The Issue The issues in this case are whether Respondent violated Subsection 458.331(1)(t), Florida Statutes (2002),1 and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2007). At all times material to the Amended Administrative Complaint, Dr. Brignoni was licensed to practice medicine in the State of Florida pursuant to Chapter 458, Florida Statutes, having been issued license number ME 59140. Dr. Brignoni is board-certified in obstetrics and gynecology. On September 5, 2002, patient C.W. presented to Dr. Brignoni, who diagnosed her with severe dysplasia, vulvar intraepithelial neoplasia. Dr. Brignoni recommended that C.W. undergo a wide local excision of vulva/vaginal lesion. On September 12, 2002, C.W. went to Charlotte Regional Medical Center for Dr. Brignoni to perform the wide local excision of vulvar intraepithelial neoplasia. Prior to the surgery, Dr. Brignoni had issued a card which indicated the supplies and instruments that he would need for a procedure such as the one that he was going to perform on C.W. The card is kept at Charlotte Regional Medical Center so that the supplies and instruments can be prepared and available at the time the procedure is scheduled to be performed. The card called for acetic acid to be supplied for the procedure, but no strength was specified. Acetic acid is commonly used during gynecological procedures to highlight abnormal areas. In the instant case, it would be used to highlight the lesion that was to be excised. When acetic acid is used for such a purpose, the acceptable concentration is approximately three-to-five-percent. Typically, when Dr. Brignoni arrives in the operating room to perform a procedure, all liquids and instruments required for the procedure are prepared and ready for use. A surgical technician is responsible for assembling the liquids and instruments needed for the procedure. When Dr. Brignoni began the excision on September 12, 2002, the surgical technician had not placed any acetic acid on the cart which housed the supplies and instruments needed for the procedure. Dr. Brignoni requested that acetic acid be obtained, and the circulating nurse went to the pharmacy to procure the acid. Dr. Brignoni did not request any specific concentration of acetic acid. The circulating nurse came back with a bottle of 100 percent acetic acid and decanted the acid into a container which she gave to the surgical technician. Dr. Brignoni took a piece of gauze saturated with the 100 percent acetic acid and swabbed the vulva area. He immediately noticed that area was peeling. This was not the reaction that would have occurred using a three-to-five-percent solution. Dr. Brignoni asked the surgical staff what solution did they give him, and he was shown the bottle containing a 100 percent concentration of acetic acid. Upon learning that he had applied 100 percent acetic acid to C.W.’s vulva area, Dr. Brignoni irrigated the area with over a liter of sterile water. He determined that he could proceed with the procedure, which he did. Prior to proceeding with the procedure, he did not consult with a physician familiar with chemical burns in determining whether it was appropriate to continue with the procedure. Dr. Brignoni did check with an emergency room physician after the procedure to confirm that he treated the burn correctly by irrigating with sterile water. As a result of the use of 100 percent acetic acid rather than a three-to-five-percent solution, C.W. experienced second degree burns in the area of her vulva and buttock. The normal time for the healing of a wide local excision of the vulva area is four to six weeks. C.W. healed in approximately eight weeks. Edward J. Zelnick, M.D., testified as an expert for the Department. Dr. Zelnick was licensed to practice medicine in Florida in 1975 and is board-certified by the American Board of Obstetrics and Gynecology. Currently, Dr. Zelnick is the chief executive officer and clinical researcher at Horizon Institute for Clinical Research. The last time that Dr. Zelnick performed a surgical procedure was in 1998. James Orr, M.D., testified as an expert for Dr. Brignoni. Dr. Orr has been board-certified in obstetrics and gynecology and gynecologic oncology since 1984. Currently, he is the medical director of Lee Cancer Center at Lee Memorial Hospital in Fort Myers, Florida, and is the director of Gynecologic Oncology and Gynecologic Oncology Research at Lee Cancer Center. He is a former associate professor of Obstetrics and Gynecology at the University of Alabama Birmingham School of Medicine and a clinical professor in the Department of Obstetrics and Gynecology at the University of South Florida. Dr. Orr has performed wide local excisions of the vulva area hundreds of times, and teaches this procedure to residents and medical students. It is Dr. Orr’s opinion that it is not standard procedure for a surgeon to specify the concentration of acetic acid for such a procedure. The normal strength of acetic acid used in a wide local excision of the vulva area is understood to be three-to-five-percent, and the standard-of-care requires a physician to simply ask for acetic acid without specifying the concentration. Dr. Orr’s opinion is credited. It was Dr. Orr’s opinion that Dr. Brignoni correctly irrigated the area after the application of the acetic acid and that there was no reason for Dr. Brignoni to stop the procedure after the irrigation. The biggest risk to the patient would have been stopping the procedure and putting the patient under anesthesia for a second time. Dr. Orr’s opinion is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Brignoni did not violate Subsection 458.331(1)(t), Florida Statutes, and dismissing the Amended Administrative Complaint against Dr. Brignoni. DONE AND ENTERED this 23rd day of April, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 23rd day of April, 2008.
The Issue The issue is whether Respondent violated federal and state laws addressing Medicaid payments, and, if so, what is an appropriate remedy.
Findings Of Fact AHCA is the single state agency charged with the administration of the Medicaid program in Florida pursuant to Chapter 409, Florida Statutes, and federal law. One of AHCA's duties is to recover overpayments. Overpayments are any amounts paid to providers that were not authorized. Dr. Valente, during all times pertinent, was a licensed medical doctor in the State of Florida. She was an authorized Medicaid Provider and held provider number 253493200. As such, she was on notice of Medicaid billing policy and rules. AHCA conducted a generalized analysis of obstetricians in Florida who submitted Medicaid claims during the period January 1, 2003, through December 31, 2005. AHCA investigated over-billing in three different categories: (1) excessive prenatal visits, (2) billing for Healthy Start Prenatal Risk Screening (Screening) more than once during a pregnancy, and billing for the W1992 Screening during the second and third trimesters. The W1992 Screening was and is only applicable to the first trimester of pregnancy. Dr. Valente was one of the obstetricians AHCA found to have over-billed in the three categories. With regard to Category 1, excessive prenatal visits, the Physician Coverage and Limitations Handbook provides, at page 2-53, that "Antepartum visits are limited to a maximum of 10 for low-medical risk recipients and 14 for high-medical risk recipients. Payment for antepartum care is based on a total amount for complete care. Antepartum care is prorated, based on an average standard of 10 visits for a low-medical risk recipient or 14 for a high-risk recipient. Reimbursement for the 10 or 14 visits is the maximum reimbursement for the full course of antepartum care. If additional visits are provided, payment is considered to have already been made, and the provider may not bill the additional visits to Medicaid or the recipient." For Category 1, the audit searched for instances when Dr. Valente billed for excessive prenatal visits 38 times, as follows: Patient 1: This was a high-risk patient. Dr. Valente billed for 16 visits, which was two more than the 14 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $102.00 more than allowed. Patient 2: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Therefore, according to AHCA, Dr. Valente billed Medicaid $52.00 more than allowed. However, Dr. Valente stated, and medical records indicated, that Patient 2 was a high-risk patient even though her claimed Physician Coverage and Limitations Handbook diagnosis code, 642.43, a code for high risk, did not appear on the billing submission. Upon consideration of all of the evidence, this charge was permissible. Patient 3: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente asserted that the patient was a high-risk patient because of high blood pressure. However, in the billing submission there is no code indicating high risk. Dr. Valente claimed at the hearing that it should have been coded 645.13. That is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 4: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente claimed the patient had an iron deficiency and should have been coded 281.2. That is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 5: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for patients who are not high risk. The medical record revealed that Patient 5 was obese with poor sugar control, and Dr. Valente asserted she should have been coded 642.43, which is high risk. She did not use this code in the bill. However, upon consideration of all of the evidence, this charge was permissible. Patient 6: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for patients who are not high risk. Dr. Valente stated that this was a high- risk patient because she was suffering from oligohydramnious. Dr. Valente did not code this on the bill. The code she claimed, 656.93, is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 7: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for patients who are not high risk. This patient had lung problems. Dr. Valente asserted she should have been coded 496.0 and 491.2 instead of the V22.0 presented on the bill. Codes 496.0 and 491.2 are not high-risk codes. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 8: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for a patient that was not high risk. Dr. Valente suspected a possible birth defect and coded the patient 759.9 and 655.23. Code 655.23 is a high-risk code. Dr. Valente did not use this code in the bill. However, upon consideration of all of the evidence, this charge was permissible. Patient 9: AHCA asserted this was a low-risk patient. Dr. Valente billed for only five visits, thus never reaching the ten visit threshold. The assertion that Dr. Valente over-billed with regard to Patient 9 was not proven. Patient 10: AHCA asserted this was a low-risk patient. Dr. Valente stated that the records revealed decreased fetal movement, codes 655.73 and V28.4. Code 655.73 is a high-risk code. Dr. Valente did not put this code on the bill. However, upon consideration of all of the evidence, this charge was permissible. Patient 11: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 12: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $50.00 more than allowed. Patient 13: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 14: This was a low-risk patient. Dr. Valente billed for 12 visits, which was two more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $100.00 more than allowed. Patient 15: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 16: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 17: This was a low-risk patient. Dr. Valente billed for 12 visits, which was two more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $104.00 more than allowed. Patient 18: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 19: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 20: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 21: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente said this patient was at risk for cervical cancer and entered diagnosis codes 795.0 and 795.09. These are not high- risk codes. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 22: AHCA asserted this was a low-risk patient. AHCA asserted Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente stated, and the records revealed, that the patient had a psychiatric disorder and, therefore, should have had a diagnosis code of 648.43, which is high risk. Dr. Valente did not assert this code on the bill. However, upon consideration of all of the evidence, the amount billed was permissible. Patient 23: AHCA asserted this was a low-risk patient. AHCA asserted that Dr. Valente billed for 11 visits, which was one more than the 10 allowed. This patient's baby had dilated kidneys. The patient was coded 655.0, which is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 24: AHCA asserted this was a low-risk patient. AHCA asserted that Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente's records indicated that this patient had impending pre-eclampsia, which she coded 642.03, as hypertension. This is a high-risk code. Dr. Valente failed to assert that code on the Medicaid bill. However, upon consideration of all of the evidence, Dr. Valente did not bill more than was permissible. Patient 25: This was a high-risk patient. Dr. Valente billed for 15 visits, which was one more than the 14 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $50.00 more than allowed. Patient 26: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 27: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for a low-risk patient. Dr. Valente stated that the patient had a heart murmur and was asthmatic requiring medicine, which is code 493.0. She billed for 493.0, a high-risk code, and, therefore, was entitled to see the patient 14 times. Dr. Valente only saw the patient 11 times. Therefore, Dr. Valente did not bill more than allowed. Patient 28: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits that she coded V22.0. She said the patient had a childhood seizure disorder and should have been coded 345.0, which is high risk. Therefore, Dr. Valente did not bill more than allowed. Patient 29: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente found this patient to have high-risk viral cells and assigned diagnosis code 622.1. According to the Physician Coverage and Limitations Handbook, this is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 30: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 31: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 32: AHCA asserted that this was a low- risk patient. Dr. Valente billed for 11 visits, which is one more than permitted. Dr. Valente stated that this patient had a mild pregnancy-induced hypertension and should have been assigned diagnosis code 642.43, which is high risk. However, no such code was assigned. The only code assigned on the Medicaid bill was V22.0. This is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 33: AHCA asserted this was a low-risk patient. Dr. Valente stated that the patient was an alcohol abuser and that the patient developed decreased fetal movement late in the pregnancy. Dr. Valente assigned the code 655.43, which is a high- risk code. The patient was entitled to 14 visits. Dr. Valente billed for 11, which was within the allowed limits. Patient 34: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 35: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 36: AHCA asserted this was a low-risk patient and that Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente decided that the patient's baby was not reactive to a stress test, and the patient had to be induced. Dr. Valente coded this 658.03, which is not high risk. AHCA's witness, Dr. Franz, agreed with this. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 37: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 38: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. The total amount over-billed in Category 1 was $1,602.00. Category 2 addressed billing for the Screening more than once during a pregnancy. The Physician Coverage and Limitation Handbook provides for Florida's Healthy Start Prenatal Risk Screening. It states, "The Healthy Start Prenatal Risk Screening should be offered at the first antepartum visit. The antepartum visit that includes completion of the Healthy Start Prenatal Risk Screening is reimbursed once per pregnancy by billing code W1991 antepartum visit plus Healthy Start Prenatal Risk Screening, or W1992 antepartum visit plus Healthy Start Prenatal Risk Screening performed during the first trimester of pregnancy." Therefore, for Category 2, the audit searched for situations where there was more than one Healthy Start prenatal visit per pregnancy. In other words, a W1991 might be billed or a W1992 might be billed, but both could not be billed during a single pregnancy. The audit asserts this occurred nine times as follows: Patient 1: Dr. Valente billed for the W1991, which is an antepartum visit with the Screening after the first trimester, and then billed for a W1992, which is the Screening during the first trimester, for the same recipient. This overpayment was in the amount of $148. Patient 2: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $98. Patient 3: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 4: Dr. Valente billed for the W1991, which is an antepartum visit with the Screening after the first trimester, and then billed for a H1001, which is the Screening during the first trimester for the same recipient. This overpayment was in the amount of $104. Patient 5: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 6: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 7: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 8: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 9: Dr. Valente billed for the W1991, which is an antepartum visit with the Screening after the first trimester, and then billed for a W1992, which is the Screening during the first trimester for the same recipient. This overpayment was in the amount of $150. The total amount overpaid in Category 2 was $1,000. Dr. Valente pointed out that even though she over-billed in this category, she should have received $50 on each occurrence for an office visit. Although this may be true, it is beyond the jurisdiction of this forum to make recommendations with regard to that. Category 3 included a search for billings for W1992, which is the Screening during the first trimester, that were made subsequent to the end of the first trimester. AHCA defines the first trimester as the first 13 weeks of a pregnancy. The Screening form says the first trimester is determined to be 13 weeks (or 91 days) from the date of the last menstrual cycle. The audit asserted 61 instances of billing for the Screening, subsequent to the first trimester. In determining whether the Screening was accomplished later than the first trimester, 181 days were subtracted from the delivery date. This meant that a Screening provided less than 181 days before delivery was, perforce, beyond the first trimester. The auditors found 61 instances where this occurred. Dr. Valente agreed that she screened subsequent to the first trimester for patients number 2-8, 11-14, 16-18, 20-22, 25-31, 33-36, 38, 40, 43-46, 48-49, 51-54, and 56-61. This amounted to 44 over-bills at $50 and two at $49.34, for a total of $2,298.68. When evaluating the audit at this point, it is helpful to recall that the medical records of the patients were not available when the final audit was issued, but they were available at the time of the hearing. The Medicaid bills for the Healthy Start Prenatal Risk Screening Instruments are typically submitted before the baby is born. Thus, the physician at the time of submission cannot know the actual delivery date with mathematical precision. Accordingly, the physician has to estimate the due date using the date of the last menstrual period (LMP); by ultrasounds; and by following the progress of the pregnancy. Moreover, babies arrive before their predicted due date as well as after. The disputed cases in Category 3 are discussed below. Patient 1: The estimated delivery date (EDD) was July 9, 2003. The actual delivery date was May 15, 2003. The EDD on December 3, 2002, was determined by ultrasound to be nine weeks and by LMP to be ten weeks. The Screening date was December 3, 2002. This was well within the 13-week window for the Screening. Dr. Valente did not improperly bill for this patient. Patient 9: This patient did not agree to the screening. If the patient does not agree to the Screening, AHCA is not permitted to pay for the Screening. Accordingly, Dr. Valente over-billed $50.00. Patient 10: This patient did not agree to the screening. If the patient does not agree to the Screening, AHCA is not permitted to pay for the Screening. Accordingly, Dr. Valente over-billed $50.00. Patient 15: An ultrasound on this patient on June 18, 2003, indicated the patient was nine weeks pregnant. The Screening was accomplished on the same day. Accordingly, Dr. Valente did not improperly bill for this patient. Patient 19: This patient did not agree to the screening. If the patient does not agree to the Screening, AHCA is not permitted to pay for the Screening. Accordingly, Dr. Valente over-billed $50.00. Patient 23: The Screening for this patient is dated February 26, 2003, according to the Screening form signed by the patient. The delivery date provided to AHCA is incorrect because due to an absence of fetal heartbeat the patient experienced a "Suction D&E followed by sharp D&C of the uterine cavity." This occurred about the 13th week, on March 28, 2003. In other words, there was no delivery. However, the Screening was not signed at the bottom and that is a reason for rejecting payment. Accordingly, Dr. Valente over-billed $50.00 for this patient. Patient 24: The Screening form is completely absent for this patient. Accordingly, Dr. Valente over-billed $50.00 for this patient. Patient 32: This patient declined screening, so Dr. Valente over-billed $49.34. Patient 37: The Screening form is completely absent for this patient. Accordingly, Dr. Valente over-billed $50.00 for this patient. Patient 39: This patient declined screening, so Dr. Valente over-billed $50.00. Patient 41: The Screening date for this patient was October 30, 2002. The first ultrasound on this patient was provided on the same day and indicated the baby was at 12.7 weeks with an EDD of May 9, 2003. The baby was delivered April 19, 2003, which means it came earlier than anticipated and that the Screening was accomplished during the first trimester. Accordingly, Dr. Valente did not improperly bill for this patient. Patient 42: The screening form is completely absent for this patient. Accordingly, Dr. Valente over-billed $50.00 for this patient. Patient 47: The Screening for this patient listed on the AHCA spreadsheet was May 8, 2003. However, the form indicates it was signed by the patient on March 27, 2003. The patient's LMP was February 13, 2003, and the first ultrasound indicated the patient was eight and one-half weeks pregnant on April 10, 2003. Even if the Screening was accomplished May 8, 2003, as alleged, it was accomplished in the first trimester. Accordingly, Dr. Valente did not improperly bill for this patient. Patient 55: The alleged Screening was accomplished August 7, 2003. The Screening date is unreadable as to month, but the day is 31. Dr. Valente's testimony is that it was in March and that the patient was at 11 weeks and three days. This appears more correct than AHCA's allegation. Accordingly, Dr. Valente did not improperly bill for this patient. The over-payment alleged was a total of $3,048.68. The evidence indicates that on five occasions Dr. Valente was correct in her assertion that the Screening for five of the patients, at $50.00 per patient, was actually within the first trimester. Accordingly, it is found that Dr. Valente only owes $2,748.02 for Category 3. A request for records was sent to Dr. Valente via certified mail to the address she maintained on file with AHCA, on or about October 29, 2007. This provided Dr. Valente with the preliminary audit findings and invited her to illuminate or explain the findings so they could be adjusted if appropriate. The letter was returned. AHCA found a more current address and sent the same letter, and it was delivered to that address in Jacksonville on December 6, 2007. The receipt was signed by Dr. Valente's father. Eventually, Dr. Valente received the materials and called AHCA Investigator Terri Dean, who was listed as the contact point in the letter sent to Dr. Valente. Dr. Valente informed Investigator Dean that she could not get the records. Accordingly, the audit became final as written on March 21, 2008, and was provided to Dr. Valente. The report stated that Dr. Valente owed $6,118.68 for overpayments and should pay a $500.00 fine for failure to provide records. Dr. Valente provided the records about six months later, in late September or early October of 2008. AHCA reviewed the records and determined that there were overpayments in the amount of $7,344.00. Because litigation was already underway, AHCA did not attempt to extract the additional amount from Dr. Valente.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Agency for Health Care Administration enter a final order requiring Dr. Grace Valente, M.D.: to pay the sum of $5,350.02 for the purpose of reimbursing improperly billed Medicaid services; to pay a fine of $1,500 for failing to provide medical records in a timely fashion; and to pay interest at the rate of 10 percent per annum on the sum of $5,350.02, from March 21, 2008, the date of the final audit report; and interest at the rate of 10 percent per annum on the sum of $1,500 from the date the final order is entered, until the sums are paid completely. DONE AND ENTERED this 9th day of February, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 9th day of February, 2009. COPIES FURNISHED: William Blocker, II, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Grace Valente, M.D. 3474 Paddle Point Spring Hill, Florida 34609 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Holly Benson, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The parties The Department of Health, Division of Medical Quality Assurance, Board of Medicine (Department), is a state agency charged with the duty and responsibility for regulating the practice of medicine pursuant to Section 20.43 and Chapters 455 and 458, Florida Statutes. Respondent, Manuel Ortega-Elias, is, and was at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0061620. Respondent is board-certified in pediatrics and neonatology. Patient A. T. Patient A. T. (hereinafter A. T. or Ashley) was the product of a twin pregnancy and born prematurely (at 31 weeks gestation) at Plantation General Hospital on December 19, 1993. Delivery was by cesarean section (due in part to breach presentation) and on delivery A. T. was assigned Apgar scores of 1, 7, and 8, at one, two, and five minutes, respectively. The Apgar scores assigned to A. T. are a numerical expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute, A. T.'s Apgar score totalled 1, with heart rate being graded at 1, and respiratory effort, muscle tone, reflex irritability, and color being graded at 0. A. T. was resuscitated (given oxygen by bag and mask) and by two minutes of delivery her Apgar score had improved to 7, and by five minutes of delivery had improved to 8. A. T. experienced a number of complications secondary to her nine-week prematurity, including respiratory distress syndrome (due to a lack of surfactant), and was intubated and accorded mechanical ventilation from birth until she was four days old. A. T. also presented with apnea (a failure to initiate or maintain pulmonary ventilation) and bradycardia (slow heart rate) due to the immaturity of her nervous system, and was prescribed aminophyllin to stimulate respiration. Finally, as an apparent complication of the stress of delivery, A. T. developed a Grade 3 to 4 intraventricular hemorrhage bilaterally, and on January 11, 1994, a ventriculo-peritoneal shunt (VP shunt) was implanted to address a persistent accumulation of cerebrospinal fluid within the skull (hydrocephalus). Ultimately, A. T. was discharged on February 3, 1994, following a 45-day admission, but continued on apnea and bradycardia monitors. In addition to the foregoing complications associated with prematurity, A. T. also presented with an immature immune system. Pertinent to this case, given her degree of immaturity (9 weeks), A. T. continued to be highly susceptible (high risk) for bacterial infection on April 30, 1994. On April 30, 1994, at approximately 4:45 p.m., A. T., accompanied by her mother, presented to the emergency room at Coral Springs Medical Center, Coral Springs, Florida. At the time, her mother advised the triage nurse that A. T. had a fever, with decreased appetite. The mother also stated that "baby is not herself," was "sleeping more than usual," and was "not eating much." The mother further advised that the infant's twin "sister has bad cold." Weight was recorded as 11.03 pounds, temperature as 103.2 degrees Fahrenheit, heart rate as 160 beats per minute, and respiratory rate as 38 respirations per minute. Respondent was notified at 5:05 p.m. and saw A. T. at 5:20 p.m. At the time, Respondent recorded the following history from the mother: 4 [month old] female infant with a history of prematurity[,] A/B [apnea and bradycardia][,] on A/B monitoring at home and hydrocephalus S/P [status-post] VP shunt placement who presents fever, runny nose, nasal congestion and coughing of 1 day duration[.] She also has been moaning and has decreased her intake somewhat. No diarrhea or vomiting according to mother. Respondent recorded the following results of his physical examination: PE [physical examination]: Active, alert, slightly irritable, not in distress HEENT [head, eyes, ears, nose, and throat]- VP shunt, valve pumps well. TM's [tympanic membranes of the ear] are clear . . . [without] injections or exudate. Slightly hyperemic [reddened] throat . . . [without] exudates. Lungs- transmitted URT [upper respiratory tract] sounds otherwise clear to [auscultation] Heart- RR [regular rate and rhythm]. No [murmur]. Abd [abdomen]- S & D [soft and depressible], no distension, visceromegaly or masses. Ext [extremities]- good pulses, no edema or cyanosis Neurologic- good cry, suck, grasp, tone and reflexes. No gross asymmetries or deficits. Respondent's physical examination was essentially unremarkable and offered no explanation as to a source of infection that would account for her high fever (referred to as "fever without source"). Indeed, A. T. did not appear toxic, septic, or extremely ill, and her skin did not demonstrate evidence of petechiae or rashes which are frequently, although not always, associated with bacterial infection. Under such circumstances, one possible explanation, given A. T.'s congestion and her sibling's current illness, was to attribute the fever to a cold (a viral infection); however, most colds do not typically cause such a high fever as A. T. demonstrated. In contrast, approximately 10 percent of children who present with fever without source (even without A. T.'s increased risk factors) test positive for bacterial infection. Moreover, some bacterial infections (such as the one A. T. was subsequently shown to have had) can present as a common cold or with influenza-like signs.3 Consequently, bacterial infection could not be discounted absent, at least, a urinalysis and a complete blood count (CBC).4 Nevertheless, Respondent did not record bacterial infection as a differential diagnosis and did not order a urinalysis, complete blood count, or other testing to exclude bacterial infection as the cause for A. T.'s presentation. Instead, without benefit of testing (available on-site) to rule out bacterial infection, Respondent diagnosed A. T. as suffering from a cold (viral syndrome) and upper respiratory infection. While A. T. may have suffered a cold and upper respiratory infection, subsequent testing would demonstrate that she also suffered from a bacterial infection or, more specifically, Neisseria meningitidis bacteremia, a universally fatal disease if not treated.5 Here, by failing to recognize or record bacterial infection as a differential diagnosis, and failing to order appropriate testing before excluding bacterial infection as a probable cause of A. T.'s presentation, Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. At 6:05 p.m., April 30, 1994, Respondent discharged A. T. to her mother's care. Instructions on discharge were to give Tylenol every three-to-four hours as needed for fever; feedings of Pedialyte or formula ad lib (as much as she would take); and to follow-up with Dr. Virdee, A. T.'s pediatrician, in the morning, or sooner, if her condition deteriorated or fever persisted, if her intake or urine out-put decreased, or if she experienced any other problem. The infant was also prescribed Rondec-DM drops, a decongestant and cough suppressant, as needed. Following discharge, A. T.'s mother made three telephone calls to Dr. Virdee between 9:30 p.m., April 30, 1994, and 2:00 a.m., May 1, 1994. Dr. Virdee logged the telephone calls as follows:6 4/30/94 9:30 pm: Call from mom. Ashley's apnea monitor keeps going off. Ashley crying & screaming. Told mom ok to take off monitor provided parents keep under observation. Call back if more. Mom said that it had been considered to D/C the apnea monitor at some recent visits. 5/1/94 12:24 am: Call from mom. Ashley won't sleep. Screaming & crying. Advised parents to take turns in observing Ashley. Ø fever Ø new changes. Suggested that mom take Ashley back to ER for re-eval at any time so that she could feel more comfortable. 5/1/94 2 AM: Received . . . call to my home from mom. Mom v[ery] distraught. Said Ashley not sleeping. No fever. Did not mention any vomiting. Again suggested that she may take Ashley back to ER if she desired but reassure her that I would see Ashley first thing in the morning in the office. Dad said that mom may take her to the ER. At approximately 2:12 a.m., May 1, 1994, A. T., accompanied by her mother, again presented to the emergency room at Coral Springs Medical Center. At the time, the triage nurse noted A. T.'s heart rate as 188 beats per minute and respiratory rate as 80 respirations per minute. A. T. was described as "grossly cyanotic," with respiratory distress, nasal flaring, retractions, cold skin, poor capillary refill, and poor air exchange. A. T. was immediately moved to a room for treatment, with Dr. Morgen noted at bedside. Dr. Morgen's notes were, as follows: PMH [past medical history]- hydrocephalus, VP shunt, 31 weeks born. Mother states was seen in ER earlier tonight and [discharged]. Has been vomiting ("her guts out") with high fever. Apnea monitor going off for last hour . . . [with] changes in color for 1 hour. Dr. Morgen's physical observations were as follows: Child crying actively Grossly cyanotic over entire body Entire skin mottled Cap refill >6 sec. Heart-Tachycardic RR 80 & nonlabored Lungs- sound congested Abd[omen]- soft, . . . [normal bowel sounds]. . . . Skin- no rash, poor skin turgor, cool Moving all extremities Critical care- cyanosis improved immediately . . . [with oxygen]. Still mottled cool skin. Fluid bolus started & taken immediately to ICU [intensive care unit] with Dr. Ortega [Respondent} present. Dr. Morgen's diagnostic impression was septic shock. Such impression was accurate as subsequent developments would confirm the presence of a profound bacterial infection. A. T. was taken to the ICU at about 2:33 a.m., May 1, 1994, and admitted at 2:45 a.m. Respondent performed a physical examination which indicated a temperature of 96.4 degrees Fahrenheit (rectal), a heart rate of 138, blood pressure of 97 over 63, and a respiratory rate of 50. Respondent noted A. T. to be hypoactive, awake, in moderate respiratory distress, and acutely ill. At 2:50 a.m., A. T. was intubated endotracheally and started on mechanical ventilation. At 3:15 a.m., Respondent wrote a number of orders for A. T.'s care. For lab tests, Respondent's orders included a CBC (complete blood count) differential, blood culture, and urine culture. Other orders included an arterial blood gas analysis stat (immediately). However, such studies could not be performed since, due to her state of shock, and related poor periferal profusion, A. T.'s blood could not be drawn. Respondent's orders also included Vancomycin, an antibiotic; however, it could not be administered because the staff were unable to obtain vein access. At 4:15 a.m., Respondent wrote the following progress note: . . . ABG's are still pending due to unsuccessful arterial puncture attempts. The infant's temperature has continued to decrease in spite of multiple attempts to warm her up. She has not responded well to volume challenges. . . . I've spoken to the mother and informed her about the critical condition of the infant with a guarded prognosis. At 5:00 a.m., May 1, 1994, A. T. presented with sudden onset of bradycardia and died, despite efforts to resuscitate her. Autopsy results disclosed the cause of death as Waterhouse- Friderichsen Syndrome (bilateral adrenal hemorrhage) secondary to an overwhelming septicemia (systemic disease associated with the presence and persistence of pathogenic microorganisms or their toxins in the blood) caused by Neisseria meningitidis (a bacterial infection). If timely addressed, Neisseria meningitidis can be successfully treated with a variety of antibiotics.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds Respondent guilty of violating Subsection 458.331(1)(t), Florida Statutes, as alleged in the Administrative Complaint. It is further RECOMMENDED that for such violation the final order place Respondent on probation for a term of two years, subject to such reasonable terms as the Board of Medicine may specify, and impose an administrative fine of $5,000.00. DONE AND ENTERED this 27th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 27th day of July, 1999.
The Issue Whether the Petitioner should reimburse the Respondent for alleged Medicaid overpayments in the amount of $44,581.50.
Findings Of Fact At all times material to the allegations of this case, the Petitioner, Roosevelt T. Jackson, Jr., M.D., has been a Medicaid provider authorized to receive reimbursement for Medicaid services provided to Medicaid recipients. Dr. Jackson is an ophthalmologist. All services in this cause related to Medicaid claims for procedures performed between January 1, 1998, and December 31, 1999. The Respondent is the state agency responsible for the administration of the Medicaid program within the State of Florida. Medicaid Program Integrity is the arm of the Agency that oversees the activity of the Florida Medicaid providers and recipients to ensure that they are in compliance with the Medicaid program. As part of its duties, the Agency audits the records of providers to verify compliance with all Medicaid rules. In this case the audit of Petitioner's records was triggered by a computer program that reviews data from similar Medicaid providers. The Surveillance Utilization Review Section (SURS) of the Medicaid Program Integrity office found that the Petitioner had exceeded the norm in Medicaid billings when compared to his peers. When the SURS kicked back the Petitioner's name, it represented that the Petitioner had exceeded his peers in the total number of Medicaid recipients serviced, total number of evaluation and management procedures, average number of evaluation and management procedures per recipient, number of office visits, average number of office visits per recipient, and average number of services per recipient. Based upon the SURS responses, the Agency elected to conduct a sample audit of the Petitioner's records. Records for 30 Medicaid recipients were requested and obtained from the Petitioner. The results of that sample audit were then extended to calculate the overpayment for which the Respondent currently seeks reimbursement. The Respondent's audit established that the Petitioner had failed to comply with Medicaid provisions in three specific areas. First, based upon the records submitted to the Agency, the Petitioner billed for services at a higher level than actually performed. Second, the audit established that the Petitioner billed for services that were "medically unnecessary" as that term is utilized by Medicaid. And third, the audit found that the Petitioner billed for services that were not properly documented by the records maintained. Such records were created, maintained and produced to the Agency by the Petitioner. The results of the audit were set forth in the Final Agency Audit Report and were provided to the Petitioner. The report requested reimbursement from the Petitioner in the amount of $44,581.50. The report was completed on or about June 27, 2001. Thereafter, the Petitioner timely challenged the results of the audit, and requested a formal administrative hearing to dispute the amounts set forth in the report. As to all amounts claimed in the report, the evidence presented in this cause supports the Agency's conclusions as to the overpayment. Prior to January of 1999, the Petitioner was not authorized to bill for a level 4 visit. Thus all services billed at that rate prior to January 1999 should be reduced. Secondly, none of the records supplied by the Petitioner supported the complexity required for a level 4 billing. Therefore, services billed at the level 4 rate should be reduced to the appropriate level. The Petitioner also billed for services that were not medically necessary. A normal examination (with no retinal problem identified in the record) would not warrant additional retinal examinations. Therefore, billings for additional procedures would not be warranted in such cases. Finally, Medicaid rules require that a physician maintain records in compliance with documentation guidelines. The Petitioner's records did not comply with such guidelines. Accordingly, Medicaid payments for services that lack the required documentation may be recouped. After a full review of the records submitted, the Agency used a standard formula to extend the sample data throughout the population from which the sample was taken. That is, from the 30 patient records reviewed, the results were applied by statistical formula to the entire Medicaid patient population served by the Petitioner. This computation resulted in the amount of the overpayment currently sought. The statistical formula used by the Agency to compute the overpayment was reasonable and within the guidelines of the law.
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 confirming the Medicaid overpayment in the amount of $44,581.50. DONE AND ENTERED this 21st day of May, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 21st day of May, 2002. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Roosevelt T. Jackson, Jr., M.D. 3740 West Broward Boulevard Plantation, Florida 33312 Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue The issues for determination are whether Respondent must reimburse Petitioner an amount up to $1,051,992.99, which sum Respondent received from the Florida Medicaid Program in payment of claims arising from his treatment of pediatric patients between September 1, 2008, and August 31, 2010; and whether Petitioner is entitled to sanctions in the amount of $210,398.60, and costs of $3,349.86.
Findings Of Fact Petitioner is the state agency responsible for, inter alia, administering the Florida Medicaid Program. Respondent is, and at all times relevant was, a physician licensed to practice medicine in Florida. Respondent was certified by the American Board of Pediatrics in General Pediatrics in 1989. Additionally, Respondent was certified by the American Board of Pediatrics in Pediatric Infectious Diseases in 2005. Respondent's practice is solely hospital-based and exclusive to pediatric infectious disease. Respondent evaluates, and provides care and treatment to, patients in Level III Neonatal Intensive Care Units ("NICU") and Pediatric Intensive Care Units ("PICU") in Miami-Dade, Broward, and Palm Beach County, Florida hospitals.1/ Respondent has never been the subject of any disciplinary proceedings. Exercising its statutory authority to oversee the integrity of the Medicaid program, Petitioner identified Respondent as a Medicaid provider who had submitted a high volume of claims for inpatient recipients. Accordingly, Petitioner conducted a review or audit to verify the claims paid by Medicaid during the audit period. On or about September 14, 2011, Petitioner issued a request for records letter to Respondent. Said correspondence notified Respondent that Petitioner was in the process of completing a review of claims Respondent billed to Medicaid during the audit period to determine whether the claims were billed and paid in accordance with Medicaid policy. The request identified 30 of Respondent's patients and requested copies of the patients' Medicaid-related records, including all hospital records. The requested records were to be submitted within 21 days. Respondent provided records responsive to the September 14, 2011, request for records.2/ Upon receipt, Petitioner organized the submitted records and provided the same to a reviewing nurse, Blanca Nottman. The reviewing nurse preliminarily inspected the same to determine if any policy violations were apparent and noted any findings. Ms. Nottman, in turn, provided the records and notations to Petitioner's "peer coordinator." The peer coordinator maintains a list of all the peers that have a contract with Petitioner. A peer "means a Florida licensed physician who is, to the maximum extent possible, of the same specialty or subspecialty, licensed under the same chapter, and in active practice." § 409.9131(2)(c), Fla. Stat. The peer coordinator then forwarded all records and documents provided by Respondent to Richard Keith O'Hern, M.D., to conduct a peer review of Respondent's claims. Section 409.9131(2)(d), defines a peer review as follows: an evaluation of the professional practices of a Medicaid physician provider by a peer or peers in order to assess the medical necessity, appropriateness, and quality of care provided, as such care is compared to that customarily furnished by the physician's peers, and to recognized health care standards, and, in cases involving determination of medical necessity, to determine whether the documentation in the physician's records is adequate. Dr. O'Hern was certified, in 1979, by the American Board of Pediatrics in General Pediatrics. Dr. O'Hern completed a one-year infectious disease fellowship during his training at the University of Florida in 1977-78. Dr. O'Hern retired from a private general pediatric practice in December 2012. During his thirty-seven year career, he provided care and treatment to approximately 80,000 babies, of which approximately 16,000 were sick with infectious disease issues.3/ During his career, Dr. O'Hern was on three hospital medical staffs, and estimated that his practice involved working in the hospital setting approximately 10-20 percent of the time, with the balance in his office. Dr. O'Hern was never certified by the American Board of Pediatrics in pediatric infectious diseases and would not, at the time of the review, have been eligible to become certified in pediatric infectious diseases. Additionally, Respondent provided unrefuted testimony that Dr. O'Hern would not be permitted to treat Respondent's patients at Level III NICUs and PICUs. Dr. O'Hern received copies of the medical records submitted by Respondent as well as "copies of the worksheets that Medicaid uses to determine the appropriateness of medical reimbursement." For each of the thirty patients, whose encounters were under review for the audit period, Dr. O'Hern reviewed the patient's noted complaint; whether the patient was a new or existing patient; whether the patient was inpatient or outpatient; the medical history, physical exam, and assessment of the patient; and the amount of time spent with the patient. Dr. O'Hern would then, based upon the above information, "determine the level of coding that leads to reimbursement." Upon completion of his review, Dr. O'Hern notated his findings and returned the same to the peer coordinator, who in turn, provided them to the reviewing nurse. The reviewing nurse then "comes up with a review finding that gives the reason for the adjusted or denied claim." As there were findings for adjusting or denying Respondent's claims, Jennifer Ellingen, an investigator for Petitioner, prepared a Preliminary Audit Report ("PAR"). On April 18, 2012, Petitioner issued the PAR to Respondent. The PAR advised Respondent that Petitioner had completed a review of claims for Medicaid reimbursement for the audit period, and a preliminary determination had been made that Respondent was overpaid $1,051,992.99 for claims that in whole or in part were not covered by Medicaid. The PAR advised Respondent that the documentation he provided supported a lower level of office visit(s) than the ones for which he billed and received payment, and that some services for which he billed and received payment were not documented. The PAR notified Respondent that he could (1) pay the identified overpayment within 15 days and wait for the issuance of the final audit report ("FAR"); (2) submit further documentation in support of the claims within 15 days; however, such additional documentation may "be deemed evidence of non- compliance with [Petitioner's] initial request for documentation;" or (3) not respond, and wait for the issuance of the final audit report. The PAR further notified Respondent that the findings contained in the PAR were preliminary in nature, and that it was not a final agency action. Respondent opted to submit further documentation in support of his claims. Upon doing so, the process repeated itself, with the reviewing nurse, now Karen Kinser, reviewing all of the submitted documentation, which was then forwarded to Dr. O'Hern for an additional review. On January 8, 2013, Respondent issued a FAR. The amount previously determined as overpayment in the PAR remained unchanged in the FAR. The FAR further documented that a fine in the amount of $210,398.60 had been applied and costs had been assessed in the amount of $3,349.86. As noted above, upon receipt of the FAR, Respondent timely requested a formal hearing. Rather than examine the records of all recipients served by Respondent during the audit period, a random sample of 30 recipients (patients) was reviewed. For these patients, Respondent identified 701 reimbursements from Petitioner to Respondent during the audit period. At hearing, Petitioner presented evidence specific to three of the 30 patients. A review of the three patients is instructive. Patient 1 was born premature at 33 weeks gestation, with a birth weight of three pounds seven ounces, and was two months old at time of the subject hospitalization. At birth, Patient 1's medical condition necessitated placement in the NICU for three weeks and required nasogastric tube feeding. During the hospitalization under review, the patient's discharge diagnoses included, inter alia, septicemia and streptococcal meningitis. During the hospitalization, Respondent provided pediatric infectious disease care to the recipient. Patient 2 was born on January 27, 2009, at 27 weeks gestation. At the time of the subject admission, Patient 2 was 37 days old, with an adjusted gestation age of 32 weeks two days, weighing 1.040 kg (approximately two pounds five ounces). The admitting diagnoses were prematurity, possible sepsis, respiratory distress, and a femoral fracture. Respondent provided care and treatment concerning a pediatric infectious disease condition, sepsis. The patient was not discharged from the hospital until July 28, 2009. Patient 3 was born prematurely on July 15, 2009. On August 27, 2009, the child was 43 days old with an adjusted gestation of 32 weeks five days and weighed 1.180 kg (approximately two pounds ten ounces). The admitting indications were prematurity, possible sepsis, and respiratory distress. Respondent provided care and treatment concerning potential sepsis, a pediatric infectious disease medical condition. Consistent with the above-findings concerning Patients 1-3, Respondent testified that his typical patient/recipient is premature and weighs approximately 500 grams (approximately one pound). Respondent explained that his patients are immune-compromised and that patients under 28 weeks gestation do not possess an independent immune system. Respondent opined that the greatest cause of morbidity or mortality among these pediatric patients is infectious diseases.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a Final Order dismissing the Final Audit Report. DONE AND ENTERED this 22nd day of May, 2014, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 22nd day of May, 2014.
