The Issue Whether Respondent was overpaid for Medicaid claims submitted during the audit period January 1, 2004, through December 31, 2004, and, if so, what amount Respondent is obligated to reimburse Petitioner; and whether sanctions and costs should be assessed against Respondent.
Findings Of Fact This case involves a Medicaid audit of claims paid by AHCA to Respondent for dates of service from January 1, 2004, through December 31, 2004. The audit in this case evaluated 2,631 paid claims on behalf of 17 Medicaid recipients. During the audit period, Respondent was an enrolled Medicaid waiver provider and had a valid Medicaid Provider Agreement with AHCA. Respondent was authorized to provide home and community-based services to Medicaid waiver recipients. Paragraph 3 of the Medicaid Provider Agreement states that "the provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks, and Statements of Policy as they may be amended from time to time."1/ Among other duties, Petitioner investigates and audits Medicaid providers in an effort to identify and recoup overpayments made to providers for services rendered to Medicaid recipients. Petitioner is also empowered to impose sanctions and fines against offending providers. Petitioner, when it identifies overpayment, fraud, or abuse, is charged with taking affirmative steps to recoup any overpayments and can, as appropriate, impose fines, sanctions, and corrective actions plans on the offending provider. Pursuant to what is commonly referred to as the "pay- and-chase" system, Petitioner pays Medicaid providers under an honor system for services rendered to Medicaid recipients. If Petitioner determines that the provider was paid for services rendered which were not in compliance with Medicaid requirements, then Petitioner seeks reimbursement from the provider. By correspondence dated December 8 and December 29, 2006, Petitioner contacted Respondent and requested records related to claims billed to Medicaid by Respondent. Respondent provided documents in response to Petitioner's requests. After considering the information provided by Respondent, Petitioner, on February 27, 2007, issued a Preliminary Audit Report and advised therein that it was believed that Petitioner had overpaid Respondent in the amount of $364,973.45. In response to the Preliminary Audit Report, Respondent submitted additional documentation that it desired for Petitioner to consider. On May 17, 2007, Petitioner, after having reviewed the additional documentation submitted by Respondent, issued a FAR and noted therein that Petitioner had determined that Respondent was overpaid by Medicaid in the amount of $259,033.49. In this same correspondence Petitioner notified Respondent that Petitioner was seeking to impose a $2,000.00 fine against Respondent; would be requiring Respondent to adhere to a corrective action plan in the form of a Provider Acknowledgment Statement; and would be assessing investigative, legal, and expert witness costs against Respondent. In response to Petitioner's correspondence of May 17, 2007, Respondent submitted to Petitioner additional documentation which resulted in the overpayment amount being adjusted downward to $212,683.06. The FAR is supported by Petitioner's staff files, testimonial evidence, spreadsheets related to overpayment determinations, and documentation submitted by Respondent. Collectively, this supporting documentation constitutes Petitioner's "work papers" within the meaning of section 409.913(22), Florida Statutes (2003).2/ Petitioner's work papers establish that Respondent was overpaid $212,683.06. Petitioner's work papers show the following with respect to the 17 Medicaid recipients whose paid claims were audited: For Medicaid recipient no. 1, Petitioner audited 9 claims. For each claim, Petitioner determined that Respondent billed and erroneously received payment for services provided to the recipient that were not authorized by Medicaid; For Medicaid recipient no. 2, Petitioner audited 388 claims. Of the claims reviewed, six were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent failed to produce sufficient supporting documentation related to staff eligibility to provide the services for which Medicaid was billed. For other claims, there were unexplained alterations made by Respondent to certain time entries contained in the Medicaid services log book; For Medicaid recipient no. 3, Petitioner audited 110 claims. Of the claims reviewed, only one claim resulted in overpayment due to Respondent's failure to provide sufficient supporting documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 4, Petitioner audited 51 claims. Of the claims reviewed, 23 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because there was insufficient documentation related to the eligibility of Respondent's staff to provide the services for which Medicaid was billed; For Medicaid recipient no. 5, Petitioner audited five claims. Of the claims reviewed, two were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 6, Petitioner audited 32 claims. Each of the 32 claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 7, Petitioner audited 279 claims. Of the claims reviewed, 94 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 8, Petitioner audited 155 claims. Of the claims reviewed, 95 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed; For Medicaid recipient no. 9, Petitioner audited 239 claims. Of the claims reviewed, 82 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient; For Medicaid recipient no. 10, Petitioner audited 82 claims. None of the claims reviewed were found to be in compliance with Medicaid standards. Respondent was overpaid for these claims because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient; For Medicaid recipient no. 11, Petitioner audited five claims. None of the claims reviewed were found to be in compliance with Medicaid standards. This Medicaid recipient was authorized to receive services through December 31, 2003. For each claim, Respondent billed, and was paid for, services that were provided after December 31, 2003. This resulted in an overpayment to Respondent; For Medicaid recipient no. 12, Petitioner audited 113 claims. Of the claims reviewed, 79 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent could not produce sufficient documentation to support the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient; For Medicaid recipient no. 13, Petitioner audited 20 claims. Of the claims reviewed, 15 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent failed to follow the recipient's support plan goals and double-billed Medicaid for services that were provided to the recipient; For Medicaid recipient no. 14, Petitioner audited 343 claims. Of the claims reviewed, 275 were found to be in compliance with Medicaid standards. The remaining claims resulted in overpayment to Respondent because Respondent failed to provide sufficient supporting documentation related to the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient; For Medicaid recipient no. 15, Petitioner audited 258 claims. Each of the 258 claims was found to be in compliance with Medicaid standards. For Medicaid recipient no. 16, Petitioner reviewed 222 claims. None of the claims reviewed were found to be in compliance with Medicaid standards. The reviewed claims showed overpayment to Respondent because Respondent failed to provide sufficient supporting documentation related to the services for which Medicaid was billed, the services were provided to the Medicaid recipient by an unqualified individual, and Respondent overbilled for certain services provided to this Medicaid recipient; and For Medicaid recipient no. 17, Petitioner reviewed 320 claims. None of the claims reviewed were found to be in compliance with Medicaid standards. Respondent was overpaid for these claims because Respondent failed to provide sufficient supporting documentation related to the services for which Medicaid was billed, and Respondent overbilled for certain services provided to this Medicaid recipient. On November 30, 2011, Petitioner rested its case-in- chief in the instant matter. At Respondent's request, a third day was authorized for the presentation of evidence so that Respondent could issue subpoenas and offer evidence to rebut Petitioner's claim as appropriate. So as to allow Respondent, who appeared in this matter pro-se, adequate time to prepare its defense, the third day of final hearing was noticed for 9:30 a.m., on February 20, 2012. At 9:51 a.m., on February 20, 2012, the final hearing was announced as being in session. Respondent did not attend the final hearing on February 20, 2012, and has offered no explanation for her absence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order finding that Respondent, ARC Consulting Home Health Agency, Inc., by and through Jasmine J. Allison, Administrator, owes $212,683.06 to Petitioner as an overpayment, plus interest. DONE AND ENTERED this 19th day of April, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 19th day of April, 2012.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing. this file is CLOSED. DONE and ORDERED on this the DR say of Mila. 2014, in Tallahassee, Florida. ZABETH DUDEK, fee — Agency for Health Care Administration Agency For Healthcare Administration V. Gary Marder D.O. C.1. No. 12-2625-000 Filed October 14, 2014 2:14 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Robert Antonie Milne. Esq., Assistant Attorney General Florida Bar No.: 622338 Office of the Attorney General The Capitol, Suite PL-01 Tallahassee, Florida 32399-1050 Telephone: (850) 414-3713 Facsimile: (850) 922-6425 Robert.Milne@myfloridalegal.com Julie Gallagher, Esq., Julie. gallagher@akerman.com Akerman Senterfitt Suite 1200 106 Kast College Avenue Tallahassee, Florida 32301 Kelly Bennett, Chief Medicaid Program Integrity Finance and Accounting Health Quality Assurance Florida Department of Health Agency For Healthcare Administration V. Gary Marder 0.0. C.l, No. 12-2625-000 CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail or other designated method on this the 7 A ot © S24. J Shoop, Esquire Agency Clerk State of Florida Agency tor Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 Agency For Healthcare Administration V. Gary Marder D.O. C.I. No. 12-2625-000 STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, DOAH CASE NO: 14-2456MPI PROVIDER NO.: 000455900 VS. CAL NO,: £2-2625-000 NPUNO.: 1730117003 LICENSE NO: 084773 GARY L. MARDER, D.O, Respondent, / SETTLEMENT AGREEMENT Petitioner, the STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, (“AHCA” or “Agency”), and Respondent, GARY L. MARDER, D.O. (SPROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1, The parties enter into this agreement for the purpose of memorializing the resolution of this matter. 2. PROVIDER is a Medicaid provider in the State of Florida, provider number 000455900, and was a provider during the audit period. 3. In its Final Audit Report, dated October 7, 2013, the Agency notified PROVIDER. that a review of Medicaid claims performed by the Agency’s Office of (he Inspector General, Bureau of Medicaid Program Integrity (“MPI”), during the period of December 1, 2008, through May 31, 2011, indicated that certain claims, in whole or in part, were inappropriately paid by Agency for Health Care Administration v. Gary L. Marder, 0.0. C.L. No 12-2625-000 Settlement Agreement Page lofé Medicaid. The Agency sought repayment of this overpayment, in the amount of one hundred and fifty-four thousand five hundred and sixty-four dollars and six cents ($154,564.06). Additionally, the Agency applied sanctions in accordance with Sections 409,913(15), (16), and (17), Florida Statutes, and Rule 59G-9.070(7), Florida Administrative Code. Specifically, the Agency assessed the following sanctions against PROVIDER: a fine in the amount of thirty thousand nine hundred and twelve dollars and eighty-one cents ($30,912.81) for violation(s) of Rule 59G-9.070(7)(e), Florida Administrative Code; and costs in the amount of three thousand, five hundred and fifty-five dollars and twenty cents ($3,551.20). The iotal amount due was one hundred and cighty-nine thousand, twenty-eight dollars and seven cents ($189,028.07). 4, In response to the audit report dated October 7, 2013, PROVIDER filed a Petition for Formal Administrative Hearing. 5. Subsequent to issuance of the FAR, the PROVIDER submitted additional documentation and clarifications to AHCA regarding the alleged overpayment and sanctions amount. Based on further review AHCA has revised the final overpayment to one hundred forty five thousand, four hundred dollars and twenty-five cents ($145,400.25). The Agency also imposed a sanction in the amount of six thousand dollars ($6,000.00) and assessed cost in the amount of three thousand, seven hundred fifty-one dollars and twenty cents ($3,751.20). The total amount due arising from this case is one hundred fifty-five thousand, one hundred fifty-one hundred dollars and forty-five cents ($155,151.45). 6. In order to resolve this matter without further administrative proceedings, PROVIDER and AHCA agree as follows: Agency for Health Care Administration v. Gary L. Marder, D.O. C.I. No 12-2625-000 Settlement Agreement Page 2 of 6 6. 7. a. AHCA agrees to accept the payment set forth hercin in settlement of the after, fines and costs, arising from the above-referenced Audit. b. PROVIDER agrees to pay AHCA the sum of onc hundred fifty-five thousand, one hundred fifty-one dollars and forty-five cents ($155,151.45), The outstanding balance accrues at 10% interest per year. Within thirty (30) days of entry of the Final Order but by no later than December 10, 2014, whichever date is the last to occur, PROVIDER will make one payment of one hundred fifty-five thousand, one hundred fifty-one dollars and forty-five cents ($155,151.45). ce PROVIDER and AHICA agree that full payment, as set forth above, resolves and settles this case completely and releases both parties from any administrative or civil liabilities arising from the findings relating to the claims determined to have been overpaid as referenced in audit C.1. NO.: 12-2625-000, d. PROVIDER agrees that it shall not re-bill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the review in this case. Payment shall be made to: AGENCY FOR HEALTH CARE ADMINISTRATION Medicaid Accounts Receivable - MS #14 2727 Mahan Drive, Bldg, 2, Ste-200 Tallahassee, Florida 32308 PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further Agency for Health Care Administration v. Gary L. Marder, D,O, C.J. No 12-2625-000 Settlement Agreement Page 3 of 6 notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. 8. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 9. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 10, The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 11, This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 12, This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all matters and supersedes any prior discussions, agreements or understandings; there are no promises, representations or agreements between PROVIDER and AHICA other than as sel forth herein, No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. 13. This is an Agreement of Settlement and Compromise, made in recognition that the parties may have different or incorrect understandings, information and contentions as to facts and law, and with each party compromising and settling any potential correctness or incorrectness of its understandings, information and contentions as to facts and law, so that no nusunderstanding or misinformation shall be a ground for rescission hereof. Agency for Health Care Administration v. Gary L. Marder, D.O. C.h. No 12-2625-000 Settlement Agreement Page 4 of § 14, PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120,569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 15. PROVIDER does hereby discharge the State of Florida, Agency for Health Care Administration, and its agents, representatives, and attorneys of and from all claims, demands, actions, causes of action, suits, damages, losses and expenses, of any and every nature whatsoever, arising owl of or in any way related to this matter, AHCA’s actions herein, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this agreement. 16. The parties agree to bear their own attorney’s fees and, except those cost specified to be paid by the Provider in this settlement agreement if any. 17, This Agreement is and shall be deemed jointly drafted and written by all parties to it and shal] not be construed or interpreted against the party originating or preparing it. 18. To the extent that any provision of this Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement. Agency for Health Care Administration v. Gary L. Marder, D.O. C.1. No 12-2625-000 Settlement Agreement Page 5 of 6 49. This Agreement shall inure to the benefit of and be binding on cach party's successors, assigns, heirs, administrators, representatives and trustees. 20. All times stated herein are of the essence of this Agreement, ai. This Agreement shall be in full force and effect upon execution by the respective Dated: Wis, 2014 AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan TD rive, Bldg. 3, Mail Stop #3 llahagsee, 1. 2308-5403 Dated: uf; 7. 2014 Dated: 16/ f, » 2014 pated: /C/S?, 2014 Require 3 Counset piss Sec : mu jee —— ome ‘Assistant Attomey General Agency for Health Care Administration v. Gary L. Marder, D.0. C4. No 12-2625-000 Settlement Agreement Page 6 of 6 (Page 1 of 9) FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION, RICK SCOTT ELIZABETH DUDEK GOVERNOR SECRETARY ene CLIZAOC IN UUWER GOVERNOR SECRETARY CERTIFIED MAIL No.: 7009 2820 0001 5675 2068 October 7, 2013 Provider No: 000455900 NPI No: 1730117003 License No.: OS4773 Gary L. Marder 9580 S. US Highway 1 Port St. Lucie, FL. 34952-4217 In Reply Refer to FINAL AUDIT REPORT C.l.: No. 12-2625-000 Dear Provider: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity, has completed a review of claims for Medicaid reimbursement for dates of service during the period December 1, 2008, through May 31, 2011. A preliminary audit report dated October 15, 2012 was sent to you indicating that we had determined you were overpaid $145,400.25. Based upon a review of all documentation submitted, we have determined that you were overpaid $154,564.06 for services that in whole or in part are not covered by Medicaid. A fine of $30,912.81 has been applied. The cost assessed for this audit is $3,551.20. The total amount due is $189,028.07. Be advised of the following: (1) In accordance with Sections 409.913(15), (16), and (17), Florida Statutes (F.S.), and Rule . $9G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. This letter shall serve as notice of the following sanction(s): e A fine of $30,912.81 for violation(s) of Rule Section 59G-9.070(7) (e), F.A.C. (2) Pursuant to Section 409.913(23) (a), F.S., the Agency is entitled to recover all investigative, legal, and expert witness costs. . This review and the determination of overpayment were made in accordance with the provisions of Section 409.913, F.S. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S. In applying for Visit AHCA online at 2727 Mahan Drive, MS# 6 hitp://ahca.myflorida.com Tallahassee, Florida 32308 Te meaner ne CR Re ARO IR RR A NR NEAL ET RM I A ce tne A meena A eke tn HH eae a emer eT Se ge (Page 2 of 9) Gary L. Marder 000455900 C.I. No.: 12-2625-000 Page 2 Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fer, schedules, as, acomuleated jz. the, Madicridnglicxhaedkerks: billinabublstiatoar dbs and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks, billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are attached, listing the claims that are affected by this determination. REVIEW DETERMINATIONS) 1. Medicaid policy addresses the requirements for enrollment and participation in the Medicaid program. In order to bill for services provided by another practitioner (physician, ARNP, PA), that practitioner must be enrolled in Medicaid, and must also be enrolled as part of a group practice for which you are listed as the pay-to provider. The billing must reflect the Medicaid number of the treating practitioner. You billed and received payment for services performed by another practitioner who was not enrolled in Medicaid and/or not in a group with you at the time the services were rendered. This finding applies to pathology claims. Payment made to you for these services is considered an overpayment. 2. A review of your medical records revealed that some services rendered were erroneously coded on the submitted claim. The appropriate code was applied and the payment adjusted. The difference between the amount paid and the payment for the correct procedure code is considered an overpayment. 3. Medicaid policy requires that services performed be medically necessary for the diagnosis and treatment of an illness. You bitled and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, indicated that the services provided did not meet the Medicaid criteria for medical necessity. The claims which were considered medically unnecessary were disallowed and the money you were paid for these procedures is considered an overpayment. 4. Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office visits. The documentation you provided supports a lower level of office visit than the one for which you billed and received payment. This determination was made by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. 5. Medicaid policy addresses the type of pathology services covered by Medicaid. You billed and received payment for laboratory tests that were performed outside your facility by an independent laboratory. Payments made to you in these instances are considered overpayments. 6. Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some services for which you billed and received payment were not documented. Medicaid requires documentation of the services and considers payments made for services not appropriately documented an overpayment. (Page 3 of 9) Gary L. Marder 000455900 C1. No.: 12-2625-000 Page 3 10. 1 — Tn order ta qualify as a hasis for reimbursement. Medicaid policy requires that records must be In order to qualify as a basis for reimbursement, Medicaid policy requires that records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Payments made to you in instances where the records submitted for review were non- contemporaneous, are considered overpayments. Medicaid policy requires a physician’s signature to substantiate the service billed. A review of your medical records revealed that in some instances, a rubber stamp was used in lieu of a physician’s written signature. Rubber stamp signatures must be initialed. The services that you billed and received payment for, in which a rubber stamp was utilized, are considered overpayments. Medicaid policy states that, to receive the physician 100% reimbursement, Advanced Registered Nurse Practitioners and Physician assistants must be supervised by the treating physician. Supervision is shown by the physician’s dated signature on the medical record. You billed Medicaid for services at the 100% reimbursement level when the medical record did not indicate that the service was supervised. Twenty percent of the reimbursement is considered an overpayment. Your records indicate instances of unbundling (using two CPT codes when one of these codes incorporates the elements of the other). The unbundled code has been denied. . As to Recipient #25: Medicaid requires a radiological physicist to be under the direct supervision of a physician (2010 Physician Services Coverage and Limitations Handbook, 2- 115). When Dr. Marder was out of the country he was not on the premises to provide direct supervision for these services. Medicaid requires indirect supervision by a physician for non- invasive radiology and nuclear medicine services (2010 Physician Services Coverage and Limitations Handbook, 2-112). Indirect supervision means that the physician must be reasonably available, so as to be physically present to provide consultation or direction in a timely fashion as required for appropriate care of the recipient. When Dr. Marder was out of the country, he was not available to provide indirect supervision for services. Dr. Marder was also unavailable to prescribe services for this recipient. CPT code 77401 is allowed once per patient per session regardless of the number of treatment areas. CPT code 77427 is billed per 5 treatments (not areas). CPT code 77336 is billed once per week. CPT code 77300 requires a prescription by the physician. Payments made to you for these services are considered an overpayment. OVERPAYMENT CALCULATION A random sample of 35 recipients respecting whom you submitted 388 claims was reviewed. For those claims in the sample, which have dates of service from December 1, 2008, through May 31, 2011, an overpayment of $15,169.48 or $39.09659794 per claim, was found. Since you were paid for a tota! (population) of 10,485 claims for that period, the point estimate of the total overpayment is 10,485 x $39.09659794 = $409,927.83. There is a 50 percent probability that the overpayment to you is that amount or more. (Page 4 of 9) Gary L. Marder 000455900 CE. No.: 12-2625-000 Page 4 We used the following statistical formula for cluster sampling to calculate the amount due the Agency: een NS Ua, —YB,y Where: N N E = point estimate of overpayment = F' b A, by 3,| U F = number of claims in the population = > B, isl 4, = total overpayment in sample cluster 8B, = number of claims in sample cluster U = number of clusters in the population N = number of clusters in the random sample N N Y = mean overpayment per claim= 5° A, / >)" B, eal get t = ¢ value from the Distribution of f Table All of the claims relating to a recipient represent a cluster. The values of overpayment and number of claims for each recipient in the sample are shown on the attachment entitled “Overpayment Calculation Using Cluster Sampling.” From this statistical formula, which is generally accepted for this purpose, we have calculated that the overpayment to you is $154,564.06 with a ninety-five percent (95%) probability that it is that amount or more. If you are currently involved in a bankruptcy, you should notify your attorney immediately and provide a copy of this letter for them. Please advise your attorney that we need the following information immediately: (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division); and, (4) the name, address, and telephone number of your attorney. One mere A Ce en IS RE RU NER REMY HOOT IE BAS gR on ACF nee NTR ee ae (Page 5 of 9) Gary L. Marder 000455900 C.L.No.: 12-2625-000 Page 5 If you are not in bankruptcy and you concur with our findings, remit by certified check in the amount of $189,028.07, which includes the overpayment amount as well as any fines imposed and assessed costs. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.I. number listed on the first page of this audit report. Please mail payment to: Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 Pursuant to section 409.913(25)(d), F.S., the Agency may collect money owed by all means allowable by law, including, but not limited to, exercising the option to collect money from Medicare that is payable to the provider. Pursuant to section 409.913(27), F.S., if within 30 days following this notice you have not either repaid the alleged overpayment amount or entered into a satisfactory repayment agreement with the Agency, your Medicaid reimbursements wil! be withheld; they will continue to be withheld, even during the pendency of an administrative hearing, until such time as the overpayment amount is satisfied. Pursuant to section 409.913(30), F.S., the Agency shall terminate your participation in the Medicaid program if you fail to repay an overpayment or enter into a satisfactory repayment agreement with the Agency, within 35 days after the date of a final order which is no longer subject to further appeal. Pursuant to sections 409.913(15)(q) and 409.913(25)(c), F.S., a provider that does not adhere to the terms of a repayment agreement is subject to termination from the Medicaid program. Finally, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed, You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28-106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that ifa request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. rere mE nr he et A NER ET RE EMER NAHE PA Pe ANN (Page 6 of 9) Gary L. Marder 000455900 CI. No.: 12-2625-000 Page 6 Anv onestions von mav have ahout this matter should be directed to: Kris Creel. Investigator. Agency Any questions you may have about this matter should be directed to: Kris Creel, Investigator, Agency for Health Care Administration, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412-4600, facsimile (850) 410-1972. AHCA Administrator Office of Inspector General Medicaid Program Integrity RO/KC/te Enclosure(s) Copies furnished to: Julie Gallagher Akerman Senterfitt Suite 1200 106 East College Avenue Tallahassee, FL 32301 Finance & Accounting (Interoffice mail) Health Quality Assurance (E-mail) Department of Health (E-mail) rr are rete seme mann AA A RP RE TE RATA RTA thE TPO RR RR UIA NRE neem A (Page 7 of 9) Gary L. Marder 000455900 CI. No.: 12-2625-000 Page 7 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS UNW 2 Ur ayia pays a es eee ee ee ee You have the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes, Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The written request for an administrative hearing must conform to the requirements of either Rule 28- 106.201(2) or Rule 28-106.301(2), Florida Administrative Code, and must be received by the Agency for Health Care Administration, by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is: Richard J, Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop # 3 Tallahassee, Florida 32308 Fax: (850) 921-0158 Phone: (850) 412-3630 The request must be legible, on 8 % by 11-inch white paper, and contain: 1, Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; 2. Anexplanation of how your substantial interests will be affected by the action described in the FAR; 3. A statement of when and how you received the FAR; 4, Fora request for formal hearing, a statement of all disputed issues of material fact; 5. Fora request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to relief; 6. For a request for formal hearing, whether you request mediation, if it is available; 7. For a request for informal hearing, what bases support an adjustment to the amount owed to the Agency, and A demand for relief. bad A formal hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement, If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting ‘the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency. If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR shall be conclusive and final. Fa rn ta eet ER RRS ERR AMI ARERR REE OCR NTRR “ur RSI ye IRAE cen i RRO A en ener reppin cee” (Page 8 of 9) FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider: 000455900 - GARY L MARDER Overpayment Catculation Using Cluster Sampling by Recip Name Dates Of Service: 12/1/2008 through §/31/2011 Dre ek einintn ie meet: - Number of recipients in population: Number of recipients in sample: Total payments in population: No. of claims in population: Recip # ONA OHO DYAA WH = NNN NWUNNN MHA BBB Bo BENBERORBNRSestsZaeR Totals: 35 Using Overpayment per claim method Overpayment per sample claim: Point estimate of the overpayment: Variance of the overpayment: Standard error of the overpayment: Half confidence interval: Overpayment at the 95 % Confidence level: Overpayment run on 10/3/2013 Page 1 of 1 _ Ase, Rannin 1,462 Case ID: 35 $820,719.19 Confidence level: 10,485 {value No. Claims Total Dollars 8 $352.56 3 $138.52 3 $185.90 8 $315.58 6 $730.96 1 $42 18 3 $185.90 5 $203.85 4 $244.06 1 $62.78 7 $398.88 14 $1,817.12 8 $1,272.44 2 $1,122.26 5 $250.73 6 $373.84 9 $954.69 28 $2,703.53 5 $460.73 13 $814.85 3 $119.10 3 $185.90 8 $529 48 4 $26.61 188 $5,610.14 1 $42.18 2 $71 29 4 $338.74 10 $789.00 8 $342.15 2 $97.10 1 $42.18 5 $446.94 10 $513.45 3 $50.16 388 $21,805.75 $39,09659794 $409,927.83 $22,807 ,115,837.63 $151,020.25 $255,363.77 $154,564.06 NPI: 1730117003 49 OROR NNN 12-2625-000 95% 1.690924 Overpayment $86 63 $64.96 $54.96 $89.78 $513.47 $0.00 $135.68 $32.18 $54.96 $0.00 $40.01 $1,489.43 $1,107.15 $1,122.26 $138.09 $121.98 $789.43 $2,306 56 $394.21 $514.63 $62.78 $54.96 $274.80 $0.00 $4,484.14 $0.00 $0.00 $164.88 $560.18 $109.92 $0.00 $0.00 $284.22 $116.75, $10.48 $15,169.48 (Page 9 of 9) If you choose to make payment, please return this page along with your check to: Ae nn ae Maa TIAA Qanen A deniniotratian Agency for Health Care Administration Medicaid Accounts Receivable 2727 Mahan Drive, Mail Stop #14 Tallahassee, Florida 32308 The check must be made payable to: Florida Agency for Health Care Administration Provider Name: Gary L. Marder Provider ID: 000455900 MPI Case #: 12-2625-000 Total Due: $189,028.07 Check Number: # Any questions you may have about this matter should be directed to: Kris Creel, Investigator, telephone (850) 412-4600, facsimile (850) 410-1972. Payment for Medicaid Program Integrity Audit 121 recente (Page 1 of 1) \ i ! ; | j | | | | | | 80 that Wé can retum the card to you. §§ Attach this card to the back of the mallpiece, or on the front if space permits. GARY L. MARDER 9580 S. US HIGHWAY 1 PORT ST LUCIE, FL 34952-4217 C.1 #12-2625-000 KC-re Olan eos wows wel 16.00. 7 Lo! lz Restricted Delivery? (xtra Fea) O ves Mander fomeeyce wee) ____ 700% 2820 OO01 SL?5 20b8 \’ nt a ASO RD TE PS Form 3811, February 2004 Domestic Return Receipt 102895-02.0-1540 UniTED States PosTAL SERVICE Class aoe Postage & Fees Paid ise aoe ¥ ™N 8 oe x FLORIDA AGENCY FOR HOSGEICARE APSO TRATIOON dar o 2727 Mahan Drive, MS #6 @& s Tallahassee, Florida 32308 } Medical Unit Wyapereaf fe Affelpheyhfo dtp fbeeag hy gaffod gag] iD, MPU panty 1D Return Reosist for terchandise
The Issue Whether Medicaid overpayments were made to Respondent and, if so, in what amount. Whether Respondent should be fined $5,000.00 for failing to document that it had available sufficient quantities of product to support its Medicaid billings.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings s of fact are made to supplement the facts (set forth above) established by admission and stipulation: Respondent's records fail to demonstrate that it had available during the Audit Period sufficient quantities of drugs to support its Audit Period billings to the Medicaid program. For these Audit Period billings, Respondent was overpaid $198,332.78, as established by the Final Audit Report, as revised by the Overpayment Reduction Document, and the supporting audit work papers, which were received into evidence at hearing and went unchallenged.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Respondent received $198,332.78 in Medicaid overpayments for paid claims covering the period from April 1, 2005, through March 31, 2006; directing Respondent to repay this amount5; and fining Respondent $5,000.00 for failing to demonstrate that it had available during the Audit Period sufficient quantities of drugs to support its Audit Period billings. DONE AND ENTERED this 25th day of April, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 2007.
The Issue Whether the Petitioner was overpaid for Medicaid prescriptions. The Agency for Health Care Administration (AHCA, Agency or Respondent) asserts the Petitioner, Compscript, Inc., d/b/a Compscript (Petitioner or Compscript) failed to maintain proper records to support and document the Medicaid prescription claims paid by the Agency for the audit period. According to the Agency, the audit findings must be extrapolated to the universe of all claims for the audit period. If so, the Agency maintains the Petitioner should reimburse AHCA for a Medicaid overpayment in the amount of $216,974.07 (this is the “recoupment” amount). The Petitioner denies it was overpaid any amount, asserts it kept records in accordance with applicable laws and regulations governing pharmacy records, and maintains that the Agency may not apply the extrapolation accounting procedure in this case.
Findings Of Fact At all times material to the allegations of this case, the Petitioner was a licensed pharmacy authorized to do business in the State of Florida; its pharmacy license number is PH0016271. At all times material to the allegations of this case, the Petitioner was authorized to provide Medicaid prescriptions pursuant to a provider agreement with the Respondent. The Petitioner’s Medicaid provider number is 106629300. The terms of the provider agreement govern the contractual relationship between this provider and the Agency. The parties do not dispute that the provider agreement together with the pertinent laws or regulations controls the relationship between the provider and the Agency. The provider agreement pertinent to this case is a voluntary agreement between AHCA and the Petitioner. Pursuant to the provider agreement, the Petitioner was to “keep, maintain, and make available in a systematic and orderly manner all medical and Medicaid-related records as AHCA requires for a period of at least five (5) years.” In addition to the foregoing, a Medicaid provider must maintain a patient record for each recipient for whom new or refill prescriptions are dispensed. Any Medicaid providers not in compliance with the Medicaid documentation and record retention policies may be subject to the recoupment of Medicaid payments. A Medicaid provider must retain all medical, fiscal, professional, and business records on all services provided to a Medicaid recipient. The records may be kept on paper, magnetic material, film, or other media. However, in order to qualify for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamp signatures must be initialed. The records must be accessible, legible and comprehensive. Specific to the issues of this case, a Medicaid provider must also retain prescription records for five years. The Respondent is the state agency charged with the responsibility and authority to administer the Medicaid program in Florida. Pursuant to this authority AHCA conducts audits to assure compliance with the Medicaid provisions and provider agreements. These “integrity” audits are routinely performed and Medicaid providers are aware that they may be audited. At all times material to the allegations of this case, the Medicaid program in Florida was governed by a “pay and chase” procedure. Under this procedure, the Agency paid Medicaid claims submitted by Medicaid providers and then, after-the-fact, audited such providers for accuracy and quality control. These “integrity” audits are to assure that the provider maintains records to support the paid claims. In this case, the audit period is May 28, 1999 through July 18, 2000. The pertinent audit has been designated AHCA audit no. 01-0514-000-3/H/KNH and was initiated on October 23, 2000. The Petitioner does not dispute the Agency’s authority to perform audits such as the one at issue. The Petitioner maintains its records are sufficient to support the paid claims and that the Agency has unreasonably imposed its interpretation of the requirements. The Medicaid provider agreement that governs this case required that the Petitioner comply with all Medicaid handbooks in effect during the audit period. Essentially, this standard dictates the records that must be kept for quality control so that the after-the-fact audit can verify the integrity of the Medicaid claims that were paid by the Agency. During the audit period the Petitioner sold or dispensed drugs to Medicaid recipients. Equally undisputed is the fact that Medicaid claims were paid by the Agency during the audit period. Each claim reviewed and at issue in this cause was a paid Medicaid claim subject to the Petitioner’s provider agreement and the pertinent regulations. The Agency required that each and every claim submitted by the Petitioner during the audit period under the Medicaid program be filed electronically. Each claim submitted was filed electronically. Nevertheless, the Agency also required the Petitioner to retain records supporting the claim. Additionally, the Petitioner was to make such supporting records available to the Agency upon request. The Agency asked the Petitioner to present its records to support the claims for the audit period. The disclosure of the records proved difficult for this Medicaid provider because it does not operate in a conventional pharmacy setting. More specifically, it operates solely to serve a nursing home population. All of the patients whose prescriptions were filled were nursing home residents. Compscript maintains its manner of doing business is slightly different from the conventional pharmacy. Rather than the walk-in patient who presents a written prescription to be filled, this Petitioner receives its pharmacy orders by telephone or facsimile transmission from nursing homes. Typically, the staff at Compscript takes the call, writes down the pertinent information, enters the data into the pharmacy’s computer system, and the item is dispensed and routed to the nursing home via the delivery driver. All drugs are dispensed in sealed containers and are delivered with a manifest listing all the medications by name and patient. Given the volume of prescriptions being prepared and delivered, for the audit period at issue in this case, the Petitioner made 2-3 trips to the nursing home per day. Once the information for the prescription was entered into the Petitioner’s computer system, Compscript had little interest in maintaining the written telephone message or the facsimile sheet that generated the request. In some instances the Compscript employee did not make a written record of the prescription request. In those instances the employee entered the request directly into the Petitioner’s computer system and bypassed the written step altogether. The Compscript computer system tracks the initials of the pharmacist who entered the prescription information and cannot be altered without such alteration being tracked and noted. Since the pharmacy fills “over the counter” items, as well as controlled and non-controlled pharmacy products, the computer record denotes that information along with the patient information. When the Respondent’s audit agents went into the Compscript facility to audit the Medicaid claims, the Petitioner could not readily produce the written documentation to support the dispensed drugs. In fact, many of the records that verified the prescriptions dispensed were found on the nursing home records. The nursing home patient’s physician order sheet specified the item or items requested for the patient. This “physician order sheet” (POS) should theoretically always support the dispensing of the product from the Petitioner. In this case there were instances when the POS did not corroborate the claim. When the auditors from the Agency presented at Compscript, the Petitioner did not have the POS records to produce. Obviously, those records were maintained within the nursing home. Additionally, Compscript did not have the telephone notes or the facsimile transmission sheets to support items dispensed during the audit period. When the hearing in this cause proceeded it was also discovered that records that were generated daily by the Petitioner’s computer system that would have corroborated the claims (and which were allegedly maintained in storage) were not produced or available to support Medicaid claims submitted during the audit period. During the audit the Agency’s auditors requested records from a random sample of the claims submitted during the audit period. The results from that sample where then applied to the universe of claims for the audit period. When this mathematical calculation was performed the audit produced a Medicaid overpayment in the amount of $1,341,466.27. Afterwards, when the Petitioner was able to locate additional records to correspond to and support the prescriptions dispensed, the amount of overpayment was reduced to $217,715.28 (the amount set forth in the parties’ Pre-hearing Stipulation). At hearing, the Agency maintained that the amount of overpayment was $216,974.07 for which the Petitioner could produce no adequate documentation. At hearing, the Petitioner continued to dispute the procedure of applying the audit sample overpayment to the population of claims to mathematically compute the overpayment for the audit period. This “extrapolation” process was admitted into evidence and has been fully considered in the findings reached in this case. The Petitioner was required to maintain Medicaid- related records for a period of 5 years. Thus, for the audit period in this case, any record supporting the claims should have been maintained and made available for the Agency. Such records would have been within the five-year period. The Agency designates Medicaid compliance to its office of Medicaid Program Integrity. In turn, that office contracted with Heritage Information Systems, Inc. (Heritage) to perform and report pharmacy audits of the numerous pharmacy providers within the state. Auditors from Heritage were assigned the Compscript audit. At the time of the audit the Heritage auditors were not privy to any of the POS documents later produced in the case. Ken Yon is the Agency’s administrator who was responsible for managing the instant case and who worked with the Heritage auditors to assure the policies and practices of the Agency were met. In this case, the Heritage auditors presented at Compscript unannounced on October 23, 2000, and sought 250 randomly selected claims for review. By limiting the number of claims, the auditors were not required to sift through the records of 46,000+ claims (the approximate number of claims that the Petitioner submitted during the audit period). For the universe of 46,000+ claims, 250 randomly selected claims is a reasonable sample to audit. The adequacy of the sample number as well as the manner in which it was generated is supported by the weight of credible evidence presented in this matter. Also, the results of a sample of 250 from the universe of 46,000+ would be statistically valid if randomly chosen as they were in this case. In this regard the testimony of Dr. Mark Johnson, an expert in statistical sampling and analysis, has been deemed credible and persuasive as to the issues of the appropriateness of the sample (as to size and how it was generated), the use of the sample overpayment to calculate an overall payment, and the statistical trustworthiness of the amounts claimed in this cause. If anything, as Dr. Johnson asserted, the actual overpayment would be greater than the recoupment amount sought by the Agency. The Agency has used a statistical extrapolation method to compute overpayments for years. The statistical concept and process of applying a sample to a universe to mathematically compute an overpayment is not novel to this case. After the auditors completed their review of the records at the Compscript pharmacy, Kathryn Holland, a licensed pharmacist (who is also a consulting pharmacist) prepared the Respondent’s Final Agency Audit Report. Prior to completing the report, Ms. Holland received and reviewed the information provided by the Petitioner through the auditors. As a result of the review, a number of “can’t find” conclusions were reached. By “can’t find” the auditors and Ms. Holland meant that the original prescription or refill documentation could not be located for the paid Medicaid claim. These “can’t find” claims were reported to the Petitioner, who was given additional time to locate and produce documents to support the claims. In fact, the Agency continued to accept documentation for claims up through the time of hearing. Consequently, the amount sought for overpayment has been substantially reduced. Whether the Agency had the authority to accept documents outside the prescription records maintained by the pharmacy is not an issue. In fact, the Agency did reduce the overpayment amount when subsequent supporting documents were located. A second error in the documentation for the Petitioner’s prescriptions was noted as “no doctor’s address on the prescription.” That expression meant that pursuant to state and federal law the physician’s address is required for a controlled substance and when it was not provided the auditor deemed the documentation incomplete. Although the Petitioner maintained doctor addresses in its computer system, the records did not correspond to the specific prescriptions that were filled for the audited claims. In order to stand as a sufficient prescription form, a writing must be created contemporaneous to the order (phone requests that are transcribed are acceptable), must contain specific information (type of drug, strength, dose, patient, doctor, DEA number, refill, etc.), and it must be kept for the requisite time. It would be acceptable for the prescription to be computer generated so long as it was written contemporaneous to the order and preserved as required by law. In this case, at the conclusion of the audit, the Agency identified 194 discrepant claims within the random sample of 250. The vast majority of those discrepancies were noted as “can’t find.” Had the Agency not accepted other documentation to support the dispensing of the drugs, the calculated overpayment would have been $1,575,707.44. Applying a lower confidence limit of 95 percent to that amount generated the calculated overpayment of $1,341,466.27. The audit findings set forth in the Agency’s Final Agency Audit Report (dated April 6, 2001) is supported by the weight of credible evidence in this case. Nevertheless, the Agency did allow the provider here to supplement the documentation disclosed during the audit. And, to that end, the calculated overpayment was reduced to $216,974.07 (this amount is 95% of the calculated overpayment). In reality, the amount owed by this Petitioner for failure to maintain proper documentation for this audit would be greater than the recoupment amount sought by the Agency. Had the Agency held the Petitioner to a standard of “no prescription, no payment” standard arguably 194 of the 250 audited claims could have been disallowed. That is not the standard applied by the Agency. A “patient record” may include information regarding the patient’s prescription history. The terms “patient record” and “prescription” are not synonymous. For example, while a prescription would contain information such as patient's name, doctor, DEA number, doctor's address, dosage, drug, and whether it may be refilled, it would be expected that the “patient record” would contain additional information not typically found on a prescription. For instance, a “patient record” might contain a historical track of past medications or known patient allergies. In this case, the computer records or “patient records” maintained by the Petitioner did not retain the prescriptions in the format dictated by rule. An electronic imaging recording system may be used when the system captures, stores, and can reproduce the exact image of the prescription, including the reverse side of the prescription if necessary. The Petitioner’s system did not do that. An electronic system must be able to produce a daily hard-copy printout of all original prescriptions dispensed and refilled. If the Petitioner’s system could do that, it did not. An acceptable electronic system must generate the prescription contemporaneous to the dispensing order. The Petitioner’s system did not do that. The Agency has not alleged, and there is no evidence to suggest, fraud in the Petitioner’s failure to maintain its records. The Agency’s interpretation of the requirement that a prescription be reduced to writing is consistent with the rules and regulations in effect at the time of this audit. The last category of discrepant items was “UR” which stood for “unauthorized refills.” These were claims for refills on drugs for which the original prescription could not be located or documentation from the nursing home could not be found. Again, the Petitioner the maintained that within the nursing home setting a physician’s reorder for medications for the patient could be found on the POS. These refill requests were handled orally among the physician, the nursing home staff, and the pharmacy. Nevertheless, because they were not documented in writing the Agency disallowed this claims and included them among the discrepant list. If the Petitioner was able to produce a physician order to support the UR claims, it was removed from the recoupment list. In most instances, the Petitioner did not have the requisite paperwork to support the refill. Instead, the Petitioner relied on its computer records (again not kept in accordance with the applicable standards) to support the UR claims. The Agency has not claimed that the refills were not dispensed, merely that the paperwork to support the claim cannot be produced.
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 that accepts an amended Final Agency Action Report to support an overpayment and recoupment against the Petitioner in the amount of $216,974.07. S DONE AND ENTERED this 6th day of October, 2005, 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 6th day of October, 2005. COPIES FURNISHED: Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 L. William Porter, II, Esquire Agency for Health Care Administration Fort Knox Executive Center III 2727 Mahan Drive, Building 3, Mail Stop 3 Tallahassee, Florida 32308-5403 Kenneth W. Sukhia, Esquire Fowler, White, Boggs, Banker, P.A. 101 North Monroe Street, Suite 1090 Post Office Box 11240 Tallahassee, Florida 32302 Ralph E. Breitfeller, Esquire McGrath & Breitfeller, LLP 140 East Town Street, Suite 1070 Columbus, Ohio 43215
The Issue The issue for determination is whether Petitioner was overpaid by the Medicaid program as indicated in Respondent's Final Agency Audit Report dated June 20, 2001.
Findings Of Fact Dr. Henson was an authorized Medicaid provider during the audit period of January 1, 1998 through September 30, 2000.1 During the audit period, Dr. Henson had been issued Medicaid provider number 0467243-00.2 No dispute exists that, during the audit period, Dr. Henson had a valid Medicaid Provider Agreement(s) with AHCA.3 During the audit period, Dr. Henson was employed by Latin Quarter Medical Center, located at 855 Southwest 8th Street, Miami, Florida, at which he treated Medicaid recipients. Dr. Henson had been a surgeon but had suffered a stroke in December 1997, which caused him to be incapable of continuing to practice as a surgeon. He agreed to become employed with Latin Quarter Medical Center to work at its new clinic and to receive compensation for his services every two weeks. Latin Quarter Medical Center's patients were suffering from AIDS. Dr. Henson agreed to several terms and conditions in executing a Medicaid Provider Agreement (Agreement) with AHCA. Those terms and conditions included the following: Quality of Service. The provider agrees to provide medically necessary services or goods . . . agrees that services and goods billed to the Medicaid program must be medically necessary . . . The services and goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim. Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulation, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they may be amended from time to time. Term and signatures This provider agreement . . . shall remain in effect until July 1, 1999, unless otherwise terminated. . . . Provider Responsibilities. The Medical provider shall: * * * (b) Keep and maintain . . . all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical . . . records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid. . . . The Agreement was signed by Dr. Henson in 1996. In a Noninstitutional Professional and Technical Medicaid Provider Agreement, Dr. Henson agreed to terms and conditions including the following: The provider agrees to keep complete and accurate medical . . . records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program . . . . The provider agrees that services or goods billed to the Medicaid program must be medically necessary . . . and the services and goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting a claim. The provider agrees to submit Medicaid claims in accordance with program policies and that payment by the program for services rendered will be based on the payment methodology in the applicable Florida Administrative Rule. . . . * * * 8. The provider and the Department [Department of Health and Rehabilitative Services] agree to abide by the provisions of the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The Agreement was signed by Dr. Henson in 1988. AHCA audited certain of Dr. Henson's Medicaid claims pertaining to services rendered between January 1, 1998 and September 30, 2000. By Preliminary Agency Audit Report (PAAR) dated April 12, 2001, AHCA notified Dr. Henson that, after a physician consultant with a specialty in infectious disease reviewed the Medical claims and medical records provided by Dr. Henson, a preliminary determination was made that certain claims in the amount of $124,556.83 were not covered by Medicaid. After the issuance of the PAAR, no further documentation was submitted by Dr. Henson to AHCA. As a result, AHCA issued a FAAR dated June 20, 2001, upholding the overpayment of $124,556.83. The FAAR indicated, among other things, that the documentation provided by Dr. Henson supported a lower level of office visit than the one billed and for which payment was received and, therefore, the difference between the payment for the appropriate level of service and the amount actually paid was an overpayment; that some of Dr. Henson's medical records failed to contain documentation for services which were billed and for which payment was made and, therefore, the payments for the inappropriate documentation was an overpayment; that some of the services rendered were inappropriately coded and the difference between payment for the proper code and the inappropriate code was an overpayment; and that some of the services for which billing was made and payment received were not medically necessary and those services were disallowed and were, therefore, an overpayment. The FAAR further provided how the overpayment was calculated, indicating, among other things, that a sample of 30 recipients of the 2936 claims submitted by Dr. Henson were reviewed for the period from January 1, 1998 through September 30, 2000; that a statistical formula for cluster sampling, with the formula being presented, was used; that the statistical formula was generally accepted; and that the statistical formula showed an overpayment in the amount of $124,556.83, with a 95 percent probability of correctness. The majority of the overpayment was due to denied claims for intravenous infusions of multi-vitamins, epogen and nupogen to adult HIV/AIDS patients. AHCA's representative primarily responsible for handling the audit of Dr. Henson was Sharon Dewey, a registered nurse employed in the Medicaid Program Integrity (MPI) division of AHCA. Nurse Dewey conducted an audit of Medicaid payments only under Dr. Henson's Medicaid Provider number. An on-site visit of Dr. Henson's office was made by Nurse Dewey. During the on-site visit, she provided Dr. Henson with a questionnaire, which was completed by her and signed by Dr. Henson, and which indicated that Dr. Henson was the only Medicaid Provider at the office at which he was located, Latin Quarter Medical Center, 855 Southwest 8th Street, Miami, Florida. At the on-site visit, Dr. Henson provided all of the medical documentation and medical recipient records for the audit period involved. All the Medicaid claims for the medical recipients were paid Medicaid claims originating only from Dr. Henson's Medical Provider number. Dr. Henson made available and provided to AHCA or AHCA's representatives any and all required Medicaid-related records and information pertaining to the audit that he had in his possession.4 He never refused to allow access to the records or information. Having received the medical recipient records from Dr. Henson, Nurse Dewey organized the records by patient names and dates of service and provided them to Dr. Joseph W. Shands, Jr., along with a worksheet for the audited claims for each patient. Dr. Shands is an expert in infectious diseases and the treatment and management of AIDS and HIV. Dr. Shands retired in 2002, and his practice was basically the same as Dr. Henson. No objection was made at hearing that Dr. Shands met the statutory definition of "peer." § 409.9131(1)(c), Florida Statutes (1999).5 The undersigned finds Dr. Shands' testimony persuasive. Dr. Shands reviewed the medical documentation provided by Dr. Henson to AHCA. The medical documentation that he reviewed indicated that the patients were "all HIV AIDS patients." Dr. Shands reviewed the particular medications given the patients; reviewed the reasons why the medications were given; considered and made a determination as to whether a justification existed for the administration of the medication; and, based on his determination, either allowed or disallowed the claim. He made no determinations as to the actual dollar amount of services provided. After reviewing the medical records, Dr. Shands made notations on the worksheets, signed the worksheets, and returned the worksheets to Nurse Dewey. Specific instances of acute attention involved the administration of intravenous (IV) multi-vitamins, epogen, nupogen, and Intravenous Immunoglobulin (IVIG). As to the IV of multi-vitamins, Dr. Henson prescribed this administration for almost all of his patients. Dr. Shands found that the patients were coming into the facility two to three times a week for the treatment, but he found no documented medical information to justify the use of IV multi-vitamins and determined these services were not medically necessary. In Dr. Shands' opinion an oral multi-vitamin would have been more appropriate and achieved the same result. An oral multi-vitamin is not recommended, according to Dr. Shands, where the patient is unable to digest the oral multi-vitamin. Notably, for one patient a notation was made that the patient refused pills, but a further notation indicated that Dr. Henson had prescribed the same patient pill-based medications for treatment, which negated the basis for the intravenous use. Furthermore, IV administration to an HIV/AIDS patient places the patient at an unnecessary risk of infection, which is not present with oral multi-vitamins. Dr. Henson testified that he was continuing the treatment of another physician, but he failed to make an independent medical judgment based upon his own medical findings. Further, no justification was in the medical records for the former physician's administration of IV multi-vitamins. Additionally, IV multi-vitamins were more costly than oral administration. And, with patients returning to the facility two to three times a week, the cost increased even more. Regarding epogen, Dr. Shands opined that certain administration was not medically necessary for the HIV/AIDS' patients. As to nupogen, Dr. Shands opined that certain administration was not medically necessary for the HIV/AIDS' patients. Regarding the administration of IVIG, Dr. Shands opined that the administration was not medically necessary for the HIV/AIDS' patients. As to certain office visits for the administration of IV multi-vitamins, epogen, nupogen, and IVIG, Dr. Shands opined that the office visits were unnecessary. Using the worksheets, with Dr. Shands' notations on them, together with Dr. Shands denials or reductions, Nurse Dewey calculated the overpayment associated with each of Dr. Henson's patients. Subsequently, a statistical calculation was applied by AHCA to extend the audit sample's total overall payment to all of Dr. Henson's Medicaid claims during the audit period, which resulted in a determination of an overpayment in the amount of $124,556.83. Dr. Henson suggests that his signature may have been falsified or forged on the medical records and information that he submitted to AHCA for its audit. Prior to hearing, he had an opportunity to review the medical records and information but could not identify one instance that his signature was falsified or forged. Consequently, a finding of fact is made that Dr. Henson signed the medical records and documentation provided to AHCA by him for the audit. Dr. Henson presented no expert testimony or any testimony to support the medical necessity or cost-effectiveness of the procedures that he used. Further, Dr. Henson contends that Latin Quarter Medical Center, the facility that employed him, received the Medicaid payments, not he. However, as the Medicaid Provider, he was not relieved of his responsibility to make sure that the medical procedures were medically necessary and cost-effective.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Arthur Henson, D.O., received overpayments in the Medicaid program in the amount of $124,556.83, during the audit period January 1, 1998 through September 30, 2000, and requiring Arthur Henson, D.O., to repay the overpayment amount. DONE AND ENTERED this 29th day of June, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2006.
The Issue The issue for determination is whether Petitioner received Medicaid overpayments and, if so, the total amount of the overpayments. Petitioner agreed at the onset of the hearing not to contest the findings of the Agency that Petitioner received Medicaid monies to which he was not entitled. Therefore, the issue remaining for determination is: Whether Respondent calculated the overpayment amount of $52,850.82 using a valid statistical formula and a valid sample of recipients and claims during the audit period of March 1, 2000, through March 1, 2002.
Findings Of Fact Based upon observation of the witnesses while testifying, the documentary materials received in evidence, official recognition granted, evidentiary rulings made, and the entire record compiled herein, the following relevant and material facts are established. The Agency is charged with administration of the Medicaid program in Florida pursuant to Sections 409.907 and 409.913, Florida Statutes (2003). Among its administrative duties, the Agency operates a program to oversee the activities of Florida Medicaid providers to ensure that fraudulent and abusive behavior and neglect occur to the minimum extent possible and to recover overpayments and impose sanctions as appropriate. "Overpayment" is statutorily defined to mean "any amount that is not authorized to be paid by the Medicaid Program, whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse or mistake." § 409.913(1)(d), Fla. Stat. (2000). The FAAR, covering the audit period of March 1, 2000, through March 1, 2002, together with the Agency's work papers, set out a Medicaid overpayment amount of $52,850.82 that the Agency seeks to recoup from Petitioner. Petitioner is a physician enrolled in the Medicaid program under provider number 0580091-00, who operated under his provider number during the audit period of March 1, 2000, through March 1, 2002, under the auspices of a standard Medicaid provider agreement. As a part of the Medicaid provider agreement, the provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, and statements of policy. Petitioner participated in the Medicaid program during the FAAR period of March 1, 2000, through March 1, 2002, and received payment for the services that the Agency now questions and are the subject of the audit. During the above audit period, the applicable statutes, rules, and Medicaid handbooks required Petitioner to retain all medical, fiscal, professional, and business records on all services provided to a Medicaid recipient. Petitioner had to retain these records for at least five years from the date of services. The Florida Medicaid program prepares and furnishes handbooks to all enrolled Medicaid providers, including Petitioner. These handbooks set forth the Medicaid policies with regard to services rendered and billed by providers. Petitioner had a duty to make sure that each claim submitted was true and accurate and was for goods and services that were provided, by an enrolled Medicaid provider, in accordance with the requirements of Medicaid rules, handbooks, and policies, and in accordance with federal and state law. Medicaid providers who do not comply with the Medicaid documentation and record retention policies hereinabove may be subject to administrative sanctions and/or recoupment of Medicaid payments. Medicaid payments for services that lack required documentation and/or appropriate signatures will be recouped. Mr. Hector Tapining (Mr. Tapining) and Phyllis Stiver (Nurse Stiver), registered nurse consultant for Medicaid Program Integrity, conducted an on-site visit to Petitioner's office and requested records. From the files of Petitioner, Mr. Tapining generated a random list of 30 Medicaid recipients (the cluster sample) who had received services by Petitioner during the two- year audit period of March 1, 2000, through March 1, 2002. The Agency thereafter generated worksheets reflecting: (1) the total number of Medicaid recipients during the audit period; (2) total number of claims made by Petitioner, with dates of medical services provided; (3) the total amount of money paid Petitioner during the audit period; and (4) the analyst's worksheets representing his review of each recipient's claim(s) for the audit period. Additional Agency-generated worksheets reflected: (1) the total number of Medicaid recipients during the audit period; (2) the total number of claims of Petitioner, with dates of service; (3) the total amount of money paid to Petitioner during the audit period; and (4) the analyst's worksheets representing his review of each recipient's claim(s) for the audit period. Mr. Tapining provided the worksheets to Nurse Stiver for her review of compliance with Medicaid enrollment and documentation. Mr. Tapining provided the worksheets to E. Rawson Griffin, III, M.D. (Dr. Griffin), the medical records consultant, for his review and evaluation of appropriate billing codes. The formula used by the Agency is a valid statistical formula, the random sample used by the Agency was statistically significant, the cluster sample was random, and the algebraic formula and the statistical formula used by the Agency are valid formulas. Dr. Griffin, after review of 30 patient records, concluded that Petitioner engaged in a general pattern of over coding at the highest level of code (99205) for services rendered that appeared to be rather straight-forward and simple for the medical services rendered at the time of each visit. Over coding is the term employed when supporting documentation for medical billing does not support the billing code chosen and assigned by the provider. In his review, Dr. Griffin saw no middle codes (99213s and/or 99214s) billed by Petitioner. Dr. Griffin opined that it was extraordinary that Petitioner would see and service 30 patients on their first visits, who at that time presented a complaint necessitating a medical necessity level code 99205, the highest level of Medicaid service. Continuing, Dr. Griffin explained that over coding is entering in the patient's billing statement a code higher than the patient's medical complaint and the Patient's recorded medical necessity warranted for the visit or visits (1st, 2nd, 3rd, etc.) on the date those services were provided by Petitioner. In Dr. Griffin's opinion, Medicaid billing codes are to be determined by consideration of the following medical factors: (1) the patient's particular medical complaint and the degree of complexity of that complaint at the time of the initial visit, (2) the type of and the complexity of medical examinations and the tests necessarily required to be administered based upon the type and complexity of the initial complaint, and (3) the resulting interpretations of the tests and the examinations administered for treatment of the complaint. It is only after completion of the above analysis and documentation in the patient's medical records, would a code 22915 billing be appropriate. Dr. Griffin's analysis of the cluster sample of 30 Medicaid records of patients serviced by Petitioner resulted in his down coding Petitioner’s billing as shown below.2 I.D. Number Service Date Code Billed Adjustment B.K. 1 03-29-2000 215 (5) 214 B.K. 1 07-19-2000 214 213 1 08-17-2000 214 213 1 12-11-2000 215 214 1 02-22-2001 215 214 1 05-23-2001 214 213 1 06-24-2001 214 212 J.A.C. 4 No date 215 214 J.R. 5 10-02-2000 215 213 B.F. 6 07-25-2000 215 213 F.H. 8 04-10-2000 215 213 F.H. 8 05-04-2000 214 213 (2 visits) D.C. 9 01-23-2000 215 213 T.M. 10 06-07-2000 215 213 T.M. 10 06-28-2000 214 213 D.W. 13 01-12-2000 215 213 P.L. 14 01-10-2000 214 213 I.H. 15 12-18-2000 215 213 M.V. 17 04-10-2000 215 213 R.R. 21 04-17-2001 214 213 S.K. 25 11-20-2000 212 211 A.H. 26 12-19-2000 215 212 T.P. 27 02-20-2000 215 213 M.R. 28 11-14-2002 215 214 E.C. 29 04-28-2000 214 213 E.C. 07-03-2000 214 213 12-28-2000 214 212 01-02-2000 214 212 01-23-2000 214 212 02-06-2000 214 212 04-03-2000 214 212 (6 visits) R.S. 30 04-16-2001 215 213 Nurse Stiver reviewed the cluster sample of 30 Medicaid records of patients serviced by Petitioner for compliance with Medicaid policy(s) to ensure that services billed are the services for which Medicaid pays and are services that meet all aspects of the Medicaid policy(s) as specified in the Medicaid Handbook. Medicaid policy, regarding provider enrollment, requires (all) providers who services Medicaid patients to be (individually) enrolled in the Medicaid program as providers before providing service and billing Medicaid for those services. The Agency verifies the education, credentials, and criminal background of each enrollee to ensure the safety of Medicaid recipients. The individual provider enrollment is required as a condition precedent for providers to bill Medicaid for services and to be paid by Medicaid for those services. The enrollment requirement includes PAs and ARNPs. Nurse Stiver's review of Petitioner's documents sought to ascertain whether each provider who actually rendered services had executed a voluntary enrollment contract agreement between the Agency and that provider. In these contract agreements, the provider agrees to comply with all laws and rules pertaining to the Medicaid program when furnishing a service or goods to a Medicaid recipient, and the Agency agrees to pay a sum, determined by a fee schedule, payment methodology, or other manner, for the service or goods provided to the Medicaid recipient. The Medicaid Handbook requires separate and/or individual enrollment of each and every entity that provides Medicaid service(s) to Medicaid recipients. The mandatory enrollment includes a provider(s) who makes written entries on and/or signs Medicaid documents. Should the medical service provider and the provider documenting the Medicaid recipient's medical files and the provider billing Medicaid for services rendered be different providers, each provider must be individually enrolled in the Medicaid program. Within a chain of provider entities, the failure of one provider entity to be enrolled entitles the Agency to full recoupment of all Medicaid payments made to the enrolled Provider. Nurse Stiver applied the above analysis to the cluster sample of 30 Medicaid recipients' records recovered from Petitioner's files and to the Agency's worksheets. Nurse Stiver's review and her investigation revealed specific instances in which the paid billing claims evidenced that Petitioner's non-enrolled PAs and/or Petitioner's non-enrolled ARNP either provided the medical services or documented the medical services provided to the Medicaid recipients as shown below: Patient Service Date(s) Services and/or documentation 1. B.K. Serviced 9 times Signature-not enrolled 2. E.J. 08-14-01 Records written and signed by PA not enrolled and (not countersigned by Petitioner) 3. E.T. Serviced 4 times Services provided not entitled to Medicaid payment (unauthorized) J.A. (stipulation) Stipulation3 B.F. 11 visits-serviced Provider not enrolled M.R. 7 visits-serviced Provider not enrolled F.H. 11 visits-serviced Provider not enrolled through 12. Stipulations 13. D.W. 2 visits-serviced Provider not enrolled 14. through 17. Stipulations 18. L.A. 5 visits-serviced Provider not enrolled 19. and 20. Stipulations 21. R.R. 3 visits-serviced Provider not enrolled 22. and 23. Stipulations 24. L.S. 1 visit-serviced Provider not enrolled 25. S.K. 3 visits-serviced Provider not enrolled 26. through 28. Stipulations 29. E.C. 12 visits-serviced Provider not enrolled 30. Stipulation After the review and examination of the claims submitted within the cluster sample, Nurse Stiver concluded the above services billed to the Agency were not performed by Petitioner. She opined that either or both of Petitioner's employees, Justo Lugo and Phillip Nguyen (PAs) and/or Andrea McDonald (ARNP) provided or assisted in providing services. As non-enrolled providers in the Medicaid program, the PAs and the ARNP’s participation in providing services to Medicaid recipients and/or participation in assisting Petitioner in providing medical services and/or participation in Petitioner's billing Medicaid for medical services to Medicaid recipients violated Medicaid policy. Respondent established that the Medicaid program payments for services provided by an individual not enrolled as a provider in the Medicaid program are overpayments of which the Agency is entitled to full recoupment. After the reviews and the analysis by Nurse Stiver and Dr. Griffin, using the Agency's formula for calculating the extrapolated overpayments, the Agency determined overpayment in the amount of $64,453.74 to have occurred. Based upon these findings, the Agency issued a Preliminary Agency Audit Report (PAAR) letter setting out the overpayment amount of $64,453.74 and inviting Petitioner to submit additional documentation. Petitioner's additional documentation submittals were reviewed by the Agency. The post-PAAR review resulted in a reduction of overpayment to $52,850.82 as the total overpayment for all claims considered, and sought to be recovered from Petitioner by the Agency. The Agency's worksheets resulting in the $52,850.82 overpayment included: (1) the medical record review summary; (2) a spreadsheet setting out the names of the recipients, the dates of service, the procedure billed, the amount paid by the Agency, the amount allowed by the Agency, and the resulting overpayment; (3) the overpayment calculation using cluster sampling; (4) the patient worksheets, or claims; and (5) the procedure code summary of the claims in the universe, as defined in Section 409.913, Florida Statutes (2000). The formula used by the Agency is a valid statistical formula, the random sample used by the Agency was statistically significant, the cluster sample was random, and the algebraic formula and the statistical formula used by the Agency are valid formulas. The Agency's data and calculations were reviewed by Ian McKeague, Ph.D. (Dr. McKeague). He reproduced the calculations and concluded that $52,850.82 is the correct overpayment amount made by Medicaid to Petitioner. Petitioner produced neither written authority nor expert testimony contesting the validity of the statistical formula and Dr. McKeague's resulting calculation of overpayment. Nurse Stiver, with over 14 years employment with the Agency, worked with the Medicaid policies and handbooks. She worked with Mr. Tapining on the audit of Petitioner documents. Specifically, she reviewed Petitioner's records for compliance with Medicaid policy, to ensure that the services billed are the services Medicaid paid for and that those services met all aspects of Medicaid policy. Nurse Stiver's investigation and review revealed specific instances in which the paid claims show that the PAs and/or the ARNP, not Petitioner himself, provided the services to Medicaid patients. In each case where the Agency determined Petitioner was not entitled to payment, Nurse Stiver reviewed the medical records and determined that the ARNP or one of the PAs, who were not enrolled in the Medicaid program, actually rendered services to Medicaid recipients. Her determination was based upon her many years of nursing experience that the person rendering the services is the person who documents the services rendered. From her review, it appeared that the ARNP or a PA (not enrolled), not Petitioner, documented the service billed to and paid by Medicaid. Services rendered by an ARNP or a PA who is not enrolled as a provider in the Medicaid program cannot be compensated by the Medicaid program. Petitioner argued that he provided all Medicaid services billed to Medicaid and, on those rare occasions reviewed by Nurse Stiver, his employees (either the ARNP or the PAs), who by happenstance would be present in the treatment room, aided him by merely documenting services he himself rendered to the Medicaid patients. Petitioner presented an alternative argument that on other of those rare occasions reviewed by Nurse Stiver, his employees would be in the room when Petitioner actually provided services to Medicaid patients, and, while he was providing those services, he would simultaneously dictate to his employee who would transcribe his dictations on the Medicaid forms. Petitioner elected not to compel attendance by subpoena of his employees, even though the final hearing was continued to provide Petitioner an opportunity to do so. Petitioner's argument, that the proposed testimony by his employees would have been sufficient to challenge the Agency determination that Petitioner's billing was for services performed by a provider who was not enrolled in the Medicaid program, is without a foundation in fact and rejected. The Medicaid Provider Reimbursement Handbook provides, in part, that "Records must be retained for a period of at least five years from the date of service." The handbook goes on to provide in pertinent part: PAs must meet the general Medicaid provider enrollment that are contained in Chapter 2 of the Medicaid Provider Reimbursement Handbook, HFCA-1500 and Child Health Check- Up 221. In addition, PAs must follow the specific enrollment requirements that are listed in this section. * * * PAs must meet the provider requirements and qualification and their practice must be fully operational before they can be enrolled as Medicaid providers. * * * If a PA is employed by or contracts with a physician who can enroll as a Medicaid provider, the physician must enroll as a group provider and the PA must enroll as a treating provider within the group. * * * Services provided by a PA under the direct supervision of a physician may be billed using the physician's provider number instead of the PA's provider number. Direct physician supervision means the physician: (*) Is on the premises when the services are rendered, and (**) reviews, signs, and dates the medical record. * * * Medical records must state the necessity for and the extent of services provided. The following minimum requirements may vary according to the services rendered: * * * Note: See the service-specific Coverage and Limitations Handbook for record keeping requirements that are specific to a particular service. Providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid Payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped. Note: See Chapter 5 in this handbook for information on administrative sanctions and Medicaid payment recoupment. Petitioner, by signing a Medicaid provider agreement, agreed that all submissions for payment of claims for services will constitute a certification that the services were provided in accordance with local, state, and federal laws, as well as rules and regulations applicable to the Medicaid program, including the Medical Provider Handbooks issued by the Agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Care Administration, enter a final order requiring Petitioner, Mazhar G. Nawaz, M.D., to repay Respondent the principal amount of $52,850.82 plus interest as provided in Section 409.913, Florida Statutes (2002). DONE AND ENTERED this 19th day of February, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 2004.
