Findings Of Fact At all times pertinent to the issues herein either the Florida Department of Health and Rehabilitative Services, (Department), or the Florida Agency for Health Care Administration, (Agency), its successor agency, operated the Medicaid Program in Florida, a state and federally funded program to provide medical services to indigent and eligible individuals, including children, in Florida. Petitioner, Neonatology Associates, Inc., (NAI), is a provider to the Medicaid Program of the State of Florida, and is located in St. Petersburg, Florida. Its Medicaid provider number is 067920-01. It has been a Medicaid provider for approximately thirty years. Medicaid and Children's Medical Services (CMS) were, at one time, both separate components of the Department of Health and Rehabilitative Services. On July 1, 1993, responsibility for Medicaid was assigned to the Agency for Health Care Administration. Medicaid, and its fiscal agent, FMMIS, are not now and never have been a part of either Children's Medical Services or Regional Perinatal Intensive Care Center (RPICC) and neither CMS nor RPICC have ever been a part of Medicaid or its fiscal agent. RPICC serves only peripherally to Medicaid as a claims transmittal agency or billing agent. That relationship was formalized by a contract which is considered by FMMIS as a billing agent contract. The parties stipulated prior to the hearing that the medical services, which are represented by Petitioner to have been performed were actually performed and rendered, and that all of the patients for the disputed claims are assumed to be Medicaid eligible. The parties stipulated at the hearing that the five claims were submitted by Petitioner to RPICC in a timely manner; that the five claims were received by RPICC within a twelve month period from the date of service; that there was a problem at RPICC which precluded the transmittal of these five claims in a timely manner to the Florida Medicaid Management Information System, (FMMIS), the office with which they were to be filed for payment; and that there was communication by telephone and in person between officials of Petitioner, RPICC, and the Department/Agency, (CMS), in an effort to resolve the filing difficulty. These claims relate to five patients, M.H., M.C., C.J., B.A. and R.W. Claims which are not received by Medicaid or its fiscal agent within twelve months of service may not be paid pursuant to law described in the trade as the "twelve month rule." The five claims in issue here were transmitted electronically to RPICC by NAI's agent, Ms. Chandler, the RPICC billing clerk at All Children's Hospital, where the service was rendered, for subsequent re- transmittal by RPICC to FMMIS. This procedure is authorized by the Agency. However, due to technical problems not further identified, the claims were never received by FMMIS. RPICC, a part of the Department's Children's Medical Services, and operated by the University of Florida, does not adjudicate claims but merely gathers and analyzes neonatology data for statistical reporting. FMMIS, Medicaid's fiscal agent since July 1, 1993, is operated by a private vendor. The contract between Medicaid and the University under which RPICC data services are provided, and that between NAI and Medicaid, which provides for medical services, both contain the same "boiler plate" clauses. Both NAI and RPICC transmit electronic claims to Medicaid for adjudication, but neither is a party of or agent of Medicaid. FMMIS is Medicaid's agent for payment. RPICC data processing services charges are paid to the University of Florida by Children's Medical Services under their contract. Medicaid pays only for the actual medical care provided to indigent mothers and their sick newborn children. NAI has a contract with Medicaid. RPICC has a contract with Medicaid. Children's Medical Services has a contract with RPICC at the University of Florida. These are the only formal agreements involved in this situation. The contract between NAI and Medicaid provides that NAI will submit Medicaid claims "in accordance with program policies." Medicaid policy provides that receipt of electronic claims submission to Medicaid or its fiscal agent, FMMIS, takes place only upon acceptance and confirmation by FMMIS. Acceptance occurs when each claim is assigned its own identification number. Medicaid policy also provides that submittal of a claim to RPICC does not constitute receipt of the claim by Medicaid or its fiscal agent, and submittal of a claim to RPICC does not toll the running of time accounted for under the twelve month rule. The relationship between Medicaid and the RPICC data center may be likened to that of RPICC's being a billing transmittal agent for FMMIS. RPICC does not process claims submitted to it but merely forwards those it receives to the fiscal agent which operates the FMMIS. Medicaid, by letter from Mr. Thomas Arnold, dated March 5, 1990, authorized FMMIS to receive Medicaid claims from RPICC. That letter does no more than offer providers an option to have RPICC bill the fiscal agent for them, thereby creating a "billing agent" status for RPICC. It does not state that submittal of claims by providers to RPICC constitutes filing a claim with Medicaid or the fiscal agent so as to toll the running of the twelve months limit. The Medicaid Physician Provider Handbook made available to all providers expressly states that all claim inquiries be made to Consultec, a private computer services provider. Both Mr. Blasioli and the Agency's regional claims representative noted that NAI did not contact Consultec regarding the computer problems regarding the instant claims prior to the expiration of the twelve month claim filing limit. Neither did NAI make use of RPICC's internal claims tracking system during the period in issue. The evidence establishes that NAI experienced difficulty in submitting the five claims in issue. Nonetheless, within a month of being employed by NAI, its billing administrator advised Medicaid that he had addressed the problem and had established procedures with RPICC's data center to prevent future claims from exceeding the twelve month limit. NAI's difficulty with the five claims in issue were first brought to the attention of Medicaid personnel after the twelve month filing limit had expired. Though the claims in issue here were submitted electronically, NAI could have submitted these claims directly to FMMIS by traditional paper claim, omitting the RPICC channel and its potential for technical problems. It chose not to do so. The "twelve month rule" provides for exceptions which are expressly limited to those claims which are delayed by either legal action or lack of proof of recipient eligibility. An additional exception is afforded claims delayed by "crossovers" with Medicare. The rule does not provide for extension of time due to computer system error unless such error relates to processing errors which arise subsequent to Medicaid's acknowledgment of claim receipt. In essence, to justify an exception to the twelve month rule, the computer error must be Medicaid's. The Medicaid program cannot deviate from federally imposed requirements. Should it do so, it faces the potential loss of federal expenditure reimbursement which constitutes fifty-five percent of all money spent by Florida in its operation of the Medicaid program. The program processes 100,000,000 claims annually from more than 60,000 providers, paying out approximately $6,700,000,000 each year. Even minor exceptions to the rules governing the adjudication process could have extensive impact on and consequences to the program and the benefits it imparts to the indigent health care recipients it serves.
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 denying as untimely Petitioner's five claims in issue. DONE and ENTERED this 22nd day of May, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3049 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. - 3. Accepted and incorporated herein. First sentence accepted. Balance accepted as definitions, not Findings of Fact. - 12. Accepted. Merely a restatement of testimony in support of Petitioner's position. Not a proper Finding of Fact. Accepted. Rejected as no more than a comment on the evidence and a statement of party position. - 20. Accepted as a statement of position, but rejected as probative of any material factual issue. 21. - 24. Accepted. Accepted. & 27. Not Findings of Fact but citations of statute. 28. & 29. Accepted. Not Findings of fact but cites of agency rule. A restatement of Handbook matter. Accepted. - 35. Accepted. Accepted but non-probative argument. Rejected as contra to the weight of the evidence. - 43. Accepted. Not a Finding of Fact but a restatement of testimony. - 49. Accepted. 50. & 51. Accepted and incorporated herein. 52. - 55. Accepted. 56. - 58. Accepted. 59. & 61. Accepted, but no evidence exists that RPICC's actions constitute receipt of the claim. The evidence of record better suggests that RPICC receives information from providers based upon which it acts as billing agent for the provider and it remains incumbent upon the provider to insure it gets the pertinent information to RPICC in sufficient time for the claim to be billed within the tweleve month constrains. 62. - 65. Rejected as contra to the better evidence of record. Respondent's Proposed Findings of Fact. 1. & 2. Accepted and incorporated herein. Not a Finding of Fact but a restatement of the issue. - 7. Accepted and incorporated herein. 8. & 9. Accepted. 10. - 14. Accepted. Accepted. - 18. Accepted. 19. & 20. Accepted and incorporated herein. Not a Finding of Fact but a restatement of and comment on testimony. & 23. Accepted and incorporated herein. 24. Accepted but not probative of any material issue of issue of fact. COPIES FURNISHED: Frank P. Rainer, Esquire Ruden, McClosky, Smith, Schuster, and Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32310 Mark S. Thomas, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3407 Tallahassee, Florida 32308 Sam Power Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
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.
