The Issue The issue for determination is whether Petitioner was overpaid by the Medicaid program as indicated in Respondent's Final Agency Audit Report dated June 20, 2001.
Findings Of Fact Dr. Henson was an authorized Medicaid provider during the audit period of January 1, 1998 through September 30, 2000.1 During the audit period, Dr. Henson had been issued Medicaid provider number 0467243-00.2 No dispute exists that, during the audit period, Dr. Henson had a valid Medicaid Provider Agreement(s) with AHCA.3 During the audit period, Dr. Henson was employed by Latin Quarter Medical Center, located at 855 Southwest 8th Street, Miami, Florida, at which he treated Medicaid recipients. Dr. Henson had been a surgeon but had suffered a stroke in December 1997, which caused him to be incapable of continuing to practice as a surgeon. He agreed to become employed with Latin Quarter Medical Center to work at its new clinic and to receive compensation for his services every two weeks. Latin Quarter Medical Center's patients were suffering from AIDS. Dr. Henson agreed to several terms and conditions in executing a Medicaid Provider Agreement (Agreement) with AHCA. Those terms and conditions included the following: Quality of Service. The provider agrees to provide medically necessary services or goods . . . agrees that services and goods billed to the Medicaid program must be medically necessary . . . The services and 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, regulation, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they may be amended from time to time. Term and signatures This provider agreement . . . shall remain in effect until July 1, 1999, unless otherwise terminated. . . . Provider Responsibilities. The Medical provider shall: * * * (b) Keep and maintain . . . 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 . . . records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid. . . . The Agreement was signed by Dr. Henson in 1996. In a Noninstitutional Professional and Technical Medicaid Provider Agreement, Dr. Henson agreed to terms and conditions including the following: The provider agrees to keep complete and accurate medical . . . records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program . . . . The provider agrees that services or goods billed to the Medicaid program must be medically necessary . . . and the services and goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting a claim. 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 [Department of Health and Rehabilitative Services] 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. The Agreement was signed by Dr. Henson in 1988. AHCA audited certain of Dr. Henson's Medicaid claims pertaining to services rendered between January 1, 1998 and September 30, 2000. By Preliminary Agency Audit Report (PAAR) dated April 12, 2001, AHCA notified Dr. Henson that, after a physician consultant with a specialty in infectious disease reviewed the Medical claims and medical records provided by Dr. Henson, a preliminary determination was made that certain claims in the amount of $124,556.83 were not covered by Medicaid. After the issuance of the PAAR, no further documentation was submitted by Dr. Henson to AHCA. As a result, AHCA issued a FAAR dated June 20, 2001, upholding the overpayment of $124,556.83. The FAAR indicated, among other things, that the documentation provided by Dr. Henson supported a lower level of office visit than the one billed and for which payment was received and, therefore, the difference between the payment for the appropriate level of service and the amount actually paid was an overpayment; that some of Dr. Henson's medical records failed to contain documentation for services which were billed and for which payment was made and, therefore, the payments for the inappropriate documentation was an overpayment; that some of the services rendered were inappropriately coded and the difference between payment for the proper code and the inappropriate code was an overpayment; and that some of the services for which billing was made and payment received were not medically necessary and those services were disallowed and were, therefore, an overpayment. The FAAR further provided how the overpayment was calculated, indicating, among other things, that a sample of 30 recipients of the 2936 claims submitted by Dr. Henson were reviewed for the period from January 1, 1998 through September 30, 2000; that a statistical formula for cluster sampling, with the formula being presented, was used; that the statistical formula was generally accepted; and that the statistical formula showed an overpayment in the amount of $124,556.83, with a 95 percent probability of correctness. The majority of the overpayment was due to denied claims for intravenous infusions of multi-vitamins, epogen and nupogen to adult HIV/AIDS patients. AHCA's representative primarily responsible for handling the audit of Dr. Henson was Sharon Dewey, a registered nurse employed in the Medicaid Program Integrity (MPI) division of AHCA. Nurse Dewey conducted an audit of Medicaid payments only under Dr. Henson's Medicaid Provider number. An on-site visit of Dr. Henson's office was made by Nurse Dewey. During the on-site visit, she provided Dr. Henson with a questionnaire, which was completed by her and signed by Dr. Henson, and which indicated that Dr. Henson was the only Medicaid Provider at the office at which he was located, Latin Quarter Medical Center, 855 Southwest 8th Street, Miami, Florida. At the on-site visit, Dr. Henson provided all of the medical documentation and medical recipient records for the audit period involved. All the Medicaid claims for the medical recipients were paid Medicaid claims originating only from Dr. Henson's Medical Provider number. Dr. Henson made available and provided to AHCA or AHCA's representatives any and all required Medicaid-related records and information pertaining to the audit that he had in his possession.4 He never refused to allow access to the records or information. Having received the medical recipient records from Dr. Henson, Nurse Dewey organized the records by patient names and dates of service and provided them to Dr. Joseph W. Shands, Jr., along with a worksheet for the audited claims for each patient. Dr. Shands is an expert in infectious diseases and the treatment and management of AIDS and HIV. Dr. Shands retired in 2002, and his practice was basically the same as Dr. Henson. No objection was made at hearing that Dr. Shands met the statutory definition of "peer." § 409.9131(1)(c), Florida Statutes (1999).5 The undersigned finds Dr. Shands' testimony persuasive. Dr. Shands reviewed the medical documentation provided by Dr. Henson to AHCA. The medical documentation that he reviewed indicated that the patients were "all HIV AIDS patients." Dr. Shands reviewed the particular medications given the patients; reviewed the reasons why the medications were given; considered and made a determination as to whether a justification existed for the administration of the medication; and, based on his determination, either allowed or disallowed the claim. He made no determinations as to the actual dollar amount of services provided. After reviewing the medical records, Dr. Shands made notations on the worksheets, signed the worksheets, and returned the worksheets to Nurse Dewey. Specific instances of acute attention involved the administration of intravenous (IV) multi-vitamins, epogen, nupogen, and Intravenous Immunoglobulin (IVIG). As to the IV of multi-vitamins, Dr. Henson prescribed this administration for almost all of his patients. Dr. Shands found that the patients were coming into the facility two to three times a week for the treatment, but he found no documented medical information to justify the use of IV multi-vitamins and determined these services were not medically necessary. In Dr. Shands' opinion an oral multi-vitamin would have been more appropriate and achieved the same result. An oral multi-vitamin is not recommended, according to Dr. Shands, where the patient is unable to digest the oral multi-vitamin. Notably, for one patient a notation was made that the patient refused pills, but a further notation indicated that Dr. Henson had prescribed the same patient pill-based medications for treatment, which negated the basis for the intravenous use. Furthermore, IV administration to an HIV/AIDS patient places the patient at an unnecessary risk of infection, which is not present with oral multi-vitamins. Dr. Henson testified that he was continuing the treatment of another physician, but he failed to make an independent medical judgment based upon his own medical findings. Further, no justification was in the medical records for the former physician's administration of IV multi-vitamins. Additionally, IV multi-vitamins were more costly than oral administration. And, with patients returning to the facility two to three times a week, the cost increased even more. Regarding epogen, Dr. Shands opined that certain administration was not medically necessary for the HIV/AIDS' patients. As to nupogen, Dr. Shands opined that certain administration was not medically necessary for the HIV/AIDS' patients. Regarding the administration of IVIG, Dr. Shands opined that the administration was not medically necessary for the HIV/AIDS' patients. As to certain office visits for the administration of IV multi-vitamins, epogen, nupogen, and IVIG, Dr. Shands opined that the office visits were unnecessary. Using the worksheets, with Dr. Shands' notations on them, together with Dr. Shands denials or reductions, Nurse Dewey calculated the overpayment associated with each of Dr. Henson's patients. Subsequently, a statistical calculation was applied by AHCA to extend the audit sample's total overall payment to all of Dr. Henson's Medicaid claims during the audit period, which resulted in a determination of an overpayment in the amount of $124,556.83. Dr. Henson suggests that his signature may have been falsified or forged on the medical records and information that he submitted to AHCA for its audit. Prior to hearing, he had an opportunity to review the medical records and information but could not identify one instance that his signature was falsified or forged. Consequently, a finding of fact is made that Dr. Henson signed the medical records and documentation provided to AHCA by him for the audit. Dr. Henson presented no expert testimony or any testimony to support the medical necessity or cost-effectiveness of the procedures that he used. Further, Dr. Henson contends that Latin Quarter Medical Center, the facility that employed him, received the Medicaid payments, not he. However, as the Medicaid Provider, he was not relieved of his responsibility to make sure that the medical procedures were medically necessary and cost-effective.
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 that Arthur Henson, D.O., received overpayments in the Medicaid program in the amount of $124,556.83, during the audit period January 1, 1998 through September 30, 2000, and requiring Arthur Henson, D.O., to repay the overpayment amount. DONE AND ENTERED this 29th day of June, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 June, 2006.
The Issue Whether Medicaid overpayments were made to Petitioner and, if so, what is the total amount of those overpayments.
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.
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 le , 2013, in Tallahassee, Leon County, Florida. ‘LM, fo: ABETH DUDEK, SECRETA “Agency for Health Care Administration 1 Filed May 8, 2013 11:26 AM 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: Mario Rub, M.D. Pediatric Pulmonologist 20776 W. Dixie Highway Aventura, Florida 33180 (Via U.S. Mail) Errol H. Powell Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Willis F. Melvin Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Via Electronic Mail) Ken Yon, Acting Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance (via email) DOH (via email) License number ME69331 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, Laserfiche or electronic mail on this the 5 day of By » 2013. —) Richard Shoop, Esqu: Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 ire STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. DOAH Case No.: 13-0129MPI AHCA CLI. No.: 12-1694-000 MARIO RUB, M.D., Respondent. / SETTLEMENT AGREEMENT STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA” or “the Agency”), and MARIO RUB, M.D. (“PROVIDER”), by and through the undersigned, hereby stipulates and agrees as follows: 1. This Agreement is entered into for the purpose of memorializing the final resolution of the matters set forth in this Agreement. 2. PROVIDER is a Medicaid provider (Medicaid Provider No. 256291000) and was a provider during the audit period, September 1, 2008 to February 28, 2011. 3. In its final audit report (FAR) dated November 13, 2012 for the case referenced as C.I. No. 12-1694-000, AHCA notified PROVIDER that review of Medicaid claims performed by Medicaid Program Integrity (MPI) indicated that, in its opinion, some claims in whole or in part had been inappropriately paid. The Agency sought recoupment of this overpayment in the amount of $14,039.92. In response to the FAR, PROVIDER filed a petition for a formal administrative hearing. It was assigned DOAH Case No. 13-0129MPI. 4. Subsequent to the original audit, and in preparation for trial, AHCA re-reviewed the PROVIDER’s claims and evaluated additional documentation submitted by the PROVIDER. As a result of the additional review, AHCA determined the overpayment should be adjusted to $5,752.06 plus $1,154.41 in fines and $1,659.66 in costs for a total due of $8,566.13. 5. In order to resolve this matter without further administrative proceedings, PROVIDER and the AHCA expressly agree as follows: (1) AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the captioned audit. (2) The amount in dispute that is now being resolved is five thousand seven hundred fifty-two dollars and six cents ($5,752.06) on the indebtedness, one thousand one hundred fifty-four dollars and forty-one cents ($1,154.41) in fines, plus one thousand six hundred fifty-nine dollars and sixty-six cents ($1,659.66) in investigative costs for a total of eight thousand five hundred sixty-six dollars and thirteen cents ($8,566.13). PROVIDER will make an initial payment of one thousand seven hundred thirteen dollars and twenty-three cents ($1,713.23) followed by eleven (11) monthly payments of six hundred two dollars and forty- eight cents ($602.48) and one final payment of six hundred two dollars and forty- six cents ($602.46). The first payment will be due beginning thirty (30) days after the Final Order date. This amount due will be offset by any amount already received by the Agency in this matter. Furthermore, PROVIDER is advised that pursuant to Section 409.913, Florida Statutes, failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid program, withholding of future Medicaid payments, or other such remedies as provided by law. Any outstanding balance accrues at 10% interest per year. Full payment will fully and completely settle all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 13-0129MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (3) In the event any interim payments are received or withheld, by whatever means, prior to the entry of the Final Order, Medicaid Accounts Receivable shall make the adjustment to credit such amounts, dollar for dollar, as quickly as is practicable. (4) Compliance with this repayment agreement fully and completely settles all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 13-0129MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (5) PROVIDER and AHCA agree that full payment, as set forth above, resolves and settles this case completely. It will release both parties from any administrative or civil liabilities or claims arising from the findings in audit C.I. 12-1694-000. (6) PROVIDER agrees that it will not rebill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. 6. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. The C.J. number listed on the first page of this agreement must be legibly entered on the check to assure proper credit. Please mail payment to: AGENCY FOR HEALTHCARE ADMINISTRATION Medicaid Accounts Receivable — MS # 14 2727 Mahan Drive, Bldg. 2, Suite 200 Tallahassee, Florida 32308 7. 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 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. Each party shall bear its own attorneys’ fees and costs, with the exception that the Respondent shall reimburse, as part of this settlement, $1,659.66 in Agency costs and $1,154.41 in fines. This amount is included in the calculations and demand of paragraph 5(2). 11. 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. 12. | 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. 13. 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 the AHCA other than as set 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. 14. 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 4 incorrectness of its understandings, information and contentions as to facts and law, so that no misunderstanding or misinformation shall be a ground for rescission hereof. 15. 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. 16. | This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 17. 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. 18. This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 19. All times stated herein are of the essence of this Agreement. THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK MARIO RUB, M.D. Printed Representativé$ Name BY. Nacio buh, 305 0060381 DEA BR 4969664 20776 W. DDGE HWY. AVENTURA, FL 33180 (905) 931-1812 + FAX (305) 931-1632 FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Wl « CC mMmActeR General Counsel Aoegack dll Chief Medicaid Counsel hy. Willis F. Melvin, Jr. Assistant General Counsel Dated: Dated: Dated: Dated: Dated: 2| \3 , 2013 S/3 ,2013 r// 2 ,2013 3 5 2013 Februany LF ,2013 RICK SCOTT FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION GOVERNOR Better Health Care for all Floridians CERTIFIED MAIL No.:7009 2820 0001 5671 9368 November 13, 2012 Provider No: 2562910-00 NPI No: 1790889996 License No.:ME69331 Mario Rub, M.D. 20776 West Dixie Highway North Miami Beach, Florida 33180 In Reply Refer to FINAL AUDIT REPORT C.L: No. 12-1694-000 Dear Provider: ELIZABETH DUDEK SECRETARY 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 September 1, 2008, through February 28, 2011. A preliminary audit report dated July 16, 2012, was sent to you indicating that we had determined you were overpaid $279,132.60. Based upon a review of all documentation submitted, we have determined that you were overpaid $14,039.92 for services that in whole or in part are not covered by Medicaid. A fine of $2,807.98 has been applied. The cost assessed for this audit is $1,359.66. The total amount due is $18,207.56. Be advised of the following: (1) In accordance with Sections 409.913(15), (16), and (17), Florida Statutes (F.S.), and Rule 59G- 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 $2,807.98 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. 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 Visit AHCA online at http://ahca.myflorida.com Mario Rub, M.D. Provider ID: 2562910-00 CI. No.:12-1694-000 Page 2 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 Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks, 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 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. 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. Medicaid policy requires that services performed be medically necessary for the diagnosis and treatment ofan illness. You billed and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, were insufficient to justify billing for code indicated. The documentation failed to meet the Medicaid criteria for medical necessity. The claims were either disallowed or adjusted by the peer to reflect service documented. OVERPAYMENT CALCULATION A random sample of 35 recipients respecting whom you submitted 173 claims was reviewed. For those claims in the sample, which have dates of service from September 1, 2008, through February 28, 2011, an overpayment of $846.51 or $4.89312139 per claim, was found. Since you were paid for a total (population) of 3,994 claims for that period, the point estimate of the total overpayment is 3,994 x 4,89312139 = $19,543.13. There is a 50 percent probability that the overpayment to you is that amount or more. We used the following statistical formula for cluster sampling to calculate the amount due the Agency: E- oe) ses 4 - -YB,y Where: N N E = point estimate of overpayment = SA, > B | Mario Rub, M.D. Provider ID: 2562910-00 CI. No.:12-1694-000 Page 3 U F = number of claims in the population = s B is] A, = total overpayment in sample cluster B, = 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 = > A, > B, i=] j= t = t value from the Distribution of ¢ 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 $14,039.92, 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. If you are not in bankruptcy and you concur with our findings, remit by certified check in the amount of $18,207.56, 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.J. 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 will 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. Mario Rub, M.D. Provider ID: 2562910-00 C.J. No.:12-1694-000 Page 4 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. Any questions you may have about this matter should be directed to: : Jennifer Ellingsen, Investigator, Agency for Health Care Administration, Office of Inspector General, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412- 4600, facsimile (850) 410-1972. Sincerely, Se Be Fred Becknell AHCA Administrator Office of Inspector General Medicaid Program Integrity FB/jse Enclosure(s) Copies furnished to: Finance & Accounting (Interoffice mail) Health Quality Assurance (E-mail) Department of Health (E-mail) Mario Rub, M.D. Provider ID: 2562910-00 C.J. No.:12-1694-000 Page 5 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS 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. An explanation 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. Fora 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 8. A demand for relief. 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. FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider: 256291000 - MARIO RUB Overpayment Calculation Using Cluster Sampling by Recip Name Dates Of Service: 9/1/2008 through 2/28/2011 Number of recipients in population: Number of recipients in sample: Total payments in population: No. of claims in population: Totals: 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 11/9/2012 COON ADH RWHNA 600 35 $1,083,860.97 3,994 $4.89312139 $19,543.13 $10,592,145.98 $3,254.56 $5,503.21 $14,039.92 33 FP NN FB HOMER ANNA aNWaAn = =a nN 173 Case ID: Confidence level: t value: $228.96 $145.15 $281.20 $121.92 $153.25 $68.64 $747.83 $228.96 $121.92 $168.96 $28,469.80 $76.70 $87.60 $236.70 $2,803.99 $229.95 $297.69 $171.41 $87.60 $129.39 $259.20 $3,257.45 $234.17 $87.60 $251.87 $75.97 $57.55 $34.32 $693.77 $87.60 $173.92 $87.60 $20,625.31 $121.92 $75.97 $60,981.84 Page 4 of 4 NPI: 1790889996 12-1694-000 95 % 1.690924 $0.00 $0.00 $117.70 $0.00 $0.00 $52.55 $194.73 $0.00 $0.00 $0.00 $126.76 $19.16 $0.00 $38.32 $0.00 $0.00 $38.30 $0.00 $0.00 $41.79 $54.28 $0.00 $68.75 $0.00 $0.00 $0.00 $0.00 $0.00 $94.17 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $846.51 Page 1 of 1) ( | SENDER: COMPLETE THIS SECTION ® Complete Items 1, 2, and 3. Also complete Htam 4 If Reatricted Delivery Is desired, @ Print your name and address on the reverse 80 that we can return the card to you. ® Attach this card to the back of the malipisce, ot aathn dront. Ihsvares. rete pew ™ Attach this card to the back of the mallplece, or on the front If space permits, 1. Article Addressed to: &. Hecwived by ( Printed Name) D. Is delivary address different from item 17 1 Yes IC YES, enter delivery address below: = No Mario Rub, M.D. '" 20776 West Dixie Highwa: . 'y 3. Service Type North Miami Beach, Florida 33180 Centtied Mat ©) Express Mail Cl. # 12+1694-000 JE-re Ci Regletered —-C) Return Recelpt for Merchandlee - D Insured Mall = 6.0.0, 4, Restricted Delivery? 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The Issue Whether Respondent, Florida Hospital Orlando (Respondent or FHO), was overpaid by Medicaid for care provided to the patient, L.D., in the amount of $52,606.04, as alleged by Petitioner, Agency for Health Care Administration (Petitioner or AHCA); or, whether, as Respondent maintains, such care was medically necessary and supported by the record presented in this cause. Petitioner also maintains an administrative fine in the amount of $2,000.00 is warranted in this matter.
Findings Of Fact Petitioner is the state agency charged with the responsibility of monitoring the Medicaid Program in Florida. Petitioner, through MPI, audited FHO for the dates of service from January 1, 2007, through June 30, 2008 (the audit period). At all times material to the audit period, FHO was enrolled as a Medicaid provider, governed by a Medicaid provider agreement, and subject to all pertinent Medicaid rules and regulations related to the provision of Medicaid services to Medicaid recipients/patients. Respondent's Medicaid Provider No. was 0010129001. All services provided to Medicaid patients are billed and identified by patient name, date of service, and provider. For purposes of confidentiality, the names of patients are redacted in MPI proceedings. Although this case began with a number of patients being identified as part of the audit dispute, only one patient, L.D., and the services provided to her remain at issue. Before a Medicaid provider is authorized to bill Medicaid for medical services rendered to a patient, several checks are considered. First, the patient must be Medicaid-eligible. There is no dispute that L.D. was Medicaid-eligible. Second, before an inpatient stay is reimbursable, a Medicaid provider must seek prior authorization. To do so, at all times material to this case, AHCA enlisted the assistance of, and contracted with, KePro South (KePro) to perform utilization management for inpatient hospital services for Medicaid recipients. This meant the Medicaid provider contacted KePro by email through a system known as "I-Exchange." In this case, FHO followed the protocol and requested prior approval for patient L.D. KePro approved the inpatient stay for L.D. All patient records for L.D. have been revisited in the course of this case and have been thoroughly debated by doctors for both parties. In summary, AHCA's expert, Dr. Walter, opined that the records for L.D. do not support the "medical necessity" for the extended inpatient stay that was provided for her care. In contrast, Dr. Busowski, opined that L.D. required the inpatient stay based upon the medical conditions she and her babies presented. The events leading up to the instant dispute, set in chronological context, are as follows: FHO provided medical services to a patient, L.D.; those services were billed to and paid by Medicaid; AHCA conducted its audit of FHO for the audit period prior to August 12, 2008; on that date, AHCA issued its Preliminary Audit Report (PAR); the PAR claimed a Medicaid overpayment in the amount of $359,107.65 (overpaid claims for the full audit period); in response, FHO set about to furnish additional documentation to support its Medicaid billings; such documentation was reviewed by Petitioner and its medical consultants before the Final Audit Report (FAR) was entered; then, the FAR reduced the amount claimed as overpayment, gave Respondent the opportunity to challenge the FAR, and forwarded the case to DOAH. Respondent continued to provide additional information to AHCA throughout the pre-hearing and post-hearing times. Subsequent to discovery in this case, AHCA considered information from FHO and, ultimately, the overpayment claim was reduced to $52,606.04 as noted above. Prior to entering the FAR, Petitioner did not have the benefit of testimony from Dr. Busowski or Dr. Fuentes. Additionally, Dr. Walter, AHCA's consultant, did not have the benefit of reviewing the records from Dr. Busowski's point of reference. It is undisputed that FHO billed Medicaid and was paid $52,606.04 for patient L.D. Dr. Busowski is a board-certified physician whose specialty is OB/GYN and whose subspecialty is Maternal Fetal Medicine, also described as "perinatologist" in this record. L.D. presented to a clinic staffed by Dr. Busowski and his former associate, Dr. Fuentes. Both doctors have privileges at FHO and took turns monitoring patients admitted to the hospital. In examining L.D., it was discovered that her cervix had shrunk from 2.6 to 1.2 centimeters. As L.D. was pregnant with twins, the patient was admitted to FHO as a "high risk" pregnancy. Simply stated, the medical concern for L.D. was that she would deliver her children prematurely and, thereby, cause additional medical issues for herself, as well as her babies. L.D. was only 26 weeks, two days along at the time, and it would be very difficult for the twins to be delivered at that time. Further, L.D. had had two prior deliveries by C-section, so it was anticipated that her twins would also be delivered in that fashion. Finally, the twins were locked with one in a breached position so that if the children had prematurely delivered vaginally, other complications would have been likely. L.D. remained at FHO until she was discharged at 35 weeks, six days. During her stay at FHO, doctors were able to monitor contractions, make sure her C-section scar did not dehisce, and chart the growth, well-being, and viability of the children. Some patients, such as L.D., may be monitored in a home setting with "take home" equipment. That device is not covered by Medicaid and was, therefore, not an option for L.D. It may have provided a less expensive treatment option had it been available to L.D. and had her home environment been suitable for its use. It is unknown whether L.D. and her home environment would have been conducive to the home monitoring some patients can use. Another consideration in keeping L.D. hospitalized was the well-being of the unborn twins. Medical costs for premature babies are higher than full-term children. Had L.D. delivered prematurely, there would have been three Medicaid patients with serious medical needs rather than one. Dr. Busowski candidly admitted that all considerations in keeping L.D. hospitalized were not listed in the patient's chart. As a specialist, Dr. Busowski did not think it was necessary to have certain facts documented. It is not Dr. Busowski's policy to keep any mother hospitalized unnecessarily. It was not Dr. Busowski's practice to write "a whole bunch because nothing has changed." L.D.'s chart contained daily notes from an attending OB/GYN or resident, but orders were not written for medication unless it changed or was new. For example, if an order for prenatal vitamins were written, it would naturally continue throughout the patient's stay without additional orders. In this case, L.D. was on the medication Procardia. It was used to stop pre-term contractions. When L.D. was discharged and the babies were not in danger, presumably, Procardia was not necessary. Until she was stabilized during her hospitalization, it was necessary. Thus, the length of stay ultimately is the issue of this proceeding. Not that L.D. was admitted inappropriately or without medical basis, but that she was kept as an inpatient longer than medically necessary. Since L.D. was admitted at 26 weeks, two days and discharged at 35 weeks, six days, the question then essentially is: When in the interim should she have been discharged because her continued inpatient care was not necessary? Arguably she could have taken the medication to stop contractions at home, monitored herself somehow, and rushed to the emergency room (ER) if delivery was imminent. Delivery of the twins short of a prescribed gestation period would have placed the children at risk. Who would have borne the medical responsibility for pre-term twins born under ER conditions when it was avoidable and was, in fact, avoided in this case? Medicaid has a "pay and chase" policy of paying Medicaid claims as submitted by providers. Audits performed by the Agency then, after-the-fact, reconcile the amounts paid to providers with the amounts that were payable under the Medicaid guidelines and pertinent rules. The Medicaid provider agreement executed between the parties governs the contractual relationship between FHO and AHCA. The parties do not dispute that the provider agreement, together with the pertinent laws or regulations, control the billing and reimbursement of the claim that remains at issue. The amount, if any, that was overpaid related solely to the period of inpatient treatment that L.D. received from week 27 of her pregnancy until her discharge. Dr. Walter conceded perhaps a week would be required to stabilize the patient under her presenting conditions. The provider agreement pertinent to this case was voluntarily entered into by the parties. Any Medicaid provider whose billing is not in compliance with the Medicaid billing policies may be subject to the recoupment of Medicaid payments. Petitioner administers the Medicaid program in Florida. Pursuant to its authority, AHCA conducts audits to ensure compliance with the Medicaid provisions and provider agreements. The audits are routinely performed and Medicaid providers are aware that they may be audited. Audits are to ensure that the provider bill and receive payment in accordance with applicable rules and regulations. Respondent does not dispute Petitioner's authority to perform audits. Respondent does, however, dispute that a recoupment is appropriate, because FHO sought and was given prior approval for the inpatient stay for L.D. through the KePro system. If the inpatient length of stay was medically necessary for L.D., Petitioner does not dispute the amount billed as accurately reflecting the services provided to L.D. during that stay. There is no question that L.D. stayed in the hospital for the length of stay noted in the record. Based upon the weight of the persuasive evidence in this case, it is determined that L.D.'s length of stay until week 35 of her pregnancy was medically appropriate and necessary to protect the medical health and well-being of L.D. and her unborn children.
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 dismissing the case, with each party bearing its own costs and expenses of the litigation. Further, to the extent that Petitioner may have already sought recoupment against Respondent for the alleged overpayment, it is recommended that those funds be credited back to FHO. DONE AND ENTERED this 11th day of August, 2010, 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 11th day of August, 2010. COPIES FURNISHED: Thomas Arnold, Secretary Agency for Health Care Administration Fort Knox Building III 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration Fort Knox Building III 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration Fort Knox Building III 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 John D. Buchanan, Jr., Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Drawer 14079 Tallahassee, Florida 32317 Debora E. Fridie, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308
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 The issues are whether Petitioner has overpaid Respondent for medical services for which he has obtained reimbursement under the Medicaid program and, if so, by how much.
Findings Of Fact Respondent is a licensed physician engaged in the practice of medicine in Florida. From January through November 1997, Respondent worked a couple of hours each morning at the Summit Clinic in Miami before seeing patients at his own office. At the Summit Clinic, Respondent administered intravenous immunoglobulin (IVIG) to adult Medicaid patients who were infected with human immunodeficiency virus (HIV). Petitioner paid the Summit Clinic, which was using Respondent's Medicaid provider number, for these and other medical services. Petitioner now claims that these IVIG services were not medically necessary, and, pursuant to its "pay-and-chase" policy, Petitioner seeks repayment from Respondent. In general, the administration of IVIG transfers antibodies contained in globulin to protect the recipient from various infectious microorganisms. The United States Food and Drug Administration (FDA) has approved the marketing of IVIG for the treatment of persons with certain clinical conditions, such as idiopathic thrombocytopenic purpura, Kawasaki disease, and pediatric HIV infection. However, the FDA has not approved the marketing of IVIG for the treatment of adult HIV infection. The use of a drug to treat conditions for which the FDA has not issued its approval is known as an off-label use. Some off-label uses are medically effective and prevalent, but remain unapproved by the FDA because the drug manufacturer cannot feasibly conduct expensive clinical trials generally necessary to obtain FDA marketing approval. Despite the absence of such clinical trials, not all off-label uses are experimental. In the 20 years that IVIG has been commercially available in the United States, medical researchers and practitioners have uncovered evidence in support of important off-label uses of IVIG. For instance, a common and effective off-label use of IVIG is for the treatment of Guillain-Barré syndrome. According to the University HealthSystem Consortium, the FDA estimates that 50-70 percent of IVIG use is off-label, but as much as half of the off-label use finds little, if any, support by clinical studies. This case raises the question of the medical necessity of the off-label use of IVIG for the treatment of HIV-infected adults. Unlike adult-onset HIV infections, pediatric HIV infections result in systemic immune deficiencies because the children's immune systems never develop normally. In HIV- infected children, IVIG relieves the effects of these systemic immune deficiencies by preventing serious bacterial infections. For these reasons, the FDA has approved the use of IVIG for HIV- infected children. By letter dated July 31, 2001, Petitioner advised Respondent that it had reviewed various Medicaid claims submitted under his provider number. As relevant to this case, the July 31 letter disallows Medicaid reimbursement for the use of IVIG on HIV-infected adults. Stating that this use of IVIG is not "indicated" and is "investigational," the letter adds: "Medicaid policy prohibits payment for experimental procedures or non-FDA approved drugs and requires that all services rendered to Medicaid recipients be medically necessary." Chapter 1 of the Physician Coverage and Limitations Handbook (Handbook) states: "Medicaid reimburses for services that are determined medically necessary . . .. 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 Handbook also provides: "Medicaid does not reimburse for non-FDA approved medications. Medicaid does not reimburse procedures that are experimental or when non-FDA approved medications are included in the procedures." The Medicaid Provider Reimbursement Handbook (Reimbursement Handbook) defines "experimental or clinically unproven procedures" as: "Those newly developed procedures undergoing systematic investigation to establish their role in treatment or procedure that are not yet scientifically established to provide beneficial results for the condition for which they are being used." Although not directly applicable to the Medicaid program, Section 2049.4 of Chapter II, Part 3, Health Care Financing Administration Carriers Manual (HCFA Manual) states, in part: Use of the drug or biological must be safe and effective and otherwise reasonable and necessary. . . . Drugs or biologicals approved for marketing by the [FDA] are considered safe and effective for purposes of this requirement when used for indications specified on the labeling. Therefore, you may pay for the use of an FDA approved drug or biological if: It was injected on or after the date of the FDA's approval; It is reasonable and necessary for the individual patient; and All other applicable coverage requirements are met. * * * An unlabeled use of a drug is a use that is not included as an indication on the drug's label as approved by the FDA. FDA approved drugs used for indications other than what is indicated on the official label may be covered under Medicare if the carrier determines the use to be medically accepted, taking into consideration the major drug compendia, authoritative medical literature and/or accepted standards of medical practice. . . . Accordingly, the Florida Medicare Local Medical Review Policy manual recognizes the use of IVIG for pediatric HIV infections, but warns: "IVIG is not indicated for use in adult HIV patients " Except for the administration of IVIG, Respondent provided state-of-the-art services to HIV-infected adults. The present record contains scant medical evidence of the effectiveness of IVIG in treating HIV-infected adults. Against considerable evidence questioning the medical necessity of IVIG in treating HIV-infected adults, Respondent offered undocumented anecdotal evidence of successful use of IVIG among his adult patients and two synopses of undisclosed preliminary data suggesting effectiveness of IVIG in HIV-infected adults. Respondent did not effectively oppose Petitioner's explanation for the differences in IVIG's effectiveness in treating adults and children, nor did Respondent offer any rationale for his claim of IVIG's effectiveness in HIV-infected adults. On this record, Petitioner has demonstrated that the use of IVIG to treat HIV-infected adults is not effective and, thus, not medically necessary.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order ordering Respondent to reimburse the Medicaid program $74,100.04 in overpayments for services that were not medically necessary. DONE AND ENTERED this 19th day of April, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 19th day of April, 2002. COPIES FURNISHED: Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Anthony L. Conticello, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 Louise T. Jeroslow Law Offices of Louise T. Jeroslow 6075 Sunset Drive, Suite 201 Miami, Florida 33143
The Issue The issue for consideration in this case is whether the Agency for Health Care Administration is required by law and rule of the Agency to include the gain or loss on the sale of depreciable assets as the result of a sale or disposal, in the calculation of Medicaid allowable costs.
Findings Of Fact Prior to the hearing, the parties submitted a Joint Stipulation which is incorporated in part herein as follows: Petitioner purchased Orlando General Hospital ("OGH"), Medicaid provider number 120065, on December 31, 1990. Upon its sale, OGH merged into and became part of Adventist Health System/Sunbelt, Inc., wherein after it was known as Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital East ("Florida Hospital East"). Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital East is a wholly owned subsidiary of Adventist Health System Sunbelt Healthcare Corporation. Florida Hospital East assumed all of the assets and liabilities of OGH. OGH filed a terminating cost report for the fiscal period ending December 31, 1990. On December 31, 1990, the date of sale of OGH to Petitioner, OGH incurred a loss on the sale of the hospital, a depreciable asset. The loss on the sale of OGH was included on both OGH's Medicaid and Medicare terminating cost reports. A loss on the sale of a depreciable asset is the amount that the net book value of the asset sold exceeds the purchase price. A gain or loss on the sale of a depreciable asset is a capital cost. Due to the mechanism of the cost report, a loss on the sale of a depreciable asset is divided into "periods" based upon the time period to which the loss relates. The portion of the loss related to the fiscal year in which the asset is sold is referred to as a "current period" loss. The portion of the loss that relates to all fiscal years prior to the year in which the asset is sold is referred to as a "prior period" loss. Gains and losses related to the current period are included on Worksheet A of the Medicare and Medicaid cost report. Current period capital costs flow to Worksheet B-II Part and B Part III [sic] of the Medicaid cost report. Gains and losses related to the prior period are included on Worksheet E of the Medicare and Medicaid cost reports. OGH's current period is the fiscal year ending 12/31/90. OGH's prior periods in which it participated in the Medicaid Program are 10/24/84 through 12/31/89. OGH's audited Medicaid cost report included in allowable Medicaid costs a loss on the sale of OGH related to the current period. OGH's audited Medicaid cost report did not include in allowable Medicaid costs a loss on the sale of OGH related to the prior periods. The loss on the sale of OGH related to the current period was included in Worksheet A of OGH's audited Medicaid cost report. These costs, including the loss on the sale of OGH, flowed to Worksheet B Part II. OGH's audited Medicare cost report included as allowable Medicare costs the loss on the sale of OGH related to both the current and prior periods in the amount of $9,874,047. The loss from the sale of OGH related to the current period was included on Worksheet A of OGH's audited Medicare cost report. The costs from Worksheet A of OGH's audited Medicare cost report flowed to Worksheet B Part II of OGH's audited Medicare cost report. The loss related to the prior period was included on Worksheet E Part B of OGH's audited Medicaid cost report. The Agency utilizes costs included on Worksheet A of the Medicaid cost report to calculate Medicaid allowable costs. The Agency utilizes the capital costs included on Worksheet B Part II and/or B Part III to calculate allowable Medicaid fixed costs. The Agency does not utilize costs included on Worksheet E Part III to calculate Medicaid allowable costs. The Agency reimburses providers based upon Medicaid allowable costs. aa. The Agency did not include the portion of the loss on the sale of OGH related to the prior periods in the calculation of the OGH's Medicaid allowable costs. bb. Blue Cross and Blue Shield of Florida, Inc. (Intermediary), contracted with the Agency to perform all audits of Medicaid cost reports. Agency reimbursement to Medicaid providers is governed by Florida's Title XIX Inpatient Hospital Reimbursement Plan (Plan), which has been incorporated in Rule 59G-6.020, Florida Administrative Code. The Plan provides that Medicaid reimbursement for inpatient services shall be based upon a prospectively determined per diem. The payment is based upon the facility's allowable Medicaid costs which include both variable costs and fixed costs. Fixed costs include capital costs and allowable depreciation costs. The per diem payment is calculated by the Agency based upon each facility's allowable Medicaid costs which must be taken by the agency from the facility's cost report. Capital costs, such as depreciation, are found on Worksheet B, Part II and Part III. The Plan requires all facilities participating in the Medicaid program to submit an annual cost report to the Agency. The report is to be in detail, listing their "costs for their entire reporting year making appropriate adjustment as required by the plan for the determination of allowable costs." The cost report must be prepared in accordance with the Medicare method of reimbursement and cost finding, except as modified by the Plan. The cost reports relied upon by the Agency to set rates are audited by Blue Cross/Blue Shield of Florida, Inc. which has been directed by the Agency to follow Medicare principles of reimbursement in its audit of cost reports. Prior to January 11, 1995, the Plan did not expressly state whether capital gains or losses relating to a change of facility ownership were allowable costs. The 1995 amendment to the Plan contained language expressly providing "[f]or the purposes of this plan, gains or losses resulting from a change of ownership will not be included in the determination of allowable cost for Medicaid reimbursement." No change was made by the amendment to the Medicare principles of reimbursement regarding the treatment of gains and losses on the sale of depreciable assets. The Medicare principles of reimbursement provides that gains and losses from the disposition of depreciable assets are includable in computing allowable costs. The Provider Reimbursement Manual (HIM-15)(PRM), identifies the methods of disposal for assets that are recognized. They include a bona fide sale of depreciable assets, but do not mention a change of ownership. PRM Section 132 treats a loss on a sale of a depreciable asset as an adjustment to depreciation for both the current and periods. Depreciable assets with an expected life of more than two years may not be expensed in the year in which they are put into service. They must be capitalized and a proportionate share of the cost expensed as depreciation over the life of the property. To do so, the provider must estimate the useful life of the property based upon the guidelines of the American Hospital Association, and divide the cost by the number of years of estimated life. It is this yearly depreciation figure which is claimed on the cost report and which is reimbursed. When a depreciable asset is sold for less than book value (net undepreciated value), the provider suffers a loss. Petitioner claims that Medicare holds that in such a case it must be concluded that the estimated depreciation was erroneous and the provider did not receive adequate reimbursement during the years the asset was in service. Medicare accounting procedures do not distinguish between the treatment of a loss on the sale of depreciable assets as related to current and prior periods. PIM Section 132 requires that Medicare recognize the entire loss as an allowable cost for both the current and prior periods, and Medicare treated Petitioner's loss from the sale of its facility as an allowable cost for Medicare reimbursement under both current and prior periods. With the adoption of the January 1995 amendment, however, the wording of the state plan was changed to specifically prohibit gains or losses from a change of ownership from being included in allowable costs for Medicaid reimbursement. This was the first time the state plan addressed gains and losses on the disposal of depreciable assets resulting from a change of ownership. The Agency contends, however, that it has never reimbursed for losses on disposal of property due to a change of ownership, and that the inclusion of the new language was to clarify a pre-existing policy which was being followed at the time of the 1995 amendment, and which goes back to the late 1970s. It would appear, however, that the policy was never written down; was never conveyed to Blue Cross/Blue shield; was never formally conveyed to Medicaid providers; and was never conveyed to the community at large. When pressed, the Agency could not identify any specific case where the policy was followed by the Agency. While admitting that it is Agency practice not to treat losses from the sale of depreciable assets in prior periods as an allowable cost, Petitioner contends that it has been the Agency's practice to treat the loss on the sale of depreciable assets relating to the current period as an allowable cost, and cited several instances where this appears to have been done. The Agency contends that any current period losses paid were paid without knowledge of the Agency, in error, and in violation of the plan. On October 25, 1996, the Agency entered a Final Order in a case involving Florida Hospital/Waterman, Inc., as Petitioner, and the Agency as Respondent. This case was filed by the Petitioner to challenge the Agency's treatment of the loss on the sale of Waterman Medical Center, Inc., another of Adventist Health Systems/Sunbelt Healthcare Corporation, and the Final Order in issue incorporated a stipulation into which the parties had entered and which addressed the issue in question here. The stipulation included certain position statements including: A loss on the sale of depreciable assets is an allowable cost under the Medicare Principles of Reimbursement. The State Plan does not specify that the loss on the sale of a depreciable asset is to be treated in a manner different than under the Medicare Principles of Reimbursement. Thus the loss on the sale of a depreciable asset is an allowable cost under the State Plan. The Agency agrees, in accordance with the Medicare Principles of Reimbursement, that under the terms of the State Plan, prior period losses for Waterman will be allocated to prior periods and included in the calculation of the per diem and per visit rates. According to William G. Nutt, Petitioner's director of reimbursement, the only difference between the facts of the Waterman case and the instant case is that they relate to the sale of different facilities. The treatment of loss on the sale of depreciable assets as outlined in the Waterman stipulation is in conflict with the amended Plan and with the unwritten and unuttered Agency policy as urged by the Agency in this case. The Agency agreed in one case to a treatment of loss which it now rejects in the instant case. Petitioner urges that subsequent to the settlement of the Waterman case, but before the instant case was set for hearing, the parties engaged in settlement negotiations during which, according to counsel for the Agency, they made "significant" progress toward applying the settlement in the Waterman case to the current case. In a motion filed to delay the setting of this case for hearing, counsel for the Agency indicated the parties were "finalizing" settlement to resolve the case without resorting to a final hearing, and in a follow-up agreed motion for continuance, advised that the "parties [had] finalized a settlement document [which they were] in the process of executing. The settlement agreement reached by the parties was signed by a representative of the Petitioner and then forwarded to the Agency for signature. The document was not signed by the Agency, and when Petitioner sought enforcement of the "settlement" by an Administrative Law Judge of the Division of Administrative Hearings, the request was denied as being outside the jurisdiction of the judge, and the matter was set for hearing.
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 including the loss on the sale of Orlando General Hospital as an allowable cost for determining Petitioner's entitlement to Medicaid reimbursement for both current and prior years. DONE AND ENTERED this 30th day of June, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1999. COPIES FURNISHED: Joanne B. Erde, Esquire Broad and Cassel Miami Center Suite 3000 201 South Biscayne Boulevard Miami, Florida 33131 Jonathan E. Sjostrom, Esquire Steel Hector & Davis LLP 215 South Monroe Street Suite 601 Tallahassee, Florida 32301-1804 Mark S. Thomas, Esquire Madeline McGuckin, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3 Tallahassee, Florida 32308
