The Issue The central issue in this case is whether the provider, Medilab, was overpaid for medicaid claims as alleged in the letter dated November 3, 1993.
Findings Of Fact The Agency is the state agency responsible for administering the Florida Medicaid program. At all times material to this case, Medilab was a medicaid provider. Medilab enrolled as a physician group provider on or about October 2, 1991. Medilab was not enrolled with the Florida Medicaid program as a diagnostic lab. At all times material to this case, Medilab was owned and operated by Roberto Rodriguez and Jorge Nunez. Mr. Rodriguez handled the administrative duties for Medilab while Mr. Nunez operated the diagnostic portion of the business. Medilab operated several machines for diagnostic evaluations as ordered by a physician. Such machines produced documentation which was then evaluated by another physician. Dr. Carmouze did not perform the service nor interpret the diagnostic results. When Medilab applied for a provider number to enroll in the Medicaid program it represented that services were to be provided by Dr. Arnoldo Carmouze. It was further represented that Dr. Carmouze would treat or supervise treatment of patients on behalf of the Medilab "group." On or about January 11, 1992, Medilab received its group provider number along with a copy of the Medicaid Physician Provider Handbook. Medilab was notified that it could begin billing for services beginning October 2, 1991. Subsequently, the Agency performed an audit of Medilab for the period October 2, 1991 through August 31, 1992. Li-Hsiang Wu, a computer systems project analyst employed by the Agency, generated a random sample of Medicaid recipients by using a computer program to calculate the total number of Medicaid recipients for which claims were submitted during the audit period. Then Medilab's provider number and the dates of the audit were used to generate the total number of Medicaid recipients for whom claims were submitted by Medilab for the audit period. Once the total number of recipients was identified, Ms. Wu generated a list of forty-three recipient numbers which were selected by the computer from the total number claimed by Medilab for the period searched. Mr. Allen then requested and obtained from Medilab the medical records for the same forty-three randomly selected Medicaid recipients. The medical records were first reviewed by Phyllis Stiver, the Agency's registered nurse consultant. Once Ms. Stiver completed her initial review, Mr. Allen requested additional records from Medilab. Specifically, documentation for the office visit and records that established the necessity for the tests performed by Medilab were requested for each of the forty-three recipients. Medilab subsequently submitted additional records to the Agency which were also reviewed by Ms. Stiver. Ms. Stiver determined that based upon her review of the forty-three records, Medilab had violated Medicaid rules and policy as follows: Medilab failed to have all of the medical records signed by a physician and dated; and Medilab failed to document in the medical records to show that certain diagnostic tests were performed. After Ms. Stiver completed her review of the records, Dr. Sullenberger reviewed each of Medilab's medical records for the forty-three patients. Dr. Sullenberger determined, and it is found, that the majority of the tests performed by Medilab were not medically necessary based upon the symptoms documented for each patient, the prior patient histories established by the records, and the absence of other, less expensive testing that would normally be utilized to determine a medical condition. Virtually all of the patient records reviewed recited the same medical complaints: chest pain, shortness of breath, palpitation, numbness or tingling in extremities, and dizziness. Only five of the forty-three patients were over 49 years of age. The ages of the majority of the forty-three were under 50. That age group is rarely afflicted by the types of medical conditions which the Medilab equipment was used to detect. The symptoms and medical histories recited in the medical records did not justify the tests performed by Medilab for the following patients (recipients identified in this record as numbers 1 through 43): 1, 2, 17, 18, 21, 22, 24, 25, 32, 34, 35, 37, 38, and 41. With the exception of the electrocardiogram, the symptoms and medical histories recited in the medical records did not justify the tests performed by Medilab for the following patients (recipients identified in this record as numbers 1 through 43): 3, 4, 5, 6, 7, 9, 11, 12, 13, 15, 16, 19, 20, 23, 26, 27, 29, 30, 31, 33, 36, 39, 40, 42, and 43. With regard to recipient 8, except for the electrocardiogram and the abdominal ultrasound, the tests performed by Medilab were medically unnecessary. With regard to recipient 10, except for the electrocardiogram and the Doppler echocardiogram, the tests performed by Medilab were medically unnecessary. With regard to recipient 14, except for the electrocardiogram and the echocardiogram, the tests performed by Medilab were medically unnecessary. With regard to recipient 28, except for the mammogram, the tests performed by Medilab were medically unnecessary. None of the services or testing performed by Medilab were supervised by a physician. Two physicians, Dr. Pozo and Dr. Pereira, radiologists, read the diagnostic results but were not on site to perform or supervise the tests on a daily basis. Dr. Pozo did not supervise the services that were provided at Medilab. Dr. Pereira, who is deceased and whose testimony was not available, did not supervise the services that were provided at Medilab. According to Mr. Nunez, Dr. Pereira had someone from his office courier the tests results and his interpretations to and from the Medilab facility. Dr. Pereira may have visited the facility on occasion but was not there during its full hours of operation. Dr. Carmouze, the treating physician and representative for Medilab's physician group, did not supervise the services at Medilab. Dr. Carmouze treated over 95 percent of the total patients referred to Medilab yet Dr. Carmouze never billed the Medicaid program for the patients' office visits. For the audit period, of the 493 different patients Medilab billed Medicaid for, Dr. Carmouze is the only treating physician identified by the records. The Medicaid Physician's Handbook, supplied to Medilab at the time of its enrollment, specified that to be reimbursable the services performed by a physician group provider had to be medically necessary and supervised by a physician. The Medicaid Provider Agreement required Medilab to keep complete and accurate medical and fiscal records that fully justify and disclose the extent of the services rendered for five years. All tests performed by Medilab were documented with a physician's order for same. Medilab submitted for review all medical and fiscal records it maintained in its attempt to fully justify and disclose the extent of the services it rendered.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration, Medicaid Program Integrity Office, issue a final order charging Medilab for the full amounts paid for the audit period as the services rendered were not supervised by a physician and were, therefore, not "physician services." Additionally, the Agency should impose an administrative fine in an amount not to exceed $5,000.00. DONE AND RECOMMENDED this 1st day of March, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0096 Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1, 2, 4, 6, and 12 are accepted. Paragraph 3 is rejected as not supported by the weight of credible evidence. Paragraph 5 is rejected as irrelevant. Paragraph 7 is accepted as to the general statement but is rejected as to the amount claimed. Paragraph 8 is rejected as a mischaracterization of testimony; it is accepted Dr. Sullenberger, on further reflection and in an effort to be consistent, gave Medilab the benefit of doubt and modified disallowed items. Paragraph 9 is rejected as irrelevant. Paragraph 10 is rejected as irrelevant. Paragraph 11 is rejected as contrary to weight of credible evidence. Paragraph 13 is rejected as irrelevant or argument. Paragraph 14 is rejected as irrelevant. That Dr. Carmouze never charged for the alleged office visits that generated the referral for tests was the relevant fact. Paragraph 15 is accurate but is irrelevant in light of the stipulation. Rulings on the proposed findings of fact submitted by the Respondent: 1. Paragraphs 1 through 36, 39, 41, 43, 46, 48, 49, 50, 52, and 53 are accepted. Paragraphs 37, 38, 40, 42, and 47 are rejected as argument. Paragraph 44 is rejected as hearsay not supported by direct evidence. Paragraph 45 is rejected as not supported by the weight of credible evidence. With regard to paragraph 51, the first sentence is accepted; the remainder rejected as not supported by the weight of credible evidence. COPIES FURNISHED: Heidi E. Garwood Agency for Health Care Administration 1317 Winewood Boulevard Building B, Room 271 Tallahassee, Florida 32399-0700 Monte K. Rassner Rassner, Rassner, Kramer & Gold, P.A. 7000 Southwest 62nd Avenue, Suite PH-B South Miami, Florida 33143 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue Whether Medicaid overpayments were made to Respondent and, if so, what is the total amount of those overpayments. Whether, as a "sanction," Respondent should be directed to submit to a "comprehensive follow-up review in six months."
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings s of fact are made to supplement and clarify the factual stipulations set forth in the parties' Joint Prehearing Stipulation and their January 26, 2007, pleading:4 Respondent and his Practice Respondent is a pediatric physician whose office is located in a poor neighborhood in Hialeah, Florida. He has a very busy practice, seeing approximately 50 to 60 patients each day the office is open. Respondent documents patient visits by making handwritten notations on printed "progress note" forms. Because of the fast-paced nature of his practice, he does not always "have time to write everything as [he] would like, because [there] is too much" for him to do. Respondent's Participation in the Medicaid Program During the Audit Period, Respondent was authorized to provide physician services to eligible Medicaid patients. Respondent provided such services pursuant to a valid Provider Agreement (Provider Agreement) with AHCA, which contained the following provisions, among others: The Provider agrees to participate in the Florida Medicaid program under the following terms and conditions: * * * Quality of Services. The provider agrees to provide medically necessary services or goods of not less than the scope and quality it provides to the general public. The provider agrees that services or goods billed to the Medicaid program must be medically necessary, of a quality comparable to those furnished by the provider's peers, and within the parameters permitted by the provider's license or certification. The provider further agrees to bill only for the services performed within the specialty or specialties designated in the provider application on file with the Agency. The services or goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim. Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they may be amended from time to time. Term and signatures. The parties agree that this is a voluntary agreement between the Agency and the provider, in which the provider agrees to furnish services or goods to Medicaid recipients. . . . Provider Responsibilities. The Medicaid provider shall: * * * (b) Keep and maintain in a systematic and orderly manner all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical, business, and fiscal records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid. The provider agrees that only records made at the time the goods and services were provided will be admissible in evidence in any proceeding relating to the Medicaid program. * * * (d) Except as otherwise provided by law, the provider agrees to provide immediate access to authorized persons (including but not limited to state and federal employees, auditors and investigators) to all Medicaid- related information, which may be in the form of records, logs, documents, or computer files, and all other information pertaining to services or goods billed to the Medicaid program. This shall include access to all patient records and other provider information if the provider cannot easily separate records for Medicaid patients from other records. * * * (f) Within 90 days of receipt, refund any moneys received in error or in excess of the amount to which the provider is entitled from the Medicaid program. * * * (i) . . . . The provider shall be liable for all overpayments for any reason and pay to the Agency any fine or overpayment imposed by the Agency or a court of competent jurisdiction. Provider agrees to pay interest at 12% per annum on any fine or repayment amount that remains unpaid 30 days from the date of any final order requiring payment to the Agency. * * * Respondent's Medicaid provider number (under which he billed the Medicaid program for providing these services) was (and remains) 370947700. Handbook Provisions The handbooks with which Petitioner was required to comply in order to receive Medicaid payment for services rendered during the Audit Period included the Medicaid Provider Reimbursement Handbook, HCFA-1500 (MPR Handbook); Physician Coverage and Limitations Handbook (PCL Handbook); the Early and Periodic Screening, Diagnosis and Treatment Coverage and Limitations Handbook (EPSDTCL Handbook); and the Child Health Check-up Coverage and Limitations Handbook (CHCUCL Handbook). Medical Necessity The PCL Handbook provided that the Medicaid program would reimburse physician providers for services "determined [to be] medically necessary" and not duplicative of another provider's service, and it went on to state as follows: In addition, the services must meet the following criteria: the services must be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient's needs; the services cannot be experimental or investigational; the services must reflect the level of services that can be safely furnished and for which no equally effective and more conservative or less costly treatment is available statewide; and the services must be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a covered services. Note See Appendix D, Glossary, in the Medicaid Provider Reimbursement Handbook, HCFA-1500 and EPSDT 224, for the definition of medically necessary.[5] The EPSDTCL and CHCUCL Handbooks had similar provisions. Documentation Requirements The MPR Handbook required the provider to keep "accessible, legible and comprehensible" medical records that "state[d] the necessity for and the extent of services" billed the Medicaid program and that were "signed and dated at the time of service." The handbook further required, among other things, that the provider retain such records for "at least five years from the date of service" and "send, at his or her expense, legible copies of all Medicaid-related information to the authorized state and federal agencies and their authorized representatives." The MPR Handbook warned that providers "not in compliance with the Medicaid documentation and record retention policies [described therein] may be subject to administrative sanctions and recoupment of Medicaid payments" and that "Medicaid payments for services that lack required documentation or appropriate signatures will be recouped." EPSDT Screening/Child Health Check-Up The EPSDTCL Handbook provided: To be reimbursed by Medicaid, the provider must address and document in the recipient's medical record all the required components of an EPSDT screening. The following required components are listed in the order that they appear on the optional EPSDT screening form: Health and developmental history Nutritional assessment Developmental assessment Physical examination Dental screening Vision screening Hearing screening Laboratory tests Immunization Health education Diagnosis and treatment The CHCUCL Handbook, which replaced the EPSDTCL Handbook in or around May 2000, similarly provided as follows: To be reimbursed by Medicaid, the provider must assess and document in the child's medical record all the required components of a Child Health Check-Up. The required components are as follows: Comprehensive Health and Developmental History, including assessment of past medical history, developmental history and behavioral health status; Nutritional assessment; Developmental assessment; Comprehensive Unclothed Physical Examination Dental screening including dental referral, where required; Vision screening including objective testing, where required; Hearing screening including objective testing, where required; Laboratory tests including blood lead testing, where required; Appropriate immunizations; Health education, anticipatory guidance; Diagnosis and treatment; and Referral and follow-up, as appropriate. Coding Chapter 3 of the PCL Handbook "describe[d] the procedure codes for the services reimbursable by Medicaid that [had to be] used by physicians providing services to eligible recipients." As explained on the first page of this chapter of the handbook: The procedure codes listed in this chapter [were] Health Care Financing Administration Common Procedure Coding System (HCPCS) Levels 1, 2 and 3. These [were] based on the Physician[]s['] Current Procedural Terminology (CPT) book. The Current Procedural Terminology (CPT) book referred to in Chapter 3 of the PCL Handbook was a publication of the American Medical Association. It contained a listing of procedures and services performed by physicians in different settings, each identified by a "procedure code" consisting of five digits or a letter followed by four digits. For instance, there were various "procedure codes" for office visits. These "procedure codes" included the following, among others: New Patient * * * 99204 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: a comprehensive history; a comprehensive examination; and medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. * * * Established Patient * * * 99213 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: an expanded problem focused history; an expanded problem focused examination; medical decision making of low complexity. Counseling and coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. 99214 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a detailed history; a detailed examination; medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. * * * Fee Schedules In Appendix J of the PCL Handbook, there was a "fee schedule," which established the amount physicians would be paid by the Medicaid program for each reimbursable procedure and service (identified by "procedure code"). For both "new patient" office visits (99201-99205 "procedure code" series) and "established patient" office visits (99211-99215 "procedure code" series), the higher numbered the "procedure code" in the series, the more a physician would be reimbursed under the "fee schedule." The Audit and Aftermath Commencing in or around August 2002, AHCA conducted an audit of Respondent's Medicaid claims for services rendered during the Audit Period (Audit Period Claims).6 Respondent had submitted 18,102 such Audit Period Claims, for which he had received payments totaling $596,623.15. These Audit Period Claims involved 1,372 different Medicaid patients. From this group, AHCA randomly selected a "cluster sample" of 40 patients. Of the 18,102 Audit Period Claims, 713 had been for services that, according to the claims, had been provided to the 40 patients in the "cluster sample" (Sample Claims). Respondent had received a total of $23,263.18 for these 713 Sample Claims. During an August 28, 2002, visit to Respondent's office, AHCA personnel "explain[ed] to [Respondent] what the audit was about [and] why [AHCA] was doing it" and requested Respondent to provide AHCA with copies of the medical records Respondent had on file for the 40 patients in the "cluster sample" documenting the services provided to them during the Audit Period. The originals of these records were not inspected by AHCA personnel or agents during, or any time after, this August 28, 2002, site visit. Sometime within approximately 30 to 45 days of the August 28, 2002, site visit, Respondent, through his office staff, made the requested copies (First Set of Copies) and provided them to AHCA. There is nothing on the face of these documents to suggest that they were not true, accurate, and complete copies of the originals in Respondent's possession, as they existed at the time of copying (Copied Originals). They do not appear, upon visual examination, to be the product of "bad photocopying." While the handwritten entries and writing are oftentimes difficult (at least for the undersigned) to decipher, this is because of the poor legibility of the handwriting, not because the copies are faint or otherwise of poor quality. Each of the Sample Claims was reviewed to determine whether it was supported by information contained in the First Set of Copies. An initial review was conducted by AHCA Program Analyst Theresa Mock and AHCA Registered Nurse Consultant Blanca Notman. AHCA then contracted with Larry Deeb, M.D., to conduct an independent "peer review" in accordance with the provisions of Section 409.9131, Florida Statutes. Since 1980, Dr. Deeb has been a Florida-licensed pediatric physician, certified by the American Board of Pediatrics, in active practice in Tallahassee. AHCA provided Dr. Deeb with the First Set of Copies, along with worksheets containing a "[l]isting of [a]ll claims in [the] sample" on which Ms. Notman had made handwritten notations indicating her preliminary determination as to each of the Sample Claims (Claims Worksheets). In conducting his "peer review," Dr. Deeb did not interview any of the 40 patients in the "cluster sample," nor did he take any other steps to supplement the information contained in the documents that he was provided. Dr. Deeb examined the First Set of Copies. He conveyed to AHCA his findings regarding the sufficiency of these documents to support the Sample Claims by making appropriate handwritten notations on the Claims Worksheets before returning them to AHCA. Based on Dr. Deeb's sufficiency findings, as well as Ms. Notman's "no documentation" determinations, AHCA "provisional[ly]" determined that Respondent had been overpaid a total $80,788.23 for the Audit Period Claims. By letter dated July 7, 2003 (Provisional Agency Audit Report), AHCA advised Petitioner of this "provisional" determination and invited Respondent to "submit further documentation in support of the claims identified as overpayment," adding that "[d]ocumentation that appear[ed] to be altered, or in any other way appear[ed] not to be authentic, [would] not serve to reduce the overpayment." Appended to the letter were "[t]he audit work papers [containing a] listing [of] the claims that [were] affected by this determination." In the Provisional Agency Audit Report, AHCA gave the following explanation as to how it arrived at its overpayment determination: REVIEW DETERMINATION(S) Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office visits. The documentation you provided supports a lower level of office visit than the one for which you billed and received payment. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some services for which you billed and received payment were not documented. Medicaid requires documentation of the services and considers payment made for services not appropriately documented an overpayment. Medicaid policy addresses specific billing requirements and procedures. You billed Medicaid for Child Health Check Up (CHCUP) services and office visits for the same child on the same day. Child Health Check- Up Providers may only bill for one visit, a Child Health Check-Up or a sick visit. The difference between the amount you were paid and the appropriate fee is considered an overpayment. The overpayment was calculated as follows: A random sample of 40 recipients respecting whom you submitted 713 claims was reviewed. For those claims in the sample which have dates of service from January 01, 2000 through December 31, 2001 an overpayment of $4,168.00 or $5.84667601 per claim was found, as indicated on the accompanying schedule. Since you were paid for a total (population) of 18,102 claims for that period, the point estimate of the total overpayment is 18,102 x $5.84667601= $105,836.33. There is a 50 percent probability that the overpayment to you is that amount or more. There was then an explanation of the "statistical formula for cluster sampling" that AHCA used and how it "calculated that the overpayment to [Respondent was] $80,788.23 with a ninety-five percent (95%) probability that it [was] that amount or more." After receiving the Provisional Agency Audit Report, Respondent requested to meet with Dr. Deeb to discuss Dr. Deeb's sufficiency findings. The meeting was held on September 25, 2003, approximately six months after Dr. Deeb had reviewed the First Set of Copies and a year after AHCA had received the First Set of Copies from Respondent. At the meeting, Respondent presented to Dr. Deeb what Respondent represented was a better set of copies of the Copied Originals than the First Set of Copies (on which Dr. Deeb had based the sufficiency findings AHCA relied on in making its "provisional" overpayment determination). According to Respondent, the First Set of Copies "had not been properly Xeroxed." He stated that his office staff "had not copied the back section of the documentation and that was one of the major factors in the documentation not supporting the [claimed] level of service." The copies that Respondent produced at this meeting (Second Set of Copies) had additional handwritten entries and writing (both on the backs and fronts of pages) not found in the First Set of Copies: the backs of "progress note" pages that were completely blank in the First Set of Copies contained handwritten narratives, and there were handwritten entries and writing in numerous places on the fronts of these pages where, on the fronts of the corresponding pages in the First Set of Copies, just blank, printed lines appeared (with no other discernible markings). The Second Set of Copies was not appreciably clearer than the First Set of Copies. In the two hours that he had set aside to meet with Respondent, Dr. Deeb only had time to conduct a "quick[]," partial review of the Second Set of Copies. Based on this review (which involved looking at documents concerning approximately half of the 40 patients in the "cluster sample"), Dr. Deeb preliminarily determined to "allow" many of the Sample Claims relating to these patients that he had previously determined (based on his review of the First Set of Copies) were not supported by sufficient documentation. Following this September 25, 2003, meeting, after comparing the Second Set of Copies with the First Set of Copies and noting the differences between the two, AHCA "made the decision that [it] would not accept the [S]econd [S]et [of Copies]" because these documents contained entries and writing that appeared to have been made, not contemporaneously with the provision of the goods or services they purported to document (as required), but rather after the post-Audit Period preparation of the First Set of Copies. Instead, AHCA, reasonably, based its finalized overpayment determination on the First Set of Copies. Thereafter, AHCA prepared and sent to Respondent a Final Agency Audit Report, which was in the form of a letter dated June 29, 2004, advising Respondent that AHCA had finalized the "provisional" determination announced in the Provisional Agency Audit that he had been overpaid $80,788.23 for the Audit Period Claims (a determination that the preponderance of the record evidence in this case establishes is a correct one).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Respondent received $80,788.23 in Medicaid overpayments for the Audit Period Claims, and requiring Respondent to repay this amount to AHCA. DONE AND ENTERED this 30th day of April, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2007.
Findings Of Fact The Agency for Health Care Administration (Agency) is the successor to the Department of Health and Rehabilitative Services as the single state agency responsible for the administration of the Medicaid program in the State of Florida. The Agency is required to operate a program to oversee the activities of Medicaid providers and is authorized to seek recovery of Medicaid overpayments to providers pursuant to Section 409.913, Florida Statutes. The division of the Agency responsible for the oversight of Medicaid providers is referred to as Medicaid Program Integrity. On October 10, 1985, the Petitioner, Billy Beeks, M.D., (Provider) executed a Medicaid Provider Agreement which provided, in pertinent part, as follows: The provider agrees to keep complete and accurate medical and fiscal records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program . . . . The provider agrees to submit Medicaid claims in accordance with program policies and that payment by the program for services rendered will be based on the payment methodology in the applicable Florida Administrative Rule. . 8. The provider and the Department agree to abide by the provisions of the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. Among the "manuals of the Florida Medicaid Program" referenced in paragraph 8 of the provider agreement was the Medicaid Physician Provider Handbook (hereinafter referred to as the "MPP Handbook"). Chapter 10 of the MPP Handbook addressed the subject of "provider participation." At the times pertinent to this proceeding Section 9 of Chapter 10 included the following: RECORD KEEPING You must retain physician records on services provided to each Medicaid recipient. You must also keep financial records. Keep the records for five (5) years from the date of service. Examples of the types of Medicaid records that must be retained are: Medicaid claim forms and any documents that are attached, treatment plans, prior authorization information, any third party claim information, x-rays, fiscal records, and copies of sterilization and hysterectomy consents. Medical records must contain the extent of services provided. The following is a list of minimum requirements: history, physical examination, chief complaint on each visit, diagnostic tests and results, diagnosis, a dated, signed physician order for each service rendered, treatment plan, including prescriptions for medications, supplies, scheduling frequency for follow-up or other services, signature of physician on each visit, date of service, anesthesia records, surgery records, copies of hospital and/or emergency records that fully disclose services, and referrals to other services. If time is a part of the procedure code prescription being billed, then duration of visit shown by begin time and end time must be included in the record. . Medicaid payments are based on billing codes and levels of services provided. In setting the appropriate billing to Medicaid, the level of service is determined pursuant to the MPP Handbook. At all times pertinent to this proceeding Section 1 of Chapter 11 of the MPP Handbook included the following pertaining to "covered services and limitations": HCPCS CODES and ICD-9-CM CODES Procedure codes listed in Chapter 12 are HCPCS (Health Care Financing Administration Common Procedure Coding System) codes. These are based on the Physician's Current Procedural Terminology, Fourth Edition. Determine which procedure describes the service rendered and enter that code and description on your claim form. HCPCS codes described as "unlisted" are used when there is no procedure among those listed that describes the service rendered. Physician's Current Procedural Terminology, Fourth Edition, Copyright . . . by the American Medical Association (CPT-4) is a listing of descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures performed by physicians. The Health Care Financing Administration Common Procedure Coding System (HCPCS) includes CPT-4 descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures and other materials contained in CPT-4 which are copyrighted by the American Medical Association. The Diagnosis Codes to be used are found in the International Classification of Diseases, 9th edition, Clinical Modifications (ICD-9- CM). A diagnosis code is required on all physician claims. Use the most specific code available. Fourth and fifth digits are required when available. All billings pertinent to this proceedings are for patient office visits. Prior to amendments effective January 1, 1992, the MPP also provided in Section 1, Chapter 11, for six levels of service associated with the office visit procedure code. These levels of service, in ascending order of complexity, are "Minimal, "Brief", "Limited", "Intermediate", "Extended", and "Comprehensive". The least amount paid by Medicaid to a provider was for a "Minimal" level office visit. The level of payment immediately above the "Minimal" level were the "Brief" and "Limited" levels, which entitled a provider to the same payment. Immediately above the "Brief" and "Limited" levels, in ascending order of payment, were "Intermediate", "Extended", and "Comprehensive". Section 1, Chapter 11 of the MPP contained the following discussion of the six levels of service: There are six levels of service associated with the visit procedure codes. They require varying skills, effort, responsibility, and medical knowledge to complete the examination, evaluation, diagnosis, treatment and conference with the recipient about his illness or promotion of optimal health. These levels are: Minimal is a level of service supervised by a physician. Brief is a level of service pertaining to the evaluation and treatment of a condition requiring only an abbreviated history and exam. Limited is a level of service used to evaluate a circumscribed acute illness or to periodically reevaluate a problem including a history and examination, review of effectiveness of past medical management, the ordering and evaluation of appropriate diagnostic tests, the adjustments of therapeutic management as indicated and discussion of findings. Intermediate level of service pertains to the evaluation of a new or existing condition complicated with a new diagnostic or management problem, not necessarily related to the primary diagnosis, that necessitates the obtaining of pertinent history and physical or mental status findings, diagnostic tests and procedures, and ordering appropriate therapeutic management; or a formal patient, family or a hospital staff conference regarding the patient's medical management and progress. Extended level of service requires an unusual amount of effort or judgment including a detailed history, review of medical records, examination, and a formal conference with the patient, family, or staff; or a comparable medical diagnostic and/or therapeutic service. Comprehensive level of service provides for an in-depth evaluation of a patient with a new or existing problem requiring the development or complete reevaluation of medical data. This service includes the recording of a chief complaint, present illness, family history, past medical history, personal review, system review, complete physical examination, and ordering appropriate tests and procedures. Chapter 11 of the MPP was amended, effective January 1, 1992. Instead of the six levels of service for office visits, five levels of service, referred to as "evaluation and management" (E/M) service codes were adopted. The E/M levels of service levels ranged from Level 1 to Level 5 in ascending order of complexity and payment. 1/ Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion as to the development of the E/M service codes: The American Medical Association, in cooperation with many other groups, replaced the old "visit" codes with the new "evaluation and management" (E/M) service codes in the 1992 CPT. This is a result of the Physician Payment Reform which requires the standardization of policies and billing practices nationwide to ensure equitable payment for all services. The new E/M codes are a totally new concept for identifying services in comparison to the old visit codes. They are more detailed and specific to the amount of work involved. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides that the level of E/M codes are defined by the following seven components: Extent of History, Extent of Examination, and Complexity of Medical Decision- Making, Counseling, Coordination of Care, Nature of Presenting Problem, and time. 2/ After determining whether the office visit is for a new or established patient, Section 1, Chapter 11 of the MPP, as amended January 1, 1992, instructs the provider to determine the level of E/M services by taking into consideration the following three key components: Extent of History, Extent of Examination, and Complexity of Medical Decision-making. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion under the subheading "Extent of History": There are four types of history which are recognized: 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; extended system review; pertinent past, family and/or social history. Comprehensive - chief complaint; extended history of present illness; complete system review; complete past, family and social history. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion under the subheading "Extent of Examination": There are four types of examinations which are recognized: Problem Focused - an examination that is limited to the affected body area or organ system. Expanded Problem Focused - an examination of the affected body area or organ system and other symptomatic or related organ systems. Detailed - an extended examination of the affected body area(s) and other symptomatic or related organ system(s) Comprehensive - a complete single system speciality examination or a complete multisystem examination. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion under the subheading "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 following factors: 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. The risk of significant complications morbidity and/or mortality, as well as co- morbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options. There are four types of medical decision- making which are recognized: straightforward, low complexity, moderate complexity, and high complexity. 3/ Rule 10C-7.047, Florida Administrative Code, 4/ pertains to the Early and Periodic Screening, Diagnosis and Treatment Program (EPSDT), and provides, in pertinent part, as follows: Purpose. EPSDT is a comprehensive, preventive health care program for Medicaid- eligible children under age 21 that is designed to identify and correct medical conditions before the conditions become serious and disabling. Medicaid provides payment for EPSDT which allows entry into a health care system, access to a medical home (sic) and preventive/well child care on a regular basis. This periodic medical screening includes a health and developmental history, an unclothed physical examination, nutritional assessment, developmental assessment, laboratory tests, immunizations, health education, dental, vision and hearing screens, and an automatic dental referral for children age 3 and over. A billing for an EPSDT screening is compensated by Medicaid at a rate that is higher than the rate for a Limited or Level 2 office visit. A provider must document all components of the EPSDT screening in order to be entitled to payment for the screening. If all components of the EPSDT screening are not documented by a provider's records, Medicaid compensates the provider for a Limited or Level 2 office visit since the provider would have made sufficient contact with the recipient to justify that billing level. When conducting an audit of a provider's billings to the Medicaid program, employees of Medicaid Program Integrity review the provider's medical records to determine whether the level of services billed are justified by the medical records. Medical records must contain sufficient documentation to substantiate that the recipient received necessary medical services at the level billed by the provider. A routine urinalysis performed during the course of an office visit should be billed as part of the office visit and not billed as a separate service. Vicki Divens, a registered nurse, is a consultant employed by the Agency and was administratively responsible for the audit of the Provider's medical records. She conducted this audit pursuant to the Agency's rules and policies. Ms. Divens obtained a report from Consultec, the Agency's fiscal agent, that provides identifying information as to all services that were billed to Medicaid by the Provider for the audit period of June 1, 1991, through May 30, 1993. This computer report reflects the date that each service was billed to Medicaid by the Provider, the name and Medicaid number of each recipient of the service, the codes which are used to describe the procedure of the service billed, the level of the service, the amount paid to the Provider, and the date of payment. For the audit period, there were a total of 1,712 Medicaid recipients who received services from the Provider, there were 9,054 separate billings for services to recipients, and there was a total of $259,305.01 paid by Medicaid to the Provider. The Agency is authorized 5/ to employ a statistical methodology to calculate the amount of overpayment due from a provider where there has been overstated billings. The methodology used by the Agency is a form of cluster sampling that is widely accepted and produces a result that is recognized as being statistically accurate. For the audit that is the subject of this proceeding, the Agency determined that 23 patient files would be the number of files necessary for the statistical analysis. The Agency established that sampling was adequate to perform the statistical analysis. The 23 recipients whose medical records would be analyzed were thereafter selected on a completely random basis. Ms. Divens obtained from the Provider the medical records for the 23 patients that had been randomly selected for analysis. A total of 141 separate billings had been made for these 23 recipients during the audit period and each of those billings had been paid to the Provider by the Medicaid program. The medical records for the 23 recipients were thereafter reviewed by Dr. John Sullenberger, the Florida Medicaid Program's Chief Medical Consultant, who made the determination as to whether the medical records in the sampling justified the level at which Medicaid had been billed for each of the services. Based on the overbillings found in the sampling, the Agency calculated an estimate of the overpayment for all Medicaid billings during the audit period by using a formula that is recognized as producing a statistically accurate result. When Dr. Sullenberger initially reviewed the Provider's medical records, several of the medical files for recipients in the sampling had not been located. Without these records to substantiate the billings for these patients, no credit was given for those services. The amount of the alleged overpayment for all recipients during the audit period was initially calculated to be $60,753.25, which is the amount claimed in the Agency's final audit report letter dated December 13, 1993. Thereafter additional records were furnished to the Agency by the Provider and the alleged overpayment was recalculated to be $50,852.86, which is the amount the Agency asserted as being the amount of the overpayment at the beginning of the formal hearing. 5/ The following findings are made as to the billings that were in dispute at the formal hearing. The date of birth is given for each recipient to help identify the recipient. For office visits before January 1, 1992, the level of services are described as being "Minimal," "Brief," "Limited," "Intermediate," "Extended," or "Comprehensive." For office visits after January 1, 1992, the level of services are described as being Level 1, Level 2, Level 3, Level 4, or Level 5. Patient 1 was born January 22, 1989. There were four billings for this patient at issue in this proceeding. On November 19, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 29, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 7, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 21, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 2 was born September 29, 1985. There were five billings for this patient at issue in this proceeding. On August 31, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On September 3, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 25, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 7, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 26, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 3 was born May 9, 1985. There were two billings for this patient at issue in this proceeding. On May 22, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On January 20, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 4 was born March 20, 1968. There was one billing for this patient at issue in this proceeding. A. On July 25, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 5 was born April 28, 1988. There were three billings for this patient at issue in this proceeding. On August 30, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 14, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate level. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 3, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 6 was born February 7, 1987. There was one billing for this patient at issue in this proceeding. A. On August 30, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 7 was born February 25, 1987. There were two billings for this patient at issue in this proceeding. On August 30, 1991, the Provider billed Medicaid for an EPSDT for this patient and he also billed for a urinalysis. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level and that the billing for the urinalysis should be included as part of the Limited level office visit. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 8 was born July 11, 1988. There were three billings for this patient at issue in this proceeding. On September 10, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level and he billed separately for an urinalysis for this patient during this visit. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate and that the urinalysis should be included in this billing. The Provider received an overpayment from the Medicaid program as a result of this billing. On March 23, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 9 was born January 9, 1989. There were four billings for this patient at issue in this proceeding. On August 23, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 15, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 20, 1992, the Provider billed Medicaid for services rendered to this patient at Level Four. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level Two. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 21, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level Two. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 10 was born August 30, 1988. There were three billings for this patient at issue in this proceeding. On September 4, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited Level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 14, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited Level. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 21, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level Two. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 11 was born September 17, 1989. There were fifteen billings for this patient at issue in this proceeding. On June 3, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On June 14, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 6, 1991, the Provider billed Medicaid for services rendered to this patient at the Intermediate level. Dr. Leterman was of the opinion that the medical records justified the Intermediate level billing (Leterman deposition, page 30), but Dr. Sullenberger testified the billing should be at the Limited level (Transcript, page 171). This conflict is resolved by finding that the medical records justify this billing at the Intermediate level so that no adjustment is necessary. On July 15, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 20, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 5, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 20, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 30, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On November 25, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate level. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 27, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. (See, Leterman deposition, page 34) On January 28, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 25, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 7, 1992, the Provider billed Medicaid for services rendered to this patient at Level 3. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 9, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On May 3, 1993, the Provider billed Medicaid for services rendered to this patient at Level 3. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 12 was born July 12, 1970. There were four billings for this patient at issue in this proceeding. On January 3, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On January 13, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 3, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On March 10, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 13 was born August 22, 1990. There was one billing for this patient that was initially at issue in this proceeding. On August 22, 1990, the Provider billed Medicaid for an EPSDT for this patient. When Dr. Sullenberger, the Agency's expert, initially reviewed the Provider's medical records pertaining to this billing, he thought that the billing should be reduced to a Limited level office visit. The amount of overpayment claimed by the Agency at the beginning of the formal hearing was based on this billing being at a Limited level. At the formal hearing, Dr. Sullenberger testified that on further consideration, he believed that the medical records justified this billing as an EPSDT, so that no adjustment was necessary. Based on his testimony, it is found the medical records maintained by the Provider justify this billing and no adjustment is necessary. Patient 14 was born October 23, 1990. There were nine billings for this patient at issue in this proceeding. On September 27, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 11, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 21, 1991, the Provider billed Medicaid for services rendered to this patient at the Intermediate level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 17, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On January 31, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On May 19, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On June 4, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 7, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On May 7, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 15 was born November 9, 1990. There was one billing for this patient at issue in this proceeding. A. On September 24, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 16 was born September 14, 1991. There were two billings for this patient at issue in this proceeding. On March 13, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On March 1, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 17 was born February 9, 1992. There were two billings for this patient at issue in this proceeding. On November 7, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On November 25, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. When Dr. Sullenberger, the Agency's expert, initially reviewed the Provider's medical records pertaining to this billing, he thought that the billing should be reduced to a Level 2 office visit. The amount of overpayment claimed by the Agency at the beginning of the formal hearing was based on this billing being at Level 2. At the formal hearing, Dr. Sullenberger testified that on further consideration, he believed that the medical records justified this billing at Level 3. Based on that testimony, it is found that this billing should have been at the Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 18 was born July 6, 1992. There were six billings for this patient at issue in this proceeding. On August 12, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 17, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and than this billing should have been at Level 4. 6/ The Provider received an overpayment from the Medicaid program as a result of this billing. On September 18, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 9, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and than this billing should have been at Level 3. 7/ The Provider received an overpayment from the Medicaid program as a result of this billing. On November 5, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 18, 1992, the Provider billed Medicaid for services rendered to this patient at the Level 5. When Dr. Sullenberger, the Agency's expert, initially reviewed the Provider's medical records pertaining to this billing, he thought that the billing should be reduced to a Level 2 office visit. The amount of overpayment claimed by the Agency at the beginning of the formal hearing was based on this billing being at Level 2. At the formal hearing, Dr. Sullenberger testified that on further consideration, he believed that the medical records justified this billing at Level 3. Based on the testimony of Dr. Sullenberger and that of Dr. Leterman, it is found that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 19 was born June 12, 1989. There was one billing for this patient at issue in this proceeding. A. On February 9, 1993, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 20 was born May 18, 1987. There was one billing for this patient at issue in this proceeding. A. On July 27, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 21 was born April 27, 1988. There were four billings for this patient at issue in this proceeding. On January 12, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 17, 1993, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. March 8, 1993, the Provider billed Medicaid for services rendered to this patient at the Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 16, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 22 was born August 10, 1992. There were three billings for this patient at issue in this proceeding. On December 28, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 9, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 22, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 23 was born May 23, 1993. There was one billing for this patient at issue in this proceeding. A. On May 26, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3 The Provider received an overpayment from the Medicaid program as a result of this billing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order that adopts the findings of fact and conclusions of law contained herein and that the Agency recalculate the total amount of the overpayment during the audit period based on the findings of fact contained herein. DONE AND ENTERED this 23rd day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1995.
The Issue The issue in this case is whether the parties’ agreement in paragraph 9 of the Medicaid Provider Agreement was to allow for arbitrary and capricious termination without cause.
Findings Of Fact On October 10, 1995, the Petitioner, Food With A Flair, Inc., entered into a Non-Institutional Professional and Technical Medicaid Provider Agreement (the Provider Agreement) with the Respondent, the Agency for Health Care Administration (the AHCA). Through this Provider Agreement, the Petitioner became a participant in the Florida Medicaid Program administered by the AHCA. The Petitioner’s role in the Program was to provide meals for the Program’s HIV clients. The Provider Agreement had 12 numbered paragraphs, 8 and 9 of which stated: The provider and the Agency agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The agreement may be terminated upon thirty days written notice by either party. The Agency may terminate this agreement in accordance with Chapter 120, F.S. During the time the Petitioner was providing meals under the Provider Agreement, the AHCA received complaints about the meals being provided by the Petitioner and the manner in which the Petitioner’s meals and services were being provided. Although the complainants have not been identified, some may have been competitors of the Petitioner, and some were anonymous. The AHCA investigated the complaints and decided that, if true, they were serious enough to warrant termination of the Petitioner’s Provider Agreement. However, the AHCA chose not to terminate the Petitioner’s Provider Agreement for cause out of concern that the release of the identity of some of the Program’s HIV clients would result, in violation of their legal rights to confidentiality. For that reason, the AHCA chose to terminate the Petitioner’s Provider Agreement without cause. The AHCA’s Notice of Termination issued on November 25, 1996, not only purported to terminate the Petitioner’s Provider Agreement “thirty days from receipt of this notice,” it also gave the Petitioner notice that it had “the right to request a hearing pursuant to Section 120.57, Florida Statutes.” The Provider Agreement was drafted by Unisys Corporation in consultation with the AHCA’s General Counsel. It is a form agreement, and the terms were not negotiable by the Petitioner. If the Petitioner wanted to participate in the Program, it had to accept the form agreement. The Provider Agreement was signed by Thomas Barcia as president/director of the Petitioner and by W. A. Hardy, Jr., apparently an employee of Unisys, on behalf of the AHCA. Neither Hardy nor the AHCA’s General Counsel testified at final hearing. Neither of the AHCA’s two witnesses could testify as to the meaning of the Provider Agreement, particularly paragraphs 8 and 9. Thomas Barcia testified that he understood the Provider Agreement to mean that the Petitioner could terminate on thirty days notice but that termination by the AHCA also had to be fair and for just cause and subject to due process; otherwise, he thought the Provider Agreement was to last for five years, or for as long as the Petitioner’s services were needed. In support of the Petitioner’s interpretation of the Provider Agreement, Barcia pointed to paragraph 1 of the Provider Agreement, which required the Petitioner to “keep for 5 years complete and accurate medical and fiscal records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program . . .” Barcia also testified that he and others made investments in the Petitioner’s business that would not have been made had they known that the AHCA could terminate the Provider Agreement without cause. He testified that major personal and corporate financial hardships would befall him and the Petitioner if the AHCA terminated the Provider Agreement on 30 days notice, including defaults on building and vehicle leases; he testified that personal and corporate bankruptcy could result.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the AHCA enter the final order reinstating the Petitioner’s Medicaid Provider Agreement without prejudice to possible proceedings to terminate the Provider Agreement for cause. RECOMMENDED this 16th day of June, 1997, at Tallahassee, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1997. COPIES FURNISHED: Gordon Scott, Esquire Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 R. Jeffrey Stull, Esquire Daniel R. Kirkwood, Esquire 602 South Boulevard Tampa, Florida 33606 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
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£ day of 1=4f=-----·' 2009, m Tallahassee, Florida. r Agency for Health Care Administration 1 Filed July 7, 2009 1:19 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: L. William Porter II, Esquire Agency for Health Care Administration (Laserfiche) Lewis W. Fishman, Esquire 2 Datran Center 9130 S. Dadeland Boulevard, Suite 1121 Miami, Florida 33156-7848 (U.S. Mail) June C. McKinney Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Ken Yon, Bureau Chief, Medicaid Program Integrity Diana Coumbe, Medicaid Program Integrity Finance and Accounting 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 3
