The Issue Whether the Respondents were overpaid by Medicaid for radiology and nuclear medicine services provided to Florida Medicaid patients. The Agency for Health Care Administration (AHCA, Agency or Petitioner) asserts that the Respondents, Lazaro Plasencia, M.D., and Ana M. Elosegui, M.D., billed Medicaid for procedures they did not perform in violation of Medicaid policy, the Florida Administrative Code, and Florida Statutes. The Respondents maintain that because of ambiguities in Medicaid policy regarding reimbursement protocols for the radiology services at issue, the Respondents mistakenly believed in good faith that under the applicable Medicaid regulations and guidelines, Medicaid would reimburse the "maximum" fee allowable under the relevant fee schedule. The Respondents acknowledge that the "professional component" of the radiology services at issue was provided by a third-party physician specialist. The Respondents further assert that they are entitled to, at the minimum, payment of the "technical component" of the medically necessary radiological services that they provided to Medicaid recipients. The Petitioner seeks reimbursement from Dr. Plasencia in the amount of $196,129.52 and $122,065.08 from Dr. Elosegui.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of monitoring the Medicaid Program in Florida. At all times material to the allegations of DOAH Case No. 07-2195MPI, the Respondent, Dr. Plasencia, was a licensed medical doctor in good standing with the State of Florida, license #ME49315, and was also a Medicaid provider, #0448125-00. Similarly, at all times material to the allegations of DOAH Case No. 07-2462MPI, the Respondent, Dr. Elosegui, was a licensed medical doctor in good standing with the State of Florida, license #ME85963, and was also a Medicaid provider, #2654636-00. Drs. Elosegui and Plasencia practiced medicine together in a shared office space in Miami, Florida. The Respondents were not members of a "group practice." The Respondents were individual providers who billed Medicaid separately, using their individual Medicaid provider numbers. The doctors performed services for Medicaid recipients and submitted the charges for those services to Medicaid. Medicaid has a "pay and chase" policy of paying Medicaid claims as submitted by providers. Audits performed by the Agency then, after-the-fact, reconcile the amounts paid to providers with the amounts that were payable under the Medicaid guidelines and pertinent rules. If more is paid to the provider than allowable, a recoupment against the provider is sought. In these cases, the Respondents conducted (or supervised) various tests including "Radiological and Nuclear Medicine" services for Florida Medicaid patients in a shared office setting. The services at issue in these cases were billed under the CPT procedure codes of series 70000 and 90000. The Petitioner has not challenged any procedure at issue as not "medically necessary." Moreover, the Petitioner does not dispute that the Respondents performed or supervised the "technical component" of the universe of the radiological services at issue. The "professional component" for the universe of the radiological services at issue in this proceeding was outsourced to third-party physicians. The Respondents contracted with the outside third-party physicians for the "professional component" services to read and interprete the radiological product. These third party physicians were not Medicaid providers, nor were they part of a Medicaid group provider that included the Respondents. When billing for the radiological services, the Respondents billed Medicaid for both the "technical" and "professional" components using the "maximum" fee set forth in the Fee Schedule. The Respondents knew or should have known that they had not performed a global service as they never performed or supervised the "professional" component of the services billed. The Petitioner performed an audit of the radiological claims for Dr. Plasencia for the dates of service July 1, 2001 through December 31, 2005. On December 1, 2006, the Petitioner issued a Final Audit Report that concluded Dr. Plasencia had been overpaid $196,129.52. Additionally, the Petitioner sought an administrative fine against Dr. Plasencia in the amount of $1,000.00. Similarly, the Petitioner performed an audit of the radiological claims submitted by Dr. Elosegui for the dates of service October 11, 2002 through December 31, 2005. On December 1, 2006, the Petitioner issued a Final Audit Report that concluded Dr. Elosegui had been overpaid $122,065.08. The Petitioner also sought an administrative fine against Dr. Elosegui in the amount of $1,000.00. In January 2005, the Fee Schedule applicable to CPT 90000 procedure code services was revised. The Fee Schedule specified a reimbursement amount for the "technical" component of the radiological services in the CPT 90000 code set. Prior to that time, there had been no reimbursable amount for the "technical component" performed separately from the "professional component." The Medicaid provider agreements executed between the parties govern the contractual relationships between these providers and the Agency. The parties do not dispute that those provider agreements, together with the pertinent laws or regulations, control the billing and reimbursement claims that remain at issue. The amounts, if any, that were overpaid were related solely to the radiological services billed under a global or inclusive manner that included the "professional" component within the amount claimed to be owed by Medicaid. The provider agreements pertinent to these cases are voluntary agreements between AHCA and the Respondents. The Fee Schedule adopted by the Petitioner dictates the code and reimbursement amounts authorized to be billed pursuant to the provider agreement. The Respondents performed or supervised the "technical components" for the radiological services billed to Medicaid. The Respondents did not perform the "professional component." For all of the 70000 series billing codes the components can be split and the "technical component" can be identified and paid separately. For these billing codes, the Respondents were given (or paid for) the "technical component" of the 70000 codes. Similarly, for the 90000 billing codes, for the "technical component" portion where it was identifiable and allowable, the Petitioner gave the Respondents credit for that amount. The "technical component" for the 90000 billing codes was not identifiable or allowable prior to 2005. Prior to the amendment to the Fee Schedule the 90000 billing codes were presumed to be performed in a global manner; i.e. the "professional component" and the "technical component" were done together by the Medicaid provider submitting the claim. That was not the factual case in these audits. Respondents were not authorized to bill the 90000 codes in the global manner as they did not perform the "professional component" of the services rendered. Any Medicaid provider whose billing is not in compliance with the Medicaid billing policies may be subject to the recoupment of Medicaid payments. The Petitioner administers the Medicaid program in Florida. Pursuant to its authority AHCA conducts audits to assure compliance with the Medicaid provisions and provider agreements. These “integrity” audits are routinely performed and Medicaid providers are aware that they may be audited. These “integrity” audits are to assure that the provider bill and receive payment in accordance with applicable rules and regulations. The Respondents do not dispute the Agency’s authority to perform audits such as the ones at issue.
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 of recoupment as set forth in the reports at issue. The final order should also impose an administrative fine against each Respondent in the amount of $1,000.00. DONE AND ENTERED this 1st day of April, 2008, 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 1st day of April, 2008. COPIES FURNISHED: Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Craig H. Smith, 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 Robert M. Penezic, Esquire Broad and Cassel Post Office Box 14010 Fort Lauderdale, Florida 33302-4010 L. William Porter, II, Esquire Agency for Health Care Administration Fort Knox Executive Center III 2727 Mahan Drive, Building 3, Mail Stop 3 Tallahassee, Florida 32308-5403 Robert N. Nicholson, Esquire Broad and Cassel Post Office Box 14010 Fort Lauderdale, Florida 33302-4010
The Issue Whether a provision contained in a Settlement Agreement of a federal lawsuit is the statement the Department of Children and Family Services (Respondent) relied upon to deny Petitioner, G.F., on behalf of minor child G.F. (Student G.F.), Medicaid waiver benefits and constitutes an invalid exercise of delegated legislative authority on the grounds that the statement in question was not promulgated as a rule; and Whether Petitioners can challenge a provision which is contained in the Developmental Services Waiver Services Florida Medicaid Coverage and Limitations Handbook, October 2003, in Florida Administrative Code Rule 59G-8.200(12), as an invalid exercise of delegated legislative authority when the agency which adopted the rule is not a party to this proceeding.
Findings Of Fact Medicaid is a cooperative federal/state program in which Florida participates in partnership with the national government. Medicaid provides medically necessary health care. In addition to shouldering administrative and regulatory responsibilities, Florida partially funds the Florida Medicaid Program, contributing about 42 percent of the money budgeted for the program's operation. Federal funds make up the balance. The Florida Retail Federation, Inc. v. Agency for Health Care Administration, Case No. 04-1828RX (DOAH July 19, 2004). Under the statutory scheme, states who participate in Medicaid are required to have a state plan. See 42 C.F.R. § 430.10. A participating state may also grant waivers to their state plan pursuant to Section 1915(c) of the Social Security Act. See 42 C.F.R. § 430.25. Each participating state must designate a single-state agency to administer or supervise administration of the state plan. The state plan must also specify whether the agency that determines eligibility is the Medicaid agency or the single-state agency for the financial assistance program under Title IV-A. See 42 C.F.R. § 431.10. The State of Florida has identified AHCA as the single-state agency to administer the plan and the previously identified Respondent to determine eligibility. § 409.902, Fla. Stat. (2002).2/ AHCA is required to enter an interagency agreement with Respondent and other agencies "to assure coordination and cooperation in serving special needs citizens." § 408.302(1), Fla. Stat. It is required that Respondent approve and have input with regard to AHCA's rules when the rules directly impact the mission of Respondent. Access to quality healthcare is "an important goal" for all citizens in Florida. § 408.301, Fla. Stat. Persons served by Respondent are citizens with special needs, and it is the policy of Florida that persons with special needs are adequately and appropriately served. The Florida Legislature recognizes that the Medicaid program is "an intricate part of the service delivery system for the special needs citizens" in Florida. AHCA is not a service provider and does not develop or direct programs for special needs citizens, such as Student G.F. § 408.301, Fla. Stat. In fact, it is Respondent that plays the vital role to assure that "the needs of special citizens are met." Under the Medicaid program in Florida, AHCA is the "single state agency authorized to make payments for medical assistance and related services." § 409.902, Fla. Stat. However, Respondent is responsible for "Medicaid eligibility determinations, including, but not limited to, policy, rules, . . . as well as the actual determination of eligibility." Specifically, Respondent administers the Developmental Disabilities Home and Community-Based Services Medicaid Waiver Program (HCBS Medicaid Waiver Program) in Florida, and under Section 409.919, Florida Statutes, is authorized and required to enact administrative rules, as necessary, to fulfill its obligation to comply with federal and state Medicaid law. Student G.F. is a developmentally disabled child with multiple developmental disabilities, including autism, mental retardation, and profound deafness. Student G.F.'s combination of disabilities have resulted in significant cognitive impairment, social withdrawal, violence, and self-injurious behavior. This has resulted in extreme challenges in communication and acquisition of skills related to daily living. In 2000, Student G.F. was placed at the NDA in Mount Dora, Lake County, Florida, as a day student under the treatment of Dr. Cohen, as part of Student G.F.'s Individual Education Plan under the Federal Individual with Disabilities Education Act. Approximately five months later, Dr. Cohen determined that residential placement of Student G.F. was medically necessary. Petitioner asserts that the NDA in Mount Dora, Florida, is the only facility that could provide residential habilitation services for Student G.F. and treat her complex array of disabilities. The NDA is a certified Medicaid waiver provider for Respondent in District 10. On or about August 1, 2001, Deloris Battle, an independent contractor who provides support coordination services to recipients under the HCBS Medicaid Waiver Program, prepared the Florida Status Tracking Survey for Student G.F. Respondent's surveyor concluded that Student G.F. was in a state of crisis and required residential placement for habilitation services. Petitioner School Board reached an understanding with Battle whereby the parties would share in the cost of services for Student G.F. at the NDA. Petitioner School Board would fund the cost of educational services, and Respondent would fund the cost of medical and residential habilitation services. Respondent's share of the cost of the services would be funded by the HCBS Medicaid Waiver Program. Student G.F. qualifies as developmentally disabled and is eligible for Medicaid services pursuant to Chapter 409, Florida Statutes. Student G.F. is also eligible for services under the HCBS Medicaid Waiver Program. Battle submitted a cost plan to Respondent's district's office that requested HCBS Medicaid Waiver Program funding for Student G.F.'s residential placement at NDA. Battle had no authority to commit Respondent to expend any Medicaid waiver funds without approval. The cost plan submitted by Battle was not sent to Tallahassee for approval. Approval was delayed at the district level until it was learned that Petitioner School Board agreed to pay for the residential placement of Student G.F. In May 2002, Petitioner School Board and G.F. were advised that Medicaid waiver funding for Student G.F.'s residential placement at the NDA was denied. Respondent offered no other options for service. Petitioner School Board agreed to fund Student G.F.'s residential placement at the NDA for a trial period. Such funding by Petitioner School Board has continued, because Petitioners believed that the NDA is the only facility that can treat Student G.F.'s array of disabilities. Petitioner School Board elected to fund the entire cost of Student G.F.'s residential placement under protest. The Dispute Petitioners brought this instant proceeding because they believe that Respondent's denial of Medicaid waiver funding for Student G.F.'s residential placement was (and continues to be) based on an agency statement by Respondent that was not adopted as a rule, in violation of Sections 120.54 and 120.56, Florida Statutes (2004). In 1998, Prado-Steinman v. Bush, Case No. 98-6496-CIV- FERGUSON, was filed in the United States District Court for the Southern District of Florida. One of the defendants was the Florida Department of Children and Family Services. On June 27, 2000, a settlement agreement was signed by the parties to the Prado-Steinman litigation. Petitioners allege that the initial basis for Respondent's denial of funding for Student G.F.'s placement was an agency statement purportedly based entirely upon Respondent's interpretation of the settlement agreement reached in Prado- Steinman, that Medicaid waiver funding is unavailable for facilities with a capacity to house more than 15 persons. Specifically, page 16 of the Settlement Agreement dated June 29, 2000, paragraph (F)(1), "Group Home Placement" reads as follows: The parties agree that they prefer that individuals who are enrolled in the Waiver live and receive in smaller facilities. Consistent with this preference, the parties agree to the following: The Department will target choice counseling to those individuals, enrolled on the Waiver and who presently reside in residential habilitation centers (where more than 15 persons reside and receive services). The focus of this choice counseling will be to provide information about alternative residential placement options. The Department will begin this targeted choice counseling by December 1, 2000, and will substantially complete this choice counseling by December 1, 2001. See generally Prado-Steinman v. Bush, 221 F.3d 1266 (11th Cir. 2000). At paragraph 24 of the Amended Petition, Petitioners assert that the alleged agency statement, which has not been adopted as a rule, are the statements by Respondent that the agency will not authorize Medicaid waiver funding for facilities with a greater number of beds than specified in the agreement and that the NDA is not an eligible Medicaid waiver facility under the agreement. The settlement agreement does not prohibit placement of individuals who are enrolled in the HCBS Medicaid Waiver Program with specific facility sizes. The portion of the agreement that refers to residential facilities concerns Group Home Placements, as quoted in paragraph 19 above, and provides that Respondent will (1) counsel residents of residential habilitation centers where more than 15 persons reside about alternative residential placements; (2) will develop alternative residential placements; (3) will encourage the use of client advocates for residents of residential habilitation centers who have no family, friends, or guardian to advocate on their behalf; and (4) will not fill vacancies in residential habilitation centers with individuals enrolled on the waiver. Paragraph J of the Settlement Agreement, found on page 25, provides that Respondent will continue to develop residential program models that encourage an environment for self- determination. Further, Respondent will emphasize to support coordinators that the annual needs assessment for waiver recipients should include an assessment of the need for alternative placement. The focus of the language is to move more clients into residences meeting the policy and philosophy of Chapter 393, Florida Statutes. Parents were given the opportunity to take their children out of institutions and into less restrictive environments. At paragraph 27, the Amended Petition alleges that the use of the Settlement Agreement "to adversely affect the interests of the Petitioners is an invalid exercise of delegated legislative authority" as defined in Subsection 120.56(4), Florida Statutes (2004). The Amended Petition makes no allegation that the alleged agency statement, which has not been adopted as a rule is arbitrary or capricious, even if that standard were applicable to a petition under Subsection 120.56(4), Florida Statutes (2004), nor does the Amended Petition allege that the alleged agency statement is in violation of federal law. The Amended Petition does not include AHCA as a party and does not mention Florida Administrative Code Rule 59G-8.200, although, Petitioners have been aware of the rule since early in this rule-challenge proceeding. The Amended Petition does not cite any proposed or existing rule or delineate a challenge to any proposed or existing rule, regardless of the promulgating agency. The Amended Petition does not allege that Florida Administrative Code Rule 59G-8.200 somehow violates federal law. AHCA began rule-making to adopt a handbook for the HCBS Medicaid Waiver Program in October 2001. Rule-making was initiated to meet the requirements of the federal Center for Medicare and Medicaid Services. It requires the states who participate to promulgate handbooks. AHCA published its notice of rule development in Volume 27, No. 52 of the Florida Administrative Weekly dated December 28, 2001. AHCA held seven rule workshops concerning the Medicaid Handbook: two in Tallahassee (January 14, 2002, and February 14, 2002); one in Pensacola (February 27, 2002); one in Jacksonville (February 19, 2002); one in Tampa; one in Orlando (February 22, 2002); and one in Fort Lauderdale (February 15, 2002). The workshops were attended by a large number of persons and representatives of advocacy groups. The rule notice was published in Volume 28, No. 18 of the Florida Administrative Weekly dated May 3, 2002. A public hearing was held on May 28, 2002. Subsequent to the public hearing, a notice of change was filed and a second public hearing was held on August 19, 2002. Florida Administrative Code Rule 59G-8.200, and the Medicaid Handbook incorporated therein by reference, were originally adopted on October 27, 2002. It has since been amended. Florida Administrative Code Rule 59G-8.200(12) currently provides in pertinent part: (12) Developmental Services Waiver – General. This rule applies to all Developmental Services Waiver Services providers enrolled in the Medicaid program. All Developmental Services Waiver Services providers enrolled in the Medicaid program must comply with the Developmental Services Waiver Services Florida Medicaid Coverage and Limitations Handbook, October 2003, incorporated by reference, and the Florida Medicaid Provider Reimbursement Handbook, Non-Institutional 081, October 2003. Both handbooks are available from the Medicaid fiscal agent. The Developmental Disabilities Waiver Services Provider Rate Table, November 2003, is incorporated by reference. The Developmental Disabilities Waiver Services Provider Rate Table is available from the Medicaid fiscal agent. Chapter 1 of the Handbook is entitled, "Purpose, Background and Program Specific Information," and contains general definitions. "Licensed Residential Facility" is defined at pages 1-3 as: Facilities providing room and board, and other services in accordance with the licensing requirements for the facility type. Community-based beneficiaries with developmental disabilities may receive DS waiver services while residing in: Group and foster homes licensed by the Department of Children and Families in accordance with Chapter 393, Florida Statutes, and Chapter 409, Florida Statutes. Comprehensive, transitional education program facilities, licensed by the Department of Children and Families in accordance with Chapter 393, Florida Statutes. Assisted Living Facilities, and Transitional Living Facilities, licensed by the Agency for Health Care Administration in accordance with Chapter 400, Florida Statutes. Residential Habilitation Centers and any other type of licensed facility not mentioned above, having a capacity of 16 or more persons, if the beneficiary has continuously resided at the facility since August 8, 2001, or prior to this date. "Institution" is generally understood by persons in the disabilities profession as a facility with more than 15 beds that is self-contained, providing all the needs of its residents, as opposed to a more home-like environment. The "best practice" model for developmental disabilities services is a group home with six beds. Respondent interprets these provisions to mean that Medicaid waiver funding is unavailable for a residential placement if the facility has a capacity of 16 or more persons, unless the beneficiary has continually resided at the facility since August 8, 2001, or prior to that date. The Medicaid Handbook is incorporated by reference in AHCA's rule. (Fla. Admin. Code R. 59G-8.200) Respondent has not promulgated a separate administrative rule pursuant to Chapter 120, Florida Statutes (2004), that incorporates the Medicaid Handbook or any part of it into its own rules. However, it did cooperate and coordinate with AHCA when the rule and Medical Handbook were adopted, as required by Subsection 408.302(1), Florida Statutes. AHCA and Respondent have entered into an agreement by which Respondent has agreed to implement the HCBS Medicaid Waiver Program. AHCA retains the authority and responsibility to issue policy, rules, and regulations concerning the HCBS Medicaid Waiver Program, and Respondent is required to operate the program in accordance with those policies, rules, and regulations. Section 409.919, Florida Statutes, and AHCA's rule incorporating the Medicaid Handbook by reference, supplied Respondent with the necessary rule authority to deny the funding. Petitioners have failed to prove that page 96 of the Settlement Agreement dated June 29, 2000, paragraph (F)(1) in the Prado-Steinman case, was relied upon to deny Student G.F. Medicaid waiver benefits. Petitioners have failed to prove that page 16 of the Settlement Agreement was an unpromulgated rule. Petitioners cannot challenge a provision in the Medicaid Handbook, which has been adopted by reference in Florida Administrative Code Rule 59G-8.200(12), when the agency which adopted the rule is not a party to this proceeding.
The Issue The issue is whether Petitioner, Utopia Home Care, Inc. (Utopia or Petitioner), is entitled to payment of $38,432.71 for the services it provided to Medicaid recipients during the period of January 1, 2000, through December 31, 2000.
Findings Of Fact At all times relevant to this proceeding, Utopia was an authorized Medicaid provider in the State of Florida. Pursuant to a valid Medicaid provider agreement, Utopia was authorized to provide home and community-based services to Medicaid recipients. The Agency is charged with the administration and oversight of the Medicaid Program and funds throughout the State of Florida. One of the Agency's responsibilities is to monitor the provision of Medicaid services and make payments to providers for services which have been appropriately provided and for which claims have been correctly processed. During the period of January 1, 2000, through December 31, 2000 (the audit period), Utopia rendered services to Medicaid recipients who receive home care services through the Medicaid Program. The cost of these services, for which Utopia has not received payment, is $38,432.71. There is no dispute that these services were authorized and provided by Utopia. Robert Fritz is vice president of Utopia and works in Utopia's St. Petersburg, Florida, office. In or about February 2002, while Mr. Fritz was participating in an accounts receivable project, he discovered that Utopia had not been paid for some of the services it had provided to Medicaid recipients during the audit period. Mr. Fritz contacted the Agency soon after he discovered that Utopia had not received payment for the services it rendered during the audit period. Over a period of several months, Utopia, through Mr. Fritz, provided the Agency with documentation that the services were authorized and had been invoiced at or near the time the services were provided. Additionally, at the request of the Agency, Utopia completed numerous 081 Forms, Request for Payment Forms for the Florida Medicaid Program, to establish a baseline as to what claims were unpaid. Utopia completed the 081 Forms for the services which were provided during the audit period and for which it had not received payment in or about February 2002. In addition to the completed 081 Forms, dated February 2002, Utopia also provided to the Agency documentation generated from Utopia's computer system in Florida. The documents, created by the computer system on a weekly basis, included payroll checks for employees and invoices for services rendered. As part of Utopia's contractual requirements with the lead agency, which oversees the Medicaid Program at the local level, a monthly Medicaid Expenditure Tracking Report (Expenditure Tracking Report) is created by Utopia's St. Petersburg, Florida, office. The Expenditure Tracking Report lists anticipated expenditures from the Medicaid system to Utopia for services rendered in a particular month. Many of these documents were provided to the Agency in seeking to establish that the services had been provided during the audit period and to obtain payment for the services. The documents created by Utopia's computer system and discussed in paragraph 6 above were created at or near the time services were rendered. Due to the documentation provided by Utopia, the Agency stipulated that Utopia provided authorized services to Medicaid recipients and that the cost of these services was $38,432.71. Nonetheless, the Agency has refused to pay Utopia for the services because the claims were not filed in accordance with Medicaid procedures, as established in the Medicaid Provider Reimbursement Handbook, Non-Institutional 081 (Reimbursement Handbook). Based on the Agency's review of its records, it determined that Utopia had not filed the claims within 12 months of the services being rendered. The procedures for filing claims for Medicaid payments are outlined in the Reimbursement Handbook, which is referenced and incorporated by reference in Florida Administrative Code Rule 59G-8.200(6). Also, for purposes of this case, the Reimbursement Handbook sets forth the applicable Medicaid requirements for processing claims. The Reimbursement Handbook, pages 6-2 and 6-3, provides in relevant part the following: Medicaid providers should submit claims timely so that any problems with a claim can be corrected and the claim resubmitted before the filing deadline. * * * A clean claim for services rendered must be received by the agency or its fiscal agent no later than 12 months from the date of service. * * * The date electronically coded on the provider's electronic transmission by the Medicaid fiscal agent is the recorded date of receipt for an electronic claim. At all times relevant to this proceeding, Consultec was the company responsible for receiving claims from and paying those claims to Medicaid providers in the State of Florida. The Reimbursement Handbook indicates that the processing time for claims "under normal circumstances" is within 10 to 30 days after the claim is filed. The Reimbursement Handbook also provides that a "remittance voucher" is mailed each week if Consultec processed any claims or put any claims in "Suspend" status. With regard to the remittance voucher, the Reimbursement Handbook, page 8-4, states in relevant part the following: The remittance voucher plays an important role in communications between the provider and Medicaid. It tells what happened to the claims submitted for payment--whether they were paid, suspended, or denied. It provides a record of transactions and assists the provider in resolving errors so that denied claims can be resubmitted. The provider must reconcile the remittance voucher with the claim in order to determine if correct payment was received. Utopia filed all its claims electronically. Therefore, to determine whether Utopia was entitled to payment for services rendered during the audit period, the Agency searched its data warehouse. The data warehouse allows the Agency to review claims that have been electronically filed and the status of those claims. Based on the Agency's review, which compared claims filed by Utopia in February 2002 for services rendered during the audit period, the Agency found that 36 claims had been submitted by Utopia and paid and 108 claims had not been paid. With regard to the 108 claims that were not paid, the Agency found no evidence that the claims had ever been filed. Utopia's St. Petersburg, Florida, office provided the services in question. Staff members in that office generate and enter data into the computer system that creates the documents described in paragraph 6 above and provide billing information to the local lead agency. Utopia provides this information to the local lead agency, Neighborly Senior Services (Neighborly), pursuant to a contractual arrangement which authorizes Utopia to provide services to Medicaid recipients. Utopia's staff at the St. Petersburg, Florida, office prepares and compiles billing information regarding the services it has provided and electronically transmits the information to Utopia's corporate office in Kingsburg, New York. The practice of Utopia is that the corporate office in New York then finalizes the billing information and transmits the claims to the entity designated by the Agency to process and pay claims. At all times relevant to this proceeding, that entity was Consultec. Once the St. Petersburg, Florida, office transmits the billing information to the corporate headquarters in New York, it has no further responsibility or control over the billing information sent to Medicaid. Utopia's St. Petersburg, Florida, office also has no responsibility to reconcile the services actually billed to Medicaid by the corporate office with the services provided in Florida. At this proceeding, no evidence was presented to establish that Utopia's corporate office in New York ever filed claims for the services during the audit period for which no payment has been made. Likewise, Utopia never provided the Agency with documentation or evidence that claims for the services provided during the audit period were ever filed within 12 months of the services being provided. Similarly, no such evidence was ever produced at this proceeding. The Reimbursement Handbook provides for exceptions to the 12-month time limit if the claim meets one or more of the following conditions: (1) original payment voided, (2) court or hearing decision, (3) delay in recipient eligibility determination, (4) agency delay in updating eligibility file, (5) court ordered or statutory action, and (6) system error on a claim that was originally filed within 12 months from the date of service. Upon consideration of the applicable provisions of the Reimbursement Handbook, the Agency properly determined that Utopia did not file the claims within 12 months from the date of the service and that none of the conditions were present which warranted granting an exception.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency enter a final order finding that the disputed claims were not filed within the required 12-month period and denying reimbursement of those services. DONE AND ENTERED this 29th day of December, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 29th day of December, 2003. COPIES FURNISHED: Jeffries H. Duvall, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Station 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308-5403 Robert C. Fritz Utopia Home Care, Inc. 215 Second Avenue, North St. Petersburg, Florida 33701 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue Whether Petitioner's Medicaid Waiver Services Agreement should be terminated with cause by Respondent Agency for Persons with Disabilities.
Findings Of Fact The Agency for Health Care Administration ("AHCA") is Florida's designated Medicaid agent pursuant to chapter 409, Florida Statutes. In that role, AHCA has delegated duties with respect to the MWSA to Agency for Persons with Disabilities ("APD" or "Respondent"). APD ensures that Medicaid waiver providers comply with applicable Medicaid rules. To ensure compliance, APD enters into a MWSA with providers to facilitate payment. AHCA pays the providers for services rendered according to the MWSA. On April 22, 2015, Petitioner entered into a MWSA with Respondent. As a qualified provider, the MWSA allowed Petitioner to perform services for APD clients and get paid through the Medicaid program by reimbursement. Section I.B. of the MWSA provides: Prior to executing this Agreement and furnishing any waiver services, the Provider must have executed a Medicaid Provider Agreement with the Agency for Health Care Administration (AHCA), and be issued a Medicaid provider number by AHCA. The Provider must at all times during the term of this Agreement maintain a current and valid Medicaid Provider Agreement with AHCA, and comply with the terms and conditions of the Medicaid Provider Agreement. On or about August 3, 2017, AHCA terminated Petitioner's Medicaid Provider Agreement and notified Petitioner by letter that "Medicaid will no longer pay for claims for reimbursement for goods or services that you furnish." APD investigated AHCA's termination and concluded that Petitioner did not comply with section I.B. of the MWSA that required Petitioner to maintain a current and valid Medicaid Provider Agreement with AHCA. On October 5, 2017, by letter, APD terminated Petitioner's MWSA pursuant to section III.B., which provides Petitioner's "agreement may be terminated for the Provider's unacceptable performance, non-performance or misconduct." APD's letter detailed the basis for Petitioner's termination as follows: Provider's Medicaid Provider Number was terminated by the Agency for Health Care Administration (AHCA) on September 2, 2017. Therefore, the Provider is not performing in accordance with the MWSA, Section I., B., which requires that "The Provider must at all times during the term of this Agreement, maintain a current and valid Medicaid Provider Agreement with AHCA, and comply with the terms and conditions of the Medicaid Provider Agreement. At hearing, Petitioner admitted that Respondent terminated the MWSA when APD became aware of ACHA's termination. Petitioner also acknowledged that Miracles House, Inc., has been unable to bill since ACHA suspended its services, but Whipple is contesting ACHA's actions. On or about October 27, 2017, Petitioner challenged APD's termination and timely requested a formal hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order terminating Petitioner's Medicaid Waiver Services Agreement. DONE AND ENTERED this 23rd day of May, 2018, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 23rd day of May, 2018. COPIES FURNISHED: Adres Jackson-Whyte, Esquire 10735 Northwest 7th Avenue Miami, Florida 33168 (eServed) Trevor S. Suter, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 315C Tallahassee, Florida 32399-0950 (eServed) Gypsy Bailey, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 335E Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
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