The Issue Whether Respondent's medical license should be disciplined because he filed false insurance claims.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. Pursuant to Section 20.43(3)(g) Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils or boards, as appropriate, including the issuance of emergency orders of suspension or restriction. Dr. Shugar is a physician holding Florida license ME 0053263, which was issued to him by Petitioner. Dr. Shugar, during all times pertinent, practiced medicine in Perry, Florida. Dr. Shugar began practicing in Perry in 1991. Although Respondent is currently known to be primarily an ophthalmologist during all times pertinent, he was engaged in the general practice of medicine. Patient B.O. B.O., a 49-year-old female, became a patient of Dr. Shugar in February 1995. On June 8, 1996, Patient B.O. was seen by Dr. Shugar. He observed a lesion on her nose. Patient B.O. and Dr. Shugar were concerned that the lesion might be malignant. On or about July 27, 1996, Patient B.O. presented to Dr. Shugar for the purpose of having the lesion removed. Using local anesthesia, Dr. Shugar surgically removed the lesion and some surrounding tissue. This material was sent to a pathologist in Tallahassee, Florida, who upon examination, opined that the growth was a benign nevus rather than a carcinoma. On August 5, 1996, the sutures were removed and Patient B.O.'s medical records indicated that the area was, "well healed." Patient B.O. had no complaints with regard to the outcome of the surgery. When Patient B.O. subsequently received a bill in the amount of $2,225, she was shocked at the amount. She called Respondent's office and her insurance company. She personally paid only $100. Sheila Hilson was the person who assigned Physicians' Current Procedural Terminology (CPT) codes for Dr. Shugar. CPT codes are numbers assigned to actions taken during patient evaluation and management and to procedures performed. CPT codes are widely used by government agencies and insurance companies. CPT codes translate into dollar amounts used for billing patients and provide the basis for reimbursement by insurers and governmental agencies. A CPT code for a simple procedure will translate into a certain number of dollars. A CPT code for a more complex procedure will translate into a larger number of dollars. Dr. Shugar utilized a superbill, which is a list of CPT codes provided in the written word and in a bar code. The superbill contained only the most common ailments. In the usual case, Dr. Shugar, subsequent to treating a patient, would circle the appropriate CPT code on the superbill. The superbill with the circled item would then be forwarded to his administrative office and the appropriate charge would be billed to the patient or third party payer in accordance with Dr. Shugar's direction. If the superbill did not contain an item for a particular procedure, Dr. Shugar would make a note on a patient and evaluation management form and his clerical staff would divine the correct CPT code from his note. Dr. Shugar did not regularly supervise the billing process. He would only become involved when a problem was encountered. As noted above, Dr. Shugar, during times pertinent, had a general or family type practice which meant that he treated a wide variety of ailments. Because of this, it was impossible for his superbill to reflect all of the work that he accomplished. The procedure performed on Patient B.O. was not reflected on the superbill. This being so, Ms. Hilson reviewed Respondent's notes on the patient management and evaluation record and determined a CPT code. This was her usual practice when the procedure was not listed on the superbill. Ms. Hilson, when reviewing the patient evaluation and management form, noted that Respondent had performed work on Patient B.O.'s nose and observed the word "plasty." She began her code determination exercise by turning to the section under "nose" and thereafter went to the section under "repair." Following this trail resulted in the conclusion that the procedure was a rhinoplasty. As will be noted hereinafter, determining correct CPT codes is fraught with difficulty and often experts on CPT codes will disagree as to the proper code to be assigned when presented with identical descriptions of a procedure. That having been said, Ms. Hilson's determination, nevertheless, was far off the mark. A rhinoplasty, CPT Code 30400, is what is colloquially called a "nose job." A rhinoplasty is a substantially more involved procedure than the excision of a lesion. Moreover, it is usually, but not always, considered a cosmetic procedure of a type not usually reimbursed by insurance. Ms. Hilson also filed for this procedure under CPT Code 13152, "Repair, complex, scalp, arms, and/or legs; . . . 2.6 cm to 7.5 cm." It was this error that resulted in Patient B.O.'s being shocked when she received her bill. The bill, in the form of a claim, was also sent to B.O.'s medical insurance carrier. Patient B.O.'s insurance carrier responded to the claim with a letter dated August 27, 1996, which was date stamped by Respondent's office on September 5, 1996. This letter requested documentation as follows: (1) Degree of functional impairment; (2) date of injury; (3) X-ray report of the injury; (4) pre-operative photographs; and (5) patient's history and physical examination report. Neither the coding of the procedure nor the word rhinoplasty was mentioned in the letter. On September 10, 1996, Ms. Hilson discussed the matter with Dr. Shugar for the first time. Dr. Shugar answered the carrier's letter on September 23, 1996. Neither the coding of the procedure nor the word rhinoplasty was mentioned in this letter. The response was factually correct. The claim, despite the additional information supplied by Dr. Shugar, was denied by the carrier. In the ensuing months Ms. Hilson and the carrier exchanged letters. Eventually Dr. Shugar discovered that Ms. Hilson had filed a claim for a rhinoplasty. Subsequently, on September 8, 1997, the claim was re-filed under CPT Codes 11441 and 13150-51. This was incorrect also and resulted in codes which caused Dr. Shugar to be inadequately reimbursed for the procedure performed. Subsequent to this filing, Patient B.O.'s insurance carrier paid $600 to Dr. Shugar. This amount, along with the $100 paid to him by Patient B.O., resulted in Respondent's receiving a total of $700 for treating the lesion on Patient B.O.'s nose. Patient V.A.A. V.A.A. became a patient of Dr. Shugar in 1995. On February 14, 1996, Patient V.A.A. presented to Dr. Shugar with a lesion on her cheek and a crusted place on her nose. Both areas caused concern for malignancy which Dr. Shugar desired to rule out. Dr. Shugar made a referral to a Dr. Grate in Tallahassee, Florida, an ear, nose, and throat physician, because of Respondent's concern that the area on her nose was a basal cell carcinoma. On March 23, 1996, Dr. Shugar removed the lesion on Patient V.A.A.'s cheek. Dr. Shugar noted that the lesion was 1.1 centimeters in diameter. He documented in V.A.A.'s medical record that he "excised under loupe mag., 3.0 cm length, complex closure." A pathology report was generated by Ketchum Wood and Burgert Pathology Associates which diagnosed an absence of malignancy. On April 4, 1996, it was noted that the incision was "well healed." Ms. Hilson reviewed the Patient Evaluation and Management Record and filed a claim with Patient V.A.A.'s insurance carrier for the cheek surgery using CPT Codes 11403 and 13131. CPT Code 11403 addresses, "Excision, benign lesion, except skin tag (unless listed elsewhere), trunk, arms or legs; . . . lesion diameter 2.1 to 3.0." CPT Code 13131 addresses, "Repair, complex, forehead, cheeks, chin, mouth, neck, axillae, genitalia, hands and/or feet; 1.1 cm to 2.5 cm." Ms. Hilson's use of CPT Code 11403 was improper because that code does not address procedures involving the cheek and because the lesion, as noted in the Patient Evaluation and Management Record, was 1.1 centimeters. It was the length of the closure which was three centimeters. Upon consideration of all the available evidence, it appears that Ms. Hilson simply made a coding error because of a transposition of the length of the lesion and the length of the closure. Because of the coding error, Dr. Shugar obtained less compensation than he was entitled to. When Patient V.A.A. came to Dr. Shugar on April 4, 1996, for follow-up on her cheek incision, Dr. Shugar was concerned because Patient V.A.A. had not visited Dr. Grate as she had been advised. Patient V.A.A. had decided to forgo treatment by Dr. Grate because her medical insurance would not pay for treatment by him. Dr. Shugar had previously made a differential diagnosis on the suspicious area on V.A.A.'s nose of basal cell and squamous cell carcinoma. The passage of time since February 14, 1996, when he first observed the area, and a closer examination of the area, enabled Dr. Shugar to make a diagnosis of basal cell carcinoma during the April 4, 1996, visit. After considering the desires of Patient V.A.A. and the treatment regimens available in the local area, Respondent decided on that date to prescribe Efudex. Efudex is a chemical, which when applied to a growth on the skin, will destroy the growth and, for that matter, skin not having a growth upon it. Dr. Shugar referred to this procedure as, "Chemical treatment of malignancy." This was billed by Ms. Hilson under CPT Code 17283. This code is under the general heading of, "Destruction, Malignant Lesions, Any Method," and specifically, "Destruction, malignant lesion, any method, face, ears, eyelids, nose, lips, mucous membrane,: . . . lesion diameter 2.1 to 3.0 cm." Patient V.A.A. obtained the Efudex and applied it to the lesion herself, having been instructed by Dr. Shugar as to its proper use. On April 25, 1996, Dr. Shugar saw Patient V.A.A. and instructed Patient V.A.A. to discontinue the use of the Efudex. On May 29, 1996, V.A.A.'s last visit with him, Dr. Shugar noted that the carcinoma on her nose was "well-treated." After receiving the superbill for the April 4, 1996, treatment provided to Patient V.A.A., Ms. Hilson selected CPT Code 17283. She selected this code based upon Dr. Shugar's note that he had used "chemical treatment." This selection was not discussed with Dr. Shugar. When Patient V.A.A. received her explanation of benefits she believed it to be in error because it indicated a surgical procedure had been performed on April 4, 1996. She contacted Dr. Shugar's office on September 5, 1996, and pointed out that she did not have a surgical procedure on April 4, 1996. Dr. Shugar called her and explained that the chemical treatment, according to the CPT manual, was the same as a surgical procedure. In the 1996 CPT Code Manual, the narrative description for CPT Code 17283 states, "Destruction, malignant lesion, any method, . . . nose." Destruction is further defined to include chemical treatment. The CPT Code Manual language is amended from year to year to resolve ambiguities and confusion over code selection. In 1999, the CPT Code Manual was amended to clarify that initiation of treatment with Efudex should no longer be billed under the series of codes for chemical treatment of benign lesions. Dr. Shugar was correct in his use of the 1996 manual. Patient V.A.A. was insured under a cancer policy issued by American Family Life Assurance Company. In October of 1996, Patient V.A.A. was provided a claims form by her insurance representative. She called Dr. Shugar to inquire again about the nature of the procedure he provided. Patient V.A.A.'s insurance representative suggested that she complete it and send it to the insurance company. She either faxed or personally delivered it to Dr. Shugar's office. Subsequently, she received the claims form from Dr. Shugar's office. The claims form has what appears to be Dr. Shugar's initials on it. Dr. Shugar denied that he initialed the form. Broward Taff, who was accepted as a handwriting expert, testified that the initials on the claim form were inconsistent with the more than one hundred known signatures and initials provided by Dr. Shugar. The claim to the insurance company would have resulted in a payment directly to Patient V.A.A. The record contains no evidence that Dr. Shugar was aware that the claim form was submitted to his office or that he participated in its completion. Petitioner's experts Jean Acevedo conducts coding and billing compliance audits for health care practices. She is a licensed health care risk manager and a certified professional coder. She was accepted as an expert in the area of CPT coding. In conducting an audit she reviews between ten and 15 patients per provider. Physicians make mistakes when determining CPT codes upon which billing amounts are determined. She is of the opinion that a physician who is in a general practice treating a wide variety of maladies is apt to make more billing errors than a physician who is a specialist. When performing a compliance audit on providers who have been previously determined to have submitted false bills, Ms. Acevedo will audit between 20 to 50 patient charts. She considers a provider to be in compliance so long as the errors do not exceed five percent of the total dollar amount of the charges billed. The testimony of Ms. Acevedo was credible. Thomas Breza, M.D., is a dermatologist. He was accepted as an expert witness in the area of CPT coding. He never performs services which are not on his superbill. It is his opinion that physicians are responsible for every billing error which results in an incorrect claim being filed. He believes he would be committing fraud if he allowed an incorrect bill to leave his office. However, Dr. Breza admitted that he has mailed incorrect bills from his office. Dr. Breza's testimony indicated that his personal definition of fraud is different from the legal definition of fraud. His opinion, with regard to the requirements of accuracy, are based on his experience as a specialist and failed to take into account the variety of diagnoses and procedures experienced in a general practice. Diana Calderone, M.D., was accepted as an expert witness in the area of CPT coding. Like Dr. Breza, Dr. Calderone takes a Draconian approach when addressing coding errors. While opining that coding and resultant billing errors were unacceptable, she conceded that total accuracy is unrealistic and acknowledged that she had made mistakes in this area. Dr. Calderone, is also a dermatologists with little or no experience with the coding problems inherent in a general practice. Margie Vaught is an independent health care consultant. She is a certified professional coder, and sits as a board member of the National Advisory Board of the American Academy of Professional Coders. She performs compliance audits for health care practices. She was accepted as an expert witness in the area of CPT coding. She reviews between ten to 30 patient charts per practitioner when doing a compliance audit. She has never made an audit that did not reveal coding errors. Ms. Vaught reviewed all of the information provided in this case regarding the bills prepared by Dr. Shugar. It is her opinion that there is insufficient information for one to determine whether there is any pattern to Dr. Shugar's billing procedures. Ms. Vaught noted that the HCFA Form 1500 was a form developed for billing in the case of federal medical programs. A HCFA Form 1500 will be accepted by federally funded programs with the signature of a physician's agent rather that the actual signature of the physician. She explained that many private carriers use the HCFA Form 1500 for billing purposes and some of them require no signature. Ms. Vaught's testimony was credible. Mitchell King, M.D., is a board-certified family practice physician. He is an assistant professor and director of the Department of Family Medicine at Northwestern University Medical School in Chicago. Dr. King was accepted as an expert in the area of CPT coding. Dr. King has published three studies related to CPT coding by family practice physicians. One of the studies demonstrated that 38 percent of family practice physicians delegate all or a portion of CPT coding to a staff member. Another found that physicians selected the wrong code 48 percent of the time. Another found that certified coders disagreed as to the appropriate code 43 percent of the time. Dr. King agreed with Ms. Acevedo to the effect that a family practice physician would have more coding errors because of the broad nature of the services rendered. He believes that the CPT code manual is difficult to use. Dr. King's testimony was accepted as credible.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED: That a final order be entered which dismisses the allegations of the complaints. DONE AND ENTERED this 11th day of June, 2002, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 11th day of June, 2002. COPIES FURNISHED: Diane K. Kiesling, Esquire Agency for Health Care Administration 2727 Mahan Drive, Building 3 Room 3226, Mail Stop 39 Tallahassee, Florida 32308 Gary A. Shipman, Esquire Brian Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Octavio J. Carreno, M.D. ("Respondent" or "Dr. Carreno"), is liable to the Agency for Health Care Administration ("AHCA," "Agency," or "Petitioner") for an overpayment in the amount of $121,641.42 for certain claims for services during the audit period of January 1, 2012, through December 31, 2014, that in whole or in part were not covered by Medicaid. Whether Respondent is liable to Petitioner for a sanction in the amount of $24,328.28 pursuant to Florida Administrative Code Rule 59G-9.070(7)(e). Whether Respondent is liable to Petitioner for Petitioner's incurred investigative, legal, and expert witness costs, which Petitioner contends it is entitled to recover pursuant to section 409.913(23)(a), Florida Statutes (2014).
Findings Of Fact Based on the evidence presented at the hearing, and the record as a whole, the undersigned makes the following findings of material and relevant facts: Agreed Facts in Parties' Amended Joint Prehearing Stipulation Petitioner is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act. This program of medical assistance is referred to as the "Medicaid program." See § 409.902, Fla. Stat.; JPS ¶ E12. Petitioner has the responsibility for overseeing and administering the Medicaid program for the state of Florida, pursuant to section 409.913. JPS ¶ E13. The Medicaid provider agreement is a voluntary contract between AHCA and Respondent. An enrolled Medicaid provider must comply fully with all state and federal laws pertaining to the Medicaid program, including Medicaid provider handbooks incorporated by reference into rule, as well as all federal, state, and local laws pertaining to licensure to receive payment from the Medicaid program. JPS ¶ E14. During the audit period, Respondent was an enrolled Medicaid provider and had a valid Medicaid provider agreement with AHCA, Medicaid Provider No. 002993600. JPS ¶ E2; Pet. Ex. 1. AHCA's Bureau of Medicaid Program Integrity ("MPI"), pursuant to its statutory authority, conducted an audit of Respondent for Medicaid claims it paid to him for medical services he provided to Medicaid recipients, occurring during the time period from January 1, 2012, through December 31, 2014. JPS ¶¶ E1 and E4. AHCA issued a FAR dated March 15, 2016, MPI Case ID No. 2015-0003243, alleging that Respondent was overpaid $139,250.66 for certain services that are not covered by Medicaid. In addition, the FAR informed Respondent that AHCA was seeking to impose a fine of $27,850.13 as a sanction for violation of rule 59G-9.070(7)(e) and seeking costs pursuant to section 409.913(23). The amounts of the overpayment and the sanction were revised, after the FAR was issued, to $121,641.42 and $24,328.28, respectively. JPS ¶ E5. The FAR, supported by the Agency work papers, constitutes evidence of the overpayment to Respondent pursuant to section 409.913(22). JPS ¶ E15. In the FAR section entitled "Findings," AHCA set forth the bases for the overpayment determinations. JPS ¶ E6. The claims which make up the overpayment alleged by AHCA were filed by and paid to Respondent prior to the initiation of this action. JPS ¶ E7. There is no dispute from Respondent as to the process of the statistical sampling or the statistical methods utilized to establish the validity of the overpayment calculation utilized by AHCA. JPS ¶ E16. Additional Facts Adduced at the Hearing Ms. Robi Olmstead, an administrator of the Practitioner Unit at AHCA, under the Offices of the Inspector General, MPI, testified regarding her experience and role in the audit of Respondent. MPI is required by federal and Florida law to investigate medical providers for fraud, abuse, or overpayments. Olmstead cited section 409.913 as the authority to investigate Medicaid providers, including Respondent. The instant case against Respondent was opened based on a referral from one of the investigators who noticed "a significant portion of Dr. Carreno's office visits" (evaluation and management or "E&M" codes) were billed at high levels. Olmstead also independently confirmed this in her review of the data. Olmstead opened the audit, set the coverage dates of the audit period, and assigned the matter to an AHCA investigator. The investigator obtained a list of claims for 40 random recipients from the Agency's cluster sample program. After the sample was obtained, Petitioner then requested the medical records of the sample recipients from Respondent. Pet. Ex. 2. Petitioner utilized the services of a peer consultant, Ellen D. Silkes, M.D. Dr. Silkes meets the requirements and qualifications of a "peer" as defined in section 409.9131. JPS ¶ E17. Dr. Silkes practices the same specialty or sub-specialty as Respondent and is licensed under the same chapter. Pet. Ex. 6, p. 147. Both Dr. Silkes and Dr. Carreno are otolaryngologists, commonly referred to as ear, nose, and throat ("ENT") doctors. The medical records received from Respondent were reviewed by the AHCA investigator and by an AHCA registered nurse consultant and then sent to the peer reviewer, Dr. Silkes, along with other relevant documents, including the worksheets generated by the claims sample process. When the medical records were returned to the Agency with the peer's comments, the Agency calculated the amount of the overpayments. The peer reviewer's role is to make determinations of medical necessity and levels of service. Decisions as to the lack of documentation are made by a combination of the peer reviewer and the Agency nurse consultant. After the agency and peer review were completed, a Preliminary Audit Report ("PAR")(Pet. Ex. 4) was sent to Respondent on December 14, 2015. After the receipt of the PAR, Respondent had the opportunity to submit additional medical records to the Agency for consideration. This was done by Respondent. The FAR (Pet. Ex. 5) was then issued on March 15, 2016. The FAR made multiple findings delineating the reasons for the overpayments, including improper "consult" claims, reductions for levels of service, insufficient or no documentation to support claims, improper claims for global procedures, errors in coding, and lack of medical necessity for certain procedures. Pet. Ex. 5, pp. 88-90. Subsequent to the FAR and prior to the final hearing, the review of additional information provided to the Agency by Respondent resulted in a reduction of the alleged overpayment to $121,641.42. JPS ¶ A; Pet. Ex. 19. Rule 59G-9.070(7)(e) addresses sanctions for failure to comply with the provisions of the Medicaid laws. For a first offense, there is a $1,000.00 fine per claim found to be in violation. AHCA initially found 86 violations. Pet. Ex. 6. After the state mandated cap of 20 percent was applied, the initial fine was set by the Agency at $27,850.13. Subsequently, based on the allowance of some claims submitted by Respondent with additional documents or clarification, the fine amount was reduced to $24,328.28. Pet. Ex. 19. The Agency considered all of the statutory factors when assessing the sanction. Olmstead considered the violations in this case to be "typical" and "nothing extraordinary" and did not enhance or reduce the sanctions. The Agency incurred costs in its investigation of this matter. However, costs have not yet been fully determined. Pet. Ex. 5, p. 150B. Based on Olmstead's experience, the audit was conducted in a routine and acceptable manner. Identification of the Disputed Claims Notably, in the JPS and again at hearing, the parties agreed that only the following "Disputed Claims" required factual findings and conclusions of law by the undersigned: Recipient #2 Claims 1, 2 and 3 Recipient #3 Claims 5, 11, 12, 13, 17, 18, 20, 21, 22, 24, 26, 28, 35 Recipient #25 Claim 11 Recipient #29 Claim 6 Recipient #30 Claims 1, 2, 4 None of the other audit determinations made by AHCA were challenged by Respondent at the hearing.1/ The parties agreed at the start of the hearing that the downward adjustments made by AHCA to Recipient #2, Claims 1 and 2, were agreed to and would not be disputed. The worksheets, as revised, now showed the peer's determination of those claims as properly payable at Current Procedural Terminology ("CPT") Code 99213. Pet. Ex. 19. Evaluation and Management Claims Many of the "Disputed Claims" are for E&M services, which are office visits, and specifically in this audit, office visits for established patients of Respondent. In order to properly code and bill the appropriate level of E&M services for an encounter with an established patient, the medical records must establish that two of the three key components (i.e., history, examination, and medical decision- making) meet or exceed the stated requirements of that level of service. In some cases, time spent with the patient is considered a key factor as well. Pet. Ex. 13, p. 271. For encounters with established patients, the CPT Code (2012) provides in pertinent part, as follows: 99212 - Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these three key components: A problem focused history;A problem focused examination;A problem focused examination. 99213 - Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these three key components: An expanded problem focused history;An expanded problem focused examination;Medical decision making of low complexity. 99214 - Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these three key components: A detailed history;A detailed examination;Medical decision making of moderate complexity. Pet. Ex. 13, p. 273. There was no evidence to suggest that the CPT codes for these procedures changed at any time during the audit period between 2012 and 2014. As a result, the CPT codes admitted were properly relied upon by the parties. Pet. Ex. 13. As mentioned, the key components of coding an E&M encounter are the examination, the history, and the medical decision-making required of the physician. Pet. Ex. 13. The CPT codes from 99211 to 99215 are also referenced as Levels 1 through 5 with the main difference being the complexity and extent of the visit and examination. Counseling and/or coordination of care with the patient and/or family can be a controlling factor in coding the proper level. However, the CPT code notes provide that the "extent of counseling and/or coordination of care must be documented in the medical record." Pet. Ex. 13, p. 271. The Florida Medicaid Provider General Handbook provides that "[m]edical goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient's medical records." Pet. Ex. 9, pp. 169-173.2/ The undersigned undertook a careful and meticulous review of the record. This included reading Transcript testimony, reviewing manuals and handbooks provided, and comparing and cross-referencing the hearing testimony to the worksheets and handwritten medical notes and other records prepared by Respondent. Findings of Fact on Disputed Claims Recipient #2, Claim 3. Respondent submitted this claim using CPT Code 69200. Pet. Ex. 15-2, p. 376-A. Dr. Silkes testified that there was a myringotomy tube that was placed in the ear by Respondent. The tube is not considered a foreign body, and Medicaid does not pay for its removal when inserted by the original doctor. She concluded that removal of the tubes is not properly billed as CPT Code 69200. This conclusion is also supported by provisions of the Physicians Services Handbook (Pet. Ex. 13, p. 199), which does not permit additional billing under global surgery packages for the removal of "items such as tubes, drains . . . ." (see bullet point 6 entitled "Miscellaneous Services and Supplies). This restriction does not place any time limit when the non-reimbursable "miscellaneous service" is performed, even outside the normal 90- or ten-day time period. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of the tubes fell under the exclusion of miscellaneous services or did not otherwise qualify for reimbursement (Pet. Ex. 13, p. 199). The claim was properly denied. Recipient #3, Claim 5. Respondent submitted a claim using CPT Code 31237 for services on January 30, 2012, Nasal/Sinus Endoscopy Surgery. Pet. Ex. 15, pp. 376 (worksheet) and 387 (medical record). Dr. Silkes denied this claim because she could not find documentation to support the procedure. However, there is documentation at Petitioner's Exhibit 15, page 387, included in a contemporaneous office note for January 30, 2012. It indicates on the fifth line that Respondent performed a nasal endoscopy ("nasal endo") and that he did bilateral debridement of the sinuses. He found crusting on the right, and the right sphenoid sinus was narrow. Dr. Silkes testified that she may have misread the nasal endo reference and that Dr. Carreno may be correct on that point. The undersigned credits and finds more persuasive Respondent's evidence and finds that the claim should have been paid as requested and coded. Recipient #3, Claim 11. Respondent submitted a claim using CPT Code 31231 for services on June 13, 2012, nasal endo. Pet. Ex. 15, pp. 377 (worksheet) and 388 (medical record). Dr. Silkes denied this claim because she did not find anything in the medical record to support billing for this service. The supporting medical note documents a nasal endo in the middle of the notes. Respondent wrote in the assessment and plan ("A/P") "looks good but mucocele of right sphenoid." Also, he testified that if he did not do the endoscopy, he could not have seen the right sphenoid. The undersigned credits and finds more persuasive Respondent's evidence and finds that the claim should have been paid as requested and coded. Recipient #3, Claim 12. This claim was adjusted from CPT Code 99214 to 99212 by Dr. Silkes. She concluded that the medical records failed to properly document an examination and the medical decision-making was straightforward. Pet. Ex. 15-3, p. 377. The undersigned credits and finds more persuasive AHCA's evidence and finds that the code should be reduced to CPT Code 99212. Recipient #3, Claim 13. This claim was denied by AHCA on the basis that the examination of July 30, 2012, was included within a global surgical fee package. The surgery was performed on August 13, 2012, after the decision to perform the surgery was made on July 16, 2012. Pet. Ex. 15-3, pp. 378 and 389. The Physicians Services Coverage and Limitations Handbook (Pet. Ex. 11, p. 199) provides as follows: Evaluation and management services, subsequent to a decision for surgery visit, that are limited and focused to determine the health of the individual prior to surgery are included in the global surgery package and may not be billed separately. The primary purpose of the visit on July 30, 2012, was an examination to determine the health of the individual. The patient visit was limited in scope and should be included in the global surgical package. The surgical decision was made prior to this encounter, and the surgery occurred after it. The undersigned credits and finds more persuasive ACHA's evidence and finds that the claim was properly denied. Recipient #3, Claim 17. Respondent submitted a claim for services performed on January 14, 2013, office outpatient visit. Pet. Ex. 15, pp. 378 (worksheet) and 392 (medical record). Dr. Silkes down-coded this from CPT Code 99214 to 99212, because "only nasal examination was performed with cultures and he [the patient] was told to return for a full examination." She said the history was problem focused, the exam was problem focused, and the decision-making was straight forward. Both Dr. Carreno and his coding witness, Lorraine Molinari, pointed out that the record says that the visit lasted "30 minutes." This factor justifies a claim under CPT Code 99214. Also, the visit involved a more detailed and extensive examination of the nasal areas by Respondent. The undersigned credits and finds more persuasive the evidence presented by Respondent, particularly due to the amount of time devoted to this visit. It was properly coded as CPT Code 99214. Recipient #3, Claim 18. Respondent submitted a claim using CPT Code 99214 for an office outpatient visit on February 13, 2013. Pet. Ex. 15, pp. 378 (worksheet) and 392 (medical record). Dr. Silkes down-coded this to CPT Code 99213, opining that Dr. Carreno only performed an expanded problem focused history, expanded problem focused examination, and the decision- making was of low complexity. Dr. Carreno characterized this patient as one of the most complicated medical cases he has handled. The patient had a myriad of medical problems related to his ENT systems. Dr. Carreno and Molinari stated that the visit included an extensive conversation with the patient and his mother, and he also had to review and consider information from Dr. Ramos (immunologist's) notes. Dr. Carreno documented a left maxillary sinus suctioned under endoscopy. The extent of his note and documentation is reflective of a more extensive and complex examination and visit. Molinari opined that it should be CPT Code 99214. The undersigned credits and finds more persuasive the evidence presented by Respondent, particularly due to the complexity of the examination. It was properly coded as CPT Code 99214. Recipient #3, Claim 20. This claim was adjusted from CPT Code 99214 to 99213 by Dr. Silkes. She opined that the examination was only problem focused ("nasal exam only") and that there were no other records that would support the higher level of services claimed. Pet. Ex. 15-3, pp. 379 and 393. Additionally, there was no documentation to support a higher level claim under CPT Code 99214, nor was the use of an endoscope documented. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and ACHA. The claim was properly reduced to CPT Code 99213. Recipient #3, Claim 21. Respondent submitted this claim using CPT Code 31231, a nasal endo code. Pet. Ex. 15-3, pp. 379 and 393. Dr. Silkes testified she did not find any documentation in the record that would show that an endoscopy was performed on that date, but did allow an office visit for the same date where a nasal exam was performed (Claim 20, adjusted from CPT Code 99214 to 99213). The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The claim was properly reduced to CPT Code 99213 primarily for failure to properly document that an endoscopy was performed. Recipient #3, Claim 22. Respondent submitted a claim using CPT Code 99214 for services on June 17, 2013, office outpatient visit. Pet. Ex. 15, pp. 379 (worksheet) and 393 (medical record). Dr. Silkes testified that she reduced this to CPT Code 99213 because only a nasal examination was done which is a problem focused examination. She concluded that the ear, nose, and throat were not examined. Dr. Carreno testified that it was not only a nasal exam. His contemporaneous notes reference an "endoscopic debridement" on the third line, which means he used an endoscope to see in the nose and clean fungal content out with suction and graspers. Molinari opined that the visit should remain CPT Code 99214 because the medical decision-making reflected in the note was at least moderate complexity. The undersigned credits and finds more persuasive the evidence presented by Respondent. The use of an endoscope and performing the debridement procedure were sufficiently documented. The services performed supported coding as CPT Code 99214. Recipient #3, Claim 24. This claim by Respondent was adjusted from CPT Code 99214 to 99213 by Dr. Silkes. She opined that "only a nasal examination was done" and that the examination and history were both either problem focused or expanded problem focused. Pet. Ex. 15-3, pp. 379 and 394. Respondent's witness, Molinari, agreed with Dr. Silkes' adjustment. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The claim was properly reduced to CPT Code 99213 primarily because the visit only involved a less complicated nasal examination. Recipient #3, Claim 26. Respondent submitted a claim using CPT Code 99214 for services on January 8, 2014, office outpatient visit. Pet. Ex. 15, pp. 380 (worksheet) and 395 (medical record). Dr. Silkes down-coded it to CPT Code 99213 because "only the nose was examined." However, Dr. Carreno testified that he performed a fiberoptic laryngoscopy, using an endoscope, to inspect for any fungal debris. This was sufficiently documented in his contemporaneous office notes. He also used the scope to view the nasopharynx. His notes also reflect that a physical exam (PE) was performed. Molinari felt the claim should remain CPT Code 99214 because the medical decision-making was of moderate complexity. The undersigned credits and finds more persuasive the evidence presented by Respondent. The use of a scope to inspect the nasal passages and nasopharynx were sufficiently documented. The services performed supported his coding as CPT Code 99214. Recipient #3, Claim 28. The claim submitted was adjusted from CPT Code 99214 to 99213 by Dr. Silkes. She opined that "only the nose was examined" and that there were no other records that would support the higher level. Pet. Ex. 15-3, pp. 380 and 395. Further, there was no documentation that an endoscope was used. The undersigned credits and finds more persuasive the evidence from Dr. Silkes and AHCA. The claim was properly reduced to CPT Code 99213, primarily because the visit involved a less complicated nasal examination. Recipient #3, Claim 35. Respondent submitted a claim under CPT Code 31237 for services on April 30, 2014, Nasal/Sinus Endoscopy Surgery. Pet. Ex. 15, pp. 381 (worksheet) and 395 (medical record). Dr. Silkes denied this claim because she felt that this was included in the global surgery package for the septoplasty that was performed on April 21, 2014. A "septoplasty" is where you move the septum in the nose if it is causing problems with sinuses or breathing. In her view, Claim 35 was a normal post- operative visit, namely, to remove the splint. Dr. Carreno testified and conceded that "yes, I did remove the splints, but I also needed to place the endoscope to assess the sinus surgical site. And not only did I assess it, but I cleaned it and debrided it, and it clearly said cleaned, debrided, endo shows." Dr. Carreno acknowledged that a septoplasty procedure has a 90-day global period, but testified that a global surgery package does not apply to a sinus endoscopy and debridement following the sinus surgery. The undersigned credits and finds more persuasive the evidence presented by Respondent. It was medically prudent and necessary to use an endoscope post-operatively for inspection and debridement, and this was sufficiently documented. The services performed supported coding as CPT Code 31237. Recipient #25, Claim 11. Respondent submitted this claim using CPT Code 69200. Pet. Ex. 15-25, p. 782. Dr. Silkes testified that there was a myringotomy tube that was placed in the ear by Respondent. The tube is not considered a "foreign body," and Medicaid does not pay for its removal when inserted by the original doctor. She concluded that removal of the tubes is not properly billed as CPT Code 69200. This conclusion is supported by provisions of the Physicians Services Handbook (Pet. Ex. 13, p. 199), which does not permit additional billing under global surgery packages for the removal of "items such as tubes, drains . . . ." This is found under bullet point 6 entitled "Miscellaneous Services and Supplies." This restriction does not place any time limit on when the non-reimbursable "miscellaneous service" is performed, even outside the normal 90-day time period. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of the tubes fell under the exclusion for miscellaneous services or did not otherwise qualify for reimbursement. Pet. Ex. 13, p. 199. The claim was properly denied. Recipient #29, Claim 6. Respondent submitted this claim using CPT Code 69200. Pet. Ex. 15-29, p. 830. Dr. Silkes testified that there was a myringotomy tube that was placed in the ear by Respondent. The tube is not considered a "foreign body," and Medicaid does not pay for its removal when inserted by the original doctor. She concluded that removal of the tubes is not properly billed as CPT Code 69200. This conclusion is supported by provisions of the Physicians Services Handbook (Pet. Ex. 13, p. 199), which does not permit additional billing under global surgery packages for the removal of "items such as tubes, drains. . . ." (see bullet point 6 entitled "Miscellaneous Services and Supplies"). This restriction does not place any time limit on when the non-reimbursable "miscellaneous service" is performed, even outside the normal 90-day time period. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of the tubes fell under the exclusion for miscellaneous services or did not otherwise qualify for reimbursement. Pet. Ex. 13, p. 199. The claim was properly denied. Recipient #30, Claim 1. This claim was adjusted down from CPT Code 99214 to 99213 by Dr. Silkes. She opined that both the history and examination were problem focused and that the decision-making was straightforward. Pet. Ex. 15-30, pp. 856 and 861. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The claim was properly adjusted to CPT Code 99213. Recipient #30, Claim 2. This was submitted under CPT Code 69210. Dr. Silkes denied the claim citing a lack of documentation to show that any cerumen or ear wax was actually removed. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of cerumen was not properly documented, and the claim should be denied. Recipient #30, Claim 4. Respondent submitted a claim for services using CPT Code 99214 for services on May 16, 2012, Office/Outpatient Visit. Pet. Ex. 19 (no Bates stamp numbers, as this was a late submission). After reviewing several late-filed documents from Respondent, Dr. Silkes down-coded this to CPT Code 99213 because there was an expanded problem focused history, there was a problem focused examination, and medical decision- making was of low complexity. Dr. Carreno explained that the claim should be allowed as CPT Code 99214 because he examined four separate body systems or areas. He examined the throat due to enlarged tonsils and enlarged adenoids, he examined the ear for infection, he took the patient's temperature and weight in connection with sleep apnea, and he examined the nose. He also rescheduled the patient for surgery and discussed the risks and benefits of surgery with the parents. Molinari testified that it should be allowed as a CPT Code 99214 because the decision-making was, at least, of moderate complexity, including a detailed examination of pallet, tonsils, and sinuses, as well as explaining the risk and benefits of surgery to the parents. The undersigned credits and finds more persuasive the evidence presented by Respondent. This visit involved a more detailed and extensive examination of the patient and justified a claim using CPT Code 99214.
Recommendation Based on the evidence covering the Disputed Claims during the audit period of January 1, 2012, through December 31, 2014, it has been established by a preponderance of the evidence that Respondent was overpaid for certain services not covered by Medicaid. Those overpayments are listed in paragraph 123 in the Conclusions of Law section. The undersigned recommends that the Agency for Health Care Administration enter a final order ordering Respondent to repay the recalculated amount. Considering the facts proven at the hearing, the Agency has established by clear and convincing evidence that Respondent failed to comply with the provisions of the Medicaid law for certain claims. Those overpayments are also listed in paragraph 123 in the Conclusions of Law section. It is recommended that the Agency recalculate and impose a sanction commensurately lower than the previous sanction, pursuant to rule 59G-9.070(7)(e). Pursuant to section 409.913(23)(a), the Agency's request of an award of reasonable investigative, legal, and expert witness costs as the prevailing party is granted, in part, based on a limited number of violations outlined in paragraph 123. If the amount of the costs cannot be agreed to, then the Agency may request a hearing for the establishment of the costs. DONE AND ENTERED this 22nd day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 22nd day of May, 2017.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, F.S. Respondent is and has been at all times material hereto a licensed medical physician in the State of Florida, having been issued license number ME 0029506. Medicare is a health insurance program for beneficiaries 65 or older or disabled. It is a Federal program under Title 18, USCA, the Social Security Act. By contract, Blue Cross/Blue Shield administers the Medicare Program in Florida, and is hereafter also referred to as "Medicare" throughout this Recommended Order. On or about August 23, 1986, Respondent rendered care and treatment to patient G.C. by assisting one Dr. Kluger with patient G.C.'s surgery. On or about September 1, 1986, patient G.C. expired. He was survived by his widow, J.C. An assignment is an agreement between the physician and the patient/beneficiary whereby the patient/beneficiary transfers to the physician his rights to benefits based on covered services specified on the assigned claim. When the physician accepts said assignment, he agrees that the allowed charges determined by Medicare is the full amount he expects to receive, and his charges to the patient/beneficiary should be no more than 20% of the allowed charges. It is clear on the record that on January 9, 1987, Respondent advised J.C. that he would not accept a Medicare assignment for his services, and that he required full payment from her. On that date, she paid him in full by personal check the undiscounted amount of $731.75 which he had billed her on October 24, 1986. It is not certain whether Respondent ever specifically told J.C. before January 9, 1987 that he would not accept assignment, but it is clear that he never told her that he would accept assignment and that he billed her for the full amount on October 26, 1986, before anybody made any claim to Medicare. Prior to Respondent's January 9, 1987 conversation with J.C., Respondent's wife and office manager had, on November 28, 1986, submitted a claim to Medicare for Respondent's services to G.C. This claim was submitted over Respondent's (apparently stamped) signature, making him responsible for its contents. Despite her denials on the record, Mrs. Castro clearly has difficulty understanding others and expressing herself orally in the English language. Her recollection was that she had submitted the Medicare claim form dated November 28, 1986 without checking either the box on the form by which a physician signifies agreement to accept assignment or the box on the form whereby the physician declines to accept assignment. The reason she gave at formal hearing for not checking the assignment box is that she knew that Dr. Kluger had not accepted assignment for treatment of G.C. and that it also had been Respondent's oral instruction to her not to accept assignment of his associate fees. However, Mrs. Castro's only explanation as to why she had left both boxes blank instead of checking the one signifying "no assignment" was that she understood that forms without any election were usually processed as non-assigned claims. This November 28, 1986 claim form, as produced by Medicare authorities, shows the "yes assignment" box marked. The widow, J.C., had some memory retrieval problems in the course of her testimony. She testified that on January 10, 1987 she personally went to the Jacksonville, Florida, offices of Medicare and, using a receipt given her by Respondent for her check presented to him the day previously, she made a Medicare claim in her own name. (TR-20) However, she also testified that she received "no satisfaction" from her claim because the Respondent had already submitted a claim. (TR-21-23) Medicare has no record that such a claim was ever made by J.C. A physician can file claims with Medicare by applying for a provider number and using it on his claims for reimbursement. At all times material, Respondent had such a Medicare provider number. However, acceptance of such a provider number by a physician does not automatically make a physician a "participating physician," nor does it obligate him to accept assignments to Medicare. "Participating physicians" have also signed a contract agreeing to accept assignment on every claim they submit. For "non-participating physicians," assignments or non-assignments are done on a claim by claim basis. At all times material, Respondent was a "non-participating physician." If the physician submitting a claim is a "non-participating physician" and the assignment block is left blank on his claim form, Medicare's standard operating procedure is to process his claim form as a "non-assignment." If a physician discovers he has made an error in checking the wrong block on his claim form, it is also Medicare's standard operating procedure to correct that error provided both the physician and the patient/beneficiary notify Medicare prior to the time Medicare applies a reasonable charge to the claim. As a practical matter, the window for this type of notification covers only the period of time required for Medicare to receive the original erroneous claim form, microfilm it, and feed it into the Medicare computer; in total, perhaps less than one workday. After the computer applies a reasonable charge to the claim, Medicare will not permit mistaken assignments to be rescinded. On or about March 2, 1987, Medicare sent Respondent a check for $174.64, which is 80% of the amount Medicare approved for his services. There is no adequate explanation in the record why it took Medicare from December 3, 1986 when it received the November 28, 1986 claim form until March 2, 1987 to process the initial claim. Respondent's office deposited the $174.64 Medicare check in the normal course of business. On or about March 3, 1987, J.C. received an "Explanation of Medical Benefits" letter (EMOB) from Medicare advising her that Respondent had accepted assignment on G.C.'s claim, that Medicare had allowed Respondent $220.00 for his services, that Medicare had paid Respondent $174.64, and that J.C. owed Respondent $44.10. Quite naturally, J.C. was incensed by this notification from Medicare because she had already paid Respondent in full on January 9, 1987. Sometime after March 2, 1987, but prior to April 1, 1987, Respondent sent his own check for $174.64 to Medicare, stating that the money should have been sent by Medicare directly to J.C. In March of 1987, J.C. requested a refund from Respondent. Respondent refused to give her the refund, stating that Medicare should pay her directly. Therefore, J.C. contacted Medicare for a refund. Thereafter, various employees of Medicare contacted Respondent telling him repeatedly that because the "yes assignment" box had been checked on the November 28, 1986 claim form, he must take the discounted amount allowed by Medicare and refund an amount to J.C. sufficient so that she would not have paid more than 20% of the allowed charges. Apparently, Respondent was given to colorful language in his telephone conversations both with Respondent and with Medicare personnel, and no meeting of the minds ever was reached between Respondent and J.C. or between Respondent and Medicare. The situation was further complicated when Medicare sent Respondent a letter on May 5, 1987 acknowledging his return of the $174.64 to Medicare and advising Respondent that, We have received your $174.64 payment dated March 16, 1987. We have applied this money to your account. Thank you for returning the payment issued to you in error. Our records are being corrected accordingly. . . Therefore, when, on or about August 24, 1987, Medicare sent Respondent a new check for $165.45 for the same claimed services to G.C. because Medicare had unilaterally made a correction to its "Procedure Code," Respondent assumed that Medicare had made another mistake. His office again cashed this Medicare check, and only after Medicare fraud and abuse investigators contacted him, did Respondent send Medicare his own check, dated November 30, 1987, for the $165.45. With Respondent's check, Mrs. Castro enclosed a note, dated December 1, 1987, requesting that Medicare send payment directly to J.C. Respondent has no record of submitting a third check to Medicare, but Medicare records show that at some point Medicare issued yet another check to Respondent for $165.45, and that Respondent again returned the money through his own check. Mrs. Castro testified that she re-submitted the health insurance claim form to Medicare on or about April 20, 1987 with the "no assignment" box checked and that she did so in an attempt to get Medicare to pay J.C. directly and to straighten out the problem with G.C.'s bill. At that time, she did not indicate "signature on file" as she had on the initial November 28, 1986 claim form. Instead, she made a big "X" and signed the deceased patient's name beside the "X." Mrs. Castro asserted that she never attempted to emulate G.C.'s handwriting, and examination of the form does not suggest that she did. Medicare has no record of receiving this form contemporaneously with the April 20, 1987 date on it, but Medicare received it either from the Respondent with his November 30, 1987 check and Mrs. Castro's December 1, 1987 note requesting that Medicare pay J.C. direct or they received it at about the same time from Respondent's attorney. Medicare personnel interpreted the April 20 claim form to constitute a forgery of G.C.'s signature since it had not been received by Medicare in April 1987 and because G.C. had died in September, 1986. Medicare never processed the April 20, 1987 claim form as either a substitute for, or as an amendment to, the original November 28, 1986 claim form. Mrs. Castro was unable to explain at formal hearing why the April 20, 1987 claim form was not received by Medicare until December, 1987, and her explanation that she thought Medicare would interpret the "X" as an indication that someone else had signed for the decedent is illogical. However, upon Mrs. Castro's candor and demeanor while testifying, it is plausible that she genuinely believed that coupled with the repeated return of all monies to Medicare hers was an acceptable way to explain to Medicare the Respondent's consistent intent to refuse assignment and to defuse the escalating acrimony of the claim situation. Upon this basis, Medicare's interpretation of Mrs. Castro's meretricious motivation with regard to the April 20 claim form, which motivation Medicare also attributed to the Respondent, is rejected. The burden to prove fraud by clear and convincing evidence is upon Petitioner, and there is no affirmative proof of meretricious motive here. Throughout this dispute, Medicare continued to tell J.C. that after all adjustments, Respondent should pay her $689.97 (the balance of the full payment amount she had paid Respondent above the 20% of the charge allowed by Medicare). Respondent has never refunded any monies to J.C.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that the Board of Medicine enter a Final Order dismissing all charges against Respondent. DONE and ENTERED this 21st day of September, 1989, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 21st day of September, 1989.
The Issue Whether Petitioner, Nicole Demott Vugteveen (Petitioner), is entitled to reimbursement for a medical device that Respondent, Department of Management Services, Division of State Group Insurance (Department or Respondent), maintains is not covered under the State of Florida PPO self-insured medical plan.
Findings Of Fact At all times material to this case Petitioner was a participant in the State of Florida's Group Health Insurance Plan. This plan is managed by Florida Blue, formerly known as Blue Cross and Blue Shield of Florida. The plan is administered by Respondent. It is Respondent's duty to oversee the administration of the plan and to assure that it complies with all applicable regulatory and medical guidelines. As a participant of the plan, Petitioner was entitled to the benefits of the plan. Accordingly, medical services and certain durable medical equipment covered by the plan are reimbursable. Typically, individuals or companies who provide medical services or products for participants' illnesses are known as "providers." These providers may seek payment or reimbursement for their efforts, either directly from the insurance plan or from the patient to whom services are rendered. In the case of the latter situation, the patient is required to file the claim form for reimbursement from the plan. At all times material to this case, a company known as Mid-Florida Prosthetics and Orthotics (Mid-Florida) was a provider of medical devices. Mid-Florida files medical claims for its patients when the devices provided are covered by insurance but will not file claims for devices that are not. After doing extensive research into products offered by Mid- Florida, Petitioner approached the company with the notion of purchasing a device to assist her condition. Petitioner's long-term medical history has resulted in a profound weakness on one side of her body. Gait and ambulatory issues have impaired progress in recovery. Petitioner sought to purchase a medical device from Mid-Florida in order to provide stimulation to her muscles on the weak side. It is undisputed that Petitioner met all medical prerequisites for the purchase of the device. Petitioner was allowed to test the device to verify it would help. At the time of the purchase, Mid-Florida knew the device was not covered by Petitioner's insurance. Mid-Florida did not file for payment from Petitioner's insurance plan. Instead, Petitioner purchased the device from Mid-Florida and filed for reimbursement. Although Petitioner knew Mid-Florida would not file the claim, it is disputed whether Petitioner knew or should have known that the device would not be covered by insurance. At the heart of this dispute, is the device itself: a Bioness L300. This device is a neuromuscular stimulator that sends impulses to the area where it is attached (in this case the leg) to improve mobility. Petitioner maintains and Respondent does not dispute whether the device has been medically helpful. At all times material to the allegations of this case, however, the state's insurance plan did not cover the Bioness L300. The Bioness L300 is considered an experimental or investigative product by the insurance plan. Petitioner maintains that, if that were true, the claim should have been denied and that requests for additional information should not have been issued. Petitioner argues that it took an inordinate amount of time for the claim to be processed and then denied, if all along it could not be approved. To review this matter, the claims process must be described. In this (and all claims) a form is used to process claims for payment or reimbursement. That form describes the patient's medical condition and the types and amounts of services or the device intended to treat the medical condition. Whether or not the claim can be approved is governed by guidelines established by the insurance plan. The guidelines include claim codes that are assigned to each type of condition and service that might be rendered. For a given medical condition, treatment may be appropriate but the type of treatment requested may not be approved. In this case, had Petitioner's claim been correctly coded from the beginning, it would have been denied. Instead, Petitioner's claim had incorrect codes that required further explanation. In simplistic terms, Petitioner has a medical condition that warrants medical care, but the device she bought, the Bioness L300, is not an approved, reimbursable device for that care. Under the guidelines that govern this matter, the Bioness L300 is described as a functional neuromuscular stimulation that is experimental and investigational for all diagnosis codes. The state health insurance plan does not cover devices that are deemed experimental and investigational. Had the forms been correctly coded, Petitioner's claim for reimbursement would have been disallowed or denied at the time of its submission. The delay in resolving the claim resulted from the confusion and miscoding of the claim form. The request for additional information regarding the claim does not constitute an approval of the claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of State Group Insurance, enter a final order denying Petitioner's request for reimbursement for the Bioness L300, as it is not covered by the plan guidelines. DONE AND ENTERED this 26th day of September, 2012, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2012. COPIES FURNISHED: Nicole Vugteveen 700 North Atlantic Avenue, No. 112 Cocoa Beach, Florida 32931 Sonja P. Mathews, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399 Jason Dimitris, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
