Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing. this file is CLOSED. DONE and ORDERED on this the DR say of Mila. 2014, in Tallahassee, Florida. ZABETH DUDEK, fee — Agency for Health Care Administration Agency For Healthcare Administration V. Gary Marder D.O. C.1. No. 12-2625-000 Filed October 14, 2014 2:14 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Robert Antonie Milne. Esq., Assistant Attorney General Florida Bar No.: 622338 Office of the Attorney General The Capitol, Suite PL-01 Tallahassee, Florida 32399-1050 Telephone: (850) 414-3713 Facsimile: (850) 922-6425 Robert.Milne@myfloridalegal.com Julie Gallagher, Esq., Julie. gallagher@akerman.com Akerman Senterfitt Suite 1200 106 Kast College Avenue Tallahassee, Florida 32301 Kelly Bennett, Chief Medicaid Program Integrity Finance and Accounting Health Quality Assurance Florida Department of Health Agency For Healthcare Administration V. Gary Marder 0.0. C.l, No. 12-2625-000 CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail or other designated method on this the 7 A ot © S24. J Shoop, Esquire Agency Clerk State of Florida Agency tor Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 Agency For Healthcare Administration V. Gary Marder D.O. C.I. No. 12-2625-000 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, DOAH CASE NO: 14-2456MPI PROVIDER NO.: 000455900 VS. CAL NO,: £2-2625-000 NPUNO.: 1730117003 LICENSE NO: 084773 GARY L. MARDER, D.O, Respondent, / SETTLEMENT AGREEMENT Petitioner, the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, (“AHCA” or “Agency”), and Respondent, GARY L. MARDER, D.O. (SPROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1, The parties enter into this agreement for the purpose of memorializing the resolution of this matter. 2. PROVIDER is a Medicaid provider in the State of Florida, provider number 000455900, and was a provider during the audit period. 3. In its Final Audit Report, dated October 7, 2013, the Agency notified PROVIDER. that a review of Medicaid claims performed by the Agency’s Office of (he Inspector General, Bureau of Medicaid Program Integrity (“MPI”), during the period of December 1, 2008, through May 31, 2011, indicated that certain claims, in whole or in part, were inappropriately paid by Agency for Health Care Administration v. Gary L. Marder, 0.0. C.L. No 12-2625-000 Settlement Agreement Page lofé Medicaid. The Agency sought repayment of this overpayment, in the amount of one hundred and fifty-four thousand five hundred and sixty-four dollars and six cents ($154,564.06). Additionally, the Agency applied sanctions in accordance with Sections 409,913(15), (16), and (17), Florida Statutes, and Rule 59G-9.070(7), Florida Administrative Code. Specifically, the Agency assessed the following sanctions against PROVIDER: a fine in the amount of thirty thousand nine hundred and twelve dollars and eighty-one cents ($30,912.81) for violation(s) of Rule 59G-9.070(7)(e), Florida Administrative Code; and costs in the amount of three thousand, five hundred and fifty-five dollars and twenty cents ($3,551.20). The iotal amount due was one hundred and cighty-nine thousand, twenty-eight dollars and seven cents ($189,028.07). 4, In response to the audit report dated October 7, 2013, PROVIDER filed a Petition for Formal Administrative Hearing. 5. Subsequent to issuance of the FAR, the PROVIDER submitted additional documentation and clarifications to AHCA regarding the alleged overpayment and sanctions amount. Based on further review AHCA has revised the final overpayment to one hundred forty five thousand, four hundred dollars and twenty-five cents ($145,400.25). The Agency also imposed a sanction in the amount of six thousand dollars ($6,000.00) and assessed cost in the amount of three thousand, seven hundred fifty-one dollars and twenty cents ($3,751.20). The total amount due arising from this case is one hundred fifty-five thousand, one hundred fifty-one hundred dollars and forty-five cents ($155,151.45). 6. In order to resolve this matter without further administrative proceedings, PROVIDER and AHCA agree as follows: Agency for Health Care Administration v. Gary L. Marder, D.O. C.I. No 12-2625-000 Settlement Agreement Page 2 of 6 6. 7. a. AHCA agrees to accept the payment set forth hercin in settlement of the after, fines and costs, arising from the above-referenced Audit. b. PROVIDER agrees to pay AHCA the sum of onc hundred fifty-five thousand, one hundred fifty-one dollars and forty-five cents ($155,151.45), The outstanding balance accrues at 10% interest per year. Within thirty (30) days of entry of the Final Order but by no later than December 10, 2014, whichever date is the last to occur, PROVIDER will make one payment of one hundred fifty-five thousand, one hundred fifty-one dollars and forty-five cents ($155,151.45). ce PROVIDER and AHICA agree that full payment, as set forth above, resolves and settles this case completely and releases both parties from any administrative or civil liabilities arising from the findings relating to the claims determined to have been overpaid as referenced in audit C.1. NO.: 12-2625-000, d. PROVIDER agrees that it shall not re-bill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the review in this case. Payment shall be made to: AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid Accounts Receivable - MS #14 2727 Mahan Drive, Bldg, 2, Ste-200 Tallahassee, Florida 32308 PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further Agency for Health Care Administration v. Gary L. Marder, D,O, C.J. No 12-2625-000 Settlement Agreement Page 3 of 6 notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. 8. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 9. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 10, The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 11, This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 12, This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all matters and supersedes any prior discussions, agreements or understandings; there are no promises, representations or agreements between PROVIDER and AHICA other than as sel forth herein, No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. 13. This is an Agreement of Settlement and Compromise, made in recognition that the parties may have different or incorrect understandings, information and contentions as to facts and law, and with each party compromising and settling any potential correctness or incorrectness of its understandings, information and contentions as to facts and law, so that no nusunderstanding or misinformation shall be a ground for rescission hereof. Agency for Health Care Administration v. Gary L. Marder, D.O. C.h. No 12-2625-000 Settlement Agreement Page 4 of § 14, PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120,569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 15. PROVIDER does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses and expenses, of any and every nature whatsoever, arising owl of or in any way related to this matter, AHCA’s actions herein, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement. 16. The parties agree to bear their own attorney’s fees and, except those cost specified to be paid by the Provider in this settlement agreement if any. 17, This Agreement is and shall be deemed jointly drafted and written by all parties to it and shal] not be construed or interpreted against the party originating or preparing it. 18. To the extent that any provision of this Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement. Agency for Health Care Administration v. Gary L. Marder, D.O. C.1. No 12-2625-000 Settlement Agreement Page 5 of 6 49. This Agreement shall inure to the benefit of and be binding on cach party's successors, assigns, heirs, administrators, representatives and trustees. 20. All times stated herein are of the essence of this Agreement, ai. This Agreement shall be in full force and effect upon execution by the respective Dated: Wis, 2014 AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan TD rive, Bldg. 3, Mail Stop #3 llahagsee, 1. 2308-5403 Dated: uf; 7. 2014 Dated: 16/ f, » 2014 pated: /C/S?, 2014 Require 3 Counset piss Sec : mu jee —— ome ‘Assistant Attomey General Agency for Health Care Administration v. Gary L. Marder, D.0. C4. No 12-2625-000 Settlement Agreement Page 6 of 6 (Page 1 of 9) FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, RICK SCOTT ELIZABETH DUDEK GOVERNOR SECRETARY ene CLIZAOC IN UUWER GOVERNOR SECRETARY CERTIFIED MAIL No.: 7009 2820 0001 5675 2068 October 7, 2013 Provider No: 000455900 NPI No: 1730117003 License No.: OS4773 Gary L. Marder 9580 S. US Highway 1 Port St. Lucie, FL. 34952-4217 In Reply Refer to FINAL AUDIT REPORT C.l.: No. 12-2625-000 Dear Provider: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity, has completed a review of claims for Medicaid reimbursement for dates of service during the period December 1, 2008, through May 31, 2011. A preliminary audit report dated October 15, 2012 was sent to you indicating that we had determined you were overpaid $145,400.25. Based upon a review of all documentation submitted, we have determined that you were overpaid $154,564.06 for services that in whole or in part are not covered by Medicaid. A fine of $30,912.81 has been applied. The cost assessed for this audit is $3,551.20. The total amount due is $189,028.07. Be advised of the following: (1) In accordance with Sections 409.913(15), (16), and (17), Florida Statutes (F.S.), and Rule . $9G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. This letter shall serve as notice of the following sanction(s): e A fine of $30,912.81 for violation(s) of Rule Section 59G-9.070(7) (e), F.A.C. (2) Pursuant to Section 409.913(23) (a), F.S., the Agency is entitled to recover all investigative, legal, and expert witness costs. . This review and the determination of overpayment were made in accordance with the provisions of Section 409.913, F.S. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S. In applying for Visit AHCA online at 2727 Mahan Drive, MS# 6 hitp://ahca.myflorida.com Tallahassee, Florida 32308 Te meaner ne CR Re ARO IR RR A NR NEAL ET RM I A ce tne A meena A eke tn HH eae a emer eT Se ge (Page 2 of 9) Gary L. Marder 000455900 C.I. No.: 12-2625-000 Page 2 Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fer, schedules, as, acomuleated jz. the, Madicridnglicxhaedkerks: billinabublstiatoar dbs and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks, billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are attached, listing the claims that are affected by this determination. REVIEW DETERMINATIONS) 1. Medicaid policy addresses the requirements for enrollment and participation in the Medicaid program. In order to bill for services provided by another practitioner (physician, ARNP, PA), that practitioner must be enrolled in Medicaid, and must also be enrolled as part of a group practice for which you are listed as the pay-to provider. The billing must reflect the Medicaid number of the treating practitioner. You billed and received payment for services performed by another practitioner who was not enrolled in Medicaid and/or not in a group with you at the time the services were rendered. This finding applies to pathology claims. Payment made to you for these services is considered an overpayment. 2. A review of your medical records revealed that some services rendered were erroneously coded on the submitted claim. The appropriate code was applied and the payment adjusted. The difference between the amount paid and the payment for the correct procedure code is considered an overpayment. 3. Medicaid policy requires that services performed be medically necessary for the diagnosis and treatment of an illness. You bitled and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, indicated that the services provided did not meet the Medicaid criteria for medical necessity. The claims which were considered medically unnecessary were disallowed and the money you were paid for these procedures is considered an overpayment. 4. 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. This determination was made by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. 5. Medicaid policy addresses the type of pathology services covered by Medicaid. You billed and received payment for laboratory tests that were performed outside your facility by an independent laboratory. Payments made to you in these instances are considered overpayments. 6. 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 payments made for services not appropriately documented an overpayment. (Page 3 of 9) Gary L. Marder 000455900 C1. No.: 12-2625-000 Page 3 10. 1 — Tn order ta qualify as a hasis for reimbursement. Medicaid policy requires that records must be In order to qualify as a basis for reimbursement, Medicaid policy requires that records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Payments made to you in instances where the records submitted for review were non- contemporaneous, are considered overpayments. Medicaid policy requires a physician’s signature to substantiate the service billed. A review of your medical records revealed that in some instances, a rubber stamp was used in lieu of a physician’s written signature. Rubber stamp signatures must be initialed. The services that you billed and received payment for, in which a rubber stamp was utilized, are considered overpayments. Medicaid policy states that, to receive the physician 100% reimbursement, Advanced Registered Nurse Practitioners and Physician assistants must be supervised by the treating physician. Supervision is shown by the physician’s dated signature on the medical record. You billed Medicaid for services at the 100% reimbursement level when the medical record did not indicate that the service was supervised. Twenty percent of the reimbursement is considered an overpayment. Your records indicate instances of unbundling (using two CPT codes when one of these codes incorporates the elements of the other). The unbundled code has been denied. . As to Recipient #25: Medicaid requires a radiological physicist to be under the direct supervision of a physician (2010 Physician Services Coverage and Limitations Handbook, 2- 115). When Dr. Marder was out of the country he was not on the premises to provide direct supervision for these services. Medicaid requires indirect supervision by a physician for non- invasive radiology and nuclear medicine services (2010 Physician Services Coverage and Limitations Handbook, 2-112). Indirect supervision means that the physician must be reasonably available, so as to be physically present to provide consultation or direction in a timely fashion as required for appropriate care of the recipient. When Dr. Marder was out of the country, he was not available to provide indirect supervision for services. Dr. Marder was also unavailable to prescribe services for this recipient. CPT code 77401 is allowed once per patient per session regardless of the number of treatment areas. CPT code 77427 is billed per 5 treatments (not areas). CPT code 77336 is billed once per week. CPT code 77300 requires a prescription by the physician. Payments made to you for these services are considered an overpayment. OVERPAYMENT CALCULATION A random sample of 35 recipients respecting whom you submitted 388 claims was reviewed. For those claims in the sample, which have dates of service from December 1, 2008, through May 31, 2011, an overpayment of $15,169.48 or $39.09659794 per claim, was found. Since you were paid for a tota! (population) of 10,485 claims for that period, the point estimate of the total overpayment is 10,485 x $39.09659794 = $409,927.83. There is a 50 percent probability that the overpayment to you is that amount or more. (Page 4 of 9) Gary L. Marder 000455900 CE. No.: 12-2625-000 Page 4 We used the following statistical formula for cluster sampling to calculate the amount due the Agency: een NS Ua, —YB,y Where: N N E = point estimate of overpayment = F' b A, by 3,| U F = number of claims in the population = > B, isl 4, = total overpayment in sample cluster 8B, = number of claims in sample cluster U = number of clusters in the population N = number of clusters in the random sample N N Y = mean overpayment per claim= 5° A, / >)" B, eal get t = ¢ value from the Distribution of f Table All of the claims relating to a recipient represent a cluster. The values of overpayment and number of claims for each recipient in the sample are shown on the attachment entitled “Overpayment Calculation Using Cluster Sampling.” From this statistical formula, which is generally accepted for this purpose, we have calculated that the overpayment to you is $154,564.06 with a ninety-five percent (95%) probability that it is that amount or more. If you are currently involved in a bankruptcy, you should notify your attorney immediately and provide a copy of this letter for them. Please advise your attorney that we need the following information immediately: (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division); and, (4) the name, address, and telephone number of your attorney. One mere A Ce en IS RE RU NER REMY HOOT IE BAS gR on ACF nee NTR ee ae (Page 5 of 9) Gary L. Marder 000455900 C.L.No.: 12-2625-000 Page 5 If you are not in bankruptcy and you concur with our findings, remit by certified check in the amount of $189,028.07, which includes the overpayment amount as well as any fines imposed and assessed costs. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.I. number listed on the first page of this audit report. Please mail payment to: Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 Pursuant to section 409.913(25)(d), F.S., the Agency may collect money owed by all means allowable by law, including, but not limited to, exercising the option to collect money from Medicare that is payable to the provider. Pursuant to section 409.913(27), F.S., if within 30 days following this notice you have not either repaid the alleged overpayment amount or entered into a satisfactory repayment agreement with the Agency, your Medicaid reimbursements wil! be withheld; they will continue to be withheld, even during the pendency of an administrative hearing, until such time as the overpayment amount is satisfied. Pursuant to section 409.913(30), F.S., the Agency shall terminate your participation in the Medicaid program if you fail to repay an overpayment or enter into a satisfactory repayment agreement with the Agency, within 35 days after the date of a final order which is no longer subject to further appeal. Pursuant to sections 409.913(15)(q) and 409.913(25)(c), F.S., a provider that does not adhere to the terms of a repayment agreement is subject to termination from the Medicaid program. Finally, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed, You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28-106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that ifa request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. rere mE nr he et A NER ET RE EMER NAHE PA Pe ANN (Page 6 of 9) Gary L. Marder 000455900 CI. No.: 12-2625-000 Page 6 Anv onestions von mav have ahout this matter should be directed to: Kris Creel. Investigator. Agency Any questions you may have about this matter should be directed to: Kris Creel, Investigator, Agency for Health Care Administration, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412-4600, facsimile (850) 410-1972. AHCA Administrator Office of Inspector General Medicaid Program Integrity RO/KC/te Enclosure(s) Copies furnished to: Julie Gallagher Akerman Senterfitt Suite 1200 106 East College Avenue Tallahassee, FL 32301 Finance & Accounting (Interoffice mail) Health Quality Assurance (E-mail) Department of Health (E-mail) rr are rete seme mann AA A RP RE TE RATA RTA thE TPO RR RR UIA NRE neem A (Page 7 of 9) Gary L. Marder 000455900 CI. No.: 12-2625-000 Page 7 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS UNW 2 Ur ayia pays a es eee ee ee ee You have the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes, Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The written request for an administrative hearing must conform to the requirements of either Rule 28- 106.201(2) or Rule 28-106.301(2), Florida Administrative Code, and must be received by the Agency for Health Care Administration, by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is: Richard J, Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop # 3 Tallahassee, Florida 32308 Fax: (850) 921-0158 Phone: (850) 412-3630 The request must be legible, on 8 % by 11-inch white paper, and contain: 1, Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; 2. Anexplanation of how your substantial interests will be affected by the action described in the FAR; 3. A statement of when and how you received the FAR; 4, Fora request for formal hearing, a statement of all disputed issues of material fact; 5. Fora request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to relief; 6. For a request for formal hearing, whether you request mediation, if it is available; 7. For a request for informal hearing, what bases support an adjustment to the amount owed to the Agency, and A demand for relief. bad A formal hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement, If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting ‘the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency. If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR shall be conclusive and final. Fa rn ta eet ER RRS ERR AMI ARERR REE OCR NTRR “ur RSI ye IRAE cen i RRO A en ener reppin cee” (Page 8 of 9) FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider: 000455900 - GARY L MARDER Overpayment Catculation Using Cluster Sampling by Recip Name Dates Of Service: 12/1/2008 through §/31/2011 Dre ek einintn ie meet: - Number of recipients in population: Number of recipients in sample: Total payments in population: No. of claims in population: Recip # ONA OHO DYAA WH = NNN NWUNNN MHA BBB Bo BENBERORBNRSestsZaeR Totals: 35 Using Overpayment per claim method Overpayment per sample claim: Point estimate of the overpayment: Variance of the overpayment: Standard error of the overpayment: Half confidence interval: Overpayment at the 95 % Confidence level: Overpayment run on 10/3/2013 Page 1 of 1 _ Ase, Rannin 1,462 Case ID: 35 $820,719.19 Confidence level: 10,485 {value No. Claims Total Dollars 8 $352.56 3 $138.52 3 $185.90 8 $315.58 6 $730.96 1 $42 18 3 $185.90 5 $203.85 4 $244.06 1 $62.78 7 $398.88 14 $1,817.12 8 $1,272.44 2 $1,122.26 5 $250.73 6 $373.84 9 $954.69 28 $2,703.53 5 $460.73 13 $814.85 3 $119.10 3 $185.90 8 $529 48 4 $26.61 188 $5,610.14 1 $42.18 2 $71 29 4 $338.74 10 $789.00 8 $342.15 2 $97.10 1 $42.18 5 $446.94 10 $513.45 3 $50.16 388 $21,805.75 $39,09659794 $409,927.83 $22,807 ,115,837.63 $151,020.25 $255,363.77 $154,564.06 NPI: 1730117003 49 OROR NNN 12-2625-000 95% 1.690924 Overpayment $86 63 $64.96 $54.96 $89.78 $513.47 $0.00 $135.68 $32.18 $54.96 $0.00 $40.01 $1,489.43 $1,107.15 $1,122.26 $138.09 $121.98 $789.43 $2,306 56 $394.21 $514.63 $62.78 $54.96 $274.80 $0.00 $4,484.14 $0.00 $0.00 $164.88 $560.18 $109.92 $0.00 $0.00 $284.22 $116.75, $10.48 $15,169.48 (Page 9 of 9) If you choose to make payment, please return this page along with your check to: Ae nn ae Maa TIAA Qanen A deniniotratian Agency for Health Care Administration Medicaid Accounts Receivable 2727 Mahan Drive, Mail Stop #14 Tallahassee, Florida 32308 The check must be made payable to: Florida Agency for Health Care Administration Provider Name: Gary L. Marder Provider ID: 000455900 MPI Case #: 12-2625-000 Total Due: $189,028.07 Check Number: # Any questions you may have about this matter should be directed to: Kris Creel, Investigator, telephone (850) 412-4600, facsimile (850) 410-1972. Payment for Medicaid Program Integrity Audit 121 recente (Page 1 of 1) \ i ! ; | j | | | | | | 80 that Wé can retum the card to you. §§ Attach this card to the back of the mallpiece, or on the front if space permits. GARY L. MARDER 9580 S. US HIGHWAY 1 PORT ST LUCIE, FL 34952-4217 C.1 #12-2625-000 KC-re Olan eos wows wel 16.00. 7 Lo! lz Restricted Delivery? (xtra Fea) O ves Mander fomeeyce wee) ____ 700% 2820 OO01 SL?5 20b8 \’ nt a ASO RD TE PS Form 3811, February 2004 Domestic Return Receipt 102895-02.0-1540 UniTED States PosTAL SERVICE Class aoe Postage & Fees Paid ise aoe ¥ ™N 8 oe x FLORIDA AGENCY FOR HOSGEICARE APSO TRATIOON dar o 2727 Mahan Drive, MS #6 @& s Tallahassee, Florida 32308 } Medical Unit Wyapereaf fe Affelpheyhfo dtp fbeeag hy gaffod gag] iD, MPU panty 1D Return Reosist for terchandise
The Issue Whether Medicaid overpayments were made to Petitioner and, if so, what is the total amount of those overpayments.
Findings Of Fact Petitioner Petitioner is a Florida-licensed osteopathic physician specializing in internal medicine. He has board certifications in internal medicine and nuclear medicine. In addition, he is certified in the sub-specialty of cardiology. Petitioner graduated from the Kirksville College of Osteopathic Medicine in Kirksville, Missouri in 1962. He has been practicing as an osteopathic internist in Florida since 1966, the year he came to the state after completing his residency at Brentwood Hospital in Cleveland, Ohio. Petitioner's Practice Petitioner's practice is now, and has been at all times material to instant case, located in Miami-Dade County, Florida. Petitioner currently practices at 9765 Southwest 184th Street in Miami Florida. Among Petitioner's current patients are Ira Hershman, D.O., a retired osteopathic physician who, as noted above, testified as a medical expert on Petitioner's behalf in this case, and Dr. Hershman's wife. Dr. Hershman's "career as an active doctor ended in 1997." Dr. Hershman was, and still is, board-certified in family practice medicine. Unlike Petitioner, at no time has he been board-certified in internal medicine. When he was in active practice and needed to consult with an internist, he "utilized [Petitioner's] services."12 From the "mid '60s through the '90s," Dr. Hershman and Petitioner were "on the staff of hospitals" together. They are, and have been over the years, "friends." Furthermore, their "families know each other" and socialize. During the period from March 1, 1996, through March 17, 1998 (Audit Period), Petitioner rendered "primary care" services at 17615 Southwest 97th Avenue, Miami, Florida, in a 30,000 square foot facility known as the Suburban Medical Center (Facility), which he owned and operated. A significant number of Medicaid patients were served at the Facility. Other physicians, hired by Petitioner, saw and otherwise provided services to Petitioner's patients at the Facility. Petitioner considered these physicians, who included Drs. Katzeff and Lubin, to be "independent contractors." On the premises of the Facility, Petitioner had "sophisticated equipment," not typically found in a "primary care" setting, available to perform various diagnostic tests,13 as well as a room equipped with items for urgent care that "very few" primary care physicians have. Petitioner used Dr. Key as a "consultant in radiology" to provide him with the "official reading" of x-rays, CAT scans, mammographies, and other imaging tests done at the Facility. The Provider Agreements During the Audit Period, Petitioner was authorized to provide physician services to eligible Medicaid patients. Petitioner provided such services pursuant to two provider agreements. The first agreement was a Non-Institutional Professional and Technical Medicaid Provider Agreement (First Provider Agreement) that Petitioner had entered into with the Department of Health and Rehabilitative Services, AHCA's predecessor, in 1983.14 The First Provider Agreement contained the following provisions, among others: * * * The provider agrees to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance under the State Plan and agrees to furnish the State Agency upon request such information regarding any payments claimed for providing these services. Access to these pertinent records and facilities by authorized Medicaid Program representatives will be permitted upon a reasonable request. The provider agrees that claims submitted must be for services rendered to eligible recipients of the Florida Medicaid Program and that payment by the program for services rendered will be based on the payment methodology in the applicable Administrative Rule. The Provider also agrees to submit requests for payment in accordance with program policies. * * * Payment by the State agency shall constitute full payment for services rendered to recipients under the Medicaid program except in specific programs when co- insurance is required from the recipient. The provider and the Department agree to abide by the provisions of the Florida Administrative Rules, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. * * * The second agreement was a Medicaid Provider Agreement (Second Provider Agreement) that Petitioner had entered into with AHCA in October of 1996. The Second Provider Agreement contained the following provisions, among others: The Provider agrees to participate in the Florida Medicaid program under the following terms and conditions: * * * Quality of 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 my be amended from time to time. Term and signatures. The parties agree that this is a voluntary agreement between the Agency and the provider, in which the provider agrees to furnish services or goods to Medicaid recipients. This provider agreement shall become effective the date the provider's Florida Medicaid Enrollment Application is received by the state or its fiscal agent. It shall remain in effect until July 1, 1999, unless otherwise terminated. This agreement shall be renewable only by mutual consent. The provider understands and agrees that no Agency signature is required to make this Agreement valid and enforceable. 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. * * * Accept Medicaid payment as payment in full . . . . . . . . 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. * * * Agency Responsibilities. The Agency: (a) Unless claims have been pended for medical review or investigation of suspected fraud or abuse, will make payment within 60 days at the established rate for medically necessary services or goods furnished to an eligible recipient by the provider upon receipt of a properly completed claim. . . . Termination and Equitable Relief. This agreement may be terminated, with or without cause, upon thirty (30) days written notice by either party. . . . * * * (19) Assignability. The provider number is the property of the Agency and the provider may not assign its rights or obligation under this number or this Agreement without the express written consent of the Agency. * * * THE PROVIDER AGREES THAT THIS AGREEMENT SHALL MERGE AND BECOME A PART OF THE PROVIDER APPLICATION . . . . The Provider Reenrollment Request form that Petitioner submitted (with which the Second Provider Agreement "merge[d]") reflected that the "provider['s] name" was "Minkes, Jules G." At no time did Petitioner enroll in the Medicaid program as part of a group practice (consisting of two or more physicians).15 He was enrolled only as an individual provider, and he used his individual provider number (0466301-00) to bill the Medicaid program. All of the Medicaid claims that are the subject of the instant controversy were billed by Petitioner under his individual provider number. Manual and Handbook Provisions Among the "manuals" and "handbooks" Petitioner was required to "abide by" and "comply with" during the Audit Period pursuant to the First and Second Provider Agreements were the Medicaid Provider Reimbursement Handbook, HCFA-1500 (MPR Handbook) and the Physician Coverage and Limitations Handbook (PCL Handbook). Medical Necessity The PCL Handbook provided that the Medicaid program would reimburse 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 service 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 The term "medically necessary" was defined in Appendix D of the MPR Handbook as follows: Medically Necessary or Medical Necessity Means that the medical or allied care, goods, or services furnished or ordered must: Meet the following conditions: Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; Be individualized specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs; Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational; Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; and Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. "Medically necessary" or "medical necessity" for inpatient hospital services requires that those services furnished in a hospital on an inpatient basis could not, consistent with the provisions of appropriate medical care, be effectively furnished more economically on an outpatient basis or in an inpatient facility of a different type. 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 medical necessity or a covered service. Documentation Requirements The MPR Handbook required that: "medical records . . . state the necessity for and the extent of services provided"16; and the provider "retain all medical, fiscal, professional, and business records on all services provided to a Medicaid recipient" for "at least five years from the date of service." The handbook further provided that "payments for services that lack[ed] required documentation" would be recouped. Physician Supervision The PCL Handbook provided: Delivery of all services must be done by or under the personal supervision of the physician. Personal supervision means the physician: is in the building when the services are rendered, and signs and dates the medical record within 24 hours of providing the service. Enrollment Requirements The PCL Handbook and the MPR Handbook both mandated that two or more physicians practicing together as a group enroll in the Medicaid program as a "provider group" and that each member of the group enroll in the program as an individual provider. Under the provisions of the MPR Handbook, an "individual provider" was required to "report when the provider bec[ame] a member of a provider group or [was] no longer a member of a provider group." 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 CPT include[d] HCPCS descriptive terms and numeric identifying codes and modifiers for reporting services and procedures. . . . The Physicians' Current Procedural Terminology At all times material to the instant case, the American Medical Association's Physicians' Current Procedural Terminology (or the "CPT") referred to in Chapter 3 of the PCL Handbook contained an "[i]ntroduction," which read, in pertinent part, as follows: Physicians' Current Procedural Terminology (CPT) is a systematic listing and coding of procedures and services performed by physicians. Each procedure is identified by a five digit code. . . . Inclusion of a descriptor and its associated specific five-digit identifying code number in CPT is generally based upon the procedure being consistent with contemporary medical practice and being performed by many physicians in clinical practice in multiple locations. . . . * * * Section Numbers and Their Sequences Evaluation and Management 99201 to 99499 * * * Surgery 10040 to 69979 Radiology (Including Nuclear Medicine and Diagnostic Ultrasound) 70010 to 79999 * * * At all times material to the instant case, the CPT referred to in Chapter 3 of the PCL Handbook had "[e]valuation and [m]anagement (E/M) [s]ervice [g]uidelines" (E/M Guidelines). It was noted on the first page of the E/M Guidelines that: The E/M section is divided into broad categories such as office visits, hospital visits, and consultations. Most of the categories are further divided into two or more subcategories of E/M services. For example, there are two subcategories of office visits (new patient and established patient) and there are two subcategories of hospital visits (initial and subsequent). The subcategories of the E/M services are further classified into levels of E/M services that are identified by specific codes. . . . "New and [e]stablished patient[s]" were described in the E/M Guidelines as follows: A new patient is one who has not received any professional services from the physician or another physician of the same specialty who belongs to the same group practice, within the past three years. An established patient is one who has received professional services from the physician or another physician of the same specialty who belongs to the same group practice, within the past three years. The concept of "[l]evels of E/M [s]ervices" was described, in pertinent part, as follows in the E/M Guidelines: Within each category or subcategory of E/M service, there are three to five levels of E/M services available for reporting purposes. . . . The levels of E/M services include examinations, evaluations, treatments, conferences with or concerning patients, preventative pediatric and adult health supervision, and similar medical services, such as the determination of the need and/or location for appropriate care. Medical screening includes the history, examination, and medical decision-making required to determine the need and/or location for appropriate care and treatment of the patient . . . . The levels of E/M services encompass the wide variations in skill, effort, time, responsibility and medical knowledge required for the prevention or diagnosis and treatment of illness or injury and the promotion of optimal health. Each level of E/M services may be used by all physicians. The descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. These components are: history; examination; medical decision making; counseling; coordination of care; nature of presenting problem; and time. The first three or these components (history, examination and medical decision making) are considered the key components in selecting a level of E/M services. . . . The next three components (counseling, coordination of care, and the nature of the presenting problem) are considered contributory factors in the majority of encounters. . . . * * * Time . . . . The inclusion of time as an explicit factor beginning in CPT 1992 is done to assist physicians in selecting the most appropriate level of E/M services. It should be recognized that the specific times expressed in the visit code descriptors are averages, and therefore represent a range of times which may be higher or lower depending on actual clinical circumstances. * * * According to the E/M Guidelines, "[l]isted services [could] be modified under certain circumstances," with the "modifying circumstances" being "identified by the addition of [an] appropriate modifier code . . . ." Among the available "modifier codes" was one for "[p]rolonged [e]valuation and [m]anagement [s]ervices," which was explained in the E/M Guidelines as follows: When the face-to-face or floor/unit service(s) provided is prolonged or otherwise greater than that usually required for the highest level of E/M service within a given category, it may be identified by adding the modifier "-21" to the E/M code number or by use of the separate five digit modifier code 09921. A report may also be appropriate. The E/M Guidelines contained "[i]nstructions for [s]electing a [l]evel of E/M [s]ervice," which read, in pertinent part, as follows: * * * Review of Level of E/M Service Descriptors and Examples in the Selected Category or Subcategory The descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. These components are: history; examination; medical decision making; counseling; coordination of care; nature of presenting problem; and time. The first three or these components (i.e., history, examination and medical decision making) are considered the key components in selecting a level of E/M services. An exception to this rule is in the case of visits which consist predominantly of counseling or coordination of care. . . . The nature of the presenting problem and time are provided in some levels to assist the physician in determining the appropriate level of E/M service. Determine the Extent of History Obtained The extent of history is dependent upon critical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of history that are defined as followed: Problem Focused: chief complaint; brief history of present illness or problem. Expanded Problem Focused: chief complaint; brief history of present illness; problem pertinent system review. Detailed: chief complaint; extended history of present illness; problem pertinent system review extended to include a review of a limited number of additional systems; pertinent past, family and/or social history directly related to the patient's problems. Comprehensive: chief complaint; extended history of present illness; review of systems which is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems; complete past, family and social history. * * * Determine the Extent of Examination Performed The extent of the examination performed is dependent on clinical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of examinations that are defined as follows: Problem Focused: a limited examination of the affected body area or organ system. Expanded Problem Focused: a limited examination of the affected body area or organ system and other symptomatic or related organ system(s). Detailed: an extended examination of the affected body area(s) and other symptomatic or related organ system(s). Comprehensive: a general multi-system examination or a complete examination of a single organ system. . . . For the purposes of these CPT definitions, the following body areas are recognized Head, including the face Neck Chest, including breasts and axilla Abdomen Genitalia, groin, buttocks Back Each extremity For the purposes of these CPT definitions, the following organ systems are recognized Eyes Ears, Nose, Mouth and Throat Cardiovascular Respiratory Gastrointestinal Genitourinary Musculoskeletal Skin Neurologic Psychiatric Hematologic/Lymphatic/Immunologic Determine the Complexity of Medical Decision Making Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by: the number of possible diagnoses and/or the number of management options that must be considered; the amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed and analyzed; and -The risk of significant complications, morbidity and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options. Four types of medical decision making are recognized: straightforward; low complexity; moderate complexity; and high complexity. To qualify for a given type of decision making, two of the three elements [shown] below must be met or exceeded. Type of Decision Making: straightforward; Number of Diagnoses or Management Options: minimal; Amount and/or Complexity of Data to be Reviewed: minimal or none; Risk of Complications and/or Morbidity or Mortality: minimal Type of Decision Making: low complexity; Number of Diagnoses or Management Options: limited; Amount and/or Complexity of Data to be Reviewed: limited; Risk of Complications and/or Morbidity or Mortality: low Type of Decision making: moderate complexity; Number of Diagnoses or Management Options: multiple; Amount and/or Complexity of Data to be Reviewed: moderate; Risk of Complications and/or Morbidity or Mortality: moderate Type of Decision Making: High complexity; Number of Diagnoses or Management Options: extensive; Amount and/or Complexity of Data to be Reviewed: extensive; Risk of Complications and/or Morbidity or Mortality: high Select the Appropriate Level of E/M Services Based on the Following For the following categories/ subcategories, all of the key components, i.e., history, examination, and medical decision making, must meet or exceed the stated requirements to qualify for a particular level of E/M service: office, new patient; . . . For the following categories/ subcategories, two of the three key components, (i.e., history, examination, and medical decision making) must meet or exceed the stated requirements to qualify for a particular level of E/M service: office, established patient; . . . In the case where counseling and/or coordination of care dominates (more than 50%) of the physician/patient and/or family encounter (face-to-face time in the office . . . ), then time is considered the key or controlling factor to qualify for a particular level of E/M services. The extent of counseling and/or coordination of care must be documented in the medical record. At all times material to the instant case, the CPT referred to in Chapter 3 of the PCL Handbook contained the following codes and code descriptions for "E/M" office and other outpatient services: New Patient 99201 Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: a problem focused history; a problem focused examination; and straightforward medical decision making. 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 problems are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. * * * 99202 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: an expanded problem focused history; an expanded problem focused examination; and straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family. * * * 99203 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: a detailed history; a detailed examination; and medical decision making of low 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 severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. * * * 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. * * * 99205 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 high 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 problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. * * * Established Patient 99211 Office or other outpatient visit for the evaluation and management of an established patient that may or may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services. * * * 99212 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 problem focused history; a problem focused examination; straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. * * * 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/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. * * * 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. * * * 99215 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 comprehensive history; a comprehensive examination; medical decision making of high 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 40 minutes face-to-face with the patient and/or family. It is a rarity for an osteopathic internist to provide office services at the 99205 or 99215 "E/M" code level. Generally speaking, office services at the 99203 and 99213 "E/M" code levels are the most common types of office services that osteopathic internists provide. Typically, osteopathic internists provide a "higher percentage" of office services at the 99204 and 99214 "E/M" code levels than at the 99202 and 99212 "E/M" code levels.17 The experience or expertise of the provider is not a factor to be taken into consideration in determining the appropriate "E/M" code level. The Audit and Aftermath Commencing in 1998, AHCA conducted an audit of paid Medicaid claims submitted by Petitioner for services assertedly rendered from March 1, 1996, through March 17, 1998. The audit was undertaken because it had been determined, from a review of the Medicaid provider database maintained by AHCA, that Petitioner had billed for more "chest x-rays and various radiology [tests]" than the "average provider."18 Petitioner had submitted 2,571 Medicaid claims for services assertedly rendered during the Audit Period to 314 patients, for which he had received payments totaling $134,597.58. From the 314 Medicaid patients to whom Petitioner had assertedly provided services during the Audit Period, AHCA randomly selected, by computer, a "cluster sample" of 42, and asked Petitioner to produce the medical records he had on file for these 42 patients. Petitioner had submitted a total of 386 claims for services assertedly rendered to the 42 patients in the "cluster sample" during the Audit Period and had received a total of $20,823.33 in Medicaid payments for these services. Each of these claims was reviewed by AHCA to determine whether it was supported by information contained in the medical records produced by Petitioner in response to AHCA's medical records request. Based on a preliminary review conducted by AHCA staff and a physician consultant (John Sullenberger, M.D.), AHCA determined that Petitioner had been overpaid a total $98,545.98 for the Medicaid claims he had submitted for services assertedly rendered during the Audit Period. After having been advised of this preliminary determination, Petitioner sent additional documentation to AHCA. The additional documentation was reviewed by AHCA staff and Dr. Sullenberger. Following this review, the overpayment was recalculated by AHCA and determined to be $94,208.27. As noted above, by letter dated June 29, 1999, Petitioner was notified of this recalculation and advised of his right to request an administrative hearing on the matter. After Petitioner requested such a hearing, in or around March of 2000, as a result of the Legislature's enactment of the "peer review" provisions of Section 409.9131, Florida Statutes, which became effective July 1, 1999, AHCA retained the services of Richard Thacker, D.O., an osteopathic physician, like Petitioner, Board-certified in internal medicine. Dr. Thacker received his medical education at Nova Southeastern University, College of Osteopathic Medicine, from which he graduated in 1992. After graduation, he obtained "internal medicine training" for three years in the internship and residency program at Delaware Valley Medical Center in Langhorne, Pennsylvania. In 1995, he returned to Florida, and has been in "active practice" as an osteopathic physician in the state since his return. His experience includes "working in Medicaid clinics." He currently practices with the Medical Group of North Florida, a Tallahassee "multi-specialty group with primary emphasis on general internal medicine." Aside from his practice, among other things, he serves as: the chairman of the Tallahassee Community Hospital's Department of Medicine; the Medical Director of Outpatient Services at Health South Rehabilitation Hospital of Tallahassee; the Medical Director of Long Term Care at Capital Health Care Center; the Medical Director of American Home Patient Home Health; and an Associate Professor for Clinical Instruction at Florida State University College of Medicine. At AHCA's request, Dr. Thacker reviewed all of the records that Petitioner had provided regarding the 42 patients in the "cluster sample" (including those records that had been furnished after June 29, 1999)19 to determine whether there was documentation to support the Medicaid claims relating to these patients that Petitioner had submitted for services assertedly rendered during the Audit Period.20 On or about May 15, 2000, after Dr. Thacker completed his review, the overpayment was again recalculated by AHCA and determined to be $84,486.25. On or about June 12, 2003, following a meeting between Dr. Thacker and Petitioner held the afternoon of the first day of hearing in this case, AHCA made another downward revision in its overpayment calculation, this time to $70,629.68.21 AHCA has made no additional revisions to its overpayment calculation in the instant case. It maintains that Petitioner received $70,629.68 in Medicaid overpayments for services claimed to have been provided during the Audit Period. Respondent's Exhibit 25 contains spreadsheets prepared by AHCA which identify all of the alleged overpaid claims (of the 386 reviewed) and, for each such claim, specify the amount of the alleged overpayment and AHCA's reason(s) for determining that an overpayment was made. Where AHCA alleges "upcoding" (that is, billing for a higher (and more costly) "level of E/M service" than Petitioner's documentation reveals was actually provided) or "inappropriate cod[ing]" of a surgical or radiological procedure, and no other billing deficiency is asserted, the procedure code deemed appropriate by AHCA, based on the documentation furnished by Petitioner, is also specified. The spreadsheets that comprise Respondent's Exhibit 25 accurately identify (as "not documented") those claims (of the 386 reviewed) that were for services not shown, by the documentation Petitioner has furnished AHCA, to have been actually provided (by anyone). The monies Petitioner received for these claimed, but undocumented, services constitute overpayments. The spreadsheets that comprise Respondent's Exhibit 25 accurately identify (through entries made in the "not group member" columns thereof) those claims (of the 386 reviewed) that were for services not shown, by the documentation Petitioner has furnished AHCA, to have been provided by Petitioner or under his "personal supervision," as that term was described in the materials Petitioner was required to "abide by" and "comply with" during the Audit Period pursuant to the First and Second Provider Agreements. The monies Petitioner received for these claimed services not documented as having been provided by him or under his "personal supervision" as required by the First and Second Provider Agreements constitute overpayments. The spreadsheets that comprise Respondent's Exhibit 25 accurately identify those claims (of the 386 reviewed) that were for services not shown, by the documentation Petitioner has furnished AHCA, to have been "medically necessary," as that term was used in the materials Petitioner was required to "abide by" and "comply with" during the Audit Period pursuant to the First and Second Provider Agreements. The monies Petitioner received for these claimed services not documented as having been "medically necessary" as required by the First and Second Provider Agreements constitute overpayments. The spreadsheets that comprise Respondent's Exhibit 25 accurately identify (through entries made in the "levels of care" columns thereof) those claims (of the 386 reviewed) that were "upcoded."22 The documentation Petitioner has furnished AHCA supports "adjust[ed]" "levels of E/M service" no higher than those indicated in the "adjust" columns of the spreadsheets. For each "upcoded" claim, Petitioner was overpaid in an amount equal to what he received minus what he would have received had he billed at the "adjust[ed]" level specified on Respondent's Exhibit 25. The spreadsheets that comprise Respondent's Exhibit 25 accurately identify those claims for radiological services that, following the meeting between Dr. Thacker and Petitioner, it was agreed were "inappropriate[ly] cod[ed]," and they further reflect the correct codes and reimbursement amounts for these "inappropriate[ly] cod[ed]" services. The difference between the amount Petitioner was reimbursed for each such "inappropriate[ly] cod[ed]" service and the correct reimbursement amount set forth on Respondent's Exhibit 25 represents an overpayment. As Respondent's Exhibit 25 indicates, the office services Petitioner claimed he provided Patient #79 on October 20, 1997, for which he billed Medicaid at the 99214 "E/M" code level, as well as the office services he claimed he provided Patient #203 on February 16, 1998, for which he billed Medicaid at the 99215 "E/M" code level, were wholly non- reimbursable inasmuch as the documentation concerning these office visits does not reveal that, in either case, the patient received services justifying reimbursement at even the lowest "E/M" code level (99211) for an established patient. As Respondent's Exhibit 25 also indicates, Petitioner's claim for the January 7, 1998, excision of a benign lesion from Patient #264's left ankle was "inappropriate[ly] coded." Given what the documentation Petitioner has furnished AHCA reveals about the size of the lesion and what needed to be done to remove it and close the resulting wound, in billing Medicaid for this service, Petitioner should have used the 11401 procedure code, instead of the 11404 procedure code, which has a higher reimbursement rate. In making its final overpayment calculation, AHCA determined, correctly, that Petitioner was overpaid a total of $11,913.23, or $30.86329051 per claim, for the 386 claims he had submitted seeking reimbursement from Medicaid for services assertedly rendered during the Audit Period to the 42 patients in the "cluster sample." Using a statistical formula that Petitioner has admitted is valid, AHCA extended these results to the total "population" of 2,571 Medicaid claims that Petitioner had submitted for services assertedly rendered during the Audit Period, and it correctly calculated that Petitioner had been overpaid a total of $70,629.68. Simple Mistake or Fraud? There has been no allegation made, nor proof submitted, that any of the overbillings referenced above were the product of anything other than simple mistake or inadvertence on Petitioner's part.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Petitioner received $70,629.68 in Medicaid overpayments for paid claims covering the period from March 1, 1996, through March 17, 1998, and requiring Petitioner to repay this amount to AHCA. DONE AND ENTERED this 28th day of January, 2004, 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 28th day of January, 2004.
The Issue Whether Petitioner, Agency for Health Care Administration (AHCA or Agency), is entitled to a recoupment of Medicaid funds paid to the Respondent, Florida Hospital Orlando (Respondent), that were overpayments for medical services rendered to undocumented aliens during the audit period.
Findings Of Fact The Parties AHCA is the state agency charged with the responsibility of monitoring and administering the Medicaid program within the State of Florida. AHCA conducts audits, as provided by law, to assure compliance with all pertinent state and federal regulations. As required, AHCA issues audit reports to document a Medicaid provider’s performance during a specified audit period. At all times material to this case, Respondent was a Medicaid provider who received payments for medical services rendered to the Medicaid patients identified in this Order. Respondent complied with all regulations and procedures to secure payment for medical services rendered to patients, including approval from AHCA’s fiscal agent. The fiscal agent is referred to, in this record, as KePro. It is undisputed that the medical services were provided to the patients. The Audit The audit period in this case is July 1, 2005, through December 31, 2005. It is undisputed that Respondent provided all of the medical services rendered to the patients described in this matter during that time frame. The payments for such care, however, were not completed until a time in 2008 that was less than three years from the issuance of the FAR. At all times material to this case, Medicaid providers were required to maintain financial records for a period not less than five years. All of the medical treatments were approved by KePro. All of the patients identified in the instant FAR were or are undocumented aliens. Medicaid allows a provider to render medical care to undocumented aliens only as provided by law. In this regard, only emergency medical care is covered for undocumented aliens. Medical care that may be entirely necessary or appropriate, but is not rendered as “emergency care” may not be reimbursed. The FAR seeks recoupment of Medicaid monies paid to Respondent for non-emergency care rendered to undocumented aliens. The Patients Patient 1 presented to Respondent’s emergency room on October 31, 2005, with a history of nausea, vomiting, and an elevated creatinine indicating renal failure. Patient 1 was 73 years old and reported abdominal pain through an interpreter. Additionally, Patient 1, who was on a cardiac medication, had an elevated potassium level and cardiac arrhythmia. Given Patient 1’s age and condition, it was medically necessary to admit the patient for cardiac monitoring and evaluation. At the time of admission, Patient 1 required emergency care. Renal failure and cardiac arrhythmia may indicate a life-threatening condition. Respondent’s treatment of Patient 1 continued and discovered an enlarged heart, chronic lung disease, along with renal concerns. Under Respondent’s care Patient 1 returned to a regular cardiac rhythm, was rehydrated, and potassium and creatinine levels returned to a normal range. On November 2, 2005, Patient 1’s vital signs were stabilized. Thereafter, Patient 1 remained in the hospital and was monitored until release on November 4, 2005. Patient 2 presented to Respondent’s emergency room on October 31, 2005. Outpatient services rendered for this patient had failed to alleviate an infection in the patient’s right hand. At 88 years of age, if left untreated Patient 2 was in danger of losing a finger if the swelling and infection were not contained. Given Patient 2’s history of diabetes, the concern for spread of the infection to other portions of the hand resulted in admission to the hospital for emergency care. Patient 2 was put on an IV-treatment and the finger was surgically addressed to drain and remove infectious areas. By November 2, 2005, the finger was clinically “looking good” and the antibiotic treatment had started to address the infection. Emergency care was no longer necessary to address the patient’s medical needs. Patient 2 remained in the hospital until November 4, 2005. Patient 3 was another 88-year-old who presented to Respondent with an extended history of diarrhea and abdominal pain. On December 25, 2005, Patient 3 was admitted with an elevated white blood cell count, a low potassium level, and dehydration. Given the patient’s age and circumstance, it was medically necessary to rehydrate Patient 3 with IV-fluids and to monitor renal sufficiency due to rising creatinine levels. After several gastro/intestinal examinations, antibiotic treatment, and elimination of the diarrhea, the patient was released on January 5, 2006. Patient 3 required emergency medical care for the entire stay due to the patient’s age and hydration issues. As the patient did not accept oral medication, the IV-treatments assured continued hydration, potassium improvement, and the administration of antibiotics. Without such care, Patient 3’s health would have deteriorated to a potentially life-threatening situation. On the patient’s day of discharge, Patient 3 was considered medically stable. Patient 4 was a nonverbal autistic child who was brought to Respondent on August 31, 2005. This patient was removed from an inappropriate home setting and taken into custody by the state to protect the child’s safety and health. When he presented at the emergency room, this patient did not have a medical condition that warranted admission to the hospital. The child was taken to the hospital for medical evaluation but only a “social” emergency existed. That is to say, the child had nowhere to go. Although, technically, in the state’s custody, a foster home appropriate for Patient 4’s challenges had to be found before placement could be made. It is undisputed that the child could not be discharged to the street; however, no emergency medical care was necessary for this patient. Patient 5 was admitted to Respondent on October 25, 2005, as a transfer patient from Glades Hospital. This patient was evacuated from Glades due to a hurricane. Patient 5 spoke only Creole, was 80 years of age, and had suffered a recent heart attack. Glades Hospital stabilized the patient sufficiently for transfer into Respondent’s cardiac care unit. Although Respondent sought to perform a cardiac catheterization for this patient in order to evaluate the patient’s heart function, Patient 5’s family refused consent. Respondent continued care for this patient with monitoring and medication, and Patient 5 remained stable. Respondent sought a family member to whom discharge could be made. A son was not located until days later. Patient 5 did not require emergency care while Respondent waited for a discharge disposition. Patient 6 was 67 years old with a long history of a disease called ulcerative colitis. When this patient presented at Respondent’s emergency room, September 3, 2005, there was gastro/intestinal bleeding, pain, and what was presumed to be diverticulitis. Given his inflammatory bowel disease, bleeding, and pain, Patient 6 had a medical emergency and had to be quickly treated to resolve the “acute flare” of this case. Respondent treated Patient 6 with IV-fluids, antibiotics, and medication to decrease inflammation. Patient 6 responded well to the treatment and, by September 4, 2005, was not in an emergent condition. Patient 6 remained in the hospital until September 5, 2005. Recoupment of Medicaid Overpayments Based upon the foregoing findings, and the persuasive weight of the evidence presented by the parties, it is determined: As to Patient 1, emergency medical care was not required for this patient subsequent to November 2, 2005; As to Patient 2, emergency medical care was not required for this patient subsequent to November 2, 2005; As to Patient 3, prior to discharge on January 5, 2006, the date upon which this patient was stabilized, all of Patient 3’s care was rendered as emergency medical care; As to Patient 4, none of this patient’s care was required as emergency medical care; As to Patient 5, emergency medical care was not required for this patient subsequent to October 27, 2005; and As to Patient 6, emergency medical care was not required for this patient subsequent to September 4, 2005. Since Respondent received Medicaid payments for the above-described patients after the patient no longer required emergency care, Petitioner is entitled to a recoupment of Medicaid payments.
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 finding Respondent was overpaid in the amount of $24,055.51 (the full audit amount less the claim for Patient 3) together with costs for a total of $26,203.15. DONE AND ENTERED this 3rd day of May, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2012. COPIES FURNISHED: John D. Buchanan, Jr., Esquire Henry, Buchanan, Hudson, Suber, and Carter, P.A. Post Office Drawer 14079 2508 Barrington Circle (32308) Tallahassee, Florida 32317-4079 Andrew T. Sheeran, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building 3, Mail Station 3 Tallahassee, Florida 32308 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 William H. Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, including the parties' Joint Prehearing Stipulation, the following findings s of fact are made: Petitioner and his Practice Petitioner is a general practice physician. He has been licensed to practice medicine in Florida for the past ten years. He is now, and has been at all times material to the instant case, in private practice in Miami-Dade County, Florida Petitioner's Participation in the Medicaid Program During the Audit Period, Petitioner was authorized to provide physician services to eligible Medicaid patients. Petitioner provided such services pursuant to a valid provider agreement with AHCA.4 Petitioner's Medicaid provider number was, and remains, 3759873 00 Petitioner billed all of the Medicaid claims that are the subject of the instant controversy under this (individual) provider number. Handbook Provisions As a prerequisite to his entitlement to Medicaid payment for services rendered during the Audit Period, Petitioner was required to comply with, among other things, the provisions of the Physician Coverage and Limitations Handbook (PCL Handbook) then in effect. Medical Necessity Chapter 2 of 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 service 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. Radiology Services Chapter 2 of the PCL Handbook further provided that, "[t]o be reimbursed the maximum fee [or 'global fee'] for a radiology service, the physician must provide both the technical and professional components." A physician provider billing the "global fee" was not authorized, pursuant Chapter 2 of the PCL Handbook, to also seek additional payment for the "professional component" of that fee. Doing so amounted to impermissible "double-billing." 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 CPT include[d] HCPCS descriptive terms and numeric identifying codes and modifiers for reporting services and procedures. . . . The Physicians' Current Procedural Terminology At all times material to the instant case, the American Medical Association's Physicians' Current Procedural Terminology (or the "CPT") referred to in Chapter 3 of the PCL Handbook contained an "[i]ntroduction," which read, in pertinent part, as follows: Current Procedural Terminology, Fourth Edition (CPT) is a systematic listing and coding of procedures and services performed by physicians. Each procedure or service is identified by a five digit code. . . . Inclusion of a descriptor and its associated specific five-digit identifying code number in CPT is generally based upon the procedure being consistent with contemporary medical practice and being performed by many physicians in clinical practice in multiple locations. . . . * * * Section Numbers and Their Sequences Evaluation and Management 99201 to 99499 * * * Surgery 10040 to 69979 Radiology (Including Nuclear Medicine and Diagnostic Ultrasound) 70010 to 79999 Pathology and Laboratory 80002 to 89399 Medicine (except Anesthesiology) 90701 to 99199 * * * The CPT had "[e]valuation and [m]anagement (E/M) [s]ervice [g]uidelines" (E/M Guidelines). It was noted on the first page of the E/M Guidelines that: The E/M section is divided into broad categories such as office visits, hospital visits, and consultations. Most of the categories are further divided into two or more subcategories of E/M services. For example, there are two subcategories of office visits (new patient and established patient) and there are two subcategories of hospital visits (initial and subsequent). The subcategories of the E/M services are further classified into levels of E/M services that are identified by specific codes. . . . "New and [e]stablished patient[s]" were described in the E/M Guidelines as follows: A new patient is one who has not received any professional services from the physician or another physician of the same specialty who belongs to the same group practice, within the past three years. An established patient is one who has received professional services from the physician or another physician of the same specialty who belongs to the same group practice, within the past three years. The concept of "[l]evels of E/M [s]ervices" was described, in pertinent part, as follows in the E/M Guidelines: Within each category or subcategory of E/M service, there are three to five levels of E/M services available for reporting purposes. Levels of E/M services are not interchangeable among the different categories of service. For example, the first level of E/M services in the subcategory of office visit, new patient, does not have the same definition as the first level of E/M services in the subcategory of office visit, established patient. The levels of E/M services include examinations, evaluations, treatments, conferences with or concerning patients, preventative pediatric and adult health supervision, and similar medical services, such as the determination of the need and/or location for appropriate care. Medical screening includes the history, examination, and medical decision-making required to determine the need and/or location for appropriate care and treatment of the patient (e.g., office and other outpatient setting, emergency department, nursing facility, etc.). The levels of E/M services encompass the wide variations in skill, effort, time, responsibility and medical knowledge required for the prevention or diagnosis and treatment of illness or injury and the promotion of optimal health. Each level of E/M services may be used by all physicians. The descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. These components are: history; examination; medical decision making; counseling; coordination of care; nature of presenting problem; and time. The first three of these components (history, examination and medical decision making) are considered the key components in selecting a level of E/M services. . . . The next three components (counseling, coordination of care, and the nature of the presenting problem) are considered contributory factors in the majority of encounters. . . . * * * The actual performance and/or interpretation of diagnostic tests/studies ordered during a patient encounter are not included in the levels of E/M services. Physician performance of diagnostic tests for which specific CPT codes are available may be reported separately, in addition to the appropriate E/M code. The physician's interpretation of the results or diagnostic tests/studies (i.e., professional component) with preparation of a separate distinctly identifiable signed written report may also be reported separately, using the appropriate CPT code with the modifier -26 appended. * * * Time . . . . The inclusion of time as an explicit factor beginning in CPT 1992 is done to assist physicians in selecting the most appropriate level of E/M services. It should be recognized that the specific times expressed in the visit code descriptors are averages, and therefore represent a range of times which may be higher or lower depending on actual clinical circumstances. * * * The E/M Guidelines contained "[i]nstructions for [s]electing a [l]evel of E/M [s]ervice," which read, in pertinent part, as follows: * * * Review of Level of E/M Service Descriptors and Examples in the Selected Category or Subcategory The descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. These components are: history; examination; medical decision making; counseling; coordination of care; nature of presenting problem; and time. The first three or these components (i.e., history, examination and medical decision making) are considered the key components in selecting a level of E/M services. An exception to this rule is in the case of visits which consist predominantly of counseling or coordination of care. . . . The nature of the presenting problem and time are provided in some levels to assist the physician in determining the appropriate level of E/M service. Determine the Extent of History Obtained The extent of history is dependent upon clinical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of history that are defined as followed: Problem Focused: chief complaint; brief history of present illness or problem. Expanded Problem Focused: chief complaint; brief history of present illness; problem pertinent system review. Detailed: chief complaint; extended history of present illness; problem pertinent system review extended to include a review of a limited number of additional systems; pertinent past, family and/or social history directly related to the patient's problems. Comprehensive: chief complaint; extended history of present illness; review of systems which is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems; complete past, family and social history. * * * Determine the Extent of Examination Performed The extent of the examination performed is dependent on clinical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of examinations that are defined as follows: Problem Focused: a limited examination of the affected body area or organ system. Expanded Problem Focused: a limited examination of the affected body area or organ system and other symptomatic or related organ system(s). Detailed: an extended examination of the affected body area(s) and other symptomatic or related organ system(s). Comprehensive: a general multi-system examination or a complete examination of a single organ system. . . . For the purposes of these CPT definitions, the following body areas are recognized Head, including the face Neck Chest, including breasts and axilla Abdomen Genitalia, groin, buttocks Back Each extremity For the purposes of these CPT definitions, the following organ systems are recognized Eyes Ears, Nose, Mouth and Throat Cardiovascular Respiratory Gastrointestinal Genitourinary Musculoskeletal Skin Neurologic Psychiatric Hematologic/Lymphatic/Immunologic Determine the Complexity of Medical Decision Making Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by: the number of possible diagnoses and/or the number of management options that must be considered; the amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed and analyzed; and -The risk of significant complications, morbidity and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options. Four types of medical decision making are recognized: straightforward; low complexity; moderate complexity; and high complexity. To qualify for a given type of decision making, two of the three elements [shown below] must be met or exceeded. Type of Decision Making: straightforward; Number of Diagnoses or Management Options: minimal; Amount and/or Complexity of Data to be Reviewed: minimal or none; Risk of Complications and/or Morbidity or Mortality: minimal Type of Decision Making: low complexity; Number of Diagnoses or Management Options: limited; Amount and/or Complexity of Data to be Reviewed: limited; Risk of Complications and/or Morbidity or Mortality: low Type of Decision making: moderate complexity; Number of Diagnoses or Management Options: multiple; Amount and/or Complexity of Data to be Reviewed: moderate; Risk of Complications and/or Morbidity or Mortality: moderate Type of Decision Making: High complexity; Number of Diagnoses or Management Options: extensive; Amount and/or Complexity of Data to be Reviewed: extensive; Risk of Complications and/or Morbidity or Mortality: high Comorbidities/underlying diseases, in and of themselves, are not considered in selecting a level of E/M services unless their presence significantly increases the complexity of the medical decision making. Select the Appropriate Level of E/M Services Based on the Following For the following categories/ subcategories, all of the key components, i.e., history, examination, and medical decision making, must meet or exceed the stated requirements to qualify for a particular level of E/M service: office, new patient; hospital observation services; initial hospital care; office consultations; initial inpatient consultations; confirmatory consultations; emergency department services; comprehensive nursing facility assessments; domiciliary care, new patient; and home, new patient. . . For the following categories/ subcategories, two of the three key components, (i.e., history, examination, and medical decision making) must meet or exceed the stated requirements to qualify for a particular level of E/M service: office, established patient; subsequent hospital care; follow-up inpatient consultations; subsequent nursing facility care; domiciliary care, established patient; and home, established patient. In the case where counseling and/or coordination of care dominates (more than 50%) of the physician/patient and/or family encounter (face-to-face time in the office or other outpatient setting or floor/unit time in the hospital or nursing facility) then time is considered the key or controlling factor to qualify for a particular level of E/M services. The extent of counseling and/or coordination of care must be documented in the medical record.[5] The CPT contained the following codes and code descriptions for "E/M" office and other outpatient services: New Patient 99201 Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: a problem focused history; a problem focused examination; and straightforward medical decision making. 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 problems are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. * * * 99202 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: an expanded problem focused history; an expanded problem focused examination; and straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family. * * * 99203 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: a detailed history; a detailed examination; and medical decision making of low 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 severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. * * * 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. * * * 99205 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 high 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 problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. * * * Established Patient 99211 Office or other outpatient visit for the evaluation and management of an established patient that may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services. * * * 99212 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 problem focused history; a problem focused examination; straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. * * * 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. * * * 99215 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 comprehensive history; a comprehensive examination; medical decision making of high 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 40 minutes face-to-face with the patient and/or family. The CPT provided separate codes for "prolonged physician service with direct (face-to-face) patient contact" and contained the following explanation as to when these codes were to be used: Codes 99354-99357 are used when a physician provides prolonged service involving direct (face-to-face) patient contact that is beyond the usual service in either the inpatient or outpatient setting. This service is reported in addition to other physician service, including evaluation and management service at any level. Appropriate codes should be selected for supplies or procedures performed in the care of the patient during this period. Codes 99354-99357 are used to report the total duration of face-to-face time spent by a physician on a given date providing prolonged service, even if the time spent by the physician on that date is not continuous. Code 99354 or 99356 is used to report the first hour of prolonged service on a given date, depending on the place of service. Either code also may be used to report a total duration of prolonged service of 30-60 minutes on a given date. Either code should be used only once per date, even if the time spent by the physician is not continuous on that date. Prolonged service of less than 30 minutes total duration on a given date is not separately reported because the work involved is included in the total work of the evaluation and management codes. Code 99355 or 99357 is used to report each additional 30 minutes beyond the first hour, depending on the place of service. Either code may also be used to report the final 15-30 minutes of prolonged service on a given date. Prolonged service of less than 15 minutes beyond the first hour or less than 15 minutes beyond the final 30 minutes is not reported separately. * * * The Audit and Aftermath Commencing in or around August 2000, AHCA conducted an audit of paid Medicaid claims submitted by Petitioner for services assertedly rendered from May 22, 1998, through May 22, 2000.6 Petitioner had submitted 4,574 Medicaid claims for services assertedly rendered during the Audit Period to 492 patients, for which he had received payments totaling $156,903.14. From the 492 Medicaid patients to whom Petitioner had assertedly provided services during the Audit Period, AHCA randomly selected a "cluster sample" of 41, and obtained from Petitioner medical records he had on file for these 41 patients. Petitioner had submitted a total of 325 claims for services assertedly rendered to the 41 patients in the "cluster sample" during the Audit Period and had received a total of $11,562.14 in Medicaid payments for these services.7 Each of these claims was reviewed to determine whether it was supported by information contained in the medical records obtained from Petitioner. Based on a preliminary review, AHCA determined that Petitioner had been overpaid a total $58,157.96 for the Medicaid claims he had submitted for services assertedly rendered during the Audit Period. By letter dated September 10, 2002, AHCA advised Petitioner of this preliminary determination and "encourage[d] [him] to submit any additional information or documentation" in his possession that he believed would "serve to reduce the overpayment." The antepenultimate and penultimate paragraphs of the letter read as follows: Since you have a choice of accepting the above overpayment or submitting additional information, this is not a final action by the Agency for Health Care Administration. If you have not made payment within thirty (30) days, we will prepare and send to you the final agency determination, taking into consideration any information or documentation that you submit within that time period. Petitioner did not "ma[k]e payment within thirty (30) days" of AHCA's September 10, 2002, letter. As promised, following another review conducted after the expiration of this 30-day period, AHCA "prepare[d] and sen[t] to [Petitioner]" its Final Agency Audit Report showing the calculation of overpayments made to Petitioner during the Audit Period.8 AHCA's Final Agency Audit Report was dated January 28, 2003, and in the form of a letter to Petitioner, which read, in pertinent part, as follows: Medicaid Integrity has completed the review of your Medicaid claims for the procedures specified below for dates of service during the period May 22, 1998 through May 22, 2000. A Provisional Agency Audit Report, dated September 10, 2002, was sent to you indicating that we had determined you were overpaid $58,157.96. Based upon a review of all documentation submitted, we have determined that you were overpaid $58,157.96 for services that in whole or in part are not covered by Medicaid. Pursuant to Section 409.913, Florida Statutes (F.S.), this letter shall serve as notice of the following sanction(s): The provider is subject to comprehensive follow-up review in six months. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S. In applying for Medicaid reimbursement providers are required to follow the guidelines set forth in the applicable rules[9] and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks, billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. The following is our assessment of why certain claims paid to your provider number do not meet Medicaid requirements. The audit work papers detailing the claims affected by this assessment are attached. REVIEW DETERMINATION(S) 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 payments made for services not appropriately documented an overpayment. 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 amounts you were paid and the correct payment for the appropriate level of service is considered an overpayment. Medicaid policy requires services performed be medically necessary for the diagnosis and treatment of an illness. You billed and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, indicated that the services provided did not meet the Medicaid criteria for medical necessity. The claims, which were considered medically unnecessary, were disallowed and the money you were paid for these procedures is considered an overpayment. Medicaid policy addresses specific billing requirements and procedures. In some instances, you billed a procedure code as global and also billed the professional when the professional component was incorporated in the global fee. The difference between the amounts you were paid and the appropriate fee is considered an overpayment. The overpayment was calculated as follows: A random sample of 41 recipients respecting whom you submitted 325 claims was reviewed. For those claims in the sample which have dates of service from May 22, 1998, through May 22, 2000, an overpayment of $5,004.04 or $15.39704606 per claim was found, as indicated on the accompanying schedule. Since you were paid for a total (population) of 4,574 claims for that period, the point estimate of the total overpayment is $15.39704606 x 4,574=$70,426.09. 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 [Petitioner was] $58,157.96 with a ninety-five percent (95%) probability that it is that amount or more." The concluding portions of the letter advised Petitioner of his right to "request an administrative hearing [on this overpayment determination] pursuant to Sections 120.569 and 120.57, Florida Statutes." The "Medicaid physician consultant" referred to in AHCA's January 28, 2003, letter was Lisa Kohler, M.D., a Florida-licensed "family physician," who is certified by the American Board of Family Practice and is a fellow of the American Academy of Family Physicians. Dr. Kohler received her medical education at the University of South Florida College of Medicine, from which she graduated in 1985. After graduation, she did her internship and residency at Tallahassee Memorial Regional Medical Center's Family Practice Residency program. In 1988, following the completion of her residency, she entered private practice. She currently serves as the Associate Director of the Tallahassee Memorial Regional Medical Center's Family Practice Residency program. In addition, she is a Clinical Assistant Professor in the Department of Family Medicine at the University of South Florida College of Medicine and the Volunteer Medical Director of the Neighborhood Health Services in Tallahassee, Florida, a health clinic that provides free medical care to indigent patients. In accordance with the "peer review" provisions of Section 409.9131, Florida Statutes, which became effective July 1, 1999, AHCA had Dr. Kohler review all of the records that Petitioner had provided regarding the 41 patients in the "cluster sample"10 to determine whether there was documentation to support the Medicaid claims relating to these patients that Petitioner had submitted for services assertedly rendered during the Audit Period. In conducting her "peer review," Dr. Kohler did not interview any of the 41 patients in the "cluster sample," nor did she take any other steps to supplement the information contained in the records she examined. Her assessment of the propriety of Petitioner's billing was based exclusively on what was in those records and no other information. On February 19, 2003, Petitioner requested an administrative hearing on the overpayment determination (announced in AHCA's January 28, 2003, letter to Petitioner). On or about August 20, 2003, following a meeting between the parties, AHCA made a downward revision in its overpayment calculation, to $47,931.79. AHCA has made no additional revisions to its overpayment calculation in the instant case. It maintains that Petitioner received $47,931.79 in Medicaid overpayments for services claimed to have been provided during the Audit Period. In making this final overpayment calculation, AHCA determined, correctly, that Petitioner was overpaid a total of $3,867.62, or $11.90036931 per claim, for the 325 claims he had submitted seeking reimbursement from Medicaid for services assertedly rendered during the Audit Period to the 41 patients in the "cluster sample." Using a statistical formula the validity of which Petitioner has not disputed, AHCA extended these results to the total "population" of 4,574 Medicaid claims that Petitioner had submitted for services assertedly rendered during the Audit Period, and it correctly calculated that Petitioner had been overpaid a total of $47,931.79. Simple Mistake or Fraud? There has been no allegation made, nor proof submitted, that any of Petitioner's overbillings was the product of anything other than simple mistake or inadvertence on Petitioner's part.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Petitioner received $47,931.79 in Medicaid overpayments for paid claims covering the period from May 22, 1998, through May 22, 2000, and requiring Petitioner to repay this amount to AHCA. DONE AND ENTERED this 15th day of June, 2004, 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 15th day of June, 2004.
The Issue Whether Respondent violated section 409.913, Florida Statutes, by failing to retain required Medicaid records, thereby incurring a $10,000 fine according to Florida Administrative Code Rule 59G-9.070(7)(e).
Findings Of Fact Respondent is a Medicaid Provider of Assistive Care Services in Oakland Park, Florida. Annie Mathew is a registered nurse who manages Respondent's facility. Respondent was obligated, pursuant to the Medicaid Provider Agreement executed in June 2008, to comply with applicable Medicaid laws, administrative rules, and Medicaid handbooks. The Agency is the state agency charged with the administration of the Medicaid program in Florida. Within the Agency, the Inspector General ensures the integrity of the Medicaid program by conducting investigations of providers to ensure compliance with all Medicaid rules. On December 7, 2011, the Agency conducted an unannounced on-site inspection of the medical records retained by Respondent. Mr. Cedeno and Ms. Hollis-Stancil conducted the investigation, reviewing ten recipient files. The investigators found that nine of the recipient files did not contain a proper service plan; one recipient did not contain a service plan at all, and had an outdated health assessment. Respondent did not use the Medicaid form found in the Medicaid Assistive Care Services Coverage and Limitations Handbook for service plans; instead, Respondent used a form created by Respondent, which contained some, but not all, of the components addressed in the Medicaid form. The investigators noticed that the facility was clean and in good condition. At the hearing, Respondent admitted to not using the Medicaid form for service plans, and agreed that not all of the components addressed in the Medicaid form were addressed in the form created by Respondent. Specifically, the service plan must contain the expected outcome for the resident, and identify who is going to provide specific services to the resident. Respondent's forms did not reflect this information. As to one recipient, recipient S.V., the file did not contain a current health assessment. The health assessment found in the file had expired in September 2011, three months prior to the inspection in December 2011. All ten counts against Respondent are supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that pursuant to rule 59G-9.070(7)(e), the Agency for Healthcare Administration fine Respondent $10,000 for ten first offense counts of failure to comply with the Medicaid rules. DONE AND ENTERED this 19th day of March, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 19th day of March, 2013.
The Issue Whether certain employees of Respondent, who provided services to Medicaid recipients, met the prior work experience requirement to be certified as targeted case managers ("TCMs").1/ The nine disputed employees are identified in the Joint Prehearing Stipulation as Arian Melgarejo, Isis Lopez, Sadaiky Morejon, Karen Cuellar, Elisa Alonso Knapp, Ilineis Gonzalez Torres, Andres Gutierrez, Ana Sarai Llanes, and Berto Mirabal Lopez.
Findings Of Fact This case involves a Medicaid audit by AHCA of Access, which relates to dates of service from January 1, 2013, through December 31, 2014 ("audit period"). During the audit period, Access was an enrolled Medicaid provider and had a valid Medicaid provider agreement with AHCA, Medicaid Provider No. 004073400. As an enrolled Medicaid provider, Access was subject to the duly-enacted federal and state statutes, regulations, rules, policy guidelines, and Medicaid handbooks incorporated by reference into rule, which were in effect during the audit period. The AHCA Bureau of Medicaid Program Integrity ("MPI"), pursuant to its statutory authority, conducted an audit of Medicaid claims paid to Access for services to Medicaid recipients. AHCA issued an FAR dated January 4, 2017, MPI Case ID No. 2016-0006148, alleging that Access was overpaid $738,890.52 for certain services that in whole or in part are not covered by Medicaid. In addition, the FAR informed Access that AHCA was seeking to impose a fine of $147,778.11 as a sanction for violation of Florida Administrative Code Rule 59G-9.070(7)(e) and costs pursuant to section 409.913(23), Florida Statutes. The overpayment and sanction amounts sought by AHCA were amended post-FAR to $526,500.11 and $105,300.02. AHCA is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act. This program of medical assistance is designated the "Medicaid Program." See § 409.902, Fla. Stat. AHCA has the responsibility for overseeing and administering the Medicaid program for the State of Florida, pursuant to section 409.913. The Handbook requires that, in order to be certified as a TCM, an applicant must "have a minimum of one year of full time or equivalent experience working with adults experiencing serious mental illness." The Handbook also requires, via the completion and retention of Appendix H, that the provider certify that all of the requirements to be a TCM have been met. Appendix H must be signed by the provider administrator, the case manager, and the case manager's supervisor. There are no AHCA rules or any agency guidance as to exactly what type of work experience with these individuals is required. TCM services include things like coordinating transportation services, obtaining medical records to give to a provider or locating a new provider that may be closer to a recipient's home, things that are not clinical in nature, but which are beyond a recipient's ability to do or his family's ability to assist them with. In fact, Medicaid will not reimburse mental health TCM services for the provision of direct therapeutic, medical, or clinical services. Significantly, the Handbook does not require a provider to secure or maintain an applicant's resume, reference letters, or any particular documentation reflecting work history, nor does it specify who must be contacted to verify prior employment or indicate references need to be contacted at all. The one year of experience does not have to come from an applicant's most recent employer, or even one individual employer. AHCA provides no webinars or training for providers on how to check the work history of an applicant. However, AHCA contends that a provider cannot, in good faith, certify a case manager without verifying that the employee possessed the necessary experience with the target population. AHCA's Audit Procedure Robi Olmstead, an Agency Administrator over the Practitioner Unit at the Bureau of MPI, testified regarding her experience and her supervisory role in the audit of Access. Ms. Olmstead explained that the instant case against Access was opened based on "an analysis . . . from our data detection unit identifying a high number of services billed and high utilization by this provider of targeted mental health . . . case management services." Ms. Olmstead opened the audit, and assigned the matter to Stephanie Gregie, a Medicaid program health care analyst, who obtained a list of claims for 35 random recipients from AHCA's cluster sample program. After the sample was obtained, AHCA then requested the records of the sample recipients from Access. Ms. Gregie requested detailed documentation from Respondent via a Request for Records. The Request for Records included Document Organizational Guidelines. The guidelines requested that Access provide, inter alia, employment applications and/or resumes and evidence of employment background checks. Ms. Gregie determined that the employees at issue all met the regulatory educational requirement. However, she was concerned that the TCMs in dispute lacked the prerequisite experience working with the target population. Upon review of the records provided by Access, Ms. Gregie was disturbed that some job titles listed on the applications or resumes seemed inconsistent with listed job duties. According to Ms. Gregie, the prior work history of the TCMs was not thoroughly "certified" because the reference forms completed by Access' owner, Marieta Garcia de Porto, did not identify the dates of employment, the name of the employer which she contacted, the job title of the individual who verified past employment, or additional details of the conversation. Further, the reference checks generally seemed insufficient to Ms. Gregie because of her belief that the best reference check is through a former employers' human resources department rather than from past supervisors or co-workers. Ms. Gregie was also suspicious of the veracity of the reported work histories because several employees had reference letters signed by different people but which were notarized by the same individual. Some of the reference letters had similar, if not identical, language. Also, many of the employees purportedly had their references checked the day before or the day of hiring. Due to her concerns regarding the certifications provided by Access, Ms. Gregie "did something we typically wouldn't normally do, and that is I developed a verification process in [an] attempt to determine whether the employees were, in fact--did, in fact, have the required experience, and I began to document my own verifications of the employees' work experience with their prior employers." Tr. 48/5-13. Ms. Gregie created a worksheet to document her attempts at employment verification for the TCMs. Ms. Gregie requested additional documentation from Access, which was provided, and she attempted to verify those documents as well. Access' Response Ms. Garcia, as the owner of Access, is also the clinical director and the supervisor of its TCMs. Ms. Garcia, who is a Cuban immigrant, obtained her degree in psychology in Cuba and her master's degree in the United States. She is a licensed mental health counselor. Ms. Garcia had a five-year course of study in Cuba, which included a practicum every semester working with a targeted mental health population and required a thesis. However, her degree was equated to a bachelor's degree in the United States. In Cuba, to begin working as a psychologist, a new graduate does not provide a resume. They only provide a transcript and complete an interview. Ms. Garcia hired the TCMs for Access, whose work histories are in dispute. Ms. Garcia explained that the Handbook does not provide any direction as to how to verify or document the verification of prior work experience for TCMs. She used the process used when she was first hired as a TCM in 2005. She asked each applicant for a resume or job application and three letters of reference, which she maintained in their employment files. Although the Handbook does not require reference letters or notarization, she chose to ask that these letters be notarized because when she immigrated to the United States, all of her documents were required to be notarized. Ms. Garcia then contacted the individuals who signed the letters to verify employment. The TCMs hired by Ms. Garcia were primarily doctors and nurses from Cuba. It did not surprise her that their resumes looked similar because these people worked together in Cuba and likely worked on crafting their resumes together because the use of resumes is not common in the medical profession in Cuba. Further, Ms. Garcia is not a lawyer or a notary, and it did not cause her any concern that the same notary was used for reference letters from different employers. Additionally, three of the TCMs (Arain Melgarejo, Sadaiky Morejon, and Andres Gutierrez) were referred to Ms. Garcia by Yoandes Fuentes, a medical doctor who was employed by Access as a TCM. Dr. Fuentes previously supervised these TCMs at a medical mission in Venezuela as part of a Cuban/Venezuelan program that exchanged the services of Cuban medical professionals for Venezuelan oil. Dr. Fuentes, who was a trusted Access employee, personally verified the one year or more employment of these three TCMS with the adult mental health population in Venezuela. Both Ms. Morejon and Mr. Gutierrez were medical doctors in Cuba. Ms. Morejon is also married to Dr. Fuentes. Based upon the applications/resumes and reference letters submitted and verified by Ms. Garcia, she believed the TCMs all had the requisite work experience and both the TCMs and she certified this on Appendix H for each of the nine TCMs in dispute. The Experience of the Disputed TCMs Arian Melgarejo As discussed above, Arian Melgarejo was referred to Ms. Garcia by Dr. Fuentes. Mr. Melgarejo obtained a doctoral degree in dental surgery in Cuba in 2007. He is not licensed in the United States as a dentist. This makes him subject to the three-year work requirement applicable to TCM applicants without a degree in a "human services" field. Dr. Fuentes supervised Mr. Melgarejo at the Venezuelan medical mission, Comprehensive Diagnostic Center ("Comprehensive"), from October 2009 through May 2011. Comprehensive provided medical and mental health services to poor people in rural areas of Venezuela. Denia Lazo-Santalla, who is employed by Access as a TCM supervisor, also testified regarding the work at Comprehensive. As a medical doctor from Cuba, Ms. Lazo-Santalla also worked at the mission and is familiar with its workload. Comprehensive has locations in rural areas all over Venezuela. They are generally the sole providers of health care in these areas, so any of the physicians or, in Mr. Melgarejo's case, a dentist, working there would see a significant population of adults with serious mental illnesses. Mr. Melgarejo's employment records include a reference letter from Katia Avila Garcia, who acknowledged working with Mr. Melgarejo at the mission. Mr. Melgarejo's resume also lists two employment stints at Isidro de Armas Psychiatric Hospital in Cuba from January 2000 through September 2002, and from September 2007 through September 2009. A printout of Isidro de Armas Psychiatric Hospital on the InfoMED website shows that its mission is providing specialized medical care (treatment and rehabilitation) to chronic psychotic patients. Ms. Lazo-Santalla testified that, as a medical doctor in Havana, Cuba, she was familiar with Isidro de Armas Psychiatric Hospital and that it is a huge facility that provides all kinds of services, including dental care, to psychiatric patients. Ms. Gregie disputes that Mr. Melgarejo meets the three- year experience requirement based upon her own "verification" process. According to Ms. Gregie, dentists do not typically provide mental health services. She contacted the practice administrator at SOMA Medical Center ("SOMA"), which was identified on Mr. Melgarejo's resume as his last place of employment. Mr. Melgarejo claims to have worked there as a social worker, "[a]ssisting chronic patients who were diagnosed with psychiatric illnesses to receive the proper treatment and link them with outside recommended services." According to Ms. Gregie, she was told that SOMA does not employ social workers and that Mr. Melgarejo never worked there. However, even discounting the time alleged worked at SOMA, Mr. Melgarejo's experience with adult mental health patients was verified by Dr. Fuentes. Further, Ms. Gregie made no effort to independently verify his employment at Comprehensive or Isidro de Armas Psychiatric Hospital. Sadaiky Morejon Sadaiky Morejon was a medical doctor in Cuba. Ms. Morejon and Dr. Fuentes are husband and wife, and they worked together in almost every place. This accounts for the similarity in resumes. According to her resume, Ms. Morejon worked at the mission in Venezuela, Comprehensive, from August 2007 through May 2011. As discussed herein, she worked with and was supervised during part of this time by Dr. Fuentes, who referred her to Ms. Garcia for employment. A reference letter from Dr. Fuentes, dated February 22, 2017, provides extensive detail of Ms. Morejon's work during her time at the mission in Venezuela. According to her resume, Ms. Morejon also worked at Psychiatric Clinic of Cinefuegos in Cuba from April 2007 to August 2007. A printout of the profile for Psychiatric Clinic of Cienfuegos from the InfoMED website states that the hospital has a mission of providing specialized medical care (treatment and rehabilitation) for chronic psychotic patients. Ms. Morejon's resume lists her most recent employment at Miami Community Health Center. Ms. Gregie was unable to locate a business by that name. In case Ms. Morejon confused the name with Miami Behavioral Health Center, now known as Banyan Health Center ("Banyan"), Ms. Gregie contacted Banyan but was told that Ms. Morejon was not employed there. However, Ms. Morejon's file includes a 2013 reference letter from her former supervisor, Dr. Ernesto Fernandez, which reflects that she worked for him at the address she listed as "Miami Community Health Center." Ms. Gregie discounted this reference because it did not include the specific dates of employment or a detailed description of job duties. Further, Ms. Gregie noted that Ms. Morejon's resume is "highly similar" to that of Dr. Fuentes. She found it improbable that they would have the same career path with the same employers. Apparently, she did not account for the fact that they are husband and wife. Nor did Ms. Gregie attempt to verify Ms. Morejon's employment in Cuba or Venezuela. Berto Mirabal Lopez Berto Mirabal Lopez obtained a bachelor's degree in nursing from the University of Havana, Cuba, in 2009. Mr. Lopez worked as a charge nurse in the crisis stabilization unit at Hospital Miguel Enriquez in Havana, Cuba, from December 2009 through April 2011. One of his reference letters was from Marleny Almeida dated October 12, 2013. After the FAR was issued, Ms. Garcia contacted Ms. Almeida and told her that Mr. Lopez was not approved in the Medicaid audit. Ms. Almeida authored a second reference letter dated February 14, 2017, that provided more specific detail of the work that Mr. Lopez did as a nurse in the crisis stabilization unit at Miguel Enriquez Hospital with the mentally ill. Miguel Enriquez Hospital is a large hospital in Havana with multi-specialties, including psychiatric and mental health services. Mr. Lopez' employment there satisfies the one-year work requirement. Mr. Lopez' resume also states that he worked as a mental health technician at Citrus Health Network from 2011 until the time of his application. However, the Citrus Human Resources Department told Ms. Gregie they had no record of him working there. She also found the three reference letters provided not credible because they do not specify where these individuals worked with Mr. Lopez, are similar in format, and, although written on different dates, were all signed by the same notary on the same date. Ms. Gregie did not attempt to verify Mr. Lopez' employment in Cuba. Isis Lopez Isis Lopez was personally known to Ms. Garcia prior to Ms. Lopez' hiring because they studied psychology together in Cuba. They are also family friends. Ms. Lopez' application reflects that she worked at Centro de Orientacion y Atencion Psicologica ("COAP") at the University of Havana, Cuba from 2000 to 2008. COAP is a center for psychological counseling. Ms. Garcia was personally familiar with Ms. Lopez' work experience at COAP. One of the reference letters is from Alain Abreau, verifying that Ms. Lopez worked as a counselor under his supervision at COAP from January 2000 through March 2001. Her resume indicates she worked there from 2000 to 2008, and Mr. Abreau acknowledged that she continued to work there, but no longer under his supervision. Ms. Gregie attempted to speak with Mr. Abreau but Mr. Abreau hung up on her after she announced herself, and despite immediately calling back, she was only able to leave a voicemail requesting a return call, which did not occur. Ms. Garcia knows Mr. Abreau personally because she used to work with him at Miami Behavioral Health Center (now called "Banyan") when she was employed as a TCM in 2005. In February 2017, Ms. Garcia called Mr. Abreau and told him that Ms. Lopez was not approved by Medicaid, and that is why Mr. Abreau wrote the detailed reference letter. Mr. Abreau was told by Ms. Garcia that he would receive a call from AHCA to verify, and he did. Mr. Abreau told Ms. Garcia that the call broke off and, when Mr. Abreau called the same number back, it was a general line for AHCA and he did not know who to ask for. Mr. Abreau did not get a voicemail from Ms. Gregie. According to Ms. Lopez' resume, she worked from August 2011 until August 2012 as a TCM at Miami Behavioral Health Center. Ms. Gregie contacted Ana Marie Rodriguez in the Human Resources Department at Banyan and was told that Ms. Lopez actually only worked there for two months. Ms. Rodriguez signed and returned a form confirming this. Ms. Gregie questions why Ms. Lopez would make a misrepresentation about her employment at Banyan if she in fact already had the requisite experience from her employment in Cuba. Although it is understandable that these interactions with Mr. Abreau and Banyan would raise Ms. Gregie's suspicion, it does not invalidate either Ms. Garcia's personal knowledge of Ms. Lopez' course of study and her work at COAP, or the letter provided by Mr. Abreau, verifying more than a year of experience working with the target population. Elisa Alonso Knapp Elisa Alonso Knapp has a bachelor's degree in psychology and a master's degree in human resource management. Her course of study in Cuba to obtain her psychology degree would have included work experience with the target population. Ms. Knapp's resume listed her most recent place of employment as New Life Staffing, Inc. The resume recites her work there as including "case management assistance to adults and elderly with chronic mental disorders." Staffing agencies generally do not provide direct mental health services. The other positions on her resume are all human resource positions. Access' Employment Reference Check dated May 12, 2014, listed only three names, three telephone numbers, and three different years of experience. Ms. Knapp listed Oscar Villegas Flores as a reference. When Ms. Gregie spoke with Mr. Villegas Flores, he admitted that Ms. Knapp was not a case manager and did not provide TCM services. Post-FAR, Access also offered a letter from Reinaldo Carnota in support of Ms. Knapp's experience. The letter stated that Ms. Knapp worked as a psychotherapist at Sanatorio Los Cocos, Santiago de las Vegas, Cuba, from July 1995 to December 1997. When Ms. Gregie spoke with Mr. Carnota, he was unable to remember the name of the place of employment where he worked with Ms. Knapp and was "evasive." Ms. Knapp also provided reference letters from Emeterio Santovenia, Lissett Nardo, and Ana-Elvy Hernandez Cordero. According to Ms. Cordero, Ms. Knapp worked as a volunteer psychologist from 2009 to 2010 at Docent Polyclinic in Havana, Cuba, working with elderly patients suffering psychiatric disorders. Ms. Nardo stated that Ms. Knapp worked as a volunteer at the Psychology College of Havana University assisting elderly mental health patients in accessing services. Ms. Gregie did not contact these three additional references. Ms. Knapp attested to her one year of required experience on the Appendix H form. Although it is clear that Ms. Knapp did not have recent psychology experience, her training and letters of reference reflect that she had worked with the target population for at least one year. Karen Cuellar Karen Cuellar obtained a bachelor's degree in psychology in Cuba. Her resume states that she worked at Community House in Havana as a mental health counselor from June 2006 through September 2008. This is supported by a notarized reference letter from Lissette Gallardo which states that Ms. Cuellar worked with adults with severe mental disorders. Ms. Cuellar's resume lists her most recent employment as the Chrysalis Center as a "targeted case manager." However when Ms. Gregie contacted Chrysalis Center she was told that they do not employ case managers, they do not provide mental health services, and that Ms. Cuellar was never employed by them. Although this deception places the validity of Ms. Cuellar's resume in doubt, Ms. Gregie did not attempt to verify Ms. Cuellar's employment with Community House which, standing alone, meets the experience requirement. Ana Sarai Llanes Ana Sarai Llanes holds a master's degree in psychology from Cuba. According to Ms. Garcia, Ms. Llanes' course of study required a practicum that meets the requirements of working with the target population. Ms. Garcia also indicated she personally knew Ms. Llanes. Ms. Llanes' resume listed her last "Experience" as volunteer community work for Sion Baptist Church. The resume further cited this as case management work, including "[a]ssisting elderly and adults to access community resources." Ms. Gregie determined Ms. Llanes was ineligible as she was unable to locate the Sion Baptist Church in her research. She also testified that in her experience, she never heard of voluntary case management services or professional mental health services being provided at a church. She further stated that the services listed on the resume, such as "DCF, LIHEAP, Logisticare, and housing applications" are the exact services Respondent provides to all recipients which led her to conclude this experience was fabricated. Post-FAR, Access offered a letter of reference from Moriama Alfonso. Ms. Garcia personally knows Ms. Alfonso, who was Ms. Llanes' supervisor at COAP in Havana. Ms. Gregie spoke with Ms. Alfonso via an interpreter and determined the letter was non-credible because Ms. Alfonso could not remember the name of the employer where she worked with Ms. Llanes. Ms. Gregie also determined, based upon her own experience in the mental health field, that Ms. Alfonso's statement that Ms. Llanes provided eight hours per day of direct mental health counseling was not plausible. Ms. Gregie also assumed that COAP was a "cultural center" and did not provide mental health services. However, Ms. Gregie did not attempt to contact COAP or the other references provided by Ms. Llanes regarding her volunteer work with the mentally ill for the "ZunZun" project in Cuba which would provide more than a year of working with the targeted population. Ilineis Gonzalez Torres Ilineis Gonzalez Torres has a doctor of medicine degree from Cuba. In order to obtain her degree, Mr. Torres would have completed a six-month work training program in psychiatry. Ms. Garcia believed Ms. Torres was qualified based on her work as a general doctor at Policlinic "Victoria de Giron" in Havana, Cuba, from 2007 to 2010. "Policlinics" in Cuba are multidisciplinary facilities that include mental health services. A web-profile of Policlinic Victoria de Giron from the InfoMed confirms that mental health services are included. Ms. Garcia also reached out to Dr. Soto for a letter of reference. Dr. Soto verified that she worked with Ms. Gonzalez part-time for a year on a clinical trial regarding patients taking anti-depressants. Ms. Torres also worked from 2004 to 2006 at the COAP center as evidenced by her resume and the reference letter from Idania Garcia Barrios. This is the same facility that Ms. Lopez worked at. Ms. Gregie contacted Ms. Torres' most recently listed employer, Med-Care. Ms. Gregie was told that Ms. Torres worked there as a medical assistant rather than as a "social worker," which is listed on her resume. Ms. Gregie researched Med-Care on-line and determined it provided medical services to the general public, not mental health or TCM services. Ms. Gregie did not attempt to verify Ms. Torres' work in Cuba. i. Andres Gutierrez Andres Gutierrez is a medical doctor from Cuba who was referred to Access by Dr. Fuentes. His medical training would have included a six-month work program in psychiatry with the target population. From 2006 through 2012, Mr. Gutierrez worked at Comprehensive. According to Ms. Gregie, there is nothing to verify this employment or that it complies with the one year of full-time or equivalent experience working with adults experiencing serious mental illness. However, his employment in Venezuela working with patients with mental illness was verified by Dr. Fuentes. Dr. DeLeon is listed as Mr. Gutierrez' supervisor at Miami Beach Medical Group. He provided a letter of reference for Mr. Gutierrez. Ms. Gregie contacted the Human Resources Department at Miami Beach Medical Group and was told that Mr. Gutierrez was not a "case worker" but rather in Quality Assurance where he reviewed medical records. Also, the dates of employment were different than listed on the resume. On this basis, Ms. Gregie decided Mr. Gutierrez' resume was fraudulent. Ms. Gregie did not contact Dr. DeLeon or the other individuals who provided Mr. Gutierrez with a letter of reference.
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 incorporating the terms of this Recommended Order as follows: All of the disputed employees shall be allowed, and no Medicaid overpayments shall be based on their failure to have the requisite work experience. Petitioner will not apply an administrative sanction against Respondent. Because AHCA is not the prevailing party in this action, it shall not be entitled to recover any of its costs. DONE AND ENTERED this 11th day of April, 2018, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 11th day of April, 2018.
The Issue Whether the Petitioner owes the amount assessed in the Respondent's Final Agency Audit Report for a Medicaid overpayment of $6,487.20.
Findings Of Fact Petitioner was an authorized Medicaid provider during the period of the audit. Petitioner's Medicaid provider number was 376782500. As a Medicaid provider, the Petitioner was obligated to comply with the Medicaid Provider Agreement(s), statutes, rules, and policy guidelines that the Agency uses to govern Medicaid providers. During the audit period of this case, the Petitioner was required to maintain all "Medicaid-related records" to support the Medicaid invoices and claims for which payment was requested of the Agency. In fact, by law the records are to be maintained for a five-year period of time so that the Petitioner would be able to "satisfy all necessary inquiries by the agency." See Section 409.907(3)(c). In this case the Agency computed the overpayment based upon the records submitted by the Petitioner. The Petitioner did not contest the randomness of the clusters applied by the Agency in creating the overpayment amount. The Petitioner billed for the payments in the overpayment amount and received payment from the Agency. The overpayment to Petitioner was originally calculated to be $15,039.05. At hearing the Agency announced the overpayment had been reduced to $6,487.20. Based upon the failure of the Petitioner to appear at hearing and the return of the mail that had been provided to the Petitioner's last known address, the Agency believes the Petitioner is out of business and has relocated to an unknown address.
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 against the Petitioner for a Medicaid overpayment in the amount of $6,487.20, together with reasonable costs incurred in this cause. DONE AND ENTERED this 29th day of September, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 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 September, 2003. COPIES FURNISHED: Rhonda M. Medows, M.D., Secretary Agency for Heath Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Lily Scott Formato Tender Loving Childbirth 10046 Daisy Avenue Palm Beach Gardens, Florida 33410 Debora E. Fridie, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Station No. 3 2727 Mahan Drive, Suite 343 Tallahassee, Florida 32308
