Findings Of Fact Respondent is a medical doctor, licensed to practice in Florida, and holds license number ME 0009310, issued by Petitioner. Respondent specializes in family practice and has been board certified by the American Academy of Family Physicians since 1974. Percodan is the manufacturer's brand name for oxycodone, which is a Schedule II controlled substance pursuant to Chapter 893, F.S. 2/ It is a drug used for the relief of pain, a synthetic analgesic, and is both a physically and psychologically dependent producing drug. It can cause drowsiness, urinary retention, nausea, vomiting, and interacts unfavorably with other sedative drugs, and is considered a depressant. On December 30, 1966, Evelyn Milstead, a 30 year old woman, came to Respondent's office complaining of nausea and a rash in her mouth. Respondent conducted a physical examination, took her medical history and thereafter prescribed tigan for the nausea. Ms. Milstead became a regular patient of Respondent's and he continued treating her for various ailments over a period of years. During the course of Respondent's treatment, Milstead developed a chronic urinary tract infection and kidney condition in which she passed kidney stones. On occasion Milstead was treated by Dr. Gillespie, a specialist in the field of urology for her kidney condition. In 1978, Respondent also referred instead to the Ochsner Clinic for evaluation of her urinary tract and kidney problems. She was evaluated at Ochsner Clinic and received prescriptions for darvocet, a pain medication, and keflex, an antibiotic, and was told that she would continue to have a chronic kidney problem. Over the years, Milstead was hospitalized several times by Dr. Gillespie for treatment of her kidney condition. The testimony of Dr. William H. Nass and Dr. Robert P. Johnson established that Respondent's initial prescriptions of percodan to Milstead were appropriate. However, Respondent's percodan prescriptions to Milstead eventually became inappropriate. Specifically, the prescriptions for 2,668 percodan tablets between August, 1980 and November, 1982, were established as excessive. On July 30, 1977, Bruce White, a 25 year old male, came to Respondent for medical treatment for headaches and thereafter returned to Respondent for treatment of various medical problems. Mr. White's wife, Vicki White, and their children were also seen by Respondent as their family doctor. On May 18, 1981, White came to Respondent complaining of neck and back pain from an automobile accident in which he also fractured his left lower leg. Respondent noted that White had been seen by a neurologist and an orthopedic surgeon for his head and leg. In addition to other medication, Respondent prescribed percodan to White for pain. White had also developed arthritis in his left leg, as a result of the car accident and fracture, and on one occasion was hospitalized for swelling of his left leg. Respondent referred White to Dr. Tippett, a neurosurgeon, concerning his headaches and to Dr. Graybiel, a rheumatologist, concerning his arthritis. However, White continued to see Respondent as his medical doctor because his work schedule on an offshore oil rig would only permit Saturday appointments with his doctor and Respondent's offices are open on Saturday mornings. White also found it difficult to pay the fees charged by specialists. Between May 8, 1981 and September 30, 1982, Respondent prescribed 780 percodan tablets for Bruce White. The testimony of Dr. Nass and Dr. Johnson established that Respondent's initial prescriptions of percodan to White were appropriate. However, the percodan prescriptions to White became inappropriate over time due to their excessiveness. The seriousness of this lapse is underscored by Respondent's failure to try other pain alleviating measures and failure to investigate abuse possibilities. On October 18, 1979, Vicki White, the wife of Bruce White, a 23 year old woman, came to Respondent's office seeking treatment. She complained of migraine headaches and stated that her father was in the hospital with cancer. She also stated that she had seen Dr. Eyser, a neurosurgeon, for her headaches. Respondent prescribed wygesic for her pain. She subsequently returned to Respondent for treatment of various complaints including chronic migraine headaches, colds, and a dislocated right shoulder. Initially, Respondent prescribed norcet for relief of this pain, and on July 31, 1981, first prescribed percodan for her migraine headaches. Respondent prescribed percodan on other occasions in response to her complaints of pain from migraine headaches and back strain. Respondent considered referring her to a neurologist for the headaches but White stated that she could not afford to see a specialist. Respondent prescribed 590 percodan tablets for Vicki White between July 31, 1981 and September 22, 1982. Percodan is an appropriate and acceptable medicine for the relief of migraine headaches, and Respondent's initial prescription of percodan to Ms. White was appropriate. However, his prescriptions became excessive over time since percodan is not to be used for long term treatment of migraine headaches. On September 7, 1982, M. D. Medlen, an Escambia County Deputy Sheriff, went to Respondent's office as an undercover police officer, under the assumed name of Donna Slay. She had been asked by Robert Powers, a narcotics officer with the Escambia County Sheriff's Department and Charles Deckard, an investigator with the Department of Professional Regulation, to go to Respondent's office in an undercover capacity and attempt to obtain a prescription for percodan. Medlen/Slay first gave general information to the receptionist, including identification, in the name of Donna Slay, chief complaint of a backache, previous illnesses, drug allergies, address, social security number, and insurance information. Medlen/Slay was shown to an examination room where her blood pressure and weight were taken by the nurse and a urinalysis was performed. Respondent then came in and asked Medlen/Slay what her problem was. She informed him that she had been pushed into a wall during a fight, and had injured her back. Respondent checked her pulse, did a range of motion test, and checked the alleged injured area by palpation. Each time Respondent pressed on the alleged injured area, Medlen/Slay told him it hurt. Respondent did not visually inspect the alleged injured area but asked Medlan/Slay if there was a bruise and she said no. In order to get the percodan, Medlen/Slay told Respondent that she had injured her back one other time and a doctor in Louisiana had prescribed percodan for that injury. Respondent asked how long ago Medlen/Slay had taken the percodan and she said one year ago. Respondent discussed the dangers of drug addiction with Medlan/Slay and then prescribed 20 tablets of percodan for pain and 30 tablets of indocin to reduce inflammation. Upon leaving Respondent's office, Medlen/Slay did not fill the prescriptions but turned them over to Deckard. Percodan is an acceptable medicine for back and shoulder pain. However, Respondent should have considered the possibility of fracture, visually examined the area to ascertain the presence of a hematoma (blood clot) and listened to the patient's chest to determine the presence of lung injury. Respondent did not perform an appropriate examination prior to prescribing percodan, and the prescription was therefore inappropriate. Respondent used poor judgment in his excessive prescriptions of percodan to the patients discussed herein. However, there is no evidence that Respondent prescribed the percodan for personal financial gain or that any patient was injured by Respondent's prescribing practices. The testimony of the expert witness established that the records maintained on these patients were inadequate. Frequently, the only notation for a given visit was the prescription for percodan, with no evaluation of the patient's condition. Further, Respondent's patient records did not even list all the percodan prescriptions issued. Thus, these records essentially reflect partial inventories of prescriptions issued, and do not justify the course of prescribing, which is important to the safe practice of medicine.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a final order placing Respondent on probation for a period of five years, require that Respondent practice under the supervision of another physician to be named by Petitioner during the initial year of his probation and that Petitioner restrict Respondent's license against prescribing Schedule II controlled substances while he is under such supervision. 4/ DONE and ENTERED this 24th day of April, 1984 in Tallahassee, Florida. R. T. CARPENTER, 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 24th day of April, 1984.
The Issue Whether the Petitioner must reimburse the Respondent for Medicaid overpayments as set out in the Final Agency Audit Report dated October 29, 2003, and, if so, the amount to be repaid.
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: AHCA is, and was at all times material to this proceeding, the state agency charged with administering Florida's Medicaid Program; with making payments to providers of goods and services on behalf of Medicaid recipients; and with overseeing the Medicaid Program, auditing Medicaid providers, and recovering overpayments made to Medicaid providers. See §§ 409.901, 409.902, and 409.913, Fla. Stat. (2003). During the Audit Period, Ady Optical was an authorized Medicaid provider of opticianry services,3 having been issued Medicaid provider number 2002949-00. To become a Medicaid provider, Ady Optical executed a Medicaid Provider Agreement. The FAAR dated October 29, 2003, was based on a review by Dr. Regina Manes of Ady Optical's records for the 30 randomly-selected Medicaid recipients. At the time of the final hearing, Dr. Manes was no longer under contract with AHCA and, therefore, was not available to testify. AHCA requested that Dr. Walby testify at the final hearing as its expert in optometry. In preparation for the final hearing, Dr. Walby reviewed the records submitted by Ady Optical and made an independent determination of the appropriateness of the 294 claims at issue for the Audit Period. Dr. Walby's conclusions were not always consistent with those of Dr. Manes. Ms. Whaley reconciled the two reviews and allowed a claim if either Dr. Walby or Dr. Manes determined that it was covered by Medicaid. As a result of Dr. Walby's review and Ms. Whaley's reconciliation, AHCA lowered the amount it seeks to recover from Ady Optical to $45,914.17. The purpose of Medicaid visual services, as stated in the Coverage and Limitations Handbook, is "to provide medically necessary eyeglasses, contact lenses, eyeglass repair services, and prosthetic eyes to Medicaid recipients." "Visual services" are described in the Coverage and Limitations Handbook as "the medically necessary provision of eyeglasses, prosthetic eyes, and contact lenses; the fitting, dispensing, and adjusting of eyeglasses; and eyeglass repair services." The Coverage and Limitations Handbook is to be used in conjunction with the Reimbursement Handbook, which provides information and guidance to assist Medicaid providers in filing claims properly. The claims at issue in this case involve the provision of eyeglass lenses to Medicaid recipients by Ady Optical. Medicaid recipients bring their eyeglass prescriptions to Ady Optical, and Mr. Jimenez, as the licensed optician at Ady Optical, helps the recipient select eyeglass frames and orders lenses in the powers required by the prescription. An optician such as Mr. Jimenez has the discretion to order lenses with special features such as tints, plastic or glass lenses, variable asphericity lenses, and lenses with a special base curve, depending on the needs of the individual. The lenses selected by an optician for a Medicaid recipient must be optically necessary, that is, necessary to enhance visual acuity, and information establishing the optical necessity for the selection of non-standard lenses must be contained in the documentation maintained by the optician. Sometimes the need for a non-standard lens is apparent from the prescription, but in most cases, the optical necessity must be noted in the documentation. The claims for which AHCA disallowed full or partial payment to Ady Optical are claims for variable asphericity lenses, claims for lenses with special base curves, one claim for an oversized lens, claims for which Ady Optical provided inadequate documentation to establish that lenses were ordered for Medicaid recipients, and claims involving errors in coding. Claims for variable asphericity lenses Prescriptions for eyeglass lenses are expressed in "plus or minus" diopter units. Variable asphericity lenses were originally designed to ameliorate the magnification and "off-of- the-center" effects of the very thick lenses necessary to correct the vision of persons with extremely high diopter prescriptions, such as the prescriptions of ± 15 diopters or more needed in the past by persons who had had cataract surgery.4 With advances in technology and surgical techniques, there are few patients with prescriptions this high, and variable asphericity lenses are now made for prescriptions with much lower diopters. The curve of a variable asphericity lens is different from that of a regular lens, and variable asphericity lenses are lighter in weight than regular lenses, which can be a factor for persons with high diopter prescriptions. Variable asphericity lenses also provide significantly better peripheral vision for persons with high diopter prescriptions than regular lenses can provide. There is, however, a minimal difference in weight between variable asphericity lenses and regular lenses with low diopter prescriptions, and peripheral vision is usually not affected when regular lenses are used for low diopter prescriptions. The Coverage and Limitations Handbook in effect during the Audit Period provides that both single vision variable asphericity lenses, assigned procedure code V2410, and bifocal variable asphericity lenses, assigned procedure code V2430, may be billed under the same codes for all powers ranging from .25 to over 6.0 diopters.5 In his review of the Medicaid claims submitted by Ady Optical for the 30 randomly-selected Medicaid recipients included in the audit, Dr. Walby disallowed all claims for variable asphericity lenses because the prescriptions were lower than ± 7.00 diopters. Dr. Walby reasoned that any optician should know that variable asphericity lenses should not be prescribed for prescriptions with diopters lower than ± 7 units. Dr. Walby variously described the ± 7 diopter cut-off for variable asphericity lenses as the standard he considered "the industry standard" and as the standard he chooses to use in his practice. Dr. Walby also testified that the ± 7-diopter standard had previously been chosen by Medicaid as the minimum prescription for which contact lenses are covered and that this standard was adopted in the current Coverage and Limitations Handbook "because somebody had to draw a line in the sand, and that's where it got drawn."6 Dr. Walby has failed to establish by persuasive evidence that, in the practice of opticianry, there is an absolute industry standard that dictates that variable asphericity lenses are never optically necessary for a person whose prescription is lower than ± 7.00 diopters.7 Because the Coverage and Limitations Handbook in effect during the Audit Period permitted the use of variable asphericity lenses for prescriptions of ± 0.25 diopters and above, Ady Optical is entitled to reimbursement for variable asphericity lenses provided to Medicaid recipients whose prescriptions are below ± 7.00 diopters as long as Ady Optical documented that variable asphericity lenses were optically necessary to provide adequate visual acuity and reasonable comfort. Ady Optical ordered variable asphericity lenses for Recipients 1 through 3, 5 through 8, and 10 through 30. None of these recipients' prescriptions exceeded ± 5.25 diopters. Most of the prescriptions for these recipients were below ± 3.00 diopters, and several of the prescriptions called for "plano" lenses, that is, lenses with no magnification power. Ady Optical failed to indicate on any of the laboratory order forms any optical necessity for providing variable asphericity lenses to these recipients. The claims submitted by Ady Optical to Medicaid for payment for variable asphericity lenses for these recipients are, therefore, disallowed. Claims for lenses with special base curves Although there is a standard base curve for eyeglass lenses, lenses can be made with different base curves to accommodate the special needs of an individual. The Coverage and Limitations Handbook in effect during the Audit Period provides that special base curves, assigned procedure code V2730, may be billed with no stated limitations. In order to be covered by Medicaid, lenses with special base curves must be optically necessary, and the optical necessity must either be inherent in the prescription or documented in the optician's records. In addition, the optician is responsible for specifying the particular curvature of the lens required to meet the needs of the individual whenever a special base curve lens is ordered. There is optical necessity for lenses with special base curves when a person's prescription for one eye is significantly larger than the prescription for the other eye; the image size in both lenses can be made the same by adjusting the curves of the lenses. There is also optical necessity for a lens with a special base curve when a person's eyelashes scrape the back of the lens in their eyeglasses; the lenses could be made with a steeper base curve than the standard base curve to remedy this problem. Although Dr. Walby testified that there are optical reasons for ordering a lens with a special base curve, he did not explain any reasons except those noted. Ady Optical ordered lenses with special base curves for Recipients 1, 2, 4 through 8, 11 through 14, and 17 through There is nothing on the laboratory order forms for these recipients to indicate that special base curves for the lenses ordered were optically necessary, and there is nothing inherent in the prescriptions that would justify lenses with special base curves. On the laboratory order forms for all of the above recipients except for Recipient 8 and Recipient 23, the special base curve specified was "variable," "special," "thinnest," "flat," "flattest," and "match Rx." These descriptive terms do not provide a specific base curve measurement to the laboratory, and the base curve measurement was determined by the laboratory rather than by an optician. On the laboratory order form for Recipients 8 and 23, base curve measurements of +4.0 and +6.0, respectively, were specified; these base curve measurements are, however, standard for the prescriptions of Recipients 8 and 23. The claims submitted by Ady Optical for payment for lenses with special base curves for these recipients are, therefore, disallowed. The laboratory order forms for Recipients 10, 15, 16, 20, and 30 did not include an order for lenses with special base curves. The claims submitted by Ady Optical to Medicaid for payment for lenses with special base curves for these recipients are disallowed. Oversized lenses Pursuant to the Coverage and Limitations Handbook, Medicaid will pay for oversized lenses, assigned procedure code V2780, for recipients whose eye-size is 56 millimeters or greater. Ady Optical submitted a claim to Medicaid for payment for oversized lenses for Recipient 23. Recipient 23's eye-size was specified on the laboratory order form as 50 millimeters, and the claim for payment for oversized lenses for this recipient is disallowed. Claims not supported by documentation All claims submitted to Medicaid for Recipient 6 for lenses ordered on June 13, 2000, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 9 for August 11, 1999, and for October 28, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include laboratory order forms for those dates. All claims submitted to Medicaid for Recipient 10 for lenses ordered on September 29, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 19 for lenses ordered on May 29, 1999, and June 12, 2000, are disallowed because the documentation provided by Ady Optical to AHCA does not include laboratory order forms for those dates. All claims submitted to Medicaid for Recipient 22 for lenses ordered on April 7, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 26 for lenses ordered on July 16, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. All claims submitted to Medicaid for Recipient 27 for lenses ordered on August 23, 1999, are disallowed because the documentation provided by Ady Optical to AHCA does not include a laboratory order form for that date. Claims containing billing errors Mr. Jimenez does not challenge the disallowance of claims billed in error, specifically the claims for bifocal seg widths of over 28 millimeters for Recipients 20, 23, 26, and 27. Summary The evidence presented by AHCA is sufficient to support its determination that Ady Optical received Medicaid overpayments in the amount of $45,914.17.
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 Ady Optical, Inc., received overpayments from the Medicaid program in the amount of $45,914.17 during the period extending from January 1, 1999, through June 30, 2000, and requiring Ady Optical, Inc., to repay the overpayment amount. DONE AND ENTERED this 27th day of May, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 27th day of May, 2004.
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 The issue in this case is whether the provider, Orietta Medical Equipment, Inc., d/b/a Pharmco Pharmacy (Respondent or Provider) should repay an alleged Medicaid overpayment and, if so, in what amount. The Petitioner’s Final Agency Audit Report (FAAR) claims the Provider must repay $486,879.06.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of administering the Medicaid Program in Florida. As such, the Petitioner monitors payments to Medicaid providers and seeks to recover reimbursements when an overpayment is claimed. At all times material to the allegations of this case, the Respondent was a licensed pharmacy and was designated a “provider” of Medicaid pharmacy services pursuant to its provider agreement with the Petitioner. As a provider of Medicaid pharmacy services, the Respondent was authorized to dispense drugs to Medicaid recipients and to bill the Medicaid Program for the expenses associated with such pharmacy services. The Petitioner may, after-the-fact, seek to verify the claims paid for Medicaid recipients. This “pay and chase” methodology presumes that the Provider will maintain appropriate documentation to support the paid claims. When the Agency audits a provider, records supporting the claims paid must be produced. In this case, the Petitioner elected to perform an “invoice audit” for the audit period June 2, 2003 through May 28, 2004. The Agency sought to review the Provider’s drug acquisition records for the same drugs that were dispensed to Medicaid recipients. The paid claims should compare to the drugs acquired and held in inventory for the subject period of time. After performing a Provisional Agency Audit Report (PAAR) detailing an alleged overpayment, the Provider was notified of the audit results and was provided a spreadsheet of the work papers that detailed the overpayment claim. The Provider was given an opportunity to provide additional documentation to support the Medicaid claims and to establish the inventory to support its claims. After an additional review of the Provider's information, the Agency issued its FAAR dated February 2, 2005, which claimed a Medicaid overpayment in the amount of $486,879.06. This amount has not been repaid to the Petitioner. Instead, the Provider disputed the amount of the overpayment and requested an administrative proceeding. That request was timely submitted. All of the audit results were provided to the Provider at the time of the issuance of the FAAR and were, in fact, attached to the request for hearing submitted by the Provider on or about February 7, 2005. Florida Medicaid providers are required by their agreements with the state to comply with the Florida Medicaid Prescribed Drug Services Coverage, Limitations, and Reimbursement Handbook (the handbook). The handbook is furnished to providers and is also available on-line. The handbook outlines requirements for record keeping, as well as other pertinent information to assist providers. In this case, the Provider was obligated to maintain records to support the Medicaid claims paid by the State. The Agency contracted with Heritage Information Systems, Inc., to conduct the audit in this case. Auditors went to the Provider’s business location in Hialeah, Florida, to analyze the Respondent’s business records. More specifically, the auditors sought the records from the Provider to show that it had acquired sufficient inventory of the specific drugs for which claims had been paid during the audit period. It stands to reason that the drug inventory on hand for the Provider had to exceed the drugs dispensed during the audit period (presumably some of the Provider’s patients were not Medicaid recipients). In fact, in this case, the Provider could not produce inventory records to support the claims paid for the audit period. As the records did not support the claims, the Agency deemed the claims to be overpayments. As such, the Agency maintains the Provider was, under the terms of the guidelines set forth in the handbook, required to reimburse the Petitioner for the overpayment. To compute the overpayment the Agency used a methodology that established the use rate of the product for the audit period. For example, for the drug Acetylcysteine the Medicaid recipient use rate for the audit period was 97.27 percent. Applying this percentage to the units purchased for the audit period would establish the expected claims. Therefore, since the Respondent purchased 16,890 units of this drug, the number of units billed would be expected to be 97.27 percent (the Medicaid use rate) of that amount. Instead, the claims for this drug for the audit period totaled 96,120-- a difference of 79,691 units. The difference (79,691) must then be multiplied by the drug's $.56 cost to show an apparent overcharge in the amount of $44,626.96 for this drug. The Agency applied the same methodology described above for 20 different drugs that were billed during the audit period. The total overcharge for these drugs was $486,879.06. The Respondent presented no evidence to refute the audit findings. No acquisition records were produced to reduce the calculated overpayment. That is to say, no purchase records could demonstrate that the Provider had on hand the number of units of the drugs billed to Medicaid. The Respondent has not disputed that the pharmacy was a provider, was subject to the handbook and pertinent guidelines, was required to maintain records to support the claims, and was paid for claims submitted to the Agency. Moreover, the Respondent does not dispute that the audit, the audit work papers, and the spreadsheets describing the methodology used to compute the overpayment were provided to the Provider more than 14 days prior to the hearing. It claims the trial book of exhibits was not provided 14 days prior to the hearing date. The hearing in this cause was originally scheduled for two days, to commence on August 15, 2006. The Agency provided a trial book of its exhibits to the Respondent on or about 4:00 p.m., August 1, 2006. The Respondent maintains that all evidence presented by the Agency in this cause must be excluded pursuant to Section 409.913(22), Florida Statutes (2005).
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 sustaining the Medicaid overpayment in the amount of $486,879.06. DONE AND ENTERED this 1st day of December, 2006, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2006. COPIES FURNISHED: Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Christa Calamas, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 David W. Nam, Esquire Agency for Health Care Administration Fort Knox Building, Mail Station 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 William M. Furlow, III, Esquire Akerman Senterfitt Highpoint Center, Suite 1200 106 East College Avenue Tallahassee, Florida 32301
The Issue In addition to the issue of whether the Respondent committed the acts alleged, the administrative complaint alleges on its face that the Respondent was not licensed to practice medicine in the State of Florida until July 13, 1982. Most of the administrative complaint relates to alleged violations by the Respondent prior to the date of his licensure. A primary issue is the Petitioner's jurisdiction over the Respondent to prosecute for acts committed prior to his licensure. A major factual issue in this case are the dates upon which the doctor's conduct allegedly took place.
Findings Of Fact The Respondent was licensed as a medical doctor on July 13, 1982, in the State of Florida. Prior to that date the Respondent was not licensed to practice medicine in this or any other state. Prior to his licensure he was participating in a medical internship program in Pensacola, Florida. He was permitted to practice and prescribe medicine as an intern in and within the limits of this program. (Re: Count I through Count IV) The Respondent presented prescriptions for Eskatrol and Dexedrine on two different occasions to two different pharmacies. These prescriptions listed the Respondent as the person for whom the prescriptions were filled and signed by the Respondent. Neither prescription was accepted by the pharmacists and neither prescription was introduced into evidence. Eskatrol and Dexedrine are amphetamine compounds and are Schedule II controlled substances. The Respondent's ex-wife placed the Respondent's use of amphetamines in February of 1981. See Transcript page 95 line 19 through page 96 line 1. One of the pharmacists to whom the prescription was presented by the Respondent was Ann Cole Wilson, the Respondent's former sister-in-law and sister of his ex-wife. Wilson's testimony concerning the date of the alleged occurrence testifies as follows: Q. Can you tell me what occurred on that occasion, and tell me approximately when this occurred? A. Like I say, it's hard to remember. It was sometime during the summer months. Q. The summer of what year? A. Oh, gosh. Right now it's been, let's see, `82 or `83. Q. The summer of `82? A. I would say `82 yeah. The other pharmacist who testified regarding the Respondent's presentation of prescriptions for amphetamines was Elizabeth S. Grimsley. Grimsley testified regarding the alleged events as follows: Q. How did you come to meet him? A. He brought in a prescription one night for, two prescriptions, rather, written for him by himself for Eskatrol and Dexedrine, amphetamine prescriptions. Q. These prescriptions were written for the use of Dr. Taylor and they were written by Dr. Taylor? A. Yes, sir. Q. Do you remember approximately when this occurred? A. No, sir; roughly a year and a half or two years ago, I suppose. The latter witness is very vague about the date, and the former witness has an interest in these proceedings by virtue of her relationship with the Respondent's former wife. The relationship by Respondent and his former wife is characterized by hostility and continuing litigation arising out of their divorce and concerning child custody. It is concluded that the Petitioner failed to prove the acts occurred after the date of the Respondent's licensure. (Counts V, VI) The Respondent ordered legend and other drugs from pharmaceutical companies using the name of Michael Archer, M.D. and Archer's DEA registration number. Archer did not approve the order or give the Respondent permission to use his DEA registration in order to obtain these drugs. Respondent's actions took place in 1981 and 1982 prior to the date of the Respondent's licensure by the Florida Board. See the depositions of Farrell, Schied & Perez. (Count VII) Between the dates of March 3, 1982, and June 30, 1982, the Respondent submitted drug orders for and received thirty Crescormon No. 4 iu- vials from Pharmacia Corporated, 800 Centennial Avenue, Piscataway, New Jersey 08854. These events occurred prior to the Respondent's licensure by the Petitioner. See deposition of Schied, Exhibit 3. Respondent ordered amino acids from Varitex Corporation, a Michigan company. These materials which are not legend drugs were ordered and received by the Respondent prior to the date of his licensure by the Petitioner. See deposition of Myers, Exhibit 4. Respondent ordered various drugs from Generix Drug Corp., 1900 W. Commercial Blvd., Ft. Lauderdale, Florida, in the same manner. All these transactions occurred before the Respondent was licensed. See the deposition of Perez, Exhibit 5. (Count VIII) The Respondent sold or provided Darrell R. Black substances represented by the Respondent and thought to be by Black a drug with the trade name Dianabol. Dianabol is a steroid and a legend drug. This transaction was not a part of Dr. Taylor's practice under the Pensacola Education Program, the internship in which Dr. Taylor was participating. This transaction occurred in 1981, prior to Dr. Taylor's licensure by the Board. See Transcript page 38. The Respondent sold or provided to Shaun Francis Farrell drugs represented by the Respondent and thought to be by Farrell testosterone and Deca-Durabolin. This transaction was not part of the Respondent's internship in the Pensacola Educational Program. These transactions occurred in 1981, prior to Respondent's licensure by the Board. See Transcript page 46. (Count IX) The Respondent presented prescriptions for and received various metabolic steroids during 1981. However, all of these were presented prior to the date of the Respondent's licensure by the Board. See Transcript, pages 15, 16, 20, 21, 22, 31, 32, 33. One prescription for Trisorlan was presented by the Respondent for himself on October 20, 1982. Trisorlan is a legend drug, however it is not a controlled substance. Trisorlan is a drug affecting the pigmentation of skin. Transcript page 24. No evidence was received concerning the propriety of Dr. Taylor prescribing this medication for himself. (Count XI) No evidence was received that the Respondent held himself out as being licensed to practice medicine. Black and Ferrell did not see Respondent as a doctor. Respondent saw Cayton at the hospital and was authorized to treat patients within the scope of his internship. Most of the witnesses stated that they knew that the Respondent was a doctor, that he was "practicing" at Sacred Heart Hospital. The Respondent holds a degree as an M.D. and was practicing at Sacred Heart as an intern. Further to the extent that the Respondent may have held himself out as a physician contrary to Section 458.327, he did so prior to the date of his licensure and acquisition of jurisdiction by the Board.
Recommendation Having found no evidence to support the jurisdiction of the Board over the Respondent on the allegations of Count X, the Hearing Officer recommends that the Board take no action against the Respondent and the administrative complaint against the Respondent be dismissed. DONE and ORDERED this 4th day of February, 1985, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 4th day of February, 1985. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Dorothy Faircloth, Executive Department of Professional Director Regulation Department of Professional 130 North Monroe Street Regulation Tallahassee, Florida 32301 Board of Medical Examiners 130 North Monroe Street William Taylor, M.D. Tallahassee, Florida 32301 5271 Myrtlewood Sarasota, Florida 33580 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
