioner was authorized to provide pharmacy services and goods to eligible Medicaid recipients in Florida. Petitioner provided such services and goods pursuant to a Medicaid Provider Agreement Mr. Taylor had signed, on behalf of Petitioner, on February 21, 1997. The Provider Agreement contained the following provisions, among others: The Provider agrees to participate in the Florida Medicaid program under the following terms and conditions: * * * Quality of Service. . . . The services or goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim. Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks and Statements or Policy as they may be amended from time to time. Term and signatures. The parties agree that this is a voluntary agreement between the Agency and the provider, in which the provider agrees to furnish services or goods to Medicaid recipients. This provider agreement shall become effective the date the provider's Florida Medicaid Enrollment Application is received by the state or its fiscal agent. It shall remain in effect until July 1, 1999, unless otherwise terminated. . . . Provider Responsibilities. The Medicaid provider shall: * * * (b) Keep and maintain in a systematic and orderly manner all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical, business, and fiscal records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid. The provider agrees that only records made at the time the goods and services were provided will be admissible in evidence in any proceeding relating to the Medicaid program. * * * (d) Except as provided by law, the provider agrees to provide immediate access to authorized persons (included but not limited to state and federal employees, auditors and investigators) to all Medicaid-related information, which may be in the form of records, logs, documents, or computer files, and all other information pertaining to services or goods billed to the Medicaid program. This shall include access to all patient records and other provider information if the provider cannot easily separate records for Medicaid patients from other records. . . . Prescribed Drug Services Coverage, Limitations and Reimbursement Handbook, and the Medicaid Provider Reimbursement Handbook The Prescribed Drug Services Coverage, Limitations and Reimbursement Handbook (referenced in the "Facts Not in Dispute" section of the parties' Joint Prehearing Stipulation) at all times material to the instant case contained the following "record keeping " provisions, among others: The provider must retain all medical, fiscal, professional and business records on all services provided to a Medicaid recipient. Records may be kept on paper, magnetic material, film, or other media. In order to qualify as a basis for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamp signatures must be initialed. The records must be accessible, legible and comprehensible. Records must be retained for a period of at least five years from the date of service. The following types of records, as appropriate for the type of service provided, must be retained (the list is not all inclusive): . . . . Business records, such as accounting ledgers, financial statements, purchase/acquisition records, invoices, inventory records, check registers, canceled checks, sales records, etc.; Tax records, including purchase documentation; . . . . Providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped. . . . The Medicaid Provider Reimbursement Handbook (referenced in the "Facts Not in Dispute" section of the parties' Joint Prehearing Stipulation) at all times material to the instant case contained similar provisions. The Prescribed Drug Services Coverage, Limitations and Reimbursement Handbook (referenced in the "Facts Not in Dispute" section of the parties' Joint Prehearing Stipulation) at all times material to the instant case further provided that "[r]eimbursement for prescribed drug services is based on the cost of the drug to the pharmacy plus a dispensing fee." The Audit and Aftermath In July of 1998, AHCA's Medicaid fiscal agent contractor (Unysis Corporation) conducted a "desk audit" of Medicaid claims submitted by Petitioner. Following the completion of the "desk audit," the matter was referred to AHCA's Office of Medicaid Program Integrity to conduct "a more in depth" audit (involving an examination of invoices and other documentation to determine whether Petitioner had available during the period under review sufficient quantities of goods to support its billings to the Medicaid program). The audit, which covered the period from September 10, 1997, through August 31, 1998 (Audit Period), was conducted by Kathryn Holland, with the assistance of an accounting firm retained by AHCA, Krause, Humphress, Pace & Wadsworth, CPA (Krause). Ms. Holland is a Florida-registered pharmacist who has been a senior pharmacist with AHCA for the past 12 years. She has no formal education or training in accounting, but does have 12 years of experience "doing the kind of audits" she conducted in the instant case. In an effort to obtain information needed for the audit, Krause requested that Petitioner fill out and return a Questionnaire for Medicaid Providers. The questionnaire was filled out and returned by Mr. Taylor, on behalf of Petitioner, on or about October 30, 1998. Mr. Taylor indicated on the questionnaire that, during the Audit Period, the "percentage of [Petitioner's] prescription business that [was] Medicaid" was approximately 90 percent. He further indicated on the questionnaire that Petitioner's "total dollar sales volume of prescription drugs" during the Audit Period was $5,732,028.84; Petitioner's "cost of prescription drugs sold during [the] Audit Period" was $5,220,200.27; Petitioner's "prescription drug inventory at cost, [at the] beginning of [the Audit] Period" was $180,721.00; and Petitioner's "prescription drug inventory at cost, [at the] end of [the Audit] Period" was $306,081.00. The questionnaire requested the name(s) of Petitioner's "major drug suppliers during the review period." All suppliers that "provided more than 10% of [Petitioner's] drug purchases" were to be listed. Mr. Taylor listed on the questionnaire the following "major drug suppliers": "McKesson Inc.," "Quality Medical," "Pharma Plus Wholesale Inc.," and "Quest Medical Supply." IV Pharmaceutical Wholesalers, Inc., was not among the "major drug suppliers" named by Mr. Taylor. According to the information provided on the questionnaire by Mr. Taylor, the purchases made by Petitioner from "McKesson Inc.," "Quality Medical," "Pharma Plus Wholesale Inc.," and "Quest Medical Supply" represented approximately 20 percent, 20 percent, 40 percent, and 10 percent, respectively, of Petitioner's "total [drug] purchases" during the Audit Period. By letter dated November 9, 1998, Krause requested Pharma Plus Wholesale, Inc. (Pharma Plus) to provide it "with a download of all transactions (all accounts) for the period September 1, 1997 through August 31, 1998," between Pharma Plus and Choice Pharmacy. Pharma Plus, in a letter dated January 18, 1999, provided the following response to Krause's request: [A]s per our conversation I am submitting this document to formally inform you and your office that Pharma Plus Wholesale, Inc. has never done any business with Choice Pharmacy (Legal Name: OKAN, Inc) 9920 N.W. 27th Avenue Miami, FL 33147.) By letter dated January 20, 1999, Ms. Holland requested McKesson Drug Company (McKesson) to provide her "with a download of all transactions for the period July 1, 1997, through August 31, 1998" between McKesson and Choice Pharmacy. On February 16, 1999, McKesson provided Ms. Holland with a "paper printout" containing the requested information. The material submitted by McKesson revealed that there were a considerable number of transactions between McKesson and Choice Pharmacy during the period in question. On April 2, 1999, Ms. Holland sent a letter to Mr. Taylor, which read, in part, as follows:: On or around July 16, 1998, an auditor from Unisys Corporation, the fiscal agent contractor for the Florida Medicaid program, conducted an audit of your pharmacy department. The audit is being reviewed by Medicaid Program Integrity. In order for us to complete our review, we are requesting and must receive the following: Documentation that identifies all purchases/acquisitions by Choice Pharmacy for the products listed on "Attachment A" for the period from July 1, 1997, through August 31, 1998. Documentation that identifies all credits/returns for the period stated above for the products listed on "Attachment A." . . . You have 30 days from the receipt of this letter to submit the requested information. . . . The "products" listed on "Attachment A" did not include "every single drug Petitioner had billed to Medicaid. Only the 50 "highest paid" drugs were listed on "Attachment A." Mr. Taylor responded to Ms. Holland's letter by providing her with, on May 13, 1999, a three-inch stack of documents reflecting transactions between Petitioner and "quite a few different [drug] wholesalers." Ms. Holland attempted (successfully in some instances and unsuccessfully in others) to contact wholesalers whose names appeared on the documentation provided by Mr. Taylor to obtain from them documentation regarding their transactions with Petitioner. After analyzing the documentation with which she had been provided by Petitioner and by the drug wholesalers she had been able to contact, and examining AHCA's records of the claims filed by Petitioner during the Audit Period, Ms. Holland determined that there was insufficient documentation to demonstrate that, during the Audit Period, Petitioner had available sufficient inventory to support $4,248,262.37 of its billings to the Medicaid program. By letter dated July 28, 1999, Ms. Holland advised Mr. Taylor of this "provisional finding." The letter read, in part, as follows: Medicaid Program Integrity has reviewed your paid Medicaid claims with dates of service from September 10, 1997, through August 31, 1998. We have also reviewed your product purchase/acquisition documentation received on May 13, 1999. Some of the purchase/acquisition documents that you furnished could not be substantiated by the distributor/wholesaler and were therefore not included in the review. You have failed to provide adequate documentation to the effect that the available quantity of certain drugs of given strength was as great as the quantity of those drugs billed to and reimbursed by Medicaid. Based on this review, we have made a provisional determination that you were overpaid $4,248,262.37 for claims that in whole or in part are not covered by Medicaid. The amount due for the overpayment is $4,248,262.37. This is, however, a provisional finding and we encourage you to submit any additional information or documentation that you may have that you feel may serve to change the overpayment. * * * Based on the above, we have reason to believe that you have been overpaid by the Medicaid program. The overpayment identified in the summary sheet attachment is with regard only to the 45 drugs listed and comprehends only the period audited, namely September 10, 1997, through August 31, 1998. A printout identifying all relevant claims involved in the overpayment and a copy of the drug purchase/acquisitions are attached. The overpayment calculation is based upon the assumption that all stock demonstrated as available during the audit period was exclusively dispensed to Medicaid recipients; this is undoubtedly not the case and the assumption serves to reduce the amount of the overpayment. Medicaid payments that have been substantiated by documented inventory are assumed to be valid; and payments in excess of that amount are regarded to be invalid. Accordingly, as shown in the summary sheet attachment, we have determined at this time that you have been overpaid by the Medicaid program in the amount of $4,248,262.37. If additional overpayments are found subsequently, you will be notified. * * * If you have any additional invoices or other relevant documentation that you wish to submit that you feel would alter these findings, please submit your written explanation and legible copies of the documentation to us immediately. . . . If you have not submitted documentation or made payment within 30 days, we will send you notice regarding the agency's final determination, taking into consideration any information or documentation that you submit within this time period. On August 16, 1999, Mr. Diamond, on behalf of Petitioner, telephonically requested a 21-day extension of time to submit additional documentation for Ms. Holland's consideration. By letter dated August 17, 1999, Ms. Holland advised Mr. Diamond that the requested extension of time had been granted. Mr. Diamond, on behalf of Petitioner, on September 14, 1999, provided Ms. Holland with an "additional package of documentation." Ms. Holland reviewed these documents. "Most everything in this package was a duplicate" of documents that Ms. Holland had already been provided by Mr. Taylor. The following day, Ms. Holland, by facsimile transmission, requested Mr. Diamond to provide her with cancelled checks evidencing Petitioner's payment of eight, specified invoices included in the "additional package of documentation" she had received from Mr. Diamond. Mr. Diamond provided Ms. Holland with five cancelled checks on October 8, 1999. Ms. Holland determined, in light of the additional documentation she had received following her "provisional finding" that Petitioner had been overpaid $4,248,262.37 by the Medicaid program, that the amount of that overpayment should be reduced by $764.67. She advised Mr. Taylor of this "final agency audit" determination, by letter dated October 27, 1999, which read, in part, as follows: Medicaid Program Integrity has completed a review of your paid Medicaid claims with dates of service from September 10, 1997, through August 31, 1998. We have also reviewed your product purchase/acquisition documentation received on May 13, 1999, September 14, 1999, and October 8, 1999. You have failed to provide adequate documentation to the effect that the available quantity of certain drugs of given strength was as great as the quantity of those drugs billed to and reimbursed by Medicaid. You are hereby notified that Okan, Inc. d/b/a Choice Pharmacy was overpaid $4,247,497.70 for claims that in whole or in part are not covered by Medicaid. The total amount due for the overpayment is $4,247,497.70. The above action and your right or appeal are discussed below. * * * We have required that you submit invoices from your suppliers to substantiate the availability of drugs that you billed to Medicaid. You have not fully substantiated such availability. Section 409.913(10), F.S., states in part that the Agency may require repayment for inappropriate, medically unnecessary, or excessive goods or services. Section 409.913(14)(n), F.S., states that "The agency may seek any remedy provided by law, including but not limited to, the remedies provided in subsection (12) and (15) and s. 812.035, if: * * * (n) The provider fails to demonstrate that it had available during a specific audit or review period sufficient quantities of goods, or sufficient time in the case of services, to support the provider's billings to the Medicaid program." Billing Medicaid for drugs that have not been demonstrated as available for dispensing is a violation of Medicaid laws and regulations and has resulted in the finding that you been overpaid by the Medicaid program. The overpayment identified in the summary sheet attachment is with regard only to the 45 drugs listed and comprehends only the period audited, namely September 10, 1997, through August 31, 1998. A printout identifying all relevant claims involved in the overpayment and a copy of the drug purchase/acquisition review are attached. The overpayment calculation is based upon the assumption that all stock demonstrated as available during the audit period was exclusively dispensed to Medicaid recipients; this is undoubtedly not the case and the assumption serves to reduce the amount of the calculated overpayment. All Medicaid payments sufficient to cover documented inventory have been assumed to be valid, and payments in excess of that amount are regarded to be invalid. Accordingly, as shown in the summary sheet attachment, we have determined at this time that you have been overpaid by the Medicaid program in the amount of $4,247,497.70. If additional overpayments are found subsequently, you will be notified. * * * If you accept or concur with these finding, please send your check in the amount of $4,247,497.70, made payable to the Florida Agency for Health Care Administration, to: . . . . You have the right to request a formal or informal hearing pursuant to section 120.569, F.S. . . . [I]f a request for a hearing is made, the request or petition must be received within twenty-one (21) days of receipt of this letter. Failure to timely request a hearing shall be deemed a waiver of your right to a hearing. . . . Mr. Diamond, on behalf of Petitioner, filed with AHCA a Petition for Formal Hearing on December 7, 1999. The Petition for Formal Hearing was accompanied by 50 "invoices" purporting to reflect sales of prescription drugs (totaling approximately $4 million dollars) made by IV Pharmaceutical Wholesalers, Inc., to Choice Pharmacy during the Audit Period, as well as the following cover letter from Mr. Diamond to Ms. Holland: Consistent with our prior discussions regarding our above referenced client, you will find enclosed the final documentation from [IV] Pharmaceutical Wholesalers, Inc. As I indicated in our prior discussions it would appear at this time that our independent audit has concluded. Our accounting reveals, based on all invoices provided, our above referenced client has correctly accounted for all medications billed through Medicaid. I also enclose consistent with our prior discussion a copy of our request for a formal hearing in the event that you are not in agreement with our conclusions. In the event that you are satisfied with the conclusions, please advise Mr. John A. Owens, Chief, Medicaid Program Integrity, that we will withdraw our request for formal hearing. Prior to the submission of these "invoices," AHCA had not received any information (in the form of documentation or otherwise) indicating that Petitioner had purchased or otherwise acquired drugs from IV Pharmaceutical Wholesalers, Inc. Ms. Holland examined the "invoices." "They did not look like forms [she had] seen from this wholesaler before, and . . . after years of looking at invoices they just appeared not right" to her. On January 28, 2000, Ms. Holland sent the following letter to Mr. Diamond: Thank you for the documents received on December 7, 1999. As they were received after the Final Agency Action, the Agency will consider them as possible evidence for trial or hearing. Once the hearing date and discovery schedule are set, we will propound interrogatories and take depositions in conjunction with these documents. If you have any question, please contact Mr. L. William Porter, II, senior attorney . . . . Ms. Holland's suspicions regarding the genuineness of the IV Pharmaceutical Wholesalers, Inc., "invoices" submitted by Petitioner were correct. Petitioner had never purchased or otherwise acquired any drugs from IV Pharmaceutical Wholesalers, Inc. The "invoices" were fabricated. They were created by Mr. Pinkoff, for a fee ($800,000.18, which he was paid, in two installments, in November of 1999), at the request of Mr. Taylor and a Betty Bills. 13/ Mr. Pinkoff was told that the "invoices" were needed for an audit to "substantiate the purchases of [certain] product[s]." 14/ Mr. Pinkoff was subsequently charged with criminal wrongdoing for his participation in this fraudulent scheme and "voluntarily surrendered" to the authorities. 15/ The charges were filed after Mr. Pinkoff's place of business had been searched by law enforcement authorities on December 1, 1999, pursuant to a search warrant obtained by the Florida Attorney General's Medicaid Fraud Control Unit, which was conducting a criminal investigation of another matter unrelated to Choice Pharmacy. 16/ The computer that Mr. Pinkoff used to create the falsified "invoices" for Petitioner was seized during the search. Mr. Pinkoff entered into a Plea Agreement with the State of Florida in his criminal case. The Plea Agreement was filed in Leon County Circuit Court (Case No. 2000-4310) on November 8, 2000. Section II of the Plea Agreement contained the "Factual Predicate for this Plea Agreement." It provided as follows: The Defendant and the State agree that the following is the factual basis for the entry of plea in this matter, (hereafter "SUBJECT MATTER"): In June of 1999, the Defendant was approached by Louis A. Petrillo ("Petrillo"),[17/] who told the Defendant that Choice Pharmacy (Okan, Inc. d/b/a Choice Pharmacy ("Choice") and "Betty," an owner, needed certain invoices. Specifically, Choice and Betty needed to demonstrate that Choice had purchased a number of prescription drugs with a value of $4,000,000 dollars dating back to the period of 1997 through 1998. Choice was owned and operated by Raufu ("Ralph") Taylor and Betty (Last Name Unknown). The Defendant owned a 1/2 interest in IV Pharmaceuticals, Inc., a Florida corporation that was a licensed prescription drug wholesale company. IV Pharmaceuticals had not sold any prescription drugs to Choice in 1997 or at any other time. Petrillo knew this fact but asked the Defendant if he could produce invoices for a specific list of drugs; the understanding was that the invoices would be false. The Defendant told Petrillo, Betty and Ralph that he could create or otherwise produce invoices from IV Pharmaceutical[s] to give to Choice for prescription drugs that IV Pharmaceutical[s], Inc. had previously purchased from manufacturers or other licensed wholesalers. This was necessary in case IV Pharmaceutical[s] was asked to produce its records to substantiate the invoices from IV Pharmaceutical[s] to Choice. All of the drugs Betty and Ralph requested invoices for were oncology or HIV prescription drugs, largely Neup[o]g[e]n and Procrit. IV Pharmaceutical[s] had invoices to substantiate its own purchases of those drugs. A meeting was arranged by Petrillo. In attendance were the Defendant, Petrillo, Betty, and Ralph. After making introductions, Petrillo left the meeting.[18/] Before leaving, Petrillo told the Defendant that it was up to him whether or not to create the invoices. The Defendant discussed with Betty and Ralph what specific prescription drug invoices were required. Betty and Ralph provided the Defendant with a list of drugs, including dates of purchase and quantities. The Defendant believed that the invoices were to be used for some unlawful purpose, presumably involving AHCA, since the Defendant was familiar with the AHCA audit process and knew that AHCA required such invoices when conducting an audit. Betty and Ralph told the Defendant that the invoices were needed for drugs they had actually purchased but had no invoices for. The Defendant had at least one conversation with Petrillo related to the production following the meeting. Six months after the meeting, the Defendant drafted invoices under the IV Parmaceutical[s] name based upon the list provided by Betty and Ralph. The Defendant gave the invoices to Petrillo to give to Betty and Ralph. Each false invoice produced by Defendant was submitted to AHCA. The foregoing assertions of fact made in this section of the Plea Agreement are true and accurate. Section III of the Plea Agreement indicated that Pinkoff understood that "pursuant to this plea agreement his minimum potential exposure under the Sentencing Guidelines [was] 55.5 months of imprisonment" and "[h]is maximum potential exposure under the Sentencing Guidelines [was] the statutory maximum of thirty-five years in State Prison and a $25,000.00 fine." Section IV of the Plea Agreement set forth the "Defendant's Obligations." It read as follows: The Defendant agrees to plead Guilty to the following charges contained in the information filed in the above-styled criminal case: one count of "Racketeering activity" in violation of Florida Statutes, Section 895.03(3), a first degree felony; and one count of Medicaid Provider Fraud in violation of Florida Statutes, Section 409.920(2)(a), a third degree felony. The Defendant agrees to make himself accessible upon notice to receive and testify truthfully pursuant to any subpoena lawfully issued compelling such testimony pursuant to §914.04, Florida Statutes, However, by this AGREEMENT Defendant does not and shall not waive his Fifth Amendment privilege as to any statement or testimony except and only as to the specific facts set forth as the SUBJECT MATTER of this AGREEMENT; Defendant shall maintain his Fifth Amendment rights as to all other allegations of facts, including those facts related to the charges alleged in the Information not included in the factual predicate herein. The Defendant understands that if lawfully compelled to provide testimony, any perjury committed by him would constitute a violation of the ordinary terms and conditions of Defendant's community control and probation even if related to the charges alleged in the Information. Section V of the Pleas Agreement contained the "sentence the State will recommend," which was as follows: Seven (7) years of probation with the following special conditions: Defendant with will serve 24 months of community control under the terms and conditions set by the Department of Corrections. . . . Defendant shall pay a total of $3,475,000 to the State of Florida as compensation to the State of Florida for its losses, both known and unknown. Such reimbursement shall not be deemed or otherwise construed as a fine or similar penalty. . . . At the entry of this plea, Defendant agrees to provide the State of Florida with sufficient security to guarantee the payment of one million dollars ($1,000,000.00). This security shall be in the form of two Notes secured by two mortgages to be held by the State of two properties. The first property is located at 5721 Oakview Terrace, Hollywood, Florida. The Note on this property shall be in the amount of $400,000.00. The second property secured by a Note is located at 6001 North Ocean Drive, PHS, Hollywood, Florida [and the note on this property] shall be in the amount of $600,000.00.[19/] . . . Defendant shall pay a fine in the amount of $25,000.00 which is the Statutory maximum; Defendant shall be Adjudicated Guilty on all counts; Defendant shall be precluded from working or having a business interest in or receiving remuneration or payment of any kind from any health care related facility that receives any funds or participates in any way with the Medicare and/or Medicaid programs under Titles XVIII and XIX of the United States Code. However, this does not preclude the Defendant from receiving proceeds from the divestment of his interests or assets through the sale or transfer of said assets or interest to an entity that receives any funds or participates in any way with the Medicare and/or Medicaid programs of the United States. Defendant shall pay court costs; The monetary obligation under the AGREEMENT shall be paid over the course of probation and community control. However, the STATE and the Defendant agree that there is a value to the STATE in terms of economics and deterrence to receive swift and complete payment and the commitment of the Defendant to attempt to do so reflects his willingness to accept responsibility for his acts. Therefore, in the event that the Defendant pays $3,000,000.00 within 15 months of sentencing and has satisfied all other terms and conditions of community control and probation, the State agrees to the following: the community control portion of the defendant's sentence shall be reduced to 15 months; the term of probation shall be reduced to five (5) years; The STATE agrees to return to court for an Order reducing the total obligation by $500,000.00. Thus, the Defendant's total obligation under this Agreement would become Three Million dollars ($3,000,000.00). . . . The State has no objection to the entry of any Order by the court to permit travel outside of the United States for business purposes upon at least 2 weeks notice to the probation department and the permission of the defendant's probation officer. The Defendant understands that he may not travel outside the United States during the course of the community control portion of his sentence. Section VI was entitled "Withdrawal of Guilty Plea and Vacation of Sentence." It read as follows: In the event that the State files additional charges against the Defendant for matters currently under investigation, but not charged in the Information described in this AGREEMENT, the Defendant shall have the right and full entitlement to vacate the sentence imposed pursuant to this AGREEMENT and to withdraw his plea of guilty. The only condition to the Defendant's right and entitlement to vacate (as just described) shall be that the Defendant must not have breached this AGREEMENT prior to the additional charges being filed. If the Defendant does vacate and withdraw, all monies paid pursuant to this AGREEMENT shall be returned to the Defendant. The Plea Agreement also contained a "Waiver of Rights," which provided, in pertinent part, as follows: My entering into the AGREEMENT is not the result of force, threats, assurances or promises other than the promises contained in the attached agreement. I agree to the provision of this agreement as a voluntary act on my part, rather than at the discretion of or because of the recommendation of any other person, and I agree to be bound by its provisions. I agree that this written plea agreement contains all the terms and conditions of my plea and that promises made by anyone that are not contained within this written agreement are without force and effect and are null and void. . . . The Plea Agreement was signed by Mr. Pinkoff (on September 26, 2001), his attorneys (on September 26, 2001 and November 8, 2000), and the Special Counsel of Health Care Fraud Prosecution (on September 26, 2000). Mr. Pinkoff is currently under "house arrest" at his residence (which he owns) located at 5721 Oakview Terrace in Hollywood, Florida; however, he is allowed to leave his home to work at his office (which is also located in Florida). Mr. Pinkoff is still in the "pharmaceutical wholesaling" business. His business is licensed "out of Georgia." Mr. Pinkoff has paid approximately $200,000.00 of the amount that he owes the State of Florida pursuant to the terms of his Plea Agreement. He sold the 6001 North Ocean Drive property referenced in the Plea Agreement for $1.2 million. The state received approximately $192,000.00 of the proceeds from the sale Mr. Pinkoff is presently paying the state $1,000.00 a month.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Petitioner received $4,247,497.70 in Medicaid overpayments for claims covering the period from September 10, 1997, through August 31, 1998, and requiring Petitioner to repay this amount to AHCA. DONE AND ENTERED this 3rd day of October, 2002, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2002.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was a medicaid provider in the State of Florida. At all times pertinent to this proceeding John Whiddon was the Chief of Florida's Medicaid Program Integrity. Florida's Medicaid Program Integrity is charged with the oversight of the Medicaid program in Florida. The parties stipulated that Mr. Whiddon would have testified that the responsibility is ". . . basically to see that the Medicaid program gets what it pays for." The Florida Medicaid Program Integrity has the responsibility to protect Medicaid funds should an investigation reveal there is fraud or willful misrepresentation. Section 409.913(3), Florida Statutes, provides as follows: (3) Any suspected criminal violation or fraudulent activity by a provider, or by the representative or agent of a provider, identified by the department shall be referred to the Medicaid fraud control unit of the Office of the Auditor General for investigation. The Medicaid Fraud Control Unit (MFCU) is the agency with the statutory responsibility for criminal investigations in the Medicaid program. The Medicaid Program Integrity is a part of the Florida Department of Health and Rehabilitative Services. The MFCU is a part of the Office of the Auditor General, which is an agency of the legislative branch of government. On occasions, the MFCU advises Medicaid Program Integrity of a criminal investigation into a particular provider's activities. However, Medicaid Program Integrity is not told of the specific facts of the criminal investigation until after the case is prosecuted or until after the case is closed. The parties stipulated that Mr. Whiddon would testify that he is of the opinion that Section 409.913(7), Florida Statutes, prohibits MFCU from revealing anything about its investigation while the investigation is ongoing. Mr. Whiddon received a letter dated April 6, 1993, from John G. Morris, Jr., the Director of the Medicaid Fraud Control Unit, which referenced Petitioner as the provider, and which stated as follows: Pursuant to provisions of 42 CFR 455.23, this is to advise you that there is reliable evidence that the above referenced provider billed for home health care services that were not provided and this investigation will be referred for criminal prosecution. No specific facts of this criminal investigation were given to the Medicaid Program Integrity by the MFCU. The parties stipulated that Mr. Whiddon would testify that Program Integrity believes that the Petitioner will be prosecuted based upon the MFCU investigation as stated in the April letter, but that Mr. Whiddon concedes that any decision to prosecute is solely the decision of the prosecutor and may be declined. During the months of April, May, and June of 1993, the Petitioner continued to receive substantial Medicaid payments. These payments amounted to approximately $28,906 every week. Mr. Whiddon decided it was necessary to withhold Medicaid payments to the Petitioner until the MFCU investigation was completed. This decision was based solely on the MFCU letter of April 6, 1993, and his interpretation of his responsibility under 42 CFR 455.23. Mr. Whiddon directed Mike Morton to sign the Agency's letter to Petitioner dated June 29, 1993, because Mr. Whiddon was unavailable because of an unrelated special assignment. The letter dated June 29, 1993 provided, in pertinent part, as follows: PLEASE TAKE NOTICE that the undersigned has directed Consultec, the fiscal agent for the Department of Health and Rehabilitative Services, to withhold Medicaid payments to A-Community Home Health, Inc. in accordance with the provisions of 42 CFR 455.23. This action is being taken because of receipt of reliable evidence that the circumstances giving rise to the need for a withholding of payment involves fraud or willful misrepresentation. The withholding of payment will be temporary and will not continue after: The Department or prosecuting authorities determine that there is insufficient evidence of fraud or willful misrepresentation by A-Community Home Health, Inc., or Legal proceedings related to A-Community Home Health, Inc., alleged fraud or willful misrepresentation are completed. The type of Medicaid claims withheld are home health claims.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order which terminates the withholding of Medicaid payments from Petitioner and which reimburses Petitioner for payments that have been withheld. DONE AND ENTERED this 3rd day of November 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November 1993.
