The Issue The Board filed a ten count complaint in this matter. The central issue is whether Dr. Horstmann billed Medicaid for office visits for children who he did not see and who, in fact, did not exist. The Board of Medicine contends that Dr. Horstmann's conduct violated Section 458.331(1)(i), Florida Statutes, by making or filing a report the licensee knew to be false, violated Sections 817.234 and 458.331(1)(h), Florida Statutes, by failing to perform a legal obligation placed upon a licensed physician, and that his conduct violated Section 458.331(1)(1), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when that trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community. The Board also contends that by pleading no contest to a criminal charge of Medicaid fraud, Dr. Horstmann is subject to discipline.
Findings Of Fact Dr. Horstmann is a 63 year old Cuban-born medical doctor. He had been licensed to practice medicine and had been doing so in Cuba for 35 years. He was permitted to leave Cuba in 1979. He was licensed to practice medicine in the State of Florida on February 14, 1983. At the time of the investigation which gave rise to these charges he had been licensed to practice medicine in Florida for 4 months. In early 1983, the Auditor General's Office of the State of Florida, Medicaid Fraud Unit, investigated certain pharmacists which computer audits showed to have excessive Medicaid charges. Dr. Horstmann was not a target of this investigation, which was headed by Detective John Nulty. The Mariano Gonzalez pharmacy was targeted. Dr. Horstmann knew Mariano Gonzalez since childhood. He had given Gonzalez business cards, asking Gonzalez to refer patients to him with allergy- related problems who did not have a doctor, as Dr. Horstmann wished to concentrate on allergy-related health problems. Those business cards were available at the pharmacy. During the investigation of the Mariano Gonzalez pharmacy, agent Vivian Perez entered the pharmacy and acted as a Medicaid recipient using the name Vivian Toledo. At the Mariano Gonzalez pharmacy on June 5, 1983, she was advised to see Dr. Horstmann and was given a Horstmann business card with the pharmacy stamp on the back of it. Apparently, the Mariano Gonzalez pharmacy was engaged in a scheme to defraud Medicaid. It allowed Medicaid recipients to present scripts for prescriptions which were to be paid by Medicaid, and to purchase merchandise rather than prescription drugs or medicine for an amount equal to what would have been charged for the medication. In the course of her investigation, agent Perez went to Dr. Horstmann's office on June 7, 1983. She presented Dr. Horstmann's secretary with a Medicaid card issued to her as part of the investigation bearing the name Vivian Toledo, and the names of the three fictitious children, Julio, Roger and Rafael Toledo. Dr. Horstmann did not examine agent Perez or any of the fictitious children, but as a result of the visit he gave agent Perez prescriptions for her and the three children. Agent Perez took these prescriptions to the Mariano Gonzalez pharmacy and used them to purchase non-pharmaceutical items. These prescriptions were not signed by Dr. Horstmann, but by Dr. Rodriguez-Cuellar, with whom Dr. Horstmann worked. Dr. Horstmann did not sign the prescriptions because, although he was a licensed physician, he had not yet received a Medicaid provider number of his own. Agent Perez again visited Dr. Horstmann on July 12, 1983. He did not examine her or the fictitious children but gave agent Perez additional prescriptions for herself and the children, which he signed. They were used to purchase non- pharmaceutical items at the Mariano Gonzalez pharmacy. Agent Perez visited Dr. Horstmann on a second occasion in July and in August 1983. Each time she received prescriptions for herself and the fictitious children which were used to purchase non-pharmaceutical items at the Mariano Gonzalez pharmacy. Dr. Horstmann prepared medical charts for each of the fictitious children, which were introduced into evidence, indicating that these children had been examined by him. Dr. Horstmann signed the Medicaid health insurance claim forms for the children dated July 9, 12, 20 and 27; and August 17 and 23. Medicaid was billed a total of $100.00 for Julio Toledo, $70.00 for Roger Toledo and $90.00 Rafael Toledo based on these forms. Dr. Horstmann understood when he wrote on the chart that he had seen the children that a bill would be prepared and sent to Medicaid. He signed all of the reimbursement forms. He received payment from Medicaid on the claims he submitted. Dr. Horstmann was charged with Medicaid fraud and entered a plea of no contest. A certified copy of the order placing him on probation was offered for identification but not received in evidence. After the certified copy of the probation order was obtained, an order was entered by the Circuit Court for the 11th Judicial Circuit sealing the records of Dr. Horstmann's conviction.
Recommendation Based upon the violations of the Medical Practice Act which Dr. Horstmann committed, including filing false Medicaid reports and billing Medicaid for treating fictitious children, as well as making deceptive, untrue and fraudulent representations in the practice of medicine, it is RECOMMENDED: That Dr. Horstmann's license be suspended for a period of six (6) months. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1753 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner (Treating the paragraphs of the findings of fact as if they had been serially numbered.) Covered in Findings of Fact 2 and 4. Covered in Finding of Fact 8. Covered in Finding of Fact 9. Covered in Finding of Fact 10. Covered in Findings of Fact 11 and 12. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 2. Sentence 1 covered in Finding of Fact 3. Sentence 2 covered in Finding of Fact 2. Sentence 1 covered in Finding of Fact 5. Sentence 2 rejected as unnecessary. Sentence 1 covered in Finding of Fact 5. Sentences 2 and 3 rejected as unnecessary. Covered in Finding of Fact 6. Rejected as unnecessary Covered in Finding of Fact 1. Covered in Finding of Fact 4. Generally rejected as a recitation of testimony rather than findings of fact. Rejected because whether Dr. Horstmann was familiar with Medicaid procedures is not relevant. It is clear that he understood that he submitted bills for visits which never occurred. Rejected because Dr. Horstmann's beliefs as to agent Perez' financial condition in no way justifies submitting fraudulent medicaid reimbursement requests. Covered in Finding of Fact 11. Rejected because I accepted the testimony of agent Perez that she did not provide the symptoms to Dr. Horstmann that are found in the charts for the fictitious children. Accepted in the Conclusions of Law because there was no evidence concerning bills submitted by Dr. Rodriguez- Cuellar being reimbursed by Medicaid. Covered in Finding of Fact 9. Covered in Finding of Fact 11. Covered in Finding of Fact 12. The amount received was greater than $45.00. To the extent necessary, covered in Finding of Fact 10. Covered in Findings of Fact 10 and 11. Rejected because I find that Dr. Horstmann knew that he was billing Medicare for visits which never occurred. This was not merely the result of an error by a receptionist. Rejected as irrelevant. Covered in Finding of Fact 12. Rejected as a recitation of testimony, not a finding of fact. COPIES FURNISHED: Joel S. Fass, Esquire COLODNY, FASS & TALENFELO, P.A. 626 N.W. 124th Street North Miami, Florida 33161 John W. Thornton, Jr., Esquire THORNTON & ROTHMAN, P.A. 2860 Southeast Financial Center Miami, Florida 33131 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, F.S. Respondent is and has been at all times material hereto a licensed medical physician in the State of Florida, having been issued license number ME 0029506. Medicare is a health insurance program for beneficiaries 65 or older or disabled. It is a Federal program under Title 18, USCA, the Social Security Act. By contract, Blue Cross/Blue Shield administers the Medicare Program in Florida, and is hereafter also referred to as "Medicare" throughout this Recommended Order. On or about August 23, 1986, Respondent rendered care and treatment to patient G.C. by assisting one Dr. Kluger with patient G.C.'s surgery. On or about September 1, 1986, patient G.C. expired. He was survived by his widow, J.C. An assignment is an agreement between the physician and the patient/beneficiary whereby the patient/beneficiary transfers to the physician his rights to benefits based on covered services specified on the assigned claim. When the physician accepts said assignment, he agrees that the allowed charges determined by Medicare is the full amount he expects to receive, and his charges to the patient/beneficiary should be no more than 20% of the allowed charges. It is clear on the record that on January 9, 1987, Respondent advised J.C. that he would not accept a Medicare assignment for his services, and that he required full payment from her. On that date, she paid him in full by personal check the undiscounted amount of $731.75 which he had billed her on October 24, 1986. It is not certain whether Respondent ever specifically told J.C. before January 9, 1987 that he would not accept assignment, but it is clear that he never told her that he would accept assignment and that he billed her for the full amount on October 26, 1986, before anybody made any claim to Medicare. Prior to Respondent's January 9, 1987 conversation with J.C., Respondent's wife and office manager had, on November 28, 1986, submitted a claim to Medicare for Respondent's services to G.C. This claim was submitted over Respondent's (apparently stamped) signature, making him responsible for its contents. Despite her denials on the record, Mrs. Castro clearly has difficulty understanding others and expressing herself orally in the English language. Her recollection was that she had submitted the Medicare claim form dated November 28, 1986 without checking either the box on the form by which a physician signifies agreement to accept assignment or the box on the form whereby the physician declines to accept assignment. The reason she gave at formal hearing for not checking the assignment box is that she knew that Dr. Kluger had not accepted assignment for treatment of G.C. and that it also had been Respondent's oral instruction to her not to accept assignment of his associate fees. However, Mrs. Castro's only explanation as to why she had left both boxes blank instead of checking the one signifying "no assignment" was that she understood that forms without any election were usually processed as non-assigned claims. This November 28, 1986 claim form, as produced by Medicare authorities, shows the "yes assignment" box marked. The widow, J.C., had some memory retrieval problems in the course of her testimony. She testified that on January 10, 1987 she personally went to the Jacksonville, Florida, offices of Medicare and, using a receipt given her by Respondent for her check presented to him the day previously, she made a Medicare claim in her own name. (TR-20) However, she also testified that she received "no satisfaction" from her claim because the Respondent had already submitted a claim. (TR-21-23) Medicare has no record that such a claim was ever made by J.C. A physician can file claims with Medicare by applying for a provider number and using it on his claims for reimbursement. At all times material, Respondent had such a Medicare provider number. However, acceptance of such a provider number by a physician does not automatically make a physician a "participating physician," nor does it obligate him to accept assignments to Medicare. "Participating physicians" have also signed a contract agreeing to accept assignment on every claim they submit. For "non-participating physicians," assignments or non-assignments are done on a claim by claim basis. At all times material, Respondent was a "non-participating physician." If the physician submitting a claim is a "non-participating physician" and the assignment block is left blank on his claim form, Medicare's standard operating procedure is to process his claim form as a "non-assignment." If a physician discovers he has made an error in checking the wrong block on his claim form, it is also Medicare's standard operating procedure to correct that error provided both the physician and the patient/beneficiary notify Medicare prior to the time Medicare applies a reasonable charge to the claim. As a practical matter, the window for this type of notification covers only the period of time required for Medicare to receive the original erroneous claim form, microfilm it, and feed it into the Medicare computer; in total, perhaps less than one workday. After the computer applies a reasonable charge to the claim, Medicare will not permit mistaken assignments to be rescinded. On or about March 2, 1987, Medicare sent Respondent a check for $174.64, which is 80% of the amount Medicare approved for his services. There is no adequate explanation in the record why it took Medicare from December 3, 1986 when it received the November 28, 1986 claim form until March 2, 1987 to process the initial claim. Respondent's office deposited the $174.64 Medicare check in the normal course of business. On or about March 3, 1987, J.C. received an "Explanation of Medical Benefits" letter (EMOB) from Medicare advising her that Respondent had accepted assignment on G.C.'s claim, that Medicare had allowed Respondent $220.00 for his services, that Medicare had paid Respondent $174.64, and that J.C. owed Respondent $44.10. Quite naturally, J.C. was incensed by this notification from Medicare because she had already paid Respondent in full on January 9, 1987. Sometime after March 2, 1987, but prior to April 1, 1987, Respondent sent his own check for $174.64 to Medicare, stating that the money should have been sent by Medicare directly to J.C. In March of 1987, J.C. requested a refund from Respondent. Respondent refused to give her the refund, stating that Medicare should pay her directly. Therefore, J.C. contacted Medicare for a refund. Thereafter, various employees of Medicare contacted Respondent telling him repeatedly that because the "yes assignment" box had been checked on the November 28, 1986 claim form, he must take the discounted amount allowed by Medicare and refund an amount to J.C. sufficient so that she would not have paid more than 20% of the allowed charges. Apparently, Respondent was given to colorful language in his telephone conversations both with Respondent and with Medicare personnel, and no meeting of the minds ever was reached between Respondent and J.C. or between Respondent and Medicare. The situation was further complicated when Medicare sent Respondent a letter on May 5, 1987 acknowledging his return of the $174.64 to Medicare and advising Respondent that, We have received your $174.64 payment dated March 16, 1987. We have applied this money to your account. Thank you for returning the payment issued to you in error. Our records are being corrected accordingly. . . Therefore, when, on or about August 24, 1987, Medicare sent Respondent a new check for $165.45 for the same claimed services to G.C. because Medicare had unilaterally made a correction to its "Procedure Code," Respondent assumed that Medicare had made another mistake. His office again cashed this Medicare check, and only after Medicare fraud and abuse investigators contacted him, did Respondent send Medicare his own check, dated November 30, 1987, for the $165.45. With Respondent's check, Mrs. Castro enclosed a note, dated December 1, 1987, requesting that Medicare send payment directly to J.C. Respondent has no record of submitting a third check to Medicare, but Medicare records show that at some point Medicare issued yet another check to Respondent for $165.45, and that Respondent again returned the money through his own check. Mrs. Castro testified that she re-submitted the health insurance claim form to Medicare on or about April 20, 1987 with the "no assignment" box checked and that she did so in an attempt to get Medicare to pay J.C. directly and to straighten out the problem with G.C.'s bill. At that time, she did not indicate "signature on file" as she had on the initial November 28, 1986 claim form. Instead, she made a big "X" and signed the deceased patient's name beside the "X." Mrs. Castro asserted that she never attempted to emulate G.C.'s handwriting, and examination of the form does not suggest that she did. Medicare has no record of receiving this form contemporaneously with the April 20, 1987 date on it, but Medicare received it either from the Respondent with his November 30, 1987 check and Mrs. Castro's December 1, 1987 note requesting that Medicare pay J.C. direct or they received it at about the same time from Respondent's attorney. Medicare personnel interpreted the April 20 claim form to constitute a forgery of G.C.'s signature since it had not been received by Medicare in April 1987 and because G.C. had died in September, 1986. Medicare never processed the April 20, 1987 claim form as either a substitute for, or as an amendment to, the original November 28, 1986 claim form. Mrs. Castro was unable to explain at formal hearing why the April 20, 1987 claim form was not received by Medicare until December, 1987, and her explanation that she thought Medicare would interpret the "X" as an indication that someone else had signed for the decedent is illogical. However, upon Mrs. Castro's candor and demeanor while testifying, it is plausible that she genuinely believed that coupled with the repeated return of all monies to Medicare hers was an acceptable way to explain to Medicare the Respondent's consistent intent to refuse assignment and to defuse the escalating acrimony of the claim situation. Upon this basis, Medicare's interpretation of Mrs. Castro's meretricious motivation with regard to the April 20 claim form, which motivation Medicare also attributed to the Respondent, is rejected. The burden to prove fraud by clear and convincing evidence is upon Petitioner, and there is no affirmative proof of meretricious motive here. Throughout this dispute, Medicare continued to tell J.C. that after all adjustments, Respondent should pay her $689.97 (the balance of the full payment amount she had paid Respondent above the 20% of the charge allowed by Medicare). Respondent has never refunded any monies to J.C.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that the Board of Medicine enter a Final Order dismissing all charges against Respondent. DONE and ENTERED this 21st day of September, 1989, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1989.
The Issue 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.
Findings Of Fact The Agency for Health Care Administration (Agency) is the successor to the Department of Health and Rehabilitative Services as the single state agency responsible for the administration of the Medicaid program in the State of Florida. The Agency is required to operate a program to oversee the activities of Medicaid providers and is authorized to seek recovery of Medicaid overpayments to providers pursuant to Section 409.913, Florida Statutes. The division of the Agency responsible for the oversight of Medicaid providers is referred to as Medicaid Program Integrity. On October 10, 1985, the Petitioner, Billy Beeks, M.D., (Provider) executed a Medicaid Provider Agreement which provided, in pertinent part, as follows: The provider agrees to keep complete and accurate medical and fiscal records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program . . . . 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 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. Among the "manuals of the Florida Medicaid Program" referenced in paragraph 8 of the provider agreement was the Medicaid Physician Provider Handbook (hereinafter referred to as the "MPP Handbook"). Chapter 10 of the MPP Handbook addressed the subject of "provider participation." At the times pertinent to this proceeding Section 9 of Chapter 10 included the following: RECORD KEEPING You must retain physician records on services provided to each Medicaid recipient. You must also keep financial records. Keep the records for five (5) years from the date of service. Examples of the types of Medicaid records that must be retained are: Medicaid claim forms and any documents that are attached, treatment plans, prior authorization information, any third party claim information, x-rays, fiscal records, and copies of sterilization and hysterectomy consents. Medical records must contain the extent of services provided. The following is a list of minimum requirements: history, physical examination, chief complaint on each visit, diagnostic tests and results, diagnosis, a dated, signed physician order for each service rendered, treatment plan, including prescriptions for medications, supplies, scheduling frequency for follow-up or other services, signature of physician on each visit, date of service, anesthesia records, surgery records, copies of hospital and/or emergency records that fully disclose services, and referrals to other services. If time is a part of the procedure code prescription being billed, then duration of visit shown by begin time and end time must be included in the record. . Medicaid payments are based on billing codes and levels of services provided. In setting the appropriate billing to Medicaid, the level of service is determined pursuant to the MPP Handbook. At all times pertinent to this proceeding Section 1 of Chapter 11 of the MPP Handbook included the following pertaining to "covered services and limitations": HCPCS CODES and ICD-9-CM CODES Procedure codes listed in Chapter 12 are HCPCS (Health Care Financing Administration Common Procedure Coding System) codes. These are based on the Physician's Current Procedural Terminology, Fourth Edition. Determine which procedure describes the service rendered and enter that code and description on your claim form. HCPCS codes described as "unlisted" are used when there is no procedure among those listed that describes the service rendered. Physician's Current Procedural Terminology, Fourth Edition, Copyright . . . by the American Medical Association (CPT-4) is a listing of descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures performed by physicians. The Health Care Financing Administration Common Procedure Coding System (HCPCS) includes CPT-4 descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures and other materials contained in CPT-4 which are copyrighted by the American Medical Association. The Diagnosis Codes to be used are found in the International Classification of Diseases, 9th edition, Clinical Modifications (ICD-9- CM). A diagnosis code is required on all physician claims. Use the most specific code available. Fourth and fifth digits are required when available. All billings pertinent to this proceedings are for patient office visits. Prior to amendments effective January 1, 1992, the MPP also provided in Section 1, Chapter 11, for six levels of service associated with the office visit procedure code. These levels of service, in ascending order of complexity, are "Minimal, "Brief", "Limited", "Intermediate", "Extended", and "Comprehensive". The least amount paid by Medicaid to a provider was for a "Minimal" level office visit. The level of payment immediately above the "Minimal" level were the "Brief" and "Limited" levels, which entitled a provider to the same payment. Immediately above the "Brief" and "Limited" levels, in ascending order of payment, were "Intermediate", "Extended", and "Comprehensive". Section 1, Chapter 11 of the MPP contained the following discussion of the six levels of service: There are six levels of service associated with the visit procedure codes. They require varying skills, effort, responsibility, and medical knowledge to complete the examination, evaluation, diagnosis, treatment and conference with the recipient about his illness or promotion of optimal health. These levels are: Minimal is a level of service supervised by a physician. Brief is a level of service pertaining to the evaluation and treatment of a condition requiring only an abbreviated history and exam. Limited is a level of service used to evaluate a circumscribed acute illness or to periodically reevaluate a problem including a history and examination, review of effectiveness of past medical management, the ordering and evaluation of appropriate diagnostic tests, the adjustments of therapeutic management as indicated and discussion of findings. Intermediate level of service pertains to the evaluation of a new or existing condition complicated with a new diagnostic or management problem, not necessarily related to the primary diagnosis, that necessitates the obtaining of pertinent history and physical or mental status findings, diagnostic tests and procedures, and ordering appropriate therapeutic management; or a formal patient, family or a hospital staff conference regarding the patient's medical management and progress. Extended level of service requires an unusual amount of effort or judgment including a detailed history, review of medical records, examination, and a formal conference with the patient, family, or staff; or a comparable medical diagnostic and/or therapeutic service. Comprehensive level of service provides for an in-depth evaluation of a patient with a new or existing problem requiring the development or complete reevaluation of medical data. This service includes the recording of a chief complaint, present illness, family history, past medical history, personal review, system review, complete physical examination, and ordering appropriate tests and procedures. Chapter 11 of the MPP was amended, effective January 1, 1992. Instead of the six levels of service for office visits, five levels of service, referred to as "evaluation and management" (E/M) service codes were adopted. The E/M levels of service levels ranged from Level 1 to Level 5 in ascending order of complexity and payment. 1/ Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion as to the development of the E/M service codes: The American Medical Association, in cooperation with many other groups, replaced the old "visit" codes with the new "evaluation and management" (E/M) service codes in the 1992 CPT. This is a result of the Physician Payment Reform which requires the standardization of policies and billing practices nationwide to ensure equitable payment for all services. The new E/M codes are a totally new concept for identifying services in comparison to the old visit codes. They are more detailed and specific to the amount of work involved. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides that the level of E/M codes are defined by the following seven components: Extent of History, Extent of Examination, and Complexity of Medical Decision- Making, Counseling, Coordination of Care, Nature of Presenting Problem, and time. 2/ After determining whether the office visit is for a new or established patient, Section 1, Chapter 11 of the MPP, as amended January 1, 1992, instructs the provider to determine the level of E/M services by taking into consideration the following three key components: Extent of History, Extent of Examination, and Complexity of Medical Decision-making. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion under the subheading "Extent of History": There are four types of history which are recognized: Problem Focused - chief complaint; brief history of present illness or problem. Expanded Problem Focused - chief complaint; brief history of present illness; problem pertinent system review. Detailed - chief complaint; extended history of present illness; extended system review; pertinent past, family and/or social history. Comprehensive - chief complaint; extended history of present illness; complete system review; complete past, family and social history. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion under the subheading "Extent of Examination": There are four types of examinations which are recognized: Problem Focused - an examination that is limited to the affected body area or organ system. Expanded Problem Focused - an examination of the affected body area or organ system and other symptomatic or related organ systems. Detailed - an extended examination of the affected body area(s) and other symptomatic or related organ system(s) Comprehensive - a complete single system speciality examination or a complete multisystem examination. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion under the subheading "Complexity of Medical Decision- Making": Medical decision-making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by the following factors: The number of possible diagnoses and/or the number of management options that must be considered. The amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed and analyzed. The risk of significant complications morbidity and/or mortality, as well as co- morbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options. There are four types of medical decision- making which are recognized: straightforward, low complexity, moderate complexity, and high complexity. 3/ Rule 10C-7.047, Florida Administrative Code, 4/ pertains to the Early and Periodic Screening, Diagnosis and Treatment Program (EPSDT), and provides, in pertinent part, as follows: Purpose. EPSDT is a comprehensive, preventive health care program for Medicaid- eligible children under age 21 that is designed to identify and correct medical conditions before the conditions become serious and disabling. Medicaid provides payment for EPSDT which allows entry into a health care system, access to a medical home (sic) and preventive/well child care on a regular basis. This periodic medical screening includes a health and developmental history, an unclothed physical examination, nutritional assessment, developmental assessment, laboratory tests, immunizations, health education, dental, vision and hearing screens, and an automatic dental referral for children age 3 and over. A billing for an EPSDT screening is compensated by Medicaid at a rate that is higher than the rate for a Limited or Level 2 office visit. A provider must document all components of the EPSDT screening in order to be entitled to payment for the screening. If all components of the EPSDT screening are not documented by a provider's records, Medicaid compensates the provider for a Limited or Level 2 office visit since the provider would have made sufficient contact with the recipient to justify that billing level. When conducting an audit of a provider's billings to the Medicaid program, employees of Medicaid Program Integrity review the provider's medical records to determine whether the level of services billed are justified by the medical records. Medical records must contain sufficient documentation to substantiate that the recipient received necessary medical services at the level billed by the provider. A routine urinalysis performed during the course of an office visit should be billed as part of the office visit and not billed as a separate service. Vicki Divens, a registered nurse, is a consultant employed by the Agency and was administratively responsible for the audit of the Provider's medical records. She conducted this audit pursuant to the Agency's rules and policies. Ms. Divens obtained a report from Consultec, the Agency's fiscal agent, that provides identifying information as to all services that were billed to Medicaid by the Provider for the audit period of June 1, 1991, through May 30, 1993. This computer report reflects the date that each service was billed to Medicaid by the Provider, the name and Medicaid number of each recipient of the service, the codes which are used to describe the procedure of the service billed, the level of the service, the amount paid to the Provider, and the date of payment. For the audit period, there were a total of 1,712 Medicaid recipients who received services from the Provider, there were 9,054 separate billings for services to recipients, and there was a total of $259,305.01 paid by Medicaid to the Provider. The Agency is authorized 5/ to employ a statistical methodology to calculate the amount of overpayment due from a provider where there has been overstated billings. The methodology used by the Agency is a form of cluster sampling that is widely accepted and produces a result that is recognized as being statistically accurate. For the audit that is the subject of this proceeding, the Agency determined that 23 patient files would be the number of files necessary for the statistical analysis. The Agency established that sampling was adequate to perform the statistical analysis. The 23 recipients whose medical records would be analyzed were thereafter selected on a completely random basis. Ms. Divens obtained from the Provider the medical records for the 23 patients that had been randomly selected for analysis. A total of 141 separate billings had been made for these 23 recipients during the audit period and each of those billings had been paid to the Provider by the Medicaid program. The medical records for the 23 recipients were thereafter reviewed by Dr. John Sullenberger, the Florida Medicaid Program's Chief Medical Consultant, who made the determination as to whether the medical records in the sampling justified the level at which Medicaid had been billed for each of the services. Based on the overbillings found in the sampling, the Agency calculated an estimate of the overpayment for all Medicaid billings during the audit period by using a formula that is recognized as producing a statistically accurate result. When Dr. Sullenberger initially reviewed the Provider's medical records, several of the medical files for recipients in the sampling had not been located. Without these records to substantiate the billings for these patients, no credit was given for those services. The amount of the alleged overpayment for all recipients during the audit period was initially calculated to be $60,753.25, which is the amount claimed in the Agency's final audit report letter dated December 13, 1993. Thereafter additional records were furnished to the Agency by the Provider and the alleged overpayment was recalculated to be $50,852.86, which is the amount the Agency asserted as being the amount of the overpayment at the beginning of the formal hearing. 5/ The following findings are made as to the billings that were in dispute at the formal hearing. The date of birth is given for each recipient to help identify the recipient. For office visits before January 1, 1992, the level of services are described as being "Minimal," "Brief," "Limited," "Intermediate," "Extended," or "Comprehensive." For office visits after January 1, 1992, the level of services are described as being Level 1, Level 2, Level 3, Level 4, or Level 5. Patient 1 was born January 22, 1989. There were four billings for this patient at issue in this proceeding. On November 19, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 29, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 7, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 21, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 2 was born September 29, 1985. There were five billings for this patient at issue in this proceeding. On August 31, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On September 3, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 25, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 7, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 26, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 3 was born May 9, 1985. There were two billings for this patient at issue in this proceeding. On May 22, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On January 20, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 4 was born March 20, 1968. There was one billing for this patient at issue in this proceeding. A. On July 25, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 5 was born April 28, 1988. There were three billings for this patient at issue in this proceeding. On August 30, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 14, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate level. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 3, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 6 was born February 7, 1987. There was one billing for this patient at issue in this proceeding. A. On August 30, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 7 was born February 25, 1987. There were two billings for this patient at issue in this proceeding. On August 30, 1991, the Provider billed Medicaid for an EPSDT for this patient and he also billed for a urinalysis. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level and that the billing for the urinalysis should be included as part of the Limited level office visit. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 8 was born July 11, 1988. There were three billings for this patient at issue in this proceeding. On September 10, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level and he billed separately for an urinalysis for this patient during this visit. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate and that the urinalysis should be included in this billing. The Provider received an overpayment from the Medicaid program as a result of this billing. On March 23, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 9 was born January 9, 1989. There were four billings for this patient at issue in this proceeding. On August 23, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 15, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 20, 1992, the Provider billed Medicaid for services rendered to this patient at Level Four. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level Two. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 21, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level Two. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 10 was born August 30, 1988. There were three billings for this patient at issue in this proceeding. On September 4, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited Level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 14, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited Level. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 21, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level Two. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 11 was born September 17, 1989. There were fifteen billings for this patient at issue in this proceeding. On June 3, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On June 14, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 6, 1991, the Provider billed Medicaid for services rendered to this patient at the Intermediate level. Dr. Leterman was of the opinion that the medical records justified the Intermediate level billing (Leterman deposition, page 30), but Dr. Sullenberger testified the billing should be at the Limited level (Transcript, page 171). This conflict is resolved by finding that the medical records justify this billing at the Intermediate level so that no adjustment is necessary. On July 15, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 20, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 5, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 20, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 30, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On November 25, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate level. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 27, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. (See, Leterman deposition, page 34) On January 28, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 25, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 7, 1992, the Provider billed Medicaid for services rendered to this patient at Level 3. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 9, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On May 3, 1993, the Provider billed Medicaid for services rendered to this patient at Level 3. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 12 was born July 12, 1970. There were four billings for this patient at issue in this proceeding. On January 3, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On January 13, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 3, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On March 10, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 13 was born August 22, 1990. There was one billing for this patient that was initially at issue in this proceeding. On August 22, 1990, the Provider billed Medicaid for an EPSDT for this patient. When Dr. Sullenberger, the Agency's expert, initially reviewed the Provider's medical records pertaining to this billing, he thought that the billing should be reduced to a Limited level office visit. The amount of overpayment claimed by the Agency at the beginning of the formal hearing was based on this billing being at a Limited level. At the formal hearing, Dr. Sullenberger testified that on further consideration, he believed that the medical records justified this billing as an EPSDT, so that no adjustment was necessary. Based on his testimony, it is found the medical records maintained by the Provider justify this billing and no adjustment is necessary. Patient 14 was born October 23, 1990. There were nine billings for this patient at issue in this proceeding. On September 27, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 11, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 21, 1991, the Provider billed Medicaid for services rendered to this patient at the Intermediate level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 17, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On January 31, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On May 19, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On June 4, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 7, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On May 7, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 15 was born November 9, 1990. There was one billing for this patient at issue in this proceeding. A. On September 24, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 16 was born September 14, 1991. There were two billings for this patient at issue in this proceeding. On March 13, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On March 1, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 17 was born February 9, 1992. There were two billings for this patient at issue in this proceeding. On November 7, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On November 25, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. When Dr. Sullenberger, the Agency's expert, initially reviewed the Provider's medical records pertaining to this billing, he thought that the billing should be reduced to a Level 2 office visit. The amount of overpayment claimed by the Agency at the beginning of the formal hearing was based on this billing being at Level 2. At the formal hearing, Dr. Sullenberger testified that on further consideration, he believed that the medical records justified this billing at Level 3. Based on that testimony, it is found that this billing should have been at the Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 18 was born July 6, 1992. There were six billings for this patient at issue in this proceeding. On August 12, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 17, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and than this billing should have been at Level 4. 6/ The Provider received an overpayment from the Medicaid program as a result of this billing. On September 18, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 9, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and than this billing should have been at Level 3. 7/ The Provider received an overpayment from the Medicaid program as a result of this billing. On November 5, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 18, 1992, the Provider billed Medicaid for services rendered to this patient at the Level 5. When Dr. Sullenberger, the Agency's expert, initially reviewed the Provider's medical records pertaining to this billing, he thought that the billing should be reduced to a Level 2 office visit. The amount of overpayment claimed by the Agency at the beginning of the formal hearing was based on this billing being at Level 2. At the formal hearing, Dr. Sullenberger testified that on further consideration, he believed that the medical records justified this billing at Level 3. Based on the testimony of Dr. Sullenberger and that of Dr. Leterman, it is found that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 19 was born June 12, 1989. There was one billing for this patient at issue in this proceeding. A. On February 9, 1993, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 20 was born May 18, 1987. There was one billing for this patient at issue in this proceeding. A. On July 27, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 21 was born April 27, 1988. There were four billings for this patient at issue in this proceeding. On January 12, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 17, 1993, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. March 8, 1993, the Provider billed Medicaid for services rendered to this patient at the Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 16, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 22 was born August 10, 1992. There were three billings for this patient at issue in this proceeding. On December 28, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 9, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 22, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 23 was born May 23, 1993. There was one billing for this patient at issue in this proceeding. A. On May 26, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3 The Provider received an overpayment from the Medicaid program as a result of this billing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order that adopts the findings of fact and conclusions of law contained herein and that the Agency recalculate the total amount of the overpayment during the audit period based on the findings of fact contained herein. DONE AND ENTERED this 23rd day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 23rd day of August, 1995.
The Issue Whether Respondent violated section 409.913, Florida Statutes, by failing to retain required Medicaid records, thereby incurring a $10,000 fine according to Florida Administrative Code Rule 59G-9.070(7)(e).
Findings Of Fact Respondent is a Medicaid Provider of Assistive Care Services in Oakland Park, Florida. Annie Mathew is a registered nurse who manages Respondent's facility. Respondent was obligated, pursuant to the Medicaid Provider Agreement executed in June 2008, to comply with applicable Medicaid laws, administrative rules, and Medicaid handbooks. The Agency is the state agency charged with the administration of the Medicaid program in Florida. Within the Agency, the Inspector General ensures the integrity of the Medicaid program by conducting investigations of providers to ensure compliance with all Medicaid rules. On December 7, 2011, the Agency conducted an unannounced on-site inspection of the medical records retained by Respondent. Mr. Cedeno and Ms. Hollis-Stancil conducted the investigation, reviewing ten recipient files. The investigators found that nine of the recipient files did not contain a proper service plan; one recipient did not contain a service plan at all, and had an outdated health assessment. Respondent did not use the Medicaid form found in the Medicaid Assistive Care Services Coverage and Limitations Handbook for service plans; instead, Respondent used a form created by Respondent, which contained some, but not all, of the components addressed in the Medicaid form. The investigators noticed that the facility was clean and in good condition. At the hearing, Respondent admitted to not using the Medicaid form for service plans, and agreed that not all of the components addressed in the Medicaid form were addressed in the form created by Respondent. Specifically, the service plan must contain the expected outcome for the resident, and identify who is going to provide specific services to the resident. Respondent's forms did not reflect this information. As to one recipient, recipient S.V., the file did not contain a current health assessment. The health assessment found in the file had expired in September 2011, three months prior to the inspection in December 2011. All ten counts against Respondent are supported by the evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that pursuant to rule 59G-9.070(7)(e), the Agency for Healthcare Administration fine Respondent $10,000 for ten first offense counts of failure to comply with the Medicaid rules. DONE AND ENTERED this 19th day of March, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 March, 2013.
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 a l ah, of fiderd , 2012, in Tallahassee, Leon County, Florida. 4% ‘ CA kh fo ELIZABETH DUDEK, SECRETARY Agency for Health Care Administration 1 Filed June 26, 2012 2:18 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: Jeffries H. Duvall Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Interoffice) CYNTHIA A. MIKOS, ESQ. Allen Dell, P.A. 202 S. Rome Ave. - Suite 100 Tampa, FL 33606 cmikos@allendell.com (Electronic Mail) J.D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mike Blackburn, Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance (via email) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, Laserfiche or electronic mail on this the ZS" day of c JA » 2012. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. CASE NO. 11-5089MPI CI. NO. 11-1553-000 HILLSBOROUGH ASSOCIATION FOR RETARDED CITIZENS, INC., Respondent. / SETTLEMENT AGREEMENT STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (‘AHCA” or “the Agency”), and Hillsborough Association for Retarded Citizens, Inc. (“PROVIDER”), by and through the undersigned, hereby stipulate and agree as follows: 1. The two parties enter into this agreement to memorialize the resolution of this matter. 2. PROVIDER is a Florida Medicaid provider, provider number 024102498 and was a provider during the audit period, January 1, 2009 to December 31, 2009. 3. In its Final Agency Audit Report (constituting final agency action) dated September 2, 2011, AHCA notified PROVIDER that review of Medicaid claims by the Division of Medicaid, Office of the Deputy Secretary, and Medicaid Program Integrity (MPI), Office of the AHCA Inspector General, indicated certain claims, in whole or in part, had been inappropriately paid. The Agency sought recoupment of this overpayment in the amount of $34,317.55. In response, PROVIDER filed a petition for formal administrative hearing. It was assigned DOAH Case No. 11-5089MPI. Hillsborough Association for Retarded Citizens, Inc. C.l. 11-1553-000 - Settlement Agreement 4. Subsequent to the original audit, in preparation for trial, AHCA re-reviewed the PROVIDER’s claims and evaluated additional documentation submitted by the PROVIDER. As a result of the additional review, AHCA determined the overpayment should be adjusted to $27,078.51, plus $5,415.70 in fines and $674.38 in costs for a total due of $33,168.59. 5. In order to resolve this matter without further administrative proceedings, PROVIDER and the AHCA agree as follows: (1) —AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the captioned audit. (2) The amount in dispute that is now being resolved is twenty-seven thousand seventy eight dollars and fifty-one cents ($27,078.51) on the indebtedness, five thousand four hundred fifteen dollars and seventy cents ($5,415.70) in fines, plus six hundred seventy four dollars and thirty-eight cents ($674.38) in investigative costs for a total of thirty three thousand one hundred sixty eight dollars and fifty- nine cents ($33,168.59). PROVIDER will make an initial payment of eight thousand dollars ($8,000) and the remaining balance to be paid in 6 equal monthly installments. This amount due will be offset by any amount already received by the Agency in this matter. Furthermore, PROVIDER is advised that pursuant to Section 409.913, Florida Statutes, failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid program, withholding of future Medicaid payments, or other such remedies as provided by law. Any outstanding balance accrues at 10% interest per year. Full payment will fully and completely settle all claims in these proceedings before the Division of Administrative Hearings Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 6. (DOAH Case No. 11-5089MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (3) In the event any interim payments are received or withheld, by whatever means, prior to the entry of the Final Order, Medicaid Accounts Receivable shall make the adjustment to credit such amounts, dollar for dollar, as quickly as is practicable. (4) Compliance with this repayment agreement fully and completely settles all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 11-5089MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (5) PROVIDER and AHCA agree that full payment, as set forth above, resolves and settles this case completely. It will release both parties from any administrative or civil liabilities or claims arising from the findings in audit C.I. 11-1553-000. (6) PROVIDER agrees that it will not rebill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. The C.I. number listed on the first page of this agreement must be legibly entered on the check to assure proper credit. Please mail payment to: AGENCY FOR HEALTHCARE ADMINISTRATION Medicaid Accounts Receivable — MS # 14 2727 Mahan Drive, Bldg. 2, Suite 200 Tallahassee, Florida 32308 Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 7. 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 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. Each party shall bear its own attorneys’ fees and costs, with the exception that the Respondent shall reimburse, as part of this settlement, $674.38 in Agency costs and $5,415.70 in fines. This amount is included in the calculations and demand of paragraph 5(2). 11. 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. 12. 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. 13. 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 the AHCA other than as set 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. Hillsborough Association for Retarded Citizens, Inc. C.1. 11-1553-000 - Settlement Agreement 14. 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 misunderstanding or misinformation shall be a ground for rescission hereof. 15. | 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. 16. This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 17. 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. 18. This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 19. All times stated herein are of the essence of this Agreement. Hillsborough Association for Retarded Citizens, Inc. C.|. 11-1553-000 - Settlement Agreement 20. This Agreement shall be in full force and effect upon execution by the respective parties in counterpart. ROUGH ASSOCIATION FOR RETARDED CITIZENS, INC. Dated: “A727 L ZZ 2012 py. UO CW “CCL FECL (Print name) ITS: SP OPC B22 20 Revi OLN 7 AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, FL 32308-5403 ‘ Dated: G/al 2012 Miller Inspector General Dated: bl f .2012 William H. Roberts Dated: Z f_,2012
The Issue The issues are 1) whether Dr. Veloso's eligibility to participate in the Florida Medicaid program as a provider of physician services should be terminated, due to his guilty plea to a charge of Medicaid fraud in the Circuit Court for the 15th Judicial Circuit, Palm Beach County, Florida and 2) whether a stay of the termination should be granted pending disposition of Dr. Veloso's appeal.
Findings Of Fact At all times material hereto, Dr. Veloso was a provider of medical services to persons who qualify for the Medicaid program and received reimbursement from Medicaid funds for his services. The Department is designated to administer the provision of Medicaid funds in Florida. Dr. Veloso is a licensed physician and a licensed pharmacist who practices in South Florida and whose patients are primarily Medicaid eligible. Dr. Veloso does not necessarily maintain a regular office practice. In addition to treating patients at his offices in West Palm Beach and Miami, he sees them at their homes, at the pharmacy or wherever is most convenient to the patients. As a provider of services to Medicaid eligible patients, Dr. Veloso is charged with the responsibility of being familiar with the rules and law relating to the Medicaid program. On November 4 1987, the Medicaid Fraud Control Unit of the Office of the Auditor General received a call alleging that Dr. Veloso was making a copy of a Medicaid card when he filled a prescription. Dr. Veloso was employed at the caller's pharmacy as a part-time pharmacist. An investigation of Dr. Veloso's medicaid billing practice ensued. The investigation revealed that Dr. Veloso was billing for office visits on Miami Medicaid residents although his practice of record was located in West Palm Beach. The investigators interviewed sixteen households for whom Medicaid billings had been submitted by Dr. Veloso. The interviews resulted in the taking of sworn statements of six of the patients from the sample households who denied that they had received the treatment for which Dr. Veloso had filed reimbursement. None of the six patients was present or testified at the hearing. In his testimony, however, Dr. Veloso, countered the denials of each of the six patients. He described the treatment he had given each of the six and produced the patients' medical records to verify his statements. As to why the patients allegedly made the contradictory statements, Dr. Veloso asserted that they were quite possibly intimidated by the investigator since the patients did not have complete command of the English language and the investigator presented herself with an official badge for identification prior to the interview. Dr. Veloso also stated that if any mistakes had been made, they were only clerical. He explained that his wife prepared most of his billings at their home, and although he admitted that he was responsible for her actions, he represented that mistakes, if any, were inadvertently made. At the hearing, the investigator testified that it was her conclusion that Dr. Veloso did knowingly file false claims for services. Although the files for the six patients were received into evidence and each corroborates that he did in fact treat the patients, the actual disputed billings were not offered at the hearing. A comparison between the treatment given to the patients and the alleged fraudulent billings cannot be made. Given the demeanor of the witnesses, the competent substantial evidence received at the hearing and the lack of corroboration of the affidavits of the six patients, Dr. Veloso's testimony is deemed credible. Criminal proceedings were brought against Dr. Veloso. Dr. Veloso asserted that on the advice of his attorney, he entered his plea on October 2, 1989. The choice of plea on the judgment and sentencing form filed in this case is indicated by checking one of the three blocks on the form. The first block precedes the following statement, "Been tried and found guilty of the following crime(s)." The second block is followed by, "Entered a plea of guilty to the following crime(s)," and the final choice is a block notated by "Entered a plea of nolo contendere to the following crime(s)." The block checked in Dr. Veloso's case is the second block. Above the "X" in the block is a handwritten statement, "Alford Plea." Dr. Veloso argued that it was not his intent to enter a plea which would be an admission of culpability. He entered his plea as merely a matter of convenience and on the representation of his counsel that the plea would result in punishment similar to a misdemeanor traffic offense. Dr. Veloso, further, testified that his plea was on appeal. Except for Dr. Veloso's statements and the official court documents, no additional competent substantial evidence was presented at the instant hearing concerning the circumstances present at the time of Dr. Veloso's plea. However, the judgment and sentencing form dated October 2, 1989 clearly indicates that he entered a plea of guilty to and was adjudicated guilty of a lesser included offense of medicaid fraud under Paragraph 409.325(5)(b), Florida Statutes. His sentence was stayed, and on October 6, 1989, an Order was issued in the Circuit Court of Palm Beach County withholding adjudication for the offense and placing Dr. Veloso on probation for one year and requiring that restitution be paid to the Department of $492.00 plus costs. Although Dr. Veloso is a well intended physician, he was, in fact, found guilty of Medicaid fraud, based on a plea of guilty and is subject to termination from further participation in the Medicaid program under existent law, if the Department chooses to exercise its discretion to sanction him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Health and Rehabilitative Services issue a Final Order dismissing the charges against Dr. Veloso and not imposing the sanction permitted pursuant to Paragraph 409.236(11)(a), Florida Statutes, based on the exercise of its discretion. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28 day of June, 1990. JANE C HAYMAN 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 28th day of June, 1990.
