The Issue The central issue in this case is whether the provider, Medilab, was overpaid for medicaid claims as alleged in the letter dated November 3, 1993.
Findings Of Fact The Agency is the state agency responsible for administering the Florida Medicaid program. At all times material to this case, Medilab was a medicaid provider. Medilab enrolled as a physician group provider on or about October 2, 1991. Medilab was not enrolled with the Florida Medicaid program as a diagnostic lab. At all times material to this case, Medilab was owned and operated by Roberto Rodriguez and Jorge Nunez. Mr. Rodriguez handled the administrative duties for Medilab while Mr. Nunez operated the diagnostic portion of the business. Medilab operated several machines for diagnostic evaluations as ordered by a physician. Such machines produced documentation which was then evaluated by another physician. Dr. Carmouze did not perform the service nor interpret the diagnostic results. When Medilab applied for a provider number to enroll in the Medicaid program it represented that services were to be provided by Dr. Arnoldo Carmouze. It was further represented that Dr. Carmouze would treat or supervise treatment of patients on behalf of the Medilab "group." On or about January 11, 1992, Medilab received its group provider number along with a copy of the Medicaid Physician Provider Handbook. Medilab was notified that it could begin billing for services beginning October 2, 1991. Subsequently, the Agency performed an audit of Medilab for the period October 2, 1991 through August 31, 1992. Li-Hsiang Wu, a computer systems project analyst employed by the Agency, generated a random sample of Medicaid recipients by using a computer program to calculate the total number of Medicaid recipients for which claims were submitted during the audit period. Then Medilab's provider number and the dates of the audit were used to generate the total number of Medicaid recipients for whom claims were submitted by Medilab for the audit period. Once the total number of recipients was identified, Ms. Wu generated a list of forty-three recipient numbers which were selected by the computer from the total number claimed by Medilab for the period searched. Mr. Allen then requested and obtained from Medilab the medical records for the same forty-three randomly selected Medicaid recipients. The medical records were first reviewed by Phyllis Stiver, the Agency's registered nurse consultant. Once Ms. Stiver completed her initial review, Mr. Allen requested additional records from Medilab. Specifically, documentation for the office visit and records that established the necessity for the tests performed by Medilab were requested for each of the forty-three recipients. Medilab subsequently submitted additional records to the Agency which were also reviewed by Ms. Stiver. Ms. Stiver determined that based upon her review of the forty-three records, Medilab had violated Medicaid rules and policy as follows: Medilab failed to have all of the medical records signed by a physician and dated; and Medilab failed to document in the medical records to show that certain diagnostic tests were performed. After Ms. Stiver completed her review of the records, Dr. Sullenberger reviewed each of Medilab's medical records for the forty-three patients. Dr. Sullenberger determined, and it is found, that the majority of the tests performed by Medilab were not medically necessary based upon the symptoms documented for each patient, the prior patient histories established by the records, and the absence of other, less expensive testing that would normally be utilized to determine a medical condition. Virtually all of the patient records reviewed recited the same medical complaints: chest pain, shortness of breath, palpitation, numbness or tingling in extremities, and dizziness. Only five of the forty-three patients were over 49 years of age. The ages of the majority of the forty-three were under 50. That age group is rarely afflicted by the types of medical conditions which the Medilab equipment was used to detect. The symptoms and medical histories recited in the medical records did not justify the tests performed by Medilab for the following patients (recipients identified in this record as numbers 1 through 43): 1, 2, 17, 18, 21, 22, 24, 25, 32, 34, 35, 37, 38, and 41. With the exception of the electrocardiogram, the symptoms and medical histories recited in the medical records did not justify the tests performed by Medilab for the following patients (recipients identified in this record as numbers 1 through 43): 3, 4, 5, 6, 7, 9, 11, 12, 13, 15, 16, 19, 20, 23, 26, 27, 29, 30, 31, 33, 36, 39, 40, 42, and 43. With regard to recipient 8, except for the electrocardiogram and the abdominal ultrasound, the tests performed by Medilab were medically unnecessary. With regard to recipient 10, except for the electrocardiogram and the Doppler echocardiogram, the tests performed by Medilab were medically unnecessary. With regard to recipient 14, except for the electrocardiogram and the echocardiogram, the tests performed by Medilab were medically unnecessary. With regard to recipient 28, except for the mammogram, the tests performed by Medilab were medically unnecessary. None of the services or testing performed by Medilab were supervised by a physician. Two physicians, Dr. Pozo and Dr. Pereira, radiologists, read the diagnostic results but were not on site to perform or supervise the tests on a daily basis. Dr. Pozo did not supervise the services that were provided at Medilab. Dr. Pereira, who is deceased and whose testimony was not available, did not supervise the services that were provided at Medilab. According to Mr. Nunez, Dr. Pereira had someone from his office courier the tests results and his interpretations to and from the Medilab facility. Dr. Pereira may have visited the facility on occasion but was not there during its full hours of operation. Dr. Carmouze, the treating physician and representative for Medilab's physician group, did not supervise the services at Medilab. Dr. Carmouze treated over 95 percent of the total patients referred to Medilab yet Dr. Carmouze never billed the Medicaid program for the patients' office visits. For the audit period, of the 493 different patients Medilab billed Medicaid for, Dr. Carmouze is the only treating physician identified by the records. The Medicaid Physician's Handbook, supplied to Medilab at the time of its enrollment, specified that to be reimbursable the services performed by a physician group provider had to be medically necessary and supervised by a physician. The Medicaid Provider Agreement required Medilab to keep complete and accurate medical and fiscal records that fully justify and disclose the extent of the services rendered for five years. All tests performed by Medilab were documented with a physician's order for same. Medilab submitted for review all medical and fiscal records it maintained in its attempt to fully justify and disclose the extent of the services it rendered.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration, Medicaid Program Integrity Office, issue a final order charging Medilab for the full amounts paid for the audit period as the services rendered were not supervised by a physician and were, therefore, not "physician services." Additionally, the Agency should impose an administrative fine in an amount not to exceed $5,000.00. DONE AND RECOMMENDED this 1st day of March, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 1st day of March 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0096 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1, 2, 4, 6, and 12 are accepted. Paragraph 3 is rejected as not supported by the weight of credible evidence. Paragraph 5 is rejected as irrelevant. Paragraph 7 is accepted as to the general statement but is rejected as to the amount claimed. Paragraph 8 is rejected as a mischaracterization of testimony; it is accepted Dr. Sullenberger, on further reflection and in an effort to be consistent, gave Medilab the benefit of doubt and modified disallowed items. Paragraph 9 is rejected as irrelevant. Paragraph 10 is rejected as irrelevant. Paragraph 11 is rejected as contrary to weight of credible evidence. Paragraph 13 is rejected as irrelevant or argument. Paragraph 14 is rejected as irrelevant. That Dr. Carmouze never charged for the alleged office visits that generated the referral for tests was the relevant fact. Paragraph 15 is accurate but is irrelevant in light of the stipulation. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1 through 36, 39, 41, 43, 46, 48, 49, 50, 52, and 53 are accepted. Paragraphs 37, 38, 40, 42, and 47 are rejected as argument. Paragraph 44 is rejected as hearsay not supported by direct evidence. Paragraph 45 is rejected as not supported by the weight of credible evidence. With regard to paragraph 51, the first sentence is accepted; the remainder rejected as not supported by the weight of credible evidence. COPIES FURNISHED: Heidi E. Garwood Agency for Health Care Administration 1317 Winewood Boulevard Building B, Room 271 Tallahassee, Florida 32399-0700 Monte K. Rassner Rassner, Rassner, Kramer & Gold, P.A. 7000 Southwest 62nd Avenue, Suite PH-B South Miami, Florida 33143 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue Whether the subject supplemental Medicaid payments to Petitioner for services to patients with acquired immunodeficiency syndrome (AIDS) during the audit period January 1, 1999 through June 20, 2001, constitute overpayments. Whether Respondent has the authority to recoup such overpayments. If such authority is found, whether the doctrine of unjust enrichment should be applied to prevent Respondent's recouping any overpayment under the facts of this proceeding.
Findings Of Fact Petitioner operates a duly-licensed nursing home located in Broward County, Florida. At all times pertinent to this proceeding, Respondent was a Medicaid provider with the following Medicaid provider number: 020695400. As a Medicaid provider, Petitioner agreed to comply with all pertinent state and federal laws and regulations. At the times pertinent to this proceeding Petitioner had a valid Medicaid Provider Agreement with Respondent. Respondent is the agency of the State of Florida responsible for oversight of the integrity of the Medicaid program in Florida. The unnumbered opening sentence of Section 409.913, Florida Statutes, provides as follows: The agency shall operate a program to oversee the activities of Florida Medicaid recipients, and providers and their representatives, to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible, and to recover overpayments and impose sanctions as appropriate. During the audit period, Petitioner was subject to all of the duly enacted statutes, laws, rules, and policy guidelines that generally govern Medicaid providers. Petitioner was required to follow all the Medicaid Coverage and Limitation Handbooks and all Medicaid Reimbursement Handbooks in effect, including, the Florida Medicaid Provider Reimbursement Handbook, Institutional 021 (the Institutional Provider Handbook), which is incorporated by reference by Respondent's Rule 59G-4.200, Florida Administrative Code. During the audit period, the applicable statutes, laws, rules, and policy guidelines in effect required Petitioner to maintain all "Medicaid-related Records" and information that supported any and all Medicaid invoices or claims that Petitioner made during the audit period.1 During the audit period, the applicable statutes, laws, rules, and policy guidelines in effect required Petitioner at Respondent's request to provide Respondent or Respondent's authorized representatives all Medicaid-related Records and other information that supported all the Medicaid-related invoices or claims that Petitioner made during the audit period.2 Section 409.913(7), Florida Statutes, provides, in pertinent part, as follows: (7) When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty . . . to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state, and local law. Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient's medical record. Section 409.913(1), Florida Statutes, defines the terms "medical necessity" and "medically necessary" as follows: "Medical necessity" or "medically necessary" means any goods or services necessary to palliate the effects of a terminal condition, or to prevent, diagnose, correct, cure, alleviate, or preclude deterioration of a condition that threatens life, causes pain or suffering, or results in illness or infirmity, which goods or services are provided in accordance with generally accepted standards of medical practice. For purposes of determining Medicaid reimbursement, the agency is the final arbiter of medical necessity. Determinations of medical necessity must be made by a licensed physician employed by or under contract with the agency and must be based upon information available at the time the goods or services are provided. Section 409.913(10), Florida Statutes, provides as follows: (10) The agency may require repayment for inappropriate, medically unnecessary, or excessive goods or services from the person furnishing them, the person under whose supervision they were furnished, or the person causing them to be furnished. Section 409.913(1)(d), Florida Statutes, defines the term "overpayment" as follows: "Overpayment" includes any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake. On March 28, 2001, Respondent sent Petitioner the audit letter for the audit period. The audit letter provided, in pertinent part, as follows: The Agency for Health Care Administration, Medicaid Program Integrity office has completed a review of your Medicaid claims for dates of service during the period January 1, 1999, through June 30, 2000. A provisional letter was sent to you indicating you were overpaid $49,965.30 for claims that in whole or in part are not covered by Medicaid. We have received no response from you regarding the provisional letter. This review and the determination of overpayment were made in accordance with the provisions of Section 409.913, Florida Statutes (F.S.). In determining payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies and the limitations and exclusions found in the Medicaid provider handbooks. In applying for Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks and billing bulletins. Medicaid cannot pay for services that do not meet these guidelines. The audit letter thereafter cited the following from Chapter 7 of the Institutional Provider Handbook (Chapter 7) in asserting there had been an overpayment: Nursing facilities may receive a supplemental payment for a recipient with AIDS. The supplemental payment must be prior authorized by the Medicaid office before the facility will be reimbursed for it. The facility where the recipient resides must request the prior authorization. The Medicaid office notifies the provider with a letter of approval or denial. An approved authorization is not a guarantee that Medicaid will reimburse the supplemental payment. The provider must be enrolled in Medicaid, and the recipient must be eligible on the date of service for a Medicaid program that reimburses for institutional care.3 Chapter 7 provides as follows for the effective date of the supplement: If the recipient is approved for the increased supplemental payment, the approval letter will state the effective date of the supplemental payment. The effective date of the supplemental payment is determined by the following criteria: If the recipient was ICP eligible when admitted to the facility and met the AIDS criteria on the admission date, the effective date will be the same as the admission date. If an ICP recipient becomes HIV positive while in the facility and meets the AIDS criteria, the effective date will be the date that the Medicaid office determines the clinical criterion was evidenced. For recipients registered through SFAN, the effective date will be the effective date of the SFAN registration or ICP eligibility, whichever is later. Chapter 7 provides that a nursing home may receive "H" Supplement payments for a recipient who has been diagnosed as being positive for the human immunodeficiency virus (HIV), has laboratory confirmation of a reactive screening test for HIV antibodies, and is receiving active treatment for a condition that meets the Center for Disease Control definition of AIDS. A nursing home may also receive "H" Supplement payments for a recipient who is registered with the South Florida AIDS Network (SFAN). Chapter 7 requires that a request for prior authorization contain a letter from the facility requesting the "H" Supplement payment; a copy of the admission cover sheet; a confirming HIV test (Western Blot or IFA)4; and a signed physician letter or statement documenting current treatment for an opportunistic AIDS-related disease, or if the recipient is registered with SFAN, a letter from the facility stating that the recipient was admitted to the registry, the date admitted, and the SFAN registry number. During the audit period, Petitioner billed Respondent for "H" Supplement Payments in the total amount of $49,965.30 for eight separate recipients. Prior to the issuance of the audit letter, Petitioner did not submit, make, or deliver any "H" Supplement prior request for any of the eight recipients at issue. Despite the fact that the "H" Supplement payments were not prior authorized, Respondent made those payments to Petitioner.5 The parties stipulated that the eight recipients at issue were patients of Petitioner, suffered from AIDS, and received treatment from Petitioner for AIDS. The parties further stipulated that six of the eight recipients suffered from AIDS opportunistic diseases. There is no dispute as to whether the other two recipients suffered from disease, but there was no stipulation that the diseases were AIDS opportunistic diseases.6 There is no issue as to the quality of care rendered the eight recipients. Fraud is not at issue in this proceeding. Subsequent to the issuance of the audit letter, the only recipient for which Petitioner has presented a Western Blot confirmatory test is for the recipient identified with the initials J.F. and further identified in Petitioner's Exhibit G. Petitioner has not submit a Western Blot or IFA test for the seven other recipients at issue in this proceeding. Petitioner's medical records do not establish that, but for its failure to obtain prior authorization for each recipient, the subject "H" Supplements would have been paid by Respondent. Section 409.913(10), Florida Statutes, provides as follows: (10) The agency may require repayment for inappropriate, medically unnecessary, or excessive goods or services from the person furnishing them, the person under whose supervision they were furnished, or the person causing them to be furnished. Section 409.913(14), Florida Statutes, provides, in pertinent part, as follows: (14) The agency may seek any remedy provided by law, including, but not limited to, the remedies provided in subsections (12) and (15) and s. 812.035, if: * * * The provider has failed to maintain medical records made at the time of service, or prior to service if prior authorization is required, demonstrating the necessity and appropriateness of the goods or services rendered; The provider is not in compliance with provisions of Medicaid provider publications that have been adopted by reference as rules in the Florida Administrative Code; with provisions of state or federal laws, rules, or regulations; with provisions of the provider agreement between the agency and the provider; or with certifications found on claim forms or on transmittal forms for electronically submitted claims that are submitted by the provider or authorized representative, as such provisions apply to the Medicaid program . . .
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding Petitioner received overpayments from the Medicaid Program for "H" Supplement payments during the audit period in the amount of $49,965.30. It is further recommended that Petitioner be required to repay those overpayments. DONE AND ENTERED this 14th day of November, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 14th day of November, 2001.
The Issue Whether Petitioner correctly imposed sanctions on Respondent for violation of applicable statutory, rule, and compliance criteria and standards as set forth in Chapter 641, Florida Statutes, Chapter 59A-12, Florida Administrative Code, and the 1994-1995 Medicaid Prepaid Health Plan Contract.
Findings Of Fact Petitioner, AGENCY FOR HEALTH CARE ADMINISTRATION (AHCA), is the agency of the State of Florida charged with the duty and responsibility of administering the provisions of the Florida Medicaid program pursuant to Chapter 641, Florida Statutes, relating to health care services. In 1992 statutory authority to regulate health maintenance organizations (HMO's) was transferred from the Florida Department of Health and Rehabilitative Services to AHCA. Respondent, UNIVERSAL HEALTH PLAN OF FLORIDA, INC. (UNIVERSAL), is a commercially licensed health maintenance organization under Chapter 641, Florida Statutes, with offices located in Dade County, Florida. In July of 1994, UNIVERSAL entered into a valid, enforceable, one-year Medicaid Prepaid Health Plan Contract (1994-1995 Contract) with AHCA. UNIVERSAL had specific knowledge of, and agreed to each of the requirements of the 1994- 1995 Contract. The 1994-1995 Contract required UNIVERSAL to provide Medicaid managed health care services to Florida Medicaid recipients in accordance with specified minimum standards, including standards for quality care assurance. The 1994- 1995 Contract also provided for an annual medical audit, and provided for the imposition of penalties for failure to comply with the contract. In December of 1994, as a result of negative press accounts, AHCA initiated a comprehensive review of each of the 29 Florida prepaid health plans to determine whether such plans were in compliance with their contractual requirements. By letter dated December 20, 1994, AHCA notified UNIVERSAL of the agency's intention to undertake a comprehensive review of UNIVERSAL. In accordance with the notification of December 20, 1994, AHCA, by letter dated January 10, 1995, informed UNIVERSAL that a comprehensive survey of UNIVERSAL's compliance with the conditions of the 1994-1995 Contract would begin on January 24, 1995. The January 10, 1995 letter specified the manner in which the survey would be conducted and itemized the information required of UNIVERSAL. AHCA also informed UNIVERSAL that the survey would review only those items required by the 1994-1995 Contract. The survey instrument developed by AHCA contained 145 specific program requirements which were derived directly from the 1994-1995 Contract. Seventy of the requirements pertained to quality of care review, and included such requirements as the providing of early periodic screening diagnosis and treatment (EPSDT); establishing an accurate and comprehensive medical records system; ensuring peer review of medical facilities and services; verification and examination of the credentials of health care providers; coordination of the overall health care of each member; and assuring that services provided to members through referral sources were reported to the HMO or a designated health care provider. In January of 1995, at the time of the AHCA survey, UNIVERSAL was undergoing major administrative changes including the replacement of its Chief Executive Officer. These changes were made in response to problems previously identified by UNIVERSAL which related to the operation of the plan, including problems relating to compliance with certain requirements of the 1994-1995 Contract. The AHCA survey of UNIVERSAL was conducted from January 24-26, 1995. The survey team was composed of five staff members including medical personnel, a Medicaid monitor, a staff member from the Bureau of Managed Care, and a manager or supervisor from the agency. In order to ensure consistency in the application of the survey standards, all team members participating in the comprehensive review of the 29 Florida prepaid Medicaid health plans were trained by AHCA prior to conducting the survey. The AHCA team members who conducted the comprehensive review of UNIVERSAL received such training. At the conclusion of the on-site survey, the AHCA survey team did not make representations to UNIVERSAL which indicated that the team had found UNIVERSAL to be in such substantial noncompliance with the 1994-1995 Contract that sanctions would be imposed. After all on-site surveys were completed, each AHCA review team compiled a detailed deficiency report for each plan listing those contract requirements with which the team had determined the plan was out of compliance. The deficiency report which the AHCA survey team completed for UNIVERSAL determined that UNIVERSAL complied with only 68 percent of the quality of care standards required by the 1994-1995 Contract, and with only 76 percent of the overall standards required by the 1994-1995 Contract. UNIVERSAL did not contest the contract deficiencies as determined by the AHCA survey team. AHCA sent each health plan, including UNIVERSAL, a copy of the deficiency report for their plan, and requested each health plan to develop and submit to AHCA a corrective action proposal for the deficiencies cited by the report. UNIVERSAL acknowledged the deficiencies cited in the AHCA report, and developed a corrective action proposal addressing these deficiencies. AHCA accepted and approved UNIVERSAL's corrective action proposal on April 8, 1995. As a result of the contract deficiencies determined during the comprehensive review of the prepaid Medicaid health plans, AHCA imposed sanctions against those plans which AHCA determined were not in substantial compliance with the requirements of the 1994-1995 Contract. For commercially licensed health plans, including UNIVERSAL, AHCA developed a graduated schedule of quality of care fines which were imposed based on each plan's performance as related to the seventy quality of care standards reviewed during the comprehensive survey. The fines imposed by AHCA ranged from $20,000 to $100,000, depending on the number of quality of care deficiencies cited for each plan. Commercial plans with contractual compliance rates above 90 percent were found to be in substantial compliance and no fines were imposed. Commercial plans with contractual compliance rates between 80 percent and 89 percent were fined $20,000. Those commercial plans between 70 percent and 79 percent were fined $60,000, and those commercial plans below 70 percent were fined $100,000. In developing its graduated schedule for quality of care fines, AHCA weighed each quality of care deficiency equally. UNIVERSAL was the only commercially licensed plan with a quality of care contractual compliance rate below 70 percent. The contractual quality of care requirements with which UNIVERSAL failed to comply included: 1) failure to provide EPSDT or to arrange for health risk and prevention measures; 2) failure to ensure a readily accessible, accurate and comprehensive medical records system; 3) failure to ensure peer review of its medical facilities and services; 4) failure to verify and examine the credentials of each of its providers; 5) failure to coordinate the overall health care of each member; and 6) failure to assure that services provided members through referral sources were reported to the HMO or a designated health care professional. By letter dated March 30, 1995, AHCA notified UNIVERSAL that because of the deficiencies found during the comprehensive review, UNIVERSAL was not in substantial compliance with the quality of care requirements of the 1994-1995 Contract. In accordance with the graduated schedule set forth above, AHCA assessed a fine against UNIVERSAL in the amount of $100,000. AHCA further notified UNIVERSAL that it was out of compliance with the overall requirements of the contract and imposed a moratorium on expansion and enrollment on UNIVERSAL. AHCA conducted a follow-up survey of UNIVERSAL from July 18-20, 1995. At that time AHCA determined that the corrective action plan submitted by UNIVERSAL had not been met, and contractual deficiencies remained. As a result of the follow-up survey, AHCA by letter dated August 15, 1995, notified UNIVERSAL that AHCA would be terminating UNIVERSAL's Medicaid Prepaid Health Contract, and revoking UNIVERSAL's certificate of authority effective October 1, 1995. On September 15, 1995, a separate administrative action was instituted by UNIVERSAL with the Division of Administrative Hearings, (Case No. 95-4569), relating to AHCA's termination of its contract and revocation of its certificate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The sanctions imposed by AHCA on UNIVERSAL be UPHELD. RECOMMENDED in Tallahassee, Leon County, Florida, this 17th day of October, 1995. RICHARD HIXSON 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 17th day of October, 1995. APPENDIX As to Petitioner AHCA's proposed findings. 1 - 8. Accepted and incorporated. Rejected as irrelevant. Accepted and incorporated. Rejected in part as a conclusion of law. Accepted and incorporated. 13-14. Rejected in part as a conclusion of law. Accepted and incorporated. Rejected as irrelevant. 17 - 18. Accepted and incorporated. 19 - 28. Accepted and incorporated. 29. Rejected as irrelevant. 30 - 32. Accepted and incorporated. As to Respondent UNIVERSAL's proposed findings. 1- 10. Accepted and incorporated. 11 - 12. Rejected. 13. Accepted and incorporated. 14 - 16. Rejected as irrelevant. Accepted and incorporated. Rejected as irrelevant. Accepted and incorporated. 20 - 23. Accepted and incorporated. 24 - 31. Rejected as irrelevant. 32. Accepted and incorporated. COPIES FURNISHED: Heidi Garwood, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox - Building 1 Tallahassee, Florida 32308 Ellen Leibovitch, Esquire Lori Lovgren, Esquire ADORNO & ZEDER, P.A. 2255 Glades Road, Suite 342W Boca Raton, Florida 33431 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Jerome Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox - Building 1 Tallahassee, Florida 32308
The Issue Whether Medicaid overpayments were made to Respondent and, if so, what is the total amount of those overpayments. Whether, as a "sanction," Respondent should be directed to submit to a "comprehensive follow-up review in six months."
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings s of fact are made to supplement and clarify the factual stipulations set forth in the parties' Joint Prehearing Stipulation and their January 26, 2007, pleading:4 Respondent and his Practice Respondent is a pediatric physician whose office is located in a poor neighborhood in Hialeah, Florida. He has a very busy practice, seeing approximately 50 to 60 patients each day the office is open. Respondent documents patient visits by making handwritten notations on printed "progress note" forms. Because of the fast-paced nature of his practice, he does not always "have time to write everything as [he] would like, because [there] is too much" for him to do. Respondent's Participation in the Medicaid Program During the Audit Period, Respondent was authorized to provide physician services to eligible Medicaid patients. Respondent provided such services pursuant to a valid Provider Agreement (Provider Agreement) with AHCA, which contained the following provisions, among others: The Provider agrees to participate in the Florida Medicaid program under the following terms and conditions: * * * Quality of Services. The provider agrees to provide medically necessary services or goods of not less than the scope and quality it provides to the general public. The provider agrees that services or goods billed to the Medicaid program must be medically necessary, of a quality comparable to those furnished by the provider's peers, and within the parameters permitted by the provider's license or certification. The provider further agrees to bill only for the services performed within the specialty or specialties designated in the provider application on file with the Agency. 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 of 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. . . . 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 otherwise provided by law, the provider agrees to provide immediate access to authorized persons (including 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. * * * (f) Within 90 days of receipt, refund any moneys received in error or in excess of the amount to which the provider is entitled from the Medicaid program. * * * (i) . . . . The provider shall be liable for all overpayments for any reason and pay to the Agency any fine or overpayment imposed by the Agency or a court of competent jurisdiction. Provider agrees to pay interest at 12% per annum on any fine or repayment amount that remains unpaid 30 days from the date of any final order requiring payment to the Agency. * * * Respondent's Medicaid provider number (under which he billed the Medicaid program for providing these services) was (and remains) 370947700. Handbook Provisions The handbooks with which Petitioner was required to comply in order to receive Medicaid payment for services rendered during the Audit Period included the Medicaid Provider Reimbursement Handbook, HCFA-1500 (MPR Handbook); Physician Coverage and Limitations Handbook (PCL Handbook); the Early and Periodic Screening, Diagnosis and Treatment Coverage and Limitations Handbook (EPSDTCL Handbook); and the Child Health Check-up Coverage and Limitations Handbook (CHCUCL Handbook). Medical Necessity The PCL Handbook provided that the Medicaid program would reimburse physician providers for services "determined [to be] medically necessary" and not duplicative of another provider's service, and it went on to state as follows: In addition, the services must meet the following criteria: the services must be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient's needs; the services cannot be experimental or investigational; the services must reflect the level of services that can be safely furnished and for which no equally effective and more conservative or less costly treatment is available statewide; and the services must be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a covered services. Note See Appendix D, Glossary, in the Medicaid Provider Reimbursement Handbook, HCFA-1500 and EPSDT 224, for the definition of medically necessary.[5] The EPSDTCL and CHCUCL Handbooks had similar provisions. Documentation Requirements The MPR Handbook required the provider to keep "accessible, legible and comprehensible" medical records that "state[d] the necessity for and the extent of services" billed the Medicaid program and that were "signed and dated at the time of service." The handbook further required, among other things, that the provider retain such records for "at least five years from the date of service" and "send, at his or her expense, legible copies of all Medicaid-related information to the authorized state and federal agencies and their authorized representatives." The MPR Handbook warned that providers "not in compliance with the Medicaid documentation and record retention policies [described therein] may be subject to administrative sanctions and recoupment of Medicaid payments" and that "Medicaid payments for services that lack required documentation or appropriate signatures will be recouped." EPSDT Screening/Child Health Check-Up The EPSDTCL Handbook provided: To be reimbursed by Medicaid, the provider must address and document in the recipient's medical record all the required components of an EPSDT screening. The following required components are listed in the order that they appear on the optional EPSDT screening form: Health and developmental history Nutritional assessment Developmental assessment Physical examination Dental screening Vision screening Hearing screening Laboratory tests Immunization Health education Diagnosis and treatment The CHCUCL Handbook, which replaced the EPSDTCL Handbook in or around May 2000, similarly provided as follows: To be reimbursed by Medicaid, the provider must assess and document in the child's medical record all the required components of a Child Health Check-Up. The required components are as follows: Comprehensive Health and Developmental History, including assessment of past medical history, developmental history and behavioral health status; Nutritional assessment; Developmental assessment; Comprehensive Unclothed Physical Examination Dental screening including dental referral, where required; Vision screening including objective testing, where required; Hearing screening including objective testing, where required; Laboratory tests including blood lead testing, where required; Appropriate immunizations; Health education, anticipatory guidance; Diagnosis and treatment; and Referral and follow-up, as appropriate. Coding Chapter 3 of the PCL Handbook "describe[d] the procedure codes for the services reimbursable by Medicaid that [had to be] used by physicians providing services to eligible recipients." As explained on the first page of this chapter of the handbook: The procedure codes listed in this chapter [were] Health Care Financing Administration Common Procedure Coding System (HCPCS) Levels 1, 2 and 3. These [were] based on the Physician[]s['] Current Procedural Terminology (CPT) book. The Current Procedural Terminology (CPT) book referred to in Chapter 3 of the PCL Handbook was a publication of the American Medical Association. It contained a listing of procedures and services performed by physicians in different settings, each identified by a "procedure code" consisting of five digits or a letter followed by four digits. For instance, there were various "procedure codes" for office visits. These "procedure codes" included the following, among others: New Patient * * * 99204 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: a comprehensive history; a comprehensive examination; and medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. * * * Established Patient * * * 99213 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: an expanded problem focused history; an expanded problem focused examination; medical decision making of low complexity. Counseling and coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. 99214 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a detailed history; a detailed examination; medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. * * * Fee Schedules In Appendix J of the PCL Handbook, there was a "fee schedule," which established the amount physicians would be paid by the Medicaid program for each reimbursable procedure and service (identified by "procedure code"). For both "new patient" office visits (99201-99205 "procedure code" series) and "established patient" office visits (99211-99215 "procedure code" series), the higher numbered the "procedure code" in the series, the more a physician would be reimbursed under the "fee schedule." The Audit and Aftermath Commencing in or around August 2002, AHCA conducted an audit of Respondent's Medicaid claims for services rendered during the Audit Period (Audit Period Claims).6 Respondent had submitted 18,102 such Audit Period Claims, for which he had received payments totaling $596,623.15. These Audit Period Claims involved 1,372 different Medicaid patients. From this group, AHCA randomly selected a "cluster sample" of 40 patients. Of the 18,102 Audit Period Claims, 713 had been for services that, according to the claims, had been provided to the 40 patients in the "cluster sample" (Sample Claims). Respondent had received a total of $23,263.18 for these 713 Sample Claims. During an August 28, 2002, visit to Respondent's office, AHCA personnel "explain[ed] to [Respondent] what the audit was about [and] why [AHCA] was doing it" and requested Respondent to provide AHCA with copies of the medical records Respondent had on file for the 40 patients in the "cluster sample" documenting the services provided to them during the Audit Period. The originals of these records were not inspected by AHCA personnel or agents during, or any time after, this August 28, 2002, site visit. Sometime within approximately 30 to 45 days of the August 28, 2002, site visit, Respondent, through his office staff, made the requested copies (First Set of Copies) and provided them to AHCA. There is nothing on the face of these documents to suggest that they were not true, accurate, and complete copies of the originals in Respondent's possession, as they existed at the time of copying (Copied Originals). They do not appear, upon visual examination, to be the product of "bad photocopying." While the handwritten entries and writing are oftentimes difficult (at least for the undersigned) to decipher, this is because of the poor legibility of the handwriting, not because the copies are faint or otherwise of poor quality. Each of the Sample Claims was reviewed to determine whether it was supported by information contained in the First Set of Copies. An initial review was conducted by AHCA Program Analyst Theresa Mock and AHCA Registered Nurse Consultant Blanca Notman. AHCA then contracted with Larry Deeb, M.D., to conduct an independent "peer review" in accordance with the provisions of Section 409.9131, Florida Statutes. Since 1980, Dr. Deeb has been a Florida-licensed pediatric physician, certified by the American Board of Pediatrics, in active practice in Tallahassee. AHCA provided Dr. Deeb with the First Set of Copies, along with worksheets containing a "[l]isting of [a]ll claims in [the] sample" on which Ms. Notman had made handwritten notations indicating her preliminary determination as to each of the Sample Claims (Claims Worksheets). In conducting his "peer review," Dr. Deeb did not interview any of the 40 patients in the "cluster sample," nor did he take any other steps to supplement the information contained in the documents that he was provided. Dr. Deeb examined the First Set of Copies. He conveyed to AHCA his findings regarding the sufficiency of these documents to support the Sample Claims by making appropriate handwritten notations on the Claims Worksheets before returning them to AHCA. Based on Dr. Deeb's sufficiency findings, as well as Ms. Notman's "no documentation" determinations, AHCA "provisional[ly]" determined that Respondent had been overpaid a total $80,788.23 for the Audit Period Claims. By letter dated July 7, 2003 (Provisional Agency Audit Report), AHCA advised Petitioner of this "provisional" determination and invited Respondent to "submit further documentation in support of the claims identified as overpayment," adding that "[d]ocumentation that appear[ed] to be altered, or in any other way appear[ed] not to be authentic, [would] not serve to reduce the overpayment." Appended to the letter were "[t]he audit work papers [containing a] listing [of] the claims that [were] affected by this determination." In the Provisional Agency Audit Report, AHCA gave the following explanation as to how it arrived at its overpayment determination: REVIEW DETERMINATION(S) Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office visits. The documentation you provided supports a lower level of office visit than the one for which you billed and received payment. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some services for which you billed and received payment were not documented. Medicaid requires documentation of the services and considers payment made for services not appropriately documented an overpayment. Medicaid policy addresses specific billing requirements and procedures. You billed Medicaid for Child Health Check Up (CHCUP) services and office visits for the same child on the same day. Child Health Check- Up Providers may only bill for one visit, a Child Health Check-Up or a sick visit. The difference between the amount you were paid and the appropriate fee is considered an overpayment. The overpayment was calculated as follows: A random sample of 40 recipients respecting whom you submitted 713 claims was reviewed. For those claims in the sample which have dates of service from January 01, 2000 through December 31, 2001 an overpayment of $4,168.00 or $5.84667601 per claim was found, as indicated on the accompanying schedule. Since you were paid for a total (population) of 18,102 claims for that period, the point estimate of the total overpayment is 18,102 x $5.84667601= $105,836.33. There is a 50 percent probability that the overpayment to you is that amount or more. There was then an explanation of the "statistical formula for cluster sampling" that AHCA used and how it "calculated that the overpayment to [Respondent was] $80,788.23 with a ninety-five percent (95%) probability that it [was] that amount or more." After receiving the Provisional Agency Audit Report, Respondent requested to meet with Dr. Deeb to discuss Dr. Deeb's sufficiency findings. The meeting was held on September 25, 2003, approximately six months after Dr. Deeb had reviewed the First Set of Copies and a year after AHCA had received the First Set of Copies from Respondent. At the meeting, Respondent presented to Dr. Deeb what Respondent represented was a better set of copies of the Copied Originals than the First Set of Copies (on which Dr. Deeb had based the sufficiency findings AHCA relied on in making its "provisional" overpayment determination). According to Respondent, the First Set of Copies "had not been properly Xeroxed." He stated that his office staff "had not copied the back section of the documentation and that was one of the major factors in the documentation not supporting the [claimed] level of service." The copies that Respondent produced at this meeting (Second Set of Copies) had additional handwritten entries and writing (both on the backs and fronts of pages) not found in the First Set of Copies: the backs of "progress note" pages that were completely blank in the First Set of Copies contained handwritten narratives, and there were handwritten entries and writing in numerous places on the fronts of these pages where, on the fronts of the corresponding pages in the First Set of Copies, just blank, printed lines appeared (with no other discernible markings). The Second Set of Copies was not appreciably clearer than the First Set of Copies. In the two hours that he had set aside to meet with Respondent, Dr. Deeb only had time to conduct a "quick[]," partial review of the Second Set of Copies. Based on this review (which involved looking at documents concerning approximately half of the 40 patients in the "cluster sample"), Dr. Deeb preliminarily determined to "allow" many of the Sample Claims relating to these patients that he had previously determined (based on his review of the First Set of Copies) were not supported by sufficient documentation. Following this September 25, 2003, meeting, after comparing the Second Set of Copies with the First Set of Copies and noting the differences between the two, AHCA "made the decision that [it] would not accept the [S]econd [S]et [of Copies]" because these documents contained entries and writing that appeared to have been made, not contemporaneously with the provision of the goods or services they purported to document (as required), but rather after the post-Audit Period preparation of the First Set of Copies. Instead, AHCA, reasonably, based its finalized overpayment determination on the First Set of Copies. Thereafter, AHCA prepared and sent to Respondent a Final Agency Audit Report, which was in the form of a letter dated June 29, 2004, advising Respondent that AHCA had finalized the "provisional" determination announced in the Provisional Agency Audit that he had been overpaid $80,788.23 for the Audit Period Claims (a determination that the preponderance of the record evidence in this case establishes is a correct one).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Respondent received $80,788.23 in Medicaid overpayments for the Audit Period Claims, and requiring Respondent to repay this amount to AHCA. DONE AND ENTERED this 30th day of April, 2007, in Tallahassee, Leon County, Florida. S 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 30th day of April, 2007.
