The Issue Whether the Petitioner should reimburse the Respondent for alleged Medicaid overpayments in the amount of $44,581.50.
Findings Of Fact At all times material to the allegations of this case, the Petitioner, Roosevelt T. Jackson, Jr., M.D., has been a Medicaid provider authorized to receive reimbursement for Medicaid services provided to Medicaid recipients. Dr. Jackson is an ophthalmologist. All services in this cause related to Medicaid claims for procedures performed between January 1, 1998, and December 31, 1999. The Respondent is the state agency responsible for the administration of the Medicaid program within the State of Florida. Medicaid Program Integrity is the arm of the Agency that oversees the activity of the Florida Medicaid providers and recipients to ensure that they are in compliance with the Medicaid program. As part of its duties, the Agency audits the records of providers to verify compliance with all Medicaid rules. In this case the audit of Petitioner's records was triggered by a computer program that reviews data from similar Medicaid providers. The Surveillance Utilization Review Section (SURS) of the Medicaid Program Integrity office found that the Petitioner had exceeded the norm in Medicaid billings when compared to his peers. When the SURS kicked back the Petitioner's name, it represented that the Petitioner had exceeded his peers in the total number of Medicaid recipients serviced, total number of evaluation and management procedures, average number of evaluation and management procedures per recipient, number of office visits, average number of office visits per recipient, and average number of services per recipient. Based upon the SURS responses, the Agency elected to conduct a sample audit of the Petitioner's records. Records for 30 Medicaid recipients were requested and obtained from the Petitioner. The results of that sample audit were then extended to calculate the overpayment for which the Respondent currently seeks reimbursement. The Respondent's audit established that the Petitioner had failed to comply with Medicaid provisions in three specific areas. First, based upon the records submitted to the Agency, the Petitioner billed for services at a higher level than actually performed. Second, the audit established that the Petitioner billed for services that were "medically unnecessary" as that term is utilized by Medicaid. And third, the audit found that the Petitioner billed for services that were not properly documented by the records maintained. Such records were created, maintained and produced to the Agency by the Petitioner. The results of the audit were set forth in the Final Agency Audit Report and were provided to the Petitioner. The report requested reimbursement from the Petitioner in the amount of $44,581.50. The report was completed on or about June 27, 2001. Thereafter, the Petitioner timely challenged the results of the audit, and requested a formal administrative hearing to dispute the amounts set forth in the report. As to all amounts claimed in the report, the evidence presented in this cause supports the Agency's conclusions as to the overpayment. Prior to January of 1999, the Petitioner was not authorized to bill for a level 4 visit. Thus all services billed at that rate prior to January 1999 should be reduced. Secondly, none of the records supplied by the Petitioner supported the complexity required for a level 4 billing. Therefore, services billed at the level 4 rate should be reduced to the appropriate level. The Petitioner also billed for services that were not medically necessary. A normal examination (with no retinal problem identified in the record) would not warrant additional retinal examinations. Therefore, billings for additional procedures would not be warranted in such cases. Finally, Medicaid rules require that a physician maintain records in compliance with documentation guidelines. The Petitioner's records did not comply with such guidelines. Accordingly, Medicaid payments for services that lack the required documentation may be recouped. After a full review of the records submitted, the Agency used a standard formula to extend the sample data throughout the population from which the sample was taken. That is, from the 30 patient records reviewed, the results were applied by statistical formula to the entire Medicaid patient population served by the Petitioner. This computation resulted in the amount of the overpayment currently sought. The statistical formula used by the Agency to compute the overpayment was reasonable and within the guidelines of the law.
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 confirming the Medicaid overpayment in the amount of $44,581.50. DONE AND ENTERED this 21st day of May, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 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 Roosevelt T. Jackson, Jr., M.D. 3740 West Broward Boulevard Plantation, Florida 33312 Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
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
The Issue Whether Medicaid overpayments were made to Petitioner by the Agency for Health Care Administration ("AHCA") for services performed during the audit period of December 4, 1996 to December 4, 1998, and, if so, what is the total amount of these overpayments.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Parties Petitioner is a licensed physician in the State of Florida, having been issued license number 29615. His specialty area of practice is general or family practice. His office is located in Brandon, Florida. AHCA is the agency responsible for administering the Florida Medicaid Program. One of AHCA's duties is to recover Medicaid overpayments from physicians providing care to Medicaid recipients. Section 409.9131, Florida Statutes. The Provider Agreement During the audit period, Petitioner was authorized to provide physician services to eligible Medicaid patients. Petitioner provided such services pursuant to Medicaid Provider Agreements he entered into with AHCA and its predecessor, the Department of Health and Rehabilitative Services, on November 27, 1992, and December 3, 1996. The 1996 Provider Agreement, in effect at the time of the audit, contained the following provisions, among others: Quality of Service. The provider agrees to provide medically necessary services or goods of not less than the scope and quality it provides to the general public. The provider agrees that services or goods billed to the Medicaid program must be medically necessary, of a quality comparable to those furnished by the provider's peers, and within the parameters permitted by the provider's license or certification. The provider further agrees to bill only for the services performed within the specialty or specialties designated in the provider application on file with the Agency. The services or goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim. Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they may be amended from time to time. * * * 5. Provider Responsibilities. The Medicaid provider shall: * * * (b) Keep and maintain in a systematic and orderly manner all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical, business, and fiscal records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid [sic]. The provider agrees that only records made at the time the goods and services were provided will be admissible in evidence in any proceeding relating to the Medicaid program. * * * (d) Except as otherwise provided by law, the provider agrees to provide immediate access to authorized persons (including but not limited to state and federal employees, auditors and investigators) to all Medicaid- related information, which may be in the form of records, logs, documents, or computer files, and all other information pertaining to services or goods billed to the Medicaid program. This shall include access to all patient records and other provider information if the provider cannot easily separate records for Medicaid patients from other records. * * * (f) Within 90 days of receipt, refund any moneys received in error or in excess of the amount to which the provider is entitled from the Medicaid program. Handbook Provisions Among the "manuals and handbooks" referenced in paragraph 3 of the Provider Agreement in effect during the audit period were the Medicaid Provider Reimbursement Handbook, HFCA- 1500 ("Reimbursement Handbook") and the Physician Coverage and Limitations Handbook ("C&L Handbook"), with their periodic updates. The term "medically necessary" was defined in Appendix D of the Reimbursement Handbook as follows, in relevant part: Medically Necessary or Medical Necessity Means that the medical or allied care, goods, or services furnished or ordered must: (a) Meet the following conditions: Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; Be individualized specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs; Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational; Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; and Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. . . . Chapter 3 of the C&L Handbook sets forth procedure codes to be used by physicians in claiming reimbursement for services provided to Medicaid recipients. The origin of the procedural and diagnosis codes is as follows, in relevant part: The procedure codes listed in this chapter are Health Care Financing Administration Common Procedure Coding System (HCPCS) Levels 1, 2, and 3. These are based on the Physician's Current Procedural Terminology (CPT) book. The CPT includes HCPCS descriptive terms and numeric identifying codes and modifiers for reporting services and procedures. . . . The CPT book is a systematic listing and coding of procedures and services provided by physicians. Each procedure or service is identified with a five digit code. For purposes of this proceeding, the relevant section of the CPT book is "Evaluation and Management-- Office or Other Outpatient Services," which sets forth the codes used to report evaluation and management services provided in the physician's office or in an outpatient or other ambulatory facility. The CPT book sets forth instructions for selecting the proper level of Evaluation and Management ("E/M") service, as follows in relevant part: Review the 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 of these components (i.e., history, examination, and medical decision making) should be considered the key components in selecting the level of E/M services. . . . Determine the Extent of History Obtained The extent of the 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 follows: 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. The comprehensive history obtained as part of the preventive medicine evaluation and management service is not problem-oriented and does not involve a chief complaint or present illness. It does, however, include a comprehensive system review and comprehensive or interval past, family and social history as well as a comprehensive assessment/history of pertinent risk factors. 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 examination 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. Note: The comprehensive examination performed as part of the preventive medicine evaluation and management service is multi-system, but its extent is based on age and risk factors identified. 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 in Table 2 below must be met or exceeded. 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. The referenced Table 2, titled "Complexity of Medical Decision Making," sets forth guidelines for the four types of decision-making (straightforward, low complexity, moderate complexity, and high complexity) in terms of the relative number and/or complexity of three elements: number of diagnoses or management options (minimal, limited, multiple, or extensive); amount and/or complexity of data to be reviewed (minimal or none, limited, moderate, or extensive); and risk of complications and/or morbidity or mortality (minimal, low, moderate, or high). The "Office or Other Outpatient Services" section of the CPT book provides the codes for those services in terms of the guidelines set forth above. Five codes of increasing complexity are provided for new patients, and five counterpart codes are provided for established patients: 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 problems 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 problems 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 problems are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. 99205 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: a comprehensive history; a comprehensive examination; and medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. Established Patient 99211 Office or other outpatient visit for the evaluation and management of an established patient that may or may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services. 99212 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a problem focused history; a problem focused examination; straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self- limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. 99213 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: an expanded problem focused history; an expanded problem focused examination; medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. 99214 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a detailed history; a detailed examination; medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. 99215 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a comprehensive history; a comprehensive examination; medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family. Medicaid reimburses physicians according to the level of complexity of the office visit. The more complex the visit (and hence the higher the CPT code number), the greater the level of reimbursement. The Audit During the audit period, Petitioner submitted 2,215 Medicaid claims for services rendered to 382 patients, for which he received Medicaid payments of $134,469.21. In making a determination of overpayment, AHCA is not required to review each and every Medicaid claim submitted by a provider. Section 409.913(19), Florida Statutes, permits the agency to employ "appropriate statistical methods," including "sampling and extension to the population," to make its determination. In this instance, AHCA randomly selected a "cluster sample" of 39 patients from the 382 Medicaid patients to whom Petitioner had provided services during the audit period, and asked Petitioner to produce the medical records he had on file for these 39 patients. AHCA chose the cluster sample of 39 patients according to a statistical formula indicating a 95 percent probability that any overpayment amount would be at least the amount identified. By selecting the 95 percent confidence factor, AHCA attempted to ensure that any potential error in the audit would be resolved in favor of the audited physician. AHCA's statistical expert, Dr. Mark Johnson, validated the methodology used by AHCA. Dr. Johnson not only reviewed AHCA's work, but conducted his own independent analysis that reproduced AHCA's results. Dr. Johnson's testimony as to the reliability of AHCA's methodology is credited. Copies of the medical records were provided to AHCA by Zheila Galvez, the office assistant in charge of Petitioner's billings, on or about March 1, 1999. Ms. Galvez certified that she provided AHCA the complete medical records for the 39 patients, and acknowledged that these records would provide the only information AHCA would use in its audit. Petitioner was later provided an opportunity to supplement the records, but provided nothing further to the agency. At the hearing, counsel for Petitioner objected that AHCA failed to prove that the records it produced in evidence were the complete records as provided to AHCA by Ms. Galvez. The objection was rejected. No evidence was presented to show that AHCA mishandled the documents. Petitioner made no claim that a specific record was missing, and Petitioner was in the best position to know whether the records were complete. Petitioner had submitted a total of 232 claims for services rendered to the 39 patients in the cluster sample during the audit period. Each of these claims was reviewed by AHCA to determine whether it was supported by information contained in the medical records produced by Petitioner in response to AHCA's request. AHCA employee Dr. John Sullenberger, a physician who was not in active practice, performed the initial audit, reviewing all the claims for the 39 patient cluster sample. Dr. Sullenberger's work resulted in the First Audit Report that concluded Petitioner had been overpaid $72,724.89. As noted in the Preliminary Statement above, AHCA withdrew Dr. Sullenberger's audit because newly enacted Section 409.9131, Florida Statutes, mandated "peer review" in agency determinations of overpayment. Dr. Sullenberger did not meet the statutory definition of "peer" because he was not in active practice. See Section 409.9131(2)(c), Florida Statutes. AHCA engaged Dr. Timothy Walker, an active, Board- certified family practice physician who is a faculty member of Tallahassee Memorial Hospital's Family Practice Residency Program, to perform a second audit. Through Dr. Walker's deposition testimony, AHCA established that Dr. Walker's background, work experience and education establish him as an expert in CPT coding, qualified to render an opinion on the propriety of Petitioner's coding and billing practices. Dr. Walker reviewed the records that Petitioner had provided regarding the 39 patients in the cluster sample to determine whether there was documentation to support the Medicaid claims relating to these patients. Dr. Walker's review found that Petitioner exclusively billed the highest levels of CPT coding for outpatient services, i.e., 99205 for new patients and 99215 for established patients. Dr. Walker found that Petitioner failed to document a level of service consistent with these codes. Dr. Walker performed his own review of Petitioner's medical records and noted his conclusions as to the level of CPT coding that could be supported by the record of each patient for each visit to Petitioner's office. Dr. Walker found that all of the visits should have been billed at lower levels, based on the documentation provided by Petitioner. Dr. Walker's testimony is credited as to his review of Petitioner's records. Margarete Johnson, AHCA's registered nursing consultant, performed the calculations by which Dr. Walker's conclusions as to the proper coding were translated into dollar figures. These calculations were a simple function of addition and subtraction, using the relevant Medicaid reimbursement amounts for the various codes. Petitioner had been reimbursed $14,101.44 for the claims related to the 39 patients. Following Dr. Walker's analysis, Ms. Johnson calculated that $8,520.59 of that amount constituted overpayments. Using the generally accepted, appropriate, and valid statistical formula described by Dr. Johnson, AHCA extended this result to the total population of 2,215 Medicaid claims that Petitioner had submitted for services rendered during the audit period, and correctly calculated that Petitioner had been overpaid a total of $77,848.16. Petitioner did not present a case-in-chief. Petitioner's only exhibits were three pages that duplicated documents presented by AHCA, except for the fact that they carried an additional, later agency date stamp not found on those presented by AHCA. Petitioner claimed that these documents proved that AHCA did not produce its entire file on Petitioner during discovery or at the hearing. AHCA's witness Jack Williams explained that the extra, later date stamp on these documents resulted from Petitioner's having re-submitted these pages to AHCA as exhibits to his petition for formal hearing. This explanation was sufficient to allay any suspicion that AHCA's production was less than complete. On the strength of the evidence and testimony presented by AHCA, and in the absence of any evidence or testimony to the contrary, it is found that Petitioner received Medicaid overpayments in the amount of $77,848.16.
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 $77,848.16 in Medicaid overpayments for services rendered to his Medicaid patients from December 4, 1996 to December 4, 1998, and requiring him to repay this amount to the agency. DONE AND ENTERED this 24th day of October, 2001, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 24th day of October, 2001. COPIES FURNISHED: Donald W. Weidner, Esquire Matthew D. Weidner, Esquire Weidner, Bowden & Weidner 11265 Alumni Way, Suite 201 Jacksonville, Florida 32246 Anthony L. Conticello, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three Tallahassee, Florida 32308-5403 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency For Health Care Administration Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
The Issue The issue for determination is whether Respondent was reimbursed by the Medicaid program for non-covered behavioral health services and was, therefore, overpaid by the Medicaid program in the amount of $17,506.76, as set forth in Petitioner's agency action letter dated March 31, 2011.
Findings Of Fact Lorraine A. Mitchell, Ph.D., LCSW, has certifications, among others, in trauma, substance abuse, and sex therapy. She treats Medicaid patients who, as described by her, other practitioners might turn-away. Dr. Mitchell became an authorized Medicaid provider of community behavioral mental health services to Medicaid recipients. As a community behavioral mental health services provider, Dr. Mitchell was issued individual Medicaid provider number 768303100 and was a Type 07 provider. At all times material hereto, Dr. Mitchell had a valid Medicaid Provider Agreement with AHCA (Agreement). The Community Behavioral Health Services Coverage and Limitations Handbook, effective October 2004, hereinafter Handbook, provides in Chapter 1 that community behavioral health services include "mental health and substance abuse services provided to individuals with mental health, substance abuse and mental health and substance abuse co-occurring disorders for the maximum reduction of the recipient's disability and restoration to the best possible functional level." The Handbook further provides, among other things, (a) that Type 07 providers are the Comprehensive Behavioral Health Assessment Provider and Specialized Therapeutic Foster Care Provider; (b) that a treating licensed practitioner of the healing arts (LPHA) must enroll as Provider Type 07 and must be affiliated with a group provider in order to be enrolled as an individual Provider Type 07; and (c) that a LPHA includes a clinical social worker, mental health counselor, marriage and family therapist, or psychologist. The Handbook was incorporated by reference into Florida Administrative Code Rule 59G-4.050, Community Behavioral Health Services. Dr. Mitchell was advised by AHCA that she was required to be affiliated with a group practice. For a period of time, Dr. Mitchell was affiliated with the Trauma Resolution Center, hereinafter TRC. The evidence demonstrates that some Medicaid payments for services rendered were paid to TRC and, in turn, TRC paid Dr. Mitchell; and that some Medicaid payments were paid directly to Dr. Mitchell. Sometime after her affiliation with TRC, Dr. Mitchell formed Mitchell and Associates. As Mitchell and Associates, the same services were provided and the same Medicaid provider number and provider type were used by Dr. Mitchell. As a result, Dr. Mitchell billed under the name of Mitchell and Associates, but continued to use her individual Medicaid provider number (768303100) and provider type (Provide Type 07). AHCA audited certain of Mitchell and Associates' Medicaid claims for the community behavioral mental health services rendered. AHCA's audit focused only on services for which billing by Mitchell and Associates, as a Provider Type 07, was not permitted. A Provider Type 07 was only authorized to bill for Comprehensive Behavioral Health Assessment services (code H0031 HA) and Specialized Therapeutic Foster Care services (codes S5145, S5145 HE, and S5145 HK). AHCA determined from the audit that, for services in 2009 and 2010, Mitchell and Associates billed for non-covered services for a Type 07 provider (services beginning on February 4, 2009, and ending on August 10, 2010, for codes H2019 HR and H2019 HO) in an amount exceeding $17,506.76. No dispute exists that, during 2009 and 2010, Mitchell and Associates received payment for services to Medicaid recipients, including for the services that are being disputed. Further, no dispute exists as to whether the services were provided or as to the medical necessity of the services provided. The evidence demonstrates that, for the audit of services rendered by Mitchell and Associates during 2009 and 2010, Mitchell and Associates billed for non-covered behavioral health services (services beginning on February 4, 2009, and ending on August 10, 2010, for codes H2019 HR and H2019 HO), and received payment for same in an amount exceeding $17,506.76. Further, the evidence demonstrates that Mitchell and Associates was overpaid by the Medicaid program in an amount exceeding $17,506.76 for the non-covered behavioral health services. AHCA seeks only the overpayment amount of $17,506.76. No dispute exists as to the accuracy of the formula used to calculate the total overpayment. At all times material hereto, Dr. Mitchell attended training sessions presented by persons, who processed Medicaid billings, in order to better understand the billing aspect as Medicaid providers. Further, Dr. Mitchell was in contact with AHCA's staff, who assisted Medicaid providers, in order to obtain a better understanding of the Medicaid provider process for Type 07 providers. The evidence demonstrates that Dr. Mitchell believed that she was billing correctly and was billing for covered behavioral health services. AHCA considers the billing by Mitchell and Associates to be a mistake, not fraud. The evidence demonstrates that the billing by Mitchell and Associates was not fraud, but was a mistake. On September 27, 2010, Mitchell and Associates was issued a group Medicaid number. Dr. Mitchell began billing under the group Medicaid provider number for services rendered.
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 Lorraine A. Mitchell and Associates, P.A., received overpayments from the Medicaid program for non-covered behavioral health services in 2009 and 2010 (for services beginning on February 4, 2009, and ending on August 10, 2010, for codes H2019 HR and H2019 HO) in the amount of $17,506.76; and Requiring Lorraine A. Mitchell and Associates, P.A., to repay the overpayment of $17,506.76, plus interest at ten percent interest from March 31, 2011, in accordance with an agreed upon repayment schedule. S DONE AND ENTERED this 17th day of August, 2011, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 17th day of August, 2011.
Findings Of Fact Petitioner, Department of Health and Rehabilitative Services (HRS), is designated as the state agency responsible for the administration of federal and state Medicaid funds, and is authorized by statute to provide payments for medical services. Respondent, Marvin H. Ledbetter, is a doctor of osteopathy who is enrolled as a general practitioner provider in the Medicaid Program. His professional office is in Ormond Beach, Florida where he is engaged in family practice. Under the Program, Ledbetter is assigned a provider number (48220-0) which is used to bill Medicaid for services rendered to Medicaid recipients. During calendar year 1981, which is the only time period in question, Ledbetter received $42,809 in Medicaid reimbursements from HRS, of which $28,062 related to fees for Medicaid hospital patients. The latter category of fees is at issue. In order to qualify for federal matching Medicaid funds HRS must meet certain federally-imposed requirements, including the establishment of a program integrity section designed to insure that all Medicaid services are medically necessary. If they are not, HRS is obliged to seek recoupment of funds paid to the provider. This proceeding involves an attempt by HRS to recoup certain funds paid to Ledbetter for hospital services. After providing medical services to various hospital patients, Ledbetter completed and sent in the necessary forms to obtain payment. As noted earlier, these payments totaled $28,062 during 1981. Upon receipt of the forms, HRS input the information from the forms into a computer data base, along with similar information from other Medicaid providers throughout the State. This information included, among other things, the number of admissions, number of discharges, amount paid for hospital services and length of stay. The retention of such data is necessary so that possible overpayments may be detected by HRS through the statistical analysis of claims submitted by a group of providers of a given type. Because Ledbetter's total discharges exceeded the average of other family physicians throughout the State, the computer generated a report which flagged Ledbetter for further review and examination. An HRS analyst conducted such a review of Ledbetter's records, and found his average hospital length of stay for patients to be acceptable when compared to the average physician in the State. This report was forwarded to the HRS peer review coordinator who randomly selected thirty of Ledbetter's patients from the computer, and obtained their patient charts (numbering sixty-eight). Such a statistical calculation is authorized by Rule 10C-7.6(4)(b), Florida Administrative Code. A medical consultant employed by HRS then reviewed twelve of the sixty-eight charts and recommended the records be sent to a Peer Review Committee (PRC) for its review and recommendation. This committee is authorized by Rule 7C-7.61(4)(c), Florida Administrative Code serves under contract with HRS, and is composed of eight members of the Florida Osteopathic Medical Association. It is their responsibility to review the files of physicians whose Medicaid payments are questioned by HRS's program integrity section. When Ledbetter's records were forwarded to the PRC by HRS, the transmittal letter stated that a "study" of his records had been made, and that said study revealed "overutilization of inpatient hospital services" and "excessive lengths of stay." After a PRC review was conducted in early 1984, the records were returned to HRS with a notation that "mild overutilization" had occurred. According to informal guidelines used by the PRC, this meant that Ledbetter's overutilization fell within the range of 0 percent to 20 percent. HRS accepted these findings but for some reason initially determined that a 40 percent overutilization had occurred, and that Ledbetter was overpaid in 1981 by 40 percent for his hospital services. Finding this amount to be inconsistent with the mild overutilization guidelines, HRS arbitrarily added back two days to each patient's hospital stay, which decreased overutilization to 33.8 percent, or $9,505.06 in overpayments. By proposed agency action issued on May 18, 1984, it billed Ledbetter this amount, thereby precipitating the instant controversy. All of the patients in question were from the lower income category, and most were black. Their home conditions were generally less than desirable, and the ability of the parents to supply good nursing care to ill or sick children was in doubt. At the same time, in 1981 Ledbetter was working an average of 56 hours per week in the emergency room of a local hospital and devoted only minimal time to his family practice. Because of this Ledbetter's number of hospital admissions greatly exceeded the norm when compared to general practitioners who engaged in an office practice. Consequently, he received most of these patients through the emergency room rather than his office and was dealing with patients whose socioeconomic conditions were an important consideration. These factors must be taken into account in analyzing Ledbetter's patient records. HRS does not contend that Ledbetter failed to perform the services for which he was paid--rather, it questions only whether some of the admissions were medically necessary and whether some of the lengths of stay were too long. In this regard, conflicting expert testimony was offered by the parties concerning the amount of overutilization, if any. Expert testimony by two local doctors of osteopathy support a finding that only mild overutilization of admissions and lengths of stay occurred. This is corroborated by HRS's expert (Dr. Smith) and by the testimony of its "live" expert, Dr. Conn, who conceded that lengths of stay were only "a little bit too long." The more persuasive testimony also establishes that while mild overutilization falls within the range of 0 percent to 20 percent, 10 percent is an appropriate median in this proceeding. Using this yardstick, Ledbetter should reimburse HRS for 10 percent for his billings, or $2,806.20.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent repay petitioner $2,086.20 in excess Medicaid payments received for calendar year 1981 claims. DONE and ORDERED this 16th day of May, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of May, 1985.
The Issue Whether Medicaid overpayments were made to Respondent and, if so, what is the total amount of those overpayments. Whether, as a "sanction," Respondent should be directed to submit to a "comprehensive follow-up review in six months."
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings s of fact are made to supplement and clarify the factual stipulations set forth in the parties' Joint Prehearing Stipulation and their January 26, 2007, pleading:4 Respondent and his Practice Respondent is a pediatric physician whose office is located in a poor neighborhood in Hialeah, Florida. He has a very busy practice, seeing approximately 50 to 60 patients each day the office is open. Respondent documents patient visits by making handwritten notations on printed "progress note" forms. Because of the fast-paced nature of his practice, he does not always "have time to write everything as [he] would like, because [there] is too much" for him to do. Respondent's Participation in the Medicaid Program During the Audit Period, Respondent was authorized to provide physician services to eligible Medicaid patients. Respondent provided such services pursuant to a valid Provider Agreement (Provider Agreement) with AHCA, which contained the following provisions, among others: The Provider agrees to participate in the Florida Medicaid program under the following terms and conditions: * * * Quality of Services. The provider agrees to provide medically necessary services or goods of not less than the scope and quality it provides to the general public. The provider agrees that services or goods billed to the Medicaid program must be medically necessary, of a quality comparable to those furnished by the provider's peers, and within the parameters permitted by the provider's license or certification. The provider further agrees to bill only for the services performed within the specialty or specialties designated in the provider application on file with the Agency. The services or goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim. Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they may be amended from time to time. Term and signatures. The parties agree that this is a voluntary agreement between the Agency and the provider, in which the provider agrees to furnish services or goods to Medicaid recipients. . . . Provider Responsibilities. The Medicaid provider shall: * * * (b) Keep and maintain in a systematic and orderly manner all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical, business, and fiscal records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid. The provider agrees that only records made at the time the goods and services were provided will be admissible in evidence in any proceeding relating to the Medicaid program. * * * (d) Except as otherwise provided by law, the provider agrees to provide immediate access to authorized persons (including but not limited to state and federal employees, auditors and investigators) to all Medicaid- related information, which may be in the form of records, logs, documents, or computer files, and all other information pertaining to services or goods billed to the Medicaid program. This shall include access to all patient records and other provider information if the provider cannot easily separate records for Medicaid patients from other records. * * * (f) Within 90 days of receipt, refund any moneys received in error or in excess of the amount to which the provider is entitled from the Medicaid program. * * * (i) . . . . The provider shall be liable for all overpayments for any reason and pay to the Agency any fine or overpayment imposed by the Agency or a court of competent jurisdiction. Provider agrees to pay interest at 12% per annum on any fine or repayment amount that remains unpaid 30 days from the date of any final order requiring payment to the Agency. * * * Respondent's Medicaid provider number (under which he billed the Medicaid program for providing these services) was (and remains) 370947700. Handbook Provisions The handbooks with which Petitioner was required to comply in order to receive Medicaid payment for services rendered during the Audit Period included the Medicaid Provider Reimbursement Handbook, HCFA-1500 (MPR Handbook); Physician Coverage and Limitations Handbook (PCL Handbook); the Early and Periodic Screening, Diagnosis and Treatment Coverage and Limitations Handbook (EPSDTCL Handbook); and the Child Health Check-up Coverage and Limitations Handbook (CHCUCL Handbook). Medical Necessity The PCL Handbook provided that the Medicaid program would reimburse physician providers for services "determined [to be] medically necessary" and not duplicative of another provider's service, and it went on to state as follows: In addition, the services must meet the following criteria: the services must be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient's needs; the services cannot be experimental or investigational; the services must reflect the level of services that can be safely furnished and for which no equally effective and more conservative or less costly treatment is available statewide; and the services must be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a covered services. Note See Appendix D, Glossary, in the Medicaid Provider Reimbursement Handbook, HCFA-1500 and EPSDT 224, for the definition of medically necessary.[5] The EPSDTCL and CHCUCL Handbooks had similar provisions. Documentation Requirements The MPR Handbook required the provider to keep "accessible, legible and comprehensible" medical records that "state[d] the necessity for and the extent of services" billed the Medicaid program and that were "signed and dated at the time of service." The handbook further required, among other things, that the provider retain such records for "at least five years from the date of service" and "send, at his or her expense, legible copies of all Medicaid-related information to the authorized state and federal agencies and their authorized representatives." The MPR Handbook warned that providers "not in compliance with the Medicaid documentation and record retention policies [described therein] may be subject to administrative sanctions and recoupment of Medicaid payments" and that "Medicaid payments for services that lack required documentation or appropriate signatures will be recouped." EPSDT Screening/Child Health Check-Up The EPSDTCL Handbook provided: To be reimbursed by Medicaid, the provider must address and document in the recipient's medical record all the required components of an EPSDT screening. The following required components are listed in the order that they appear on the optional EPSDT screening form: Health and developmental history Nutritional assessment Developmental assessment Physical examination Dental screening Vision screening Hearing screening Laboratory tests Immunization Health education Diagnosis and treatment The CHCUCL Handbook, which replaced the EPSDTCL Handbook in or around May 2000, similarly provided as follows: To be reimbursed by Medicaid, the provider must assess and document in the child's medical record all the required components of a Child Health Check-Up. The required components are as follows: Comprehensive Health and Developmental History, including assessment of past medical history, developmental history and behavioral health status; Nutritional assessment; Developmental assessment; Comprehensive Unclothed Physical Examination Dental screening including dental referral, where required; Vision screening including objective testing, where required; Hearing screening including objective testing, where required; Laboratory tests including blood lead testing, where required; Appropriate immunizations; Health education, anticipatory guidance; Diagnosis and treatment; and Referral and follow-up, as appropriate. Coding Chapter 3 of the PCL Handbook "describe[d] the procedure codes for the services reimbursable by Medicaid that [had to be] used by physicians providing services to eligible recipients." As explained on the first page of this chapter of the handbook: The procedure codes listed in this chapter [were] Health Care Financing Administration Common Procedure Coding System (HCPCS) Levels 1, 2 and 3. These [were] based on the Physician[]s['] Current Procedural Terminology (CPT) book. The Current Procedural Terminology (CPT) book referred to in Chapter 3 of the PCL Handbook was a publication of the American Medical Association. It contained a listing of procedures and services performed by physicians in different settings, each identified by a "procedure code" consisting of five digits or a letter followed by four digits. For instance, there were various "procedure codes" for office visits. These "procedure codes" included the following, among others: New Patient * * * 99204 Office or other outpatient visit for the evaluation and management of a new patient which requires these three key components: a comprehensive history; a comprehensive examination; and medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. * * * Established Patient * * * 99213 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: an expanded problem focused history; an expanded problem focused examination; medical decision making of low complexity. Counseling and coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. 99214 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: a detailed history; a detailed examination; medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. * * * Fee Schedules In Appendix J of the PCL Handbook, there was a "fee schedule," which established the amount physicians would be paid by the Medicaid program for each reimbursable procedure and service (identified by "procedure code"). For both "new patient" office visits (99201-99205 "procedure code" series) and "established patient" office visits (99211-99215 "procedure code" series), the higher numbered the "procedure code" in the series, the more a physician would be reimbursed under the "fee schedule." The Audit and Aftermath Commencing in or around August 2002, AHCA conducted an audit of Respondent's Medicaid claims for services rendered during the Audit Period (Audit Period Claims).6 Respondent had submitted 18,102 such Audit Period Claims, for which he had received payments totaling $596,623.15. These Audit Period Claims involved 1,372 different Medicaid patients. From this group, AHCA randomly selected a "cluster sample" of 40 patients. Of the 18,102 Audit Period Claims, 713 had been for services that, according to the claims, had been provided to the 40 patients in the "cluster sample" (Sample Claims). Respondent had received a total of $23,263.18 for these 713 Sample Claims. During an August 28, 2002, visit to Respondent's office, AHCA personnel "explain[ed] to [Respondent] what the audit was about [and] why [AHCA] was doing it" and requested Respondent to provide AHCA with copies of the medical records Respondent had on file for the 40 patients in the "cluster sample" documenting the services provided to them during the Audit Period. The originals of these records were not inspected by AHCA personnel or agents during, or any time after, this August 28, 2002, site visit. Sometime within approximately 30 to 45 days of the August 28, 2002, site visit, Respondent, through his office staff, made the requested copies (First Set of Copies) and provided them to AHCA. There is nothing on the face of these documents to suggest that they were not true, accurate, and complete copies of the originals in Respondent's possession, as they existed at the time of copying (Copied Originals). They do not appear, upon visual examination, to be the product of "bad photocopying." While the handwritten entries and writing are oftentimes difficult (at least for the undersigned) to decipher, this is because of the poor legibility of the handwriting, not because the copies are faint or otherwise of poor quality. Each of the Sample Claims was reviewed to determine whether it was supported by information contained in the First Set of Copies. An initial review was conducted by AHCA Program Analyst Theresa Mock and AHCA Registered Nurse Consultant Blanca Notman. AHCA then contracted with Larry Deeb, M.D., to conduct an independent "peer review" in accordance with the provisions of Section 409.9131, Florida Statutes. Since 1980, Dr. Deeb has been a Florida-licensed pediatric physician, certified by the American Board of Pediatrics, in active practice in Tallahassee. AHCA provided Dr. Deeb with the First Set of Copies, along with worksheets containing a "[l]isting of [a]ll claims in [the] sample" on which Ms. Notman had made handwritten notations indicating her preliminary determination as to each of the Sample Claims (Claims Worksheets). In conducting his "peer review," Dr. Deeb did not interview any of the 40 patients in the "cluster sample," nor did he take any other steps to supplement the information contained in the documents that he was provided. Dr. Deeb examined the First Set of Copies. He conveyed to AHCA his findings regarding the sufficiency of these documents to support the Sample Claims by making appropriate handwritten notations on the Claims Worksheets before returning them to AHCA. Based on Dr. Deeb's sufficiency findings, as well as Ms. Notman's "no documentation" determinations, AHCA "provisional[ly]" determined that Respondent had been overpaid a total $80,788.23 for the Audit Period Claims. By letter dated July 7, 2003 (Provisional Agency Audit Report), AHCA advised Petitioner of this "provisional" determination and invited Respondent to "submit further documentation in support of the claims identified as overpayment," adding that "[d]ocumentation that appear[ed] to be altered, or in any other way appear[ed] not to be authentic, [would] not serve to reduce the overpayment." Appended to the letter were "[t]he audit work papers [containing a] listing [of] the claims that [were] affected by this determination." In the Provisional Agency Audit Report, AHCA gave the following explanation as to how it arrived at its overpayment determination: REVIEW DETERMINATION(S) Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office visits. The documentation you provided supports a lower level of office visit than the one for which you billed and received payment. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some services for which you billed and received payment were not documented. Medicaid requires documentation of the services and considers payment made for services not appropriately documented an overpayment. Medicaid policy addresses specific billing requirements and procedures. You billed Medicaid for Child Health Check Up (CHCUP) services and office visits for the same child on the same day. Child Health Check- Up Providers may only bill for one visit, a Child Health Check-Up or a sick visit. The difference between the amount you were paid and the appropriate fee is considered an overpayment. The overpayment was calculated as follows: A random sample of 40 recipients respecting whom you submitted 713 claims was reviewed. For those claims in the sample which have dates of service from January 01, 2000 through December 31, 2001 an overpayment of $4,168.00 or $5.84667601 per claim was found, as indicated on the accompanying schedule. Since you were paid for a total (population) of 18,102 claims for that period, the point estimate of the total overpayment is 18,102 x $5.84667601= $105,836.33. There is a 50 percent probability that the overpayment to you is that amount or more. There was then an explanation of the "statistical formula for cluster sampling" that AHCA used and how it "calculated that the overpayment to [Respondent was] $80,788.23 with a ninety-five percent (95%) probability that it [was] that amount or more." After receiving the Provisional Agency Audit Report, Respondent requested to meet with Dr. Deeb to discuss Dr. Deeb's sufficiency findings. The meeting was held on September 25, 2003, approximately six months after Dr. Deeb had reviewed the First Set of Copies and a year after AHCA had received the First Set of Copies from Respondent. At the meeting, Respondent presented to Dr. Deeb what Respondent represented was a better set of copies of the Copied Originals than the First Set of Copies (on which Dr. Deeb had based the sufficiency findings AHCA relied on in making its "provisional" overpayment determination). According to Respondent, the First Set of Copies "had not been properly Xeroxed." He stated that his office staff "had not copied the back section of the documentation and that was one of the major factors in the documentation not supporting the [claimed] level of service." The copies that Respondent produced at this meeting (Second Set of Copies) had additional handwritten entries and writing (both on the backs and fronts of pages) not found in the First Set of Copies: the backs of "progress note" pages that were completely blank in the First Set of Copies contained handwritten narratives, and there were handwritten entries and writing in numerous places on the fronts of these pages where, on the fronts of the corresponding pages in the First Set of Copies, just blank, printed lines appeared (with no other discernible markings). The Second Set of Copies was not appreciably clearer than the First Set of Copies. In the two hours that he had set aside to meet with Respondent, Dr. Deeb only had time to conduct a "quick[]," partial review of the Second Set of Copies. Based on this review (which involved looking at documents concerning approximately half of the 40 patients in the "cluster sample"), Dr. Deeb preliminarily determined to "allow" many of the Sample Claims relating to these patients that he had previously determined (based on his review of the First Set of Copies) were not supported by sufficient documentation. Following this September 25, 2003, meeting, after comparing the Second Set of Copies with the First Set of Copies and noting the differences between the two, AHCA "made the decision that [it] would not accept the [S]econd [S]et [of Copies]" because these documents contained entries and writing that appeared to have been made, not contemporaneously with the provision of the goods or services they purported to document (as required), but rather after the post-Audit Period preparation of the First Set of Copies. Instead, AHCA, reasonably, based its finalized overpayment determination on the First Set of Copies. Thereafter, AHCA prepared and sent to Respondent a Final Agency Audit Report, which was in the form of a letter dated June 29, 2004, advising Respondent that AHCA had finalized the "provisional" determination announced in the Provisional Agency Audit that he had been overpaid $80,788.23 for the Audit Period Claims (a determination that the preponderance of the record evidence in this case establishes is a correct one).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Respondent received $80,788.23 in Medicaid overpayments for the Audit Period Claims, and requiring Respondent to repay this amount to AHCA. DONE AND ENTERED this 30th day of April, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2007.
The Issue The following are the issues presented: Whether Respondent, Leeland ER SVCS Partnership (“Leeland”), is liable to the Agency for Health Care Administration (“AHCA”) for Medicaid overpayments in the amount of $12,377.17, during the audit period of March 1, 2009, through August 31, 2011; Whether Leeland should be required to pay an administrative fine of $2,475.43, pursuant to Florida Administrative Code Rule 59G-9.070(7)(e); and Whether Leeland is liable to AHCA for the agency’s investigative, legal, and expert witness costs pursuant to section 409.913(23)(a), Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: ACHA is designated as “the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act,” i.e., the “Medicaid program.” § 409.902(1), Fla. Stat. Among its duties as the Medicaid agency, AHCA is required to conduct audits of medical providers participating in the Medicaid program, and to “recover overpayments and impose sanctions as appropriate.” § 409.913, Fla. Stat. Section 409.913(1)(e) defines "overpayment" to include "any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake." The Medicaid provider agreement is a voluntary contract between AHCA and the provider. An enrolled Medicaid provider must comply fully with all state and federal laws pertaining to the Medicaid Program, including the Medicaid provider handbooks incorporated by reference into AHCA’s rules, as well as all federal, state, and local laws pertaining to licensure to receive payment from the Medicaid program. This case involves an AHCA Medicaid audit conducted of Leeland’s paid Medicaid claims as to the dates of service from March 1, 2009, through August 31, 2011, hereinafter referenced as the “audit period.” Leeland was randomly selected for audit and had no prior violations of Medicaid law. Therefore, any sanction imposed on Leeland in this proceeding would constitute a “first offense” under the operative rule discussed in the Conclusions of Law below. During the audit period, Leeland was an enrolled Medicaid provider and had a valid Medicaid provider agreement with AHCA. As an enrolled provider, Leeland was subject to all relevant federal and state statutes, rules, policy guidelines, and Medicaid handbooks incorporated by reference into rule. AHCA issued a PAR, dated June 20, 2013, alleging that Leeland was overpaid $200,349.16 for certain claims that in whole, or in part, were not covered by Medicaid. AHCA later issued a FAR, dated August 16, 2013, alleging that Leeland was overpaid $33,111.52 for certain claims that in whole, or in part, were not covered by Medicaid. The FAR further informed Leeland that AHCA intended to impose a fine of $6,622.30 (20% of the total overpayment) as a sanction for violation of rule 59G-9.070(7)(e) and to impose costs pursuant to section 409.913(23). Leeland received the FAR on August 23, 2013. Leeland timely filed a Petition for Formal Administrative Hearing on September 24, 2013. On October 9, 2013, Leeland tendered payment to AHCA in the amount of $33,111.52, as requested in the FAR, to be held in escrow pending the administrative hearing. The FAR set forth the basis for the overpayment determination as follows: 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 amounts you were paid and the correct payment for the appropriate level of service is considered an overpayment. The FAR also stated that the overpayment calculation was based on a statistical formula by which a random sample of the claims submitted by Leeland was selected and extrapolated to the total number of claims in order to arrive at the amount of the total overpayment: A random sample of 63 recipients respecting whom you submitted 134 claims was reviewed. For those claims in the sample, which have dates of service from March 1, 2009, through August 31, 2011, an overpayment of $308.96 or $2.30567164 per claim, was found. Since you were paid for a total (population) of 26,060 claims for that period, the point estimate of the total overpayment is 26,060 x $2.30567164 = $60,085.80. 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:[1/] 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 $33,111.52 with a ninety-five percent (95%) probability that it is that amount or more. After issuance of the FAR, Leeland provided additional information and documentation to MPI, which conducted a peer review of the new material. AHCA subsequently reduced the alleged overpayments in the sample to $171.38. Overpayments were found on claims involving seven of the 63 recipients.2/ AHCA concluded that this overpayment amounted to 2.45 percent of the total payments of $6,987.99 made to Leeland for the claims in the sample. The overpayment amount of $171.38 was extrapolated to the entire population of claims using the formula set forth above. AHCA concluded that the total amount of overpayments to Leeland for all Medicaid recipients in the population was $12,377.17, with a 95 percent confidence level. This reduction in the alleged overpayment led AHCA to make a proportional reduction in the proposed fine, to $2,475.43. Leeland does not challenge the agency’s conclusion that the actual overpayment found in the sample amounted to $171.38. Leeland does challenge the method by which AHCA used that actual overpayment to extrapolate an overall overpayment amount of $12,377.17 for the entire body of Medicaid claims submitted by Leeland during the audit period. AHCA is required by statute to use an “accepted and valid statistical calculation” to determine Medicaid overpayments. ACHA submitted its audit report and work papers into evidence. To support the validity of the cluster sampling method used in this case, AHCA presented the testimony of Dr. Fred Huffer, a professor in the Statistics Department at Florida State University, as well as the AHCA employees who provided the data to which the formula was applied. Robi Olmstead, supervisor of MPI’s Practitioner Care Unit, testified that Leeland was randomly selected for audit. Once the selection was made, Ms. Olmstead assigned the case to an investigator. Her office applied a computerized claim sampling program to select the recipients and claims to be audited. The program pulled all claims for the provider during the audit period. Ms. Olmstead sorted the claims, selecting only those that were fee-for-service, then generated the “seed” and selected the cluster sample. Ms. Olmstead testified that the program tells her how many recipients should be reviewed to make a statistically valid sample. In Leeland’s case, the program stated that 62.6 recipients should be used, so the number was rounded up to 63. Lisa Robinson, the MPI investigator who handled the Leeland audit, testified that the claim sampling program selected the list of 63 recipients to be audited. Ms. Robinson sent a request for medical records to Leeland. Once Leeland submitted the records for the 63 recipients, Ms. Robinson reviewed the records. The claim sampling program generated a worksheet listing each billed claim for each recipient. Ms. Robinson attached the worksheets to the records and prepared them for the nurse reviewer. The nurse reviewer reviewed and organized the records for a peer review by a physician. After the physician reviewed and determined any disallowed amounts, the records were returned to Ms. Robinson, who entered the disallowed amounts into the claim sampling program to determine the amount of the overpayment. Ms. Olmstead testified that she has no statistical expertise and that she relied on Dr. Huffer to review and validate the results obtained by the claim sampling program. Ms. Robinson likewise claimed no statistical expertise or any real knowledge of how the claim sampling program works. Ms. Robinson simply enters data into the program and accepts the results it generates. Dr. Huffer, who has consulted with MPI since 2004, testified that when he received the overpayment calculation results, he first checked the calculations. Next, he constructed hypothetical populations based on MPI’s sample to test the confidence level of 95 percent asserted in the FAR. Dr. Huffer explained that a confidence level is a probability attached to the correctness of some statement or procedure. The 95 percent confidence level in this case means that if MPI runs its audit procedure repeatedly, the number that it states as the overpayment from a sample of the population will be less than the “true” overpayment in the overall recipient population 95 percent of the time. The “true” overpayment value remains unknown, but the simulations performed by Dr. Huffer lead to a “reasonably confident” conclusion that the assessed overpayment is an underestimate of that “true” value. Dr. Huffer stated that the simplest type of sampling scheme is a simple random sample, in which units are selected at random and audited. He noted that sometimes the units are naturally grouped into clusters, and much sampling effort can be saved by sampling the clusters of units rather than the units individually. In this case, AHCA was interested in auditing a population of claims, but the claims were naturally grouped by recipients. Therefore, to conserve resources, AHCA used single- stage cluster sampling, with each selected resident constituting a cluster of claims to be audited. Dr. Huffer noted the practical advantages of this method: [T]here’s a lot less effort in accessing the records of a smaller number of recipients, and also there’s a lot less effort in making decisions about medical necessity for a small number of recipients versus, say, a large number of recipients. So there’s a lot of savings in sampling effort by doing a cluster sampling based upon clusters, which are the recipients. Dr. Huffer testified that a sample size of 63 was valid, independent of the size of the population from which the sample was taken. He stated that “it is a well-known fact in statistics that it is the sample size which primarily governs the accuracy of the result, not the population size.” He noted, for instance, that a sample size of 35 could be validly used for a population of one million. Dr. Huffer explained that he constructed a hypothetical population that is “like a large scaled-up version of the sample.” He “cloned” every recipient and every claim for all recipients about 208 times to make a hypothetical population of approximately 13,000 recipients. From this population, he sampled 63 recipients at random and performed the same calculation that AHCA did on its sample. He performed the calculation procedure on two million samples of 63 recipients drawn from his hypothetical population. Dr. Huffer’s two million simulations yielded an empirical confidence level of 97.7 percent, meaning that “we’re even more confident in this case that the number we announce as the overpayment is less than the true overpayment . . . in the population.” Dr. Huffer explained the extrapolation of the sample to the population. By taking the $171.38 of total overpayments found in the 134 claims for the population of 63 residents in the sample, MPI derived an average overpayment per sample claim of $1.27.3/ There were 26,060 claims in the entire population. Multiplying the total number of claims by the $1.27 average overpayment yielded a “point estimate” of the total overpayment of a little more than $33,000. Dr. Huffer stated that while the overpayments in the population may be “in the neighborhood” of the point estimate, there is never an expectation that the point estimate will be exactly correct. Every random sample of recipients would yield a somewhat different total. Therefore, a standard error of the overpayment was introduced as an estimate of how far wrong the point estimate might be. The standard error in this case was $12,547.82. The true overpayment could be plus or minus some multiple of the standard error. Dr. Huffer testified that to reach the lower bound of the 95 percent confidence level, MPI subtracted about one and one-half times the standard error from the point estimate to arrive at an overpayment value of $12,377.17. Dr. Huffer concluded that there was “strong evidence” that the true overpayments exceeded $12,377.17, because that figure was an “intentional underestimate.” Counsel for Leeland questioned Dr. Huffer about the validity of the statistically derived overpayment, given that the actual overpayment drawn from the sample, $171.38, was so small compared to the total Medicaid payments for those recipients. Dr. Huffer testified that the 95 percent confidence rate is “totally unrelated” to the magnitude of the actual overpayments. To counter Dr. Huffer’s testimony on the irrelevancy of the size of the actual overpayment to the validity of the sampling method, counsel for Leeland presented a federal Medicare statute, 42 U.S.C. § 1395ddd(f)(3), which provides as follows, in relevant part: Limitation on use of extrapolation A medicare contractor may not use extrapolation to determine overpayment amounts to be recovered by recoupment, offset, or otherwise unless the Secretary determines that— there is a sustained or high level of payment error; or documented educational intervention has failed to correct the payment error . . . . Dr. Huffer responded that the federal statute does not imply that extrapolation is not allowed for statistical reasons. He believed that the reason for the Medicare law’s disallowance of extrapolation in smaller cases could be simply to forgive errors below a certain threshold. Counsel for Leeland offered another example, an “Open Letter to Health Care Providers” issued by the Office of Inspector General of the U.S. Department of Health and Human Services in 2001. The letter sets forth new claims review procedures, including a statement that if the net financial error rate in a discovery sample is below five percent, the provider is not required to perform any further audit work and only the actual identified overpayments must be refunded. Dr. Huffer pointed out that the letter, like the statute, does not question the statistical validity of extrapolation. “They do not give any statistical reason for saying that it would be wrong to proceed in this case. As far as I know, they’re just saying if you [have] a small error rate, we’ll forgive it.” Dr. Huffer agreed that there was not a “sustained or high level of payment error” in this case, but observed that this case was not being decided under the federal Medicare statute. Dr. Huffer opined that the sampling method used in this case was reasonable and comported with generally accepted statistical methods. His opinions and explanation were credible, were unrebutted, and are accepted. Leeland's attempt to undermine Dr. Huffer’s opinions through cross-examination was ineffective and lacked the support of contradictory expert testimony regarding generally accepted statistical methods. AHCA seeks to recover its investigative, legal, and expert witness costs pursuant to section 409.913(23)(a). AHCA has established its right to recover these costs. At the outset of the final hearing, the parties agreed that if AHCA prevailed in the case-in-chief, and was found to be entitled to costs, then this tribunal would retain jurisdiction for the limited purpose of allowing AHCA to document its costs in the manner provided by section 409.913(23)(b).
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED that the Agency for Health Care Administration enter a final order requiring Leeland ER SVCS Partnership to repay the sum of $12,377.17 for overpayments on claims that did not comply with the requirements of Medicaid laws, rules, and provider handbooks, including interest. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount, and either party may file a request for a hearing within 30 days after entry of the final order to determine the appropriate amounts. DONE AND ENTERED this 11th day of April, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2016.
The Issue The issues are whether Petitioner received a Medicaid overpayment for claims paid during the audit period, August 1, 1997, through August 25, 1999, and if so, what is the amount that Petitioner is obligated to reimburse to Respondent.
Findings Of Fact Respondent is the agency responsible for administering the Florida Medicaid Program. One of its duties is to recover Medicaid overpayments from physicians providing care to Medicaid recipients. Petitioner is a licensed psychiatrist and an authorized Medicaid provider. His Medicaid provider number is No. 048191200. Chapter Three of the Limitations Handbook describes the procedure codes for reimbursable Medicaid services that physicians may use in billing for services to eligible recipients. The procedure codes are Health Care Financing Administration Common Procedure Coding System (HCPCS), Levels 1-3. The procedure codes are based on the Physician's Current Procedural Terminology (CPT) book, published by the American Medical Association. The CPT book, includes HCPCS descriptive terms, numeric identifying codes, and modifiers for reporting services and procedures. The Limitations Handbook further provides that Medicaid reimburses physicians using specific CPT codes. The CPT codes are listed on Medicaid's physician fee schedule. The CPT book includes a section entitled Evaluation and Management (E/M) Services Guidelines. The E/M section classifies medical services into broad categories such as office visits, hospital visits, and consultations. The categories may have subcategories such as two types of office visits (new patient and established patient) and two types of hospital visits (initial and subsequent). The subcategories of E/M services are further classified into levels of E/M services that are identified by specific CPT codes. The classification is important because the nature of a physician's work varies by type of service, place of service, and the patient's status. According to the CPT book, 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. They are history, examination, medical decision making, counseling, coordination of care, nature of presenting problem, and time. The most important components in selecting the appropriate level of E/M services are history, examination, and medical decision making. However, since 1992, the CPT book has included time as an explicit factor in selecting the most appropriate level of E/M services. At all times relevant here, Petitioner provided services to Medicaid patients pursuant to a valid Medicaid provider agreement. Therefore, Petitioner was subject to all statutes, rules and policy guidelines that govern Medicaid providers. The Medicaid provider agreement clearly gives a Medicaid provider the responsibility to maintain medical records sufficient to justify and disclose the extent of the goods and services rendered and billings made pursuant to Medicaid policy. This case involves Respondent's Medicaid audit of claims paid to Petitioner for Medicaid psychiatric services during the audit period August 1, 1997, through August 25, 1999 (the audit period). Petitioner provided these services to his Medicaid patients, which constituted approximately 85 to 90 percent of his practice, at his office and at hospitals in the Jacksonville, Florida, area. During the audit period, Petitioner billed Medicaid for services furnished under the following CPT codes and E/M levels of service: (a) 99215, office or other outpatient visit for the evaluation and management of an established patient; (b) 99223, initial hospital care per day for the evaluation and management of a patient; (c) 99232, subsequent hospital care per day for the evaluation and management of a patient; (d) 99233, subsequent hospital care per day for the evaluation and management of a patient; (e) 99238, hospital discharge day management; (f) 99254, initial inpatient consultation for a new or established patient; and (g) 90862, other psychiatric service or procedures, pharmacologic management. Except for CPT code 90862, the E/M levels of services billed by Petitioner require either two or all three of the key components as to history, examination, and medical decision- making. The CPT book assigns a typical amount of time that physicians spend with patients for each level of E/M service. The CPT book contains specific psychiatric CPT codes. CPT codes 90804-90815 relate to services provided in the office or other outpatient facility and involve one of two types of psychotherapy. CPT codes 90816-90829 relate to inpatient hospital, partial hospital, or residential care facility involving different types of psychotherapy. CPT codes 90862- 90899 relate to other psychiatric services or procedures. CPT code 90862 specifically includes pharmacologic or medication management; including prescription, use, and review of medication with no more than minimal medical psychotherapy. CPT code 90862 is the only psychiatric procedure code that Petitioner used in billing for the psychiatric services he provided. CPT code 90862 does not have specific requirements as to history, examination, and medical decision-making or a specified amount of time. Most of Petitioner's hospital patients were admitted to the hospital for psychiatric services through the emergency room. As part of the admission process, Petitioner performed psychiatric and physical examinations. However, testimony at hearing that Petitioner generally performed the psychiatric evaluations and the physical examinations on separate days is not persuasive. The greater weight of the evidence indicates that the hospital physical examinations were conducted as part of the routine admission process and appropriately included in claims for the patients' initial hospital care. Some of Petitioner's hospital patients had complicated conditions. Some patients required crisis intervention and/or lacked the ability to perform activities of daily living. The initial hospital care of new hospital patients required Petitioner to take an extensive medical and psychiatric history. Petitioner attended his hospital patients on a daily basis. However, there is no persuasive evidence that Petitioner routinely spent 20-25 minutes with his hospital patients for each subsequent daily visit until the day of discharge. Petitioner used a team approach when attending his hospital patients. On weekdays, the team consisted of Petitioner, a social worker, a music therapist, and the floor nurses. On weekends, Petitioner generally made his rounds with the floor nurses. Petitioner's use of the team approach to treat hospital patients did not change the level of service he provided in managing their medication. Petitioner did not document the time he spent with patients during hospital visits. However, his notations as to each of these visits indicate that, excluding admissions and discharges, the hospital visits routinely involved medication management. Petitioner's testimony that his treatment during subsequent hospital visits involved more than mere medication management is not persuasive. Petitioner also failed to document the time he spent with patients that he treated at his office. He did not present his appointment books as evidence to show the beginning and ending time of the appointments. Petitioner's notes regarding each office visit reflect a good bit of thought. However, without any notation as to time, the office progress notes are insufficient to determine whether Petitioner provided a level of service higher than medication management for established patients. Petitioner and his office manager agreed in advance that, unless Petitioner specified otherwise, every office visit for an established patient would be billed as if it required two of the following: a comprehensive history; a comprehensive examination; and a medical decision making of high complexity. With no documented time for each appointment, Petitioner's records do not reflect that he provided a level of service higher than medication management for the office visits of established patients. Petitioner's testimony to the contrary is not persuasive. Petitioner treated some patients at their place of residence in an adult congregate living facility (ACLF). Respondent does not pay for psychiatric services in such facilities. Instead of entirely denying the claims for ACLF patients, Respondent gave Petitioner credit for providing a lower level of service in a custodial care facility. Sometime in 1999, Respondent made a decision to audit Petitioner's paid claims for the period of time at issue here. After making that decision, Respondent randomly selected the names of 30 Medicaid patients that Petitioner had treated. The 30 patients had 282 paid claims that were included in the "cluster sample." Thereafter, Respondent's staff visited Petitioner's office, leaving a Medicaid provider questionnaire and the list of the 30 randomly selected patients. Respondent's staff requested copies of all medical records for the 30 patients for the audit period. Petitioner completed the Medicaid questionnaire and sent it to Respondent, together with all available medical records for the 30 patients. The medical records included Petitioner's progress notes for office visits. Petitioner did not send Respondent all of the relevant hospital records for inpatient visits. The original hospital records belonged to the hospitals where Petitioner provided inpatient services. Petitioner had not maintained copies of all of the hospital records even though Medicaid policy required him to keep records of all services for which he made Medicaid claims. When Respondent received Petitioner's records, one of Respondent's registered nurses, Claire Balbo, reviewed the records to determine whether Petitioner had provided documentation to support each paid claim. Ms. Balbo made handwritten notes on the records of claims that were not supported by documentation. Ms. Balbo reviewed the documentation in the records between February 10, 2000, and March 7, 2000. Next, one of Respondent's investigators, Art Williams, reviewed the records. Mr. Williams made his review on or about January 23, 2001. In some instances, Mr. Williams changed some of Petitioner's CPT codes from an inappropriate hospital inpatient or office visit procedure code to a psychiatric procedure code with a lower reimbursement rate. Additionally, Mr. Williams noted Petitioner's visits in ACLF's that, according to Medicaid policy, were not reimbursable. Finally, Mr. Williams noted that Petitioner occasionally made several claims on one line of the claim form contrary to Medicaid policy. Mr. Williams made these changes to the CPT codes based on applicable Medicaid policy. His review of the audit documents and patient records did not involve a determination as medical necessity or the appropriate level of service. A peer reviewer makes determinations as to medical necessity and the appropriate level of service for each paid claim in the random sample of 30 patients. Respondent then sent the records to Dr. Melody Agbunag, a psychiatrist who conducted a peer review of Petitioner's records. Dr. Agbunag's primary function was to determine whether the services that Petitioner provided were medically necessary and, if so, what the appropriate level of service was for each paid claim. Dr. Agbunag conducted the peer review between June 8, 2001, and August 29, 2001. She agreed with Respondent's staff regarding the adjustments to the procedure codes that corresponded with the level of service reflected in the medical records. When Dr. Agbunag returned the records to Respondent, Ms. Balbo calculated the monetary difference between the amount that Medicaid paid Petitioner for each claim and the amount that Medicaid should have paid based on Dr. Agbunag's review. The difference indicated that Respondent had overpaid Petitioner for claims that in whole or in part were not covered by Medicaid. Respondent sent Petitioner a Preliminary Agency Audit Report (PAAR) dated December 27, 2001. The PAAR stated that Petitioner had been overpaid $54,595.14. The PAAR stated that Petitioner could furnish additional information or documentation that might serve to reduce the overpayment. Petitioner responded to the PAAR in a letter dated February 28, 2001. According to the letter, Petitioner challenged the preliminary determinations in the PAAR and advised that he was waiting on additional patient records from a certain hospital. In a letter dated June 30, 2002, Petitioner advised Respondent that he generally spends 15-20 minutes with his hospital inpatients. The letter does not refer to any additional hospital records. Petitioner's office manager sent Respondent a letter dated August 1, 2002. The letter discusses every service that Petitioner provided to the 30 patients during the audit period. Some of these services were not included in the random "cluster sample" because Medicaid had not paid for them during the audit period. According to the August 1, 2002, letter, Petitioner's office manager attached some of the patient records that Petitioner had not previously provided to Respondent. The additional documentation related to multiple claims involving several of Petitioner's hospital and office patients. Sometime after receiving the additional documentation, Dr. Agbunag conducted another peer review. She did not change her prior determination regarding the level of service as to any paid claim. In 2003, Vicki Remick, Respondent's investigator, reviewed the audit, the patient records, and all correspondence. Her review included, but was not limited to, the determination of the appropriate CPT code and amount of reimbursement, taking into consideration Medicaid policy and Dr. Agbunag's findings regarding medical necessity and the level of care for each paid claim. On or about October 1, 2003, Respondent issued the Final Agency Audit Report (FAAR). The FAAR informed Petitioner that he had been overpaid $39,055.34 for Medicaid claims that, in whole or in part, were not covered by Medicaid. The FAAR included a request for Petitioner to pay that amount for the overpayment. The FAAR concluded, as to some patients, that Petitioner's documentation did not support the CPT codes that Petitioner used to bill and that Respondent used to pay for services. Thus, Respondent "down graded" the billing code to a lesser amount. As a result, the difference between the amount paid and the amount that should have been paid was an overpayment. The FAAR also stated that Petitioner billed and received payment for some undocumented services. In each such instance, Respondent considered the entire amount paid as an overpayment. The FAAR indicated that Petitioner billed Medicaid for some services at acute care hospital psychiatric units without documenting the medical records as to the appropriate CPT codes and medical illness diagnosis codes. Respondent adjusted the payments for these services to the appropriate psychiatric CPT codes. According to the FAAR, Petitioner billed and received payment for services which only allowed one unit of service per claim line. For this audit, Respondent allowed charges for the additional units of service where Petitioner's documentation for the additional dates of service supported the services allowed by the peer reviewer. The FAAR stated that Petitioner billed for psychiatric services at an ACLF or an assisted living facility. Medicaid normally does not pay for such services. However, in this case, Respondent adjusted the claims to a domiciliary or custodial care visit. Sometime after Petitioner received the FAAR, Petitioner sent Respondent some additional patients' medical records. Some of the records were duplicates of documents that Petitioner previously had furnished to Respondent. Other records were for services that may have been provided during the audit period but which were not a part of the random sample because Medicaid did not pay for them during relevant time frame. Respondent requested Dr. James R. Edgar to conduct a second peer review of Petitioner's correspondence and patient records to determine the appropriate level of service. Respondent provided Dr. Edgar with a copy of the patients' medical records, a copy of Respondent's worksheets, including Dr. Agbunag's notes, and the appropriate policy handbooks. Respondent requested Dr. Edgar to make changes in the level of service as he deemed appropriate. Dr. Edgar performed his review between July 25, 2004, and July 29, 2004, making an independent determination regarding issues of medical necessity and level of care. Initially, as to every disputed paid claim, Dr. Edgar agreed with Dr. Agbunag that Petitioner's patient records were insufficient to justify the procedure code and higher level of service claimed by Petitioner. Specifically, Dr. Edgar presented persuasive evidence that a number of paid claims, which Petitioner billed under CPT codes 99215, 99223, 99232, 99233, and 99238, were properly adjusted to CPT code 90862. Petitioner was not entitled to bill at a higher level of reimbursement because he failed to adequately document as to history, examination, medical decision-making, and time. Dr. Edgar agreed that, upon reconsideration, Petitioner's claim for Recipient 14, date of service September 7, 1998, billed under CPT code 99238, was appropriate. As to Recipient 1, date of service March 9, 1999, Petitioner was not entitled to bill for services using CPT code 99255, initial inpatient consultation for a new or established patient. CPT code 99222, initial hospital care, per day, for the E/M of a new or established patient, was more appropriate because Petitioner provided the consultation for one of his established patients. His services included a comprehensive history, a comprehensive examination, and medical decision making of moderate complexity. An independent analysis of the selection of the random sample, the statistical formula used by Respondent, and the statistical calculation used to determine the overpayment, confirms the conclusions in the FAAR. The greater weight of the evidence indicates that Respondent properly extrapolated the results from the sample to the total population. Out of a population of 222 recipients and a population of 2,123 claims, 30 recipients selected at random with 282 paid claims capture most of the characteristics of the total population. In this case, the statistical evidence indicates that 29 of the 30 recipients had overpayments. The odds that 29 out of 30 randomly selected recipients would have overpayments, if no overpayments existed, are greater than the odds of winning the Florida Lotto Quick Pick three weeks in a row. In fact, within a statistical certainly, the amount claimed in this cause based on the records of 30 recipients is lower than the reimbursement amount that Petitioner would owe if all records were reviewed. Respondent incurred costs during the investigation of this matter. The amount of those costs was not known at the time of the formal hearing.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner owes Respondent for an overpayment in the amount of $39,055.34, less an adjustment for the September 7, 1998 claim for Recipient 14, plus interest. DONE AND ENTERED this 25th day of March, 2005, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 25th day of March, 2005. COPIES FURNISHED: Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building III 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration Fort Know Building III 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Debora E. Fridie, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Station 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 John D. Buchanan, Jr., Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. 117 South Gadsden Street Post Office Box 1049 Tallahassee, Florida 32302
Findings Of Fact Respondent, Agency for Health Care Administration (Department), is the successor in interest to the Department of Health and Rehabilitative Services as the single state agency responsible for the Florida Medicaid program. Petitioner, Ian L. Garriques, M.D. (Dr. Garriques), is a licensed physician. He is a board certified internist with a subspeciality in infectious diseases. In 1980, he came to Key West, Florida, to practice. In the early 1980's Dr. Garriques and his colleagues began to see patients who were experiencing symptoms resembling mononucleosis syndrome and who were dying from pneumonia for unexplained reasons. These patients were diagnosed with AIDS and thus, began the AIDS epidemic in Key West. Many AIDS patients did not have the resources to pay for medical care. They would go to the emergency room when they needed to see a doctor, resulting in a lack of continuity of care because they would see the doctor who happened to be covering the emergency room on that particular day. The patients would be released to a home health care agency that would continue with the medications prescribed on discharge regardless of whether the medications continued to be effective. Dr. Garriques began to see AIDS patients in his office that were getting worse because of the medications that they were being given. In 1986, AIDS Help, Inc. (AHI), a non-profit organization was formed to help those AIDS victims who were not receiving adequate care because of a lack of financial resources. AHI provides medical services, housing, transportation, case management, counseling, food, utility assistance, and drugs to its clients. At first AHI was funded from private donations. Later, AHI began to receive state general revenue funds and applicable Department of Health and Rehabilitative Services (HRS) funds for its operations pursuant to legislative appropriations. From 1987 to 1991, Dr. Garriques was a member of the board of directors for AHI. DUPLICATE BILLING Because of Dr. Garriques' expertise in treating HIV, AHI contracted with him to provide services to AHI clients in 1991. Dr. Garriques provided services at the Aids Help Clinic under the terms of that contract during the audit period at issue. The contract recited the background of the agreement as follows: AHI has entered into a contract with the State of Florida, Department of Health and Rehabili- tative Services (HRS) to provide certain medical, evaluative, consultative, referral and treatment services to its clients. AHI presently has the need to staff the Health Care Center and provide the services which it has contracted to provide. Discussions have taken place between AHI and the Doctor [Dr. Garriques] in regard to subcontracting the necessary services to him. . . . The contract further provided: AHI hereby retains the Doctor to provide the services, equipment, supplies and personnel described in this Agreement and the Doctor agrees to provide them from the date of the execution of this Agreement by all parties hereto until June 30, 1991 under the terms hereof. In payment therefor AHI agrees to pay the Doctor the sum of $3,000.00 per month, to be paid by AHI in the following manner: The Doctor shall submit to AHI an invoice between the first and the tenth day of each month of this Agreement, beginning March 1, 1991, for the services, supplies and personnel in the amount of $3,000.00. AHI shall then pay to the Doctor the sum billed by the fifteenth day of this month. The amount of $3,000.00 shall be reviewed by the parties hereto at the end of the second month of the term of this Agreement in order to determine whether this amount is fair and adequate to both of the parties in view of the nature and volume of the services provided and also to review whether any other changes are needed in the terms and provisions of this Agreement. The parties agree to discuss these matters in good faith and to attempt to come to a mutually agreeable resolution of their differences, if any. In addition to this amount, the Doctor shall be allowed to bill for his services and to retain such amounts which he may collect from Medicare, Medicaid, private insurers, companies, or other federal or state reimbursement programs. He shall be responsible for the fairness and accuracy of such billing and shall hold AHI harmless from any and all liability or responsibility whatsoever for such billing. He shall look solely and exclusively to patients or to those persons or third party payors who are responsible for services rendered to these patients and not to AHI. The Doctor shall, personally, be present at the Health Center one day each week, presently contemplated to be Wednesday, for a period of approximately eight hours. On each such day he shall be available to provide medical, evaluative, consultative and treatment services which he deems necessary and appropriate to any and all patients referred to the Health Center. He shall act as the primary care physician for all such persons and shall make such referrals to other physician specialists and other health persons (sic) and shall make such referrals to other physician specialists and other health care personnel and he shall admit any such persons to a hospital or such other medical facility as he deems necessary and appropriate in the exercise of his best medical judgment. He will continue to provide such primary care to such persons and shall continue to parti- cipate in the care of such persons as may be necessary in his best medical judgment. The Doctor shall provide on each day of service a Florida licensed registered nurse for approximately eight hours to assist him in the performance of his services hereunder, shall pay the nurse from his own funds and supervise the performance of his/her duties. In addition, the Doctor shall provide the services of a billing clerk and such other personnel as are required to competently carry out his duties hereunder. The Doctor shall also provide, at his own expense such equipment, supplies (medical and office) as may be necessary to carry out his duties hereunder. The Doctor shall provide AHI with such records, summaries, information and reports as AHI may from time to time request pertaining to the rendering of his services hereunder and the oper- ations of the Health Care Center, including but not limited to financial and billing records, medical records and correspondence. The Doctor shall also conduct a monthly case review with the staff/case managers of AHI to discuss with them the medical status of AHI's clients which he has seen. The contract was amended to extend the term through June 30, 1993, to increase the rate of payment to $6,000.00 per month and to increase the time of the nurse practitioner at the clinic to one-and-one-half days per week. Dr. Garriques was an enrolled Medicaid provider during January 1, 1991 through June 30, 1994, the audit period at issue. Dr. Garriques' Medicaid provider number is 036395200. By signing the Medicaid provider agreement, Dr. Garriques agreed to be bound by the applicable law and Medicaid policies and manuals. During the term of the contract, Dr. Garriques sent AHI an invoice each month for a flat fee. AHI also requested Dr. Garriques to send it a production analysis, listing all the transactions for the clinic patients each month. There was no correlation between the number of patient transactions and the amount of money that Dr. Garriques received each month from AHI. Dr. Garriques billed Medicaid for medical services provided to the clinic patients who were Medicaid eligible. Dr. Garriques paid the nurse practitioner, which he was required to provide pursuant to the AHI contract, approximately $1500.00 per month and he paid a nurse approximately $700 to $800 per month to assist in running the clinic. In addition, he paid a secretary to perform clerical duties associated with the clinic. Dr. Garriques spent approximately fifty percent of his time caring for approximately 75 to 100 AHI clinic patients. The Department takes the position that Medicaid made payments to Dr. Garriques for services which were also paid for pursuant to the contract between Dr. Garriques and AHI. Thus, the Department considers the amounts paid by Medicaid for the patients listed below constitute overpayments for which the Department is entitled to be reimbursed. a C.H. (listed as Patient Number 1) b. J.M. (listed as Patient Number 6) c. A.K. (listed as Patient Number 9) d. G.S. (listed as Patient Number 10) e. T.V. (listed as Patient Number 16) f. K.H. (listed as Patient Number 17) g. R.W. (listed as Patient Number 18) h. T.S. (listed as Patient Number 19) i. R.M. (listed as Patient Number 21) j. S.V. (listed as Patient Number 23) k. P.N. (listed as Patient Number 25) l. L.A. (listed as Patient Number 26) m. T.T. (listed as Patient Number 27) n. J.G. (listed as Patient Number 31) o. J.C. (listed as Patient Number 32) p. G.L. (listed as Patient Number 33) Dr. Garriques takes the position that the services provided under the terms of his contract with AHI were different from and not included in the services that he billed Medicaid. Services which Dr. Garriques provided pursuant to the AHI agreement included administrative services associated with the responsibility of running the clinic; 24-hour on-call, seven days a week availability to AHI patients; physician services for which Medicaid does not reimburse; admitting AHI patients to the hospital; answering patient questions by telephone; coordinating the care of AHI patients with their treating providers; reviewing patient labs; billing related to treating AHI patients; seeing patients in the hospital; seeing patients outside the clinic; answering questions from patients and staff; quality assurance; attendance at Board meetings; and meeting with case managers and home health personnel. He claims the services he provided under the AHI agreement were either non-reimbursable Medicaid services or services for clients who were not eligible for Medicaid services. It is AHI's position that the payments made to Dr. Garriques were for services which were not compensable under Medicaid and for services to clients who were not eligible for Medicaid services. The Department of Health and Rehabilitative Services's policy is that the funds which it provided to AHI to subcontract with Dr. Garriques were to be used for services and clients that were not covered by other funding sources. The records from AHI show that Dr. Garriques provided services to C.H. either at the clinic or the hospital on the following dates: 10/16/91, 10/30/91, 11/20/91, 1/8/92, 2/12/92, 4/22/92, 6/24/92, 7/8/92, 7/21/92, 7/22/92, 7/29/92, 8/12/92, 9/2/92, 9/9/92, 10/7/92, 10/21/92, 10/22/92, 10/23/92, 10/24/92, 10/25/92, 10/26/92, 10/27/92, 11/4/92, 12/9/92, 1/13/93, 2/10/93, 3/24/93, 5/12/93, and 5/13/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to C.H. on the dates listed above. The records from AHI show that Dr. Garriques provided services to J.M. at the clinic on September 21, 1991. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to J.M. on that date. The records from AHI show that Dr. Garriques provided services to G.S at the clinic on the following dates: 2/20/91, 2/27/91, 3/13/91, 3/21/91, 4/3/91, 5/8/91, and 8/7/91. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to G.S. on those dates. The records from AHI show that Dr. Garriques provided services to T.V. at the clinic on the following dates: 12/4/91, 12/11/91, 6/3/92, 8/19/92, 12/2/92, 3/3/93, and 6/3/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to T.V. on those dates. The records from AHI show that Dr. Garriques provided services to K.H. at the clinic on the following dates: 1/8/92, 1/15/92, 1/30/92, 2/12/92, 2/26/92, 3/4/92, 3/18/92, 4/1/92, 4/15/92, 4/29/92, 5/27/92, 6/24/92, 7/15/92, 10/7/92, 11/4/92, and 11/25/92. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to K.H. on those dates. The records from AHI show that Dr. Garriques provided services to R.W. at the clinic on the following dates: 5/6/92, 7/1/6/92, 8/3/92, 10/15/92, 1/13/93, and 3/31/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to R.W. on those dates. The records from AHI show that Dr. Garriques provided services to T.S. at the clinic on the following dates: 5/20/92, 6/3/92, 7/1/92, 7/15/92, 7/29/92, 8/19/92, 9/2/92, 9/23/92, 10/21/92, 11/18/92,12/9/92, 1/6/93, 1/20/93, 3/10/93, 3/17/93, 4/48/93, and 5/26/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to T.S. on those dates. The records from AHI show that Dr. Garriques provided services to R.M. at the clinic on the following dates: 3/24/93, 4/7/93, 4/28/93, and 6/16/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to R.M. on those dates. The records from AHI show that Dr. Garriques provided services to S.V. at the clinic on the following dates: 10/7/92, 10/15/92, and 11/9/92. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to S.V. on those dates. The records from AHI show that Dr. Garriques provided services to P.N. at the clinic on 11/9/92, 2/24/92, and 4/21/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to P.N. on those dates. The records from AHI show that Dr. Garriques provided services to L.A. at the clinic on the following dates: 1/6/93, 1/20/93, 2/10/93, 3/10/93, 4/21/93, and 6/2/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to L.A. on those dates. The records from AHI show that Dr. Garriques provided services to T.T. at the clinic on 5/12/93 and 6/2/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to T.T. on those dates. The records from AHI show that Dr. Garriques provided services to J.C. either at the clinic or the hospital on the following dates: 2/6/91, 3/6/91, 3/11/91, 3/12/91, 3/13/91, 3/14/91, 3/15/91, 3/17/91, and 3/18/91. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to J.C. on those dates. The records from AHI show that Dr. Garriques provided services to N.S. either at the clinic or the hsopital on the following dates: 5/29/91, 8/7/91, 8/21/91, 9/4/91, 9/5/91, and 9/18/91. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to N.S. on those dates. The records from AHI show that Dr. Garriques provided services to J.F. at the clinic on the following dates: 2/13/91, 3/20/91, 5/1/91, 5/15/91, 5/29/91, and 6/26/91. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to J.F. on those dates. The records from AHI show that Dr. Garriques provided services to W.M. either at the clinic or the hospital on the following dates: 6/5/91, 11/10/91, 11/11/91, 11/12/91, 11/13/91, 11/14/91, 1/3/92, 1/8/92, 1/9/92, 1/10/92, 1/11/92, 1/12/92, 1/13/92, 1/14/92, and 2/19/92. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to W.M. on those dates. The records from AHI show that Dr. Garriques provided services to M.L. either at the clinic or the hospital on the following dates: 4/22/92, 5/13/92, 5/14/92, 5/15/92, 5/16/92, 5/17/92, 5/18/92, 5/19/92, 5/20/92, 5/21/92, 5/22/92, 5/23/92, 5/24/92, and 5/25/92. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to M.L. on those dates. The records from AHI show that Dr. Garriques provided services for D.M. on April 28, 1993, at the clinic. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to D.M. on that date. The records from AHI show that Dr. Garriques provided services to J.G. either at the clinic or the hospital on the following dates: 9/18/91, 10/23/91, 11/20/91, 1/22/92, 3/11/92, 3/25/92, 4/15/92, 5/20/92, 5/27/92, 6/24/92, 7/15/92, 8/5/92, 9/9/92, 9/18/92, 9/19/92, 9/20/92, 9/21/92, 9/22/92, and 9/23/92. The records for the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to J.G. on those dates. DISPUTES OVER LEVEL OF SERVICE Part of the recoupment action deals with the level of service which Dr. Garriques claims to have provided and the level of service which the Department deems to be the appropriate level of service for payment. Payment for services are made in accordance with the level of service provided. The level of service is coded according to Current Procedural Terminology (CPT), which is a compilation of codes by the American Medical Association Committee. For patient D.W., there was a dispute over the level of services provided on June 8, 9, and 10, 1992. For those dates, Dr. Garriques submitted a claim showing a CPT code of 99223, which stands for an initial hospital visit. Patient D.W. had been admitted for HIV and streptococcal meningitis on June 7, 1992. Dr. Sullenberger, who was the expert witness for Respondent concerning level of service, correctly opined that given the seriousness of the patient's disease, the CPT code for services on June 8 and 9 should be 99233. At the hearing the parties stipulated that the appropriate CPT code for June 10 should be 99232. For patient J.G., there was a dispute over the level of services provided on April 24 and 25, 1994. Patient J.G. was admitted to the hospital for an overdose of tylenol. If not treated properly, a patient's liver can be destroyed within 12 hours of taking an overdose of tylenol. The liver damage will not be apparent until approximately a week later when the patient dies. Therefore, it is important that the patient be given the correct medication and that the blood level of the patient be monitored very closely during the first 12 hours after admission to the hospital. Dr. Sullenberger, apparently unaware of the potentially lethal effects of a tylenol overdose, opined that the CPT code for the service provided on April 24 should be 99222, which stands for a moderately complex level of care and that the CPT code for April 25 should be reduced to 99231. However, based on Dr. Garriques' testimony of the seriousness of a tylenol overdose, it is found that Dr. Garriques correctly entered CPT codes of 99291 for April 24 and 25. For patient N.D., there was a dispute over the level of service provided on September 17, 1991, and February 1, 1994. Patient N.D. was seen on September 17 for a physical examination. It took Dr. Garriques time to complete the physical because of communication difficulties stemming from N.D.'s mental retardation. However the level of service has nothing to do with the ability to communicate with the patient. The proper CPT code for the September 17 service was at an intermediate level of service, CPT code 90060. Dr. Garriques referred the patient to an opthamologist at the February 1 visit. The CPT code of 99214 billed by Dr. Garriques was correct. Patient G.M. was admitted to the hospital on October 18, 1991 based on Dr. Garriques' telephone orders. Dr. Garriques saw the patient for the first time during his stay at the hospital on October 19, 1991. There should have been no payment for the telephone order on October 18 because there was no face to face contact with the patient. The CPT code for October 19 should have been 90220. The CPT code for the services provided on October 20 and 21 should have been 90250.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the Medicaid payments at issue for patients C.H., J.M., A.K., G.S., T.V., K.H., R.W., T.S., R.M., S.V., P.N., L.A., T.T., J.G., J.C., and G.L. did not constitute duplicate payments for which Dr. Garriques should reimburse AHCA; that the level of service for D.W. on June 8 and 9, 1992 is 99233 and 99232 on June 10, 1992; that the CPT code for the services provided to J.G. on April 24 and 25, 1994 is 99291; that the CPT code for the services provided to N.D. on September 17, 1991 is 90060 and the CPT code for services on February 1, 1994 is 99214; and that payment for the claim for October 18, 1991 for G.M. should be reimbursed by Dr. Garriques, the CPT code for October 19, 1991 services is 90220, and the CPT code for services on October 20 and 21 is 90250. DONE AND ENTERED this 8th day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5094 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: The first sentence is accepted in substance. The remaining is rejected as unnecessary. Paragraphs 2-6: Accepted in substance. Paragraph 7: Rejected as irrelevant. The contract between AHI and Dr. Garriques defines what services are to be provided. Paragraphs 8-15: Accepted in substance. Paragraph 16: Rejected as not necessary. Paragraph 17: Accepted in substance. 7 Paragraph 18: Rejected as immaterial. Paragraphs 19-20: Accepted in substance Paragraph 21: Rejected as subordinate to the facts found. Paragraphs 22-23: Accepted in substance. Paragraph 24: Rejected as unnecessary. Paragraph 25-27: Rejected as subordinate to the facts found. Paragraph 28: Accepted in substance. Paragraph 29: Rejected as subordinate to the facts found. Paragraphs 30-31: Accepted in substance. Paragraphs 32-34: Accepted in substance except Patient Number 5 is G.M. not C.M. Paragraphs 35-36: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraphs 4-5: Rejected as unnecessary. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as unnecessary. Paragraphs 8-9: Accepted in substance. Paragraph 10: Rejected as unnecessary given the stipulation of the parties that the amount of reimbursement, if any, would not be decided in this proceeding. Paragraph 11: The first sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraphs 12-13: Accepted in substance. Paragraph 14: The first sentence is rejected as unnecessary. The second through the fifth sentences are accepted in substance. The sixth sentence is accepted that that was Dr. Sullenberger's testimony but rejected that the correct CPT code was 99222. Paragraph 15: The first sentence is accepted. The remainder is rejected as not supported by the greater weight of the evidence. Paragraph 16: The first sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraphs 17-18: Accepted in substance. Paragraph 19: The last sentence is rejected as to code 90260. The remainder is accepted in substance. Paragraph 20: Accepted. Paragraph 21: The first sentence is rejected as unnecessary. The remainder is accepted in substance to the extent that the services were rendered at the clinic but not that the services were funded by the AHI contract. Paragraph 22: Rejected as not supported by the greater weight of the evidence that the dates listed were for services which were funded by the AHI contract. The listing merely shows who was served at the clinic and on what dates. Paragraph 23: The first sentence is accepted in substance. Rejected as not supported by the greater weight of the evidence. The evidence is clear that the parties contemplated that non-Medicaid reimbursable services and non- Medicaid eligible clients were funded by the AHI contract. Paragraph 24: The first and last sentences are accepted in substance. The second and third sentences are rejected as not supported by the record. The contract indicated that some services would be funded by AHI and some would be funded by Medicaid. Paragraph 25: Rejected as constituting argument. Paragraph 26: The first sentence is accepted in substance to the extent that Medicaid was billed for the services on that date but not that AHI paid for the same services. The remainder is rejected as not supported by the greater weight of the evidence. 21. Paragraphs 27, 31, 35, 39, 43, 47, 51, 55, 59, 63, 67, 71, 75, 79, 83, 87, 91, and 95: The first sentence is rejected as unnecessary. The remainder is accepted in substance to the extent that Medicaid was billed for the services provided at the clinic but not that AHI funded those services. 22. Paragraphs 28, 32, 36, 40, 44, 48, 52, 56, 60, 64, 68, 72, 76, 80, 84, 88, 92, and 96: Rejected as not supported by the greater weight of the evidence. The contract provided that some of the services would be funded by Medicaid and some of the services would be funded by AHI 23. Paragraph 29, 33, 37, 41, 45, 49, 53, 57, 61, 65, 69, 73, 77, 81, 85, 89, 93, and 97: The first sentence is accepted in substance to the extent that the patients were seen at the clinic but not that the services were funded by the AHI agreement. The remainder is rejected as constituting argument. 24. Paragraph 30, 34, 38, 42, 46, 50, 54, 58, 62, 66, 70, 74, 78, 82, 86, 90, 94, and 98: Accepted in substance to the extent that Medicaid paid for services on those dates but rejected that the Medicaid payment was duplicative of payments from the AHI contract. COPIES FURNISHED: Wayne Mitchell, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Louise T. Jeroslow, Esquire Zack, Sparber, Kosnitzky, Truxton, Spratt and Brooks, P.A. One International Place 100 Southeast Second Street, Suite 2800 Miami, Florida 33131 S. Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact At all times pertinent to this hearing, Respondent, M. J. Warhola, was a doctor of osteopathic medicine and properly licensed as such by the State of Florida by license number OS 0001256, issued in 1957. He has been practicing osteopathic medicine at his present location in Tampa, Florida, for the past 17 or 18 years. Respondent first started treating Pearl O. Knowles in 1965. Generally, she was suffering from severe diabetes and was overweight. He also, over the years, treated her for arteriosclerosis. Among the drugs he was prescribing for her during the 1979-1989 time period were Placidyl (sleeping pill), Verstran (tranquilizer), Triavil (antidepressant), Dilantin (anticonvulsant) Teldrin (antiallergenic), Donnatal (sedative), Synalgos (painkiller), Talwin (painkiller), various antibiotics, and such other substances as insulin, stool hardeners, vitamins, diuretics, antihistamines, and antiemetics. During the period from January, 1979, through December, 1981, prescriptions written by Respondent for these varying medications for Mrs. Knowles or her husband were filled by area pharmacies in accordance with the following chart: MONTH/YR TOTAL MRS. K MONTH/YR TOTAL MRS. K Jan. 79 11 4 July 80 22 15 Feb. 79 15 7 Aug. 80 15 10 Mar. 79 10 5 Sept.80 26 19 Apr. 79 14 11 Oct. 80 20 10 May 79 13 10 Nov. 80 21 16 June 79 10 8 Dec. 80 22 17 July 79 11 6 Jan. 81 16 11 Aug. 79 15 10 Feb. 81 15 12 Sept.79 13 10 Mar. 81 25 17 Oct. 79 15 6 Apr. 81 26 17 Nov. 79 7 5 May 81 21 10 Dec. 79 17 12 June 81 11 4 Jan. 80 12 8 July 81 23 8 Feb. 80 17 12 Aug. 81 25 23 Mar. 80 21 17 Sept.81 5 5 Apr. 80 17 14 Oct. 81 20 14 May 80 24 22 Nov. 81 4 2 June 80 27 21 Dec. 81 2 2 TOTAL: 588 400 Many of the above instances are refills of the same prescription. According to Respondent, some prescriptions were authorized five refills without contact with him. Some, such as Prescription #27162 for 100 Triavil, initially filled on December 1, 1979, was subsequently refilled at least 11 times, and three other separate prescriptions for the same drug were filled multiple times. From January, 1979, through September, 1980, a period of 20 months, 30 tablets each prescriptions for Placidyl tablets, written by Respondent for Mrs. Knowles, were filled 46 times for a total of 1,380 tablets. During the same period, Triavil prescriptions for 100 capsules each written by Respondent for Mrs. Knowles were filled 22 times for 3,200 tablets, Talwin at 100 tablets 13 times for 1,300 tablets, at least 10 prescriptions for either Tylenol #3 or Fiorinol #3, both with codeine, at 50 tablets each for the Fiorinol at least totalling more than 509 tablets, as well as all the others stated in paragraph 2 above. Mrs. Knowles admits taking too much medication, but claims it is not the fault of Respondent. Whenever Respondent saw her and gave her a prescription for any medicine, he would tell her what dosage to take. She would see the Respondent every two or three weeks and get a new prescription each time and would also give her prescriptions at her request without her going to the office personally. Regardless of what instructions Respondent would give her concerning the dosage of the various painkillers and "nerve medicines" he would give her, she often exceeded the directed dose either by accident or in an effort to relieve the extreme pain she was experiencing in her hands and feet. Not only did she get drug prescriptions from Respondent, but by her own admission, she also saw other doctors during the period from whom she got "pain pills," as well as taking those given to her on her release from the hospitals to which she was admitted. She recognized that she was taking too many drugs at the time, but the pain was severe and she felt it was required. During this same period of time, from mid-1979 on through early 1982, while Mrs. Knowles was seeing Respondent for her diabetes and other chronic ailments, she was admitted to several hospitals in the area. On June 11, 1979, she was admitted to the Brandon Community Hospital (BCH) in Brandon, Florida (Brandon is a small community east of Tampa), in a confused and disoriented state. The admission diagnosis was diabetes with electrolyte imbalance. The attending physician noted at the time that the patient "is somewhat dependent on drugs." Approximately two months later, on August 15, 1979, Mrs. Knowles was again admitted to BCH, this time for uncontrolled diabetes and overdosing her drugs including Placidyl and Fiorinol. Again, the attending physician noted the failure of the patient to take care of her diabetes, her drinking, and her drug dependency. Mrs. Knowles thereafter stayed out of the hospital for about a year until, on September 1, 1981, she was again admitted to BCH, again for her diabetes. Secondary diagnoses on this occasion were hypertension and taxciencephalopathy, a disorder of brain function. At this time, she was seen in the hospital by Dr. Mark Stern. Based on the lab work performed and examination by Dr. Stern and other specialists to whom she was referred, it was concluded that her condition, aside from the diabetes and hypertension, was related to her overuse of drugs such as Talwin, Valium, Triavil, and the like. She was again seen by Dr. Stern at BCH on October 24, 1981, when she was admitted for an unintentional drug overdose. A drug screen done at the time of admission revealed a Placidyl level of 69.4 (normal level is 0.5 to 10, with toxic levels being greater than 20). A repeat test six and a half hours later showed the level of Placidyl at 62.4. Other lab tests showed opiates, benzodiazepan (tranquilizers such as Valium and Librium), and salecylates. When she was admitted on this occasion, she had with her a box containing several medicine bottles. Notwithstanding Petitioner's allegation that "Said labels were not labeled by Respondent," the testimony of Deborah Ann Brown, Director of Pharmacy at BCH, to whom the box of bottles was given for identification, shows that only one of all the bottles did not have the appropriate markings on it. It also appears that some of the medicines in the box had been prescribed for Mrs. Knowles' husband, Ira. Dr. Stern again saw Mrs. Knowles when she was brought to BCH on January 6, 1982, complaining of weakness and difficulty in walking. Again, her history showed she was taking antidepressants and Placidyl for chronic insomnia. Dr. Stern recalls that Mrs. Knowles telephoned him on October 9, 1981, and requested prescriptions for Placidyl, Triavil, and Talwin, but he refused to prescribe them for her. He terminated his relationship with her in August, 1982. During the period she was his patient, however, he did prescribe for her such substances as painkillers, sleeping pills, and antianxiety drugs, the same generic types of drugs as prescribed by Respondent, by written prescriptions, some of which called for multiple refills. Though Mrs. Knowles advised Dr. Stern that she was being treated by Dr. Warhola, Dr. Stern did not discuss her with Dr. Warhola or even contact him. Even when Mrs. Knowles threatened to get drugs from Respondent when Dr. Stern refused to give her prescription over the phone in October, 1981, Dr. Stern still did not contact Dr. Warhola. Between the fourth and fifth BCH hospitalizations, on December 21, 1981, Mrs. Knowles was admitted to Tampa General Hospital (TGH) and was examined by Dr. Jeffrey L. Miller, a rheumatologist internist, at the request of her regular physician, Dr. Sugarman. When Dr. Miller first saw her, Mrs. Knowles was overmedicated. She was confused, and her speech was slurred. She indicated to Dr. Miller that she was taking Triavil and other drugs as well, such as Zomax and Placidyl, but refused to tell him all the drugs she was taking. Those she mentioned are addictive, and it appeared that she was addicted because she had been hospitalized for nonaccidental overmedication and because her condition was consistent with addiction. Mrs. Knowles denied having a drug problem. In Dr. Miller's opinion, however, Mrs. Knowles was not receiving the proper therapy. Her diabetes did not require the drugs she was getting. Her other symptoms, in his opinion, did not justify the apparent liberal prescriptions she was getting and should have been treated with psychotherapy rather than drugs. In his opinion, therapy should be tailored for an individual like Mrs. Knowles so that the medication is limited and regulated to prevent addiction and the buildup of tolerance to a drug, which results in larger and larger doses. The evidence also shows, however, that Mrs. Knowles was a difficult patient. Dr. Sugarman was having difficulty with her and requested the consult by Miller. What must also be considered is that Mrs. Knowles' leg, about which she constantly complained of the pain, was subsequently surgically removed in 1982 as a result of her diabetes. The pain associated with this condition leading up to the amputation was real and required relief to some degree. In any case, Dr. Miller did not ever discuss Mrs. Knowles with Respondent or advise him of her addiction. Mrs. Knowles still receives painkillers and "nerve medicine" from her current physician, Dr. Sugarman, whom she sees every two weeks. She stopped seeing Dr. Warhola when she started seeing Dr. Sugarman, who, she felt, was more current in some of her problem areas than Respondent. She did not leave Respondent because she was dissatisfied with him. In fact, he was the only one who helped her blood clots. According to Respondent, he gave Mrs. Knowles the Placidyl for sleep because she had a lot of pain as a result of her diabetes and needed it to help her sleep. At this same time, Mrs. Knowles' husband was a severe alcoholic and, since she was under a lot of strain because of that, he gave her the drug to help her sleep. The call he got from Dr. Stern on October 26, 1981, when she was in BCH, indicating she was mixing drugs, was the first indication he had that she was abusing drugs. He told Stern she was not to get any more, and he, Respondent, has not prescribed any for her or seen her since. In fact, he was not informed of her hospitalizations in June or August, 1979, or in September, 1981. It is, even by the testimony of Petitioner's expert, Dr. Gladding, not uncommon in Florida for M.D.s to admit a D.O.'s patient to a hospital and not ever notify the D.O. of that fact. Mrs. Clifton M. Wood of Winter Haven, Florida, was first taken to see Respondent for a diet regimen in 1980. On the first visit on February 7, 1980, he gave her a physical examination which included a complete laboratory workup, cardiogram, and weight and pressure check. He gave her some pills which had instructions for use on the bottle, but did not tell her what they were. Each time she came to his office for a visit thereafter, on a monthly basis, either Respondent or his nurse would weigh her and take her blood pressure and adjust her medication as required. During the course of treating Mrs. Wood, Respondent gave her phedymetrazine, an appetite suppressant, methahydrine for high blood pressure, Donnatal, and vitamins and minerals. He gave Mrs. Wood only the drugs he felt she needed in the amount she needed. Mrs. Wood was admitted to Winter Haven Hospital on October 26, 1980, because a neighbor who was concerned about her brought her in. At the time, Mrs. Wood had trouble with dizziness, her balance, and falling. Before this incident, however, Respondent on one or more of his visits, had given her pills for her blood pressure and potassium pills for her to take in water. According to Dr. Gordon Rafool, who had also treated Mrs. Wood since 1979 and who admitted her to the hospital in October, 1989, at the time of admission, she was, among other things, dehydrated and had an electrolyte imbalance (lack of body salt, specifically potassium), the latter possibly being caused by the intemperate use of a diuretic. A diuretic is often used in cases of heart failure, high blood pressure, and, though not recommended, weight reduction, to get rid of body water. Since it was important to know what medicines Mrs. Wood was taking to help determine the reason for her condition, Dr. Rafool and other hospital personnel tried to get an identification of the drugs in Mrs. Wood's possession when she was brought in. The hospital pharmacy could not identify them, and no drug screen was done, but Dr. Rafool obtained a written authorization of Respondent to permit Respondent to release any information regarding drugs dispensed or prescribed to the patient by him. This authorization was forwarded to Respondent's office with a request for Mrs. Wood's medical records, but they were never released. Dr. Warhola's office manager, Mrs. Zacchini, states the request and authorization on Mrs. Wood were received, but were apparently inadvertently filed in the office record without the requested records being sent out. Though Dr. Rafool says that numerous follow-up calls were made to Respondent's office, Mrs. Zacchini denies any were received from either the hospital or Dr. Rafool. In any case, there is no evidence to indicate any calls were made to or received by Respondent directly, and he denies every having received any. Mrs. Wood still considers Respondent to be a good doctor, but she has not gone back to see him since her release from the hospital because Dr. Rafool told her to stay away from him. She has been seeing Dr. Rafool, who has been treating her with pills for her arthritis and high blood pressure. Petitioner presented the deposition of Dr. Lloyd D. Gladding, D.O., over the partial objection of Respondent, whose objection was not to the use of the deposition, but to specific parts thereof based on particular grounds. For example, Respondent objected to Dr. Gladding's testifying as an expert because, he contended, there had been no showing by Petitioner that the witness's experience compares to that of Dr. Warhola. He contends the witness does not practice in the same geographical area nor is there a showing he is a similar health care provider with a similar specialty or a similar type practice. However, Dr. Gladding's curriculum vitae, admitted without objection, shows he is currently co-chairman of a family practice seminar in his area and a clinical preceptor (teacher) at an osteopathic medical school and has been engaged in a family practice in the Fort Myers area since 1978. This area is geographically not far removed from the Tampa Bay area (the distance is not significant) and there is no showing that the patient conditions involved in the two cases at issue would or could be affected significantly by the geographical location of the patient or that treatment of these conditions varies greatly from location to location. In fact, according to this witness, he finds patients from widely differing areas (Pennsylvania, where he was trained, as opposed to Florida, where he practices) to be the same. Accepting the witness as an expert, then, with reference to Mrs. Knowles and her condition, he has had patients with a similar series of health problems where the patient was placed on multiple drug regimens. Sometimes, these patients developed drug dependencies for the different medications he prescribed. In the case of Mrs. Knowles, based on the number of Placidyl prescribed by the Respondent over about a year, she received enough to take two per day, which would constitute 1,500 mg. of the drug per day (two tablets of 759 mg. each). The drug company's recommended daily dose is between 590 and 750 mg. given at bedtime, with an additional 109 to 200 mg. later on, if needed. The fact that Mrs. Knowles was also getting other drugs, including a different type of sleeping pill, makes Dr. Gladding feel the prescriptions by Respondent were excessive. He admits, however, he does not know how much pain the patient was in and this makes it difficult to render an opinion. Because of this, he cannot unequivocally say that the dosage prescribed was excessive. Good practice is to prescribe as few Schedule II drugs as is possible. However, without knowing the patient, her attitude, and her actual condition, an opinion as to the appropriateness of the drugs prescribed, unless clearly inappropriate, would be merely guesswork. As to the patient Mrs. Wood, Dr. Gladding could not read Dr. Warhola's notes of what drugs he gave her. Therefore, in analyzing Respondent's prescriptions, he relied on and referred to a federal drug analysis of the unmarked drugs she got from Respondent as including barbiturates or their derivatives. This analysis was not introduced into evidence, and Dr. Gladding's reference to it is hearsay which cannot, by itself and without other independent evidence of the identity of the drugs, support a finding of fact even though it would appear some were drugs that would not be used in weight control. However, there were drugs identified independently, such as the potassium replacement and the weight reduction drug, which were appropriate and, in addition, the tranquilizer could also be appropriate. In any case, Dr. Gladding does not know what Mrs. Wood told Respondent about the problems she was having sleeping. If she did tell him this, even the barbiturates could be appropriate. Dr. Gladding has also been confronted with a situation where a patient of his has been hospitalized and the hospital calls him for information on the patient on an emergency basis. He knows, he says, everyone in the local hospitals and generally provides the requested information on the spot without a formal release. He is more concerned with the patient's welfare than with technicalities. However, in the case of Mrs. Wood, there was not an emergency situation and there was no showing Respondent was ever personally contacted. In addition, there was evidence of only one written release, not three, as reflected by the witness.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That the Administrative Complaint filed herein against Dr. Warhola be dismissed, but that he be officially reminded of the necessity to conservatively prescribe controlled substances in the course of his practice. RECOMMENDED this 6th day of March, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1984. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32391 Gerald Nelson, Esquire 4950 West Kennedy Boulevard Suite 693 Tampa, Florida 33609 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee. Florida 32301 Ms. Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
