The Issue Whether Medicaid overpayments were made to Petitioner and, if so, what is the total amount of those overpayments. Whether Petitioner should be directed to submit to a "comprehensive follow-up review in six months."
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner Petitioner is owned by Yuval Levy, a Florida-licensed consultant pharmacist and registered pharmacist since 1990. Mr. Levy has served as Petitioner's president and chief executive officer since the "end of 1995." At all times material to the instant case, Petitioner has operated Colonial Drug (Pharmacy), a Florida-licensed closed system pharmacy located in Broward County, Florida. At all times material to the instant case, Petitioner acquired from pharmaceutical wholesalers licensed under Florida law all of the drugs dispensed through the Pharmacy. During the period from May 23, 1999, through February 23, 2001 (Audit Period), the Pharmacy filled approximately 180,000 prescriptions annually. A quarter of them (25 percent) were dispensed to Medicaid recipients. Petitioner's Participation in the Medicaid Program Petitioner was authorized during the Audit Period to provide pharmacy services to eligible Medicaid recipients in Florida. Petitioner provided such services pursuant to a Medicaid Provider Agreement (Provider Agreement). The Provider Agreement contained the following provisions, among others: The Provider agrees to participate in the Florida Medicaid program under the following terms and conditions: * * * Quality of Service. The provider agrees to provide medically necessary services or goods of not less than the scope and quality it provides to the general public. The provider agrees that services or goods billed to the Medicaid program must be medically necessary, of a quality comparable to those furnished by the provider's peers, and within the parameters permitted by the provider's license or certification. The provider further agrees to bill only for the services performed within the specialty or specialties designated in the provider application on file with the Agency. The services or 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, regulations, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they may be amended from time to time. Term and signatures. The parties agree that this is a voluntary agreement between the Agency and the provider, in which the provider agrees to furnish services or goods to Medicaid recipients. . . . Provider Responsibilities. The Medicaid provider shall: * * * (b) Keep and maintain in a systematic and orderly manner 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, business, and fiscal records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid. The provider agrees that only records made at the time the goods and services were provided will be admissible in evidence in any proceeding relating to the Medicaid program. * * * (d) Except as provided by law, the provider agrees to provide immediate access to authorized persons (included but not limited to state and federal employees, auditors and investigators) to all Medicaid-related information, which may be in the form of records, logs, documents, or computer files, and all other information pertaining to services or goods billed to the Medicaid program. This shall include access to all patient records and other provider information if the provider cannot easily separate records for Medicaid patients from other records. * * * (f) Within 90 days of receipt, refund any moneys received in error or in excess of the amount to which the provider is entitled from the Medicaid program. * * * (i) . . . . The provider shall be liable for all overpayments for any reason and pay interest at 12% per annum on any fine or repayment amount that remains unpaid 30 days from the date of any final order requiring payment to the Agency. * * * (l) If submitting claims to the Agency electronically, abide by the terms of the Standard Electronic Claims Submission Agreement. * * * Petitioner executed such a Standard Electronic Claims Submission Agreement (Submission Agreement), through which it expressed its understanding of and agreement to the following, among other things: * * * 3. Providers must correctly enter the claims data, monitor the data, and certify that the data entered is correct. * * * Providers must have on file the applicable source data to substantiate the claim submitted to the Medicaid program. Providers must allow the Agency or any of its designees . . . to review and copy all records, including source documents and data related to information entered through electronic claims submission. Providers must abide by all Federal and State statutes, rules, regulations, and manuals governing the Florida Medicaid program. Providers must sign and adhere to all conditions of the Medicaid Provider Agreement and be officially enrolled in the Medicaid program to participate in the electronic claims submission. Currently, and at all times material to the instant case, Petitioner "bill[ed] everything electronically." Prescribed Drug Services Coverage, Limitations and Reimbursement Handbook Among the requirements with which Petitioner, in paragraph 3 of the Provider Agreement and in paragraph 7 of the Submission Agreement, agreed to comply were those set forth in the Prescribed Drug Services Coverage, Limitations and Reimbursement Handbook (PDSCLR Handbook). During the Audit Period, Chapter 2 of the PDSCLR Handbook contained substantially the following "record keeping requirements" (with the underlined language reflecting additions to these requirements made effective July 20, 20002): Record Keeping Requirements The provider must retain all medical, fiscal, professional and business records on all services provided to a Medicaid recipient. Records may be kept on paper, magnetic material, film, or other media. In order to qualify as a basis for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamp signatures must be initialed. The records must be accessible, legible and comprehensible. Record Retention Records must be retained for a period of at least five years from the date of service. Types of Records That Must be Retained The following types of records, as appropriate for the type of service provided, must be retained (the list is not all inclusive): Medicaid claim forms and any documents that are attached; Professional records, such as patient treatment plans and patient records; Prior and past authorization, and service authorization information; Prescription records; Business records, such as accounting ledgers, financial statements, purchase/acquisition records, invoices, inventory records, check registers, canceled checks, sales records, etc.; Tax records, including purchase documentation; Patient counseling documentation; and Provider enrollment documentation. Requirements for Prescription Records The pharmacy must maintain a patient record for each recipient for whom new or refill prescriptions are dispensed. The record may be electronic. The pharmacy's patient record system must provide for the immediate retrieval of the information necessary for the pharmacist to identify previously dispensed drugs when dispensing a new or refill prescription. The patient record must contain the following information: The recipient's first and last name, address, date of birth, and gender; A list of all prescriptions that were obtained by the recipient at the pharmacy during the 12 months immediately preceding the most recent service that includes: the name of the drug or device, prescription number, strength of the drug, the quantity, date received, and the prescriber's full name and state license number; Any known allergies, drug reactions, idiosyncrasies, chronic conditions or disease states of the patient, and the identity of any over-the-counter drugs or devices currently being used by the patient that may relate to prospective drug use review; Any related health information indicated by a licensed health care practitioner; and The pharmacist's comments, if any, relevant to the patient's drug therapy. Right to Review Records Authorized state and federal agencies and their authorized representatives may audit or examine a provider's records. This includes all records that AHCA finds necessary to determine whether Medicaid payments were or are due. This requirement applies to the provider's records and records for which the provider is the custodian. The provider must give authorized state and federal agencies and their authorized representatives access to all Medicaid patient records and to other information that cannot be separated from Medicaid-related records. The provider must send, at his or her expense, legible copies of all Medicaid- related information to the authorized state and federal agencies and their authorized representatives. Incomplete Records Providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped.[3] Note: See Chapter 5 in this handbook for information on administrative sanctions and Medicaid payment recoupment. During the Audit Period, Chapter 5 of the PDSCLR Handbook contained the following provisions, among others: Provider Abuse Abuse Abuse means provider practices that are inconsistent with generally accepted business or medical practices and that result in an unnecessary cost to the Medicaid program or in reimbursement for goods or services that are not medically necessary or that fail to meet professionally recognized standards for health care. Financial Abuse Financial abuse means abuse resulting in overpayments to providers. Overpayment Overpayment includes any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claims, unacceptable practices, fraud, abuse, or mistake. * * * Incomplete or Missing Records Incomplete records are records that lack documentation that all requirements or conditions for service provision have been met. Medicaid may recoup payment for services or goods when the provider has incomplete records or cannot locate the records. Note: See Chapter 2 in this handbook for Medicaid record keeping and retention requirements. During the Audit Period, other portions of the PDSCLR Handbook contained requirements regarding the information that providers, in preparing a claim for reimbursement, had to include, while elsewhere in the handbook other billing requirements, as well as billing prohibitions, were discussed. Florida Administrative Code Rule Provisions Additional requirements with which Petitioner, in paragraph 3 of its Provider Agreement and in paragraph 7 of the Submission Agreement, agreed to comply included those contained in the following provisions of the Florida Administrative Code governing the practice of pharmacy: Florida Administrative Code Rule 64B16- 27.103 Only a Florida registered pharmacist or registered pharmacy intern acting under the direct personal supervision of a Florida registered pharmacist may, in the State of Florida, accept an oral prescription of any nature. Upon so accepting such oral prescription it must immediately be reduced to writing, and only a Florida registered pharmacist or registered pharmacy intern acting under the direct personal supervision of a Florida registered pharmacist may, in the State of Florida, prepare a copy of a prescription or read a prescription to any person for purposes of providing reference concerning treatment of the person or animal for whom the prescription was written, and when said copy is given a notation shall be made upon the prescription that a copy has been given, the date given, and to whom given. Florida Administrative Code Rule 64B16- 27.400 * * * (3) Only a Florida licensed pharmacist may make the final check of the completed prescription thereby assuming the complete responsibility for its preparation and accuracy. * * * Florida Administrative Code Rule 64B16- 28.140 (1) Requirements for records maintained in a data processing system. * * * Original prescriptions, including prescriptions received as provided for in Rule 64B16-28.130, F.A.C., Transmission of Prescription Orders, shall be reduced to a hard copy if not received in written form. All original prescriptions shall be retained for a period of not less than two years from date of last filling. To the extent authorized by 21 C.F.R. Section 1304.04, a pharmacy may, in lieu of retaining the actual original prescriptions, use an electronic imaging recordkeeping system, provided such system is capable of capturing, storing, and reproducing the exact image of the prescription, including the reverse side of the prescription if necessary, and that such image be retained for a period of no less than two years from the date of last filling. Original prescriptions shall be maintained in a two or three file system as specified in 21 C.F.R. 1304.04(h). * * * (3) Records of dispensing. Each time a prescription drug order is filled or refilled, a record of such dispensing shall be entered into the data processing system. The data processing system shall have the capacity to produce a daily hard-copy printout of all original prescriptions dispensed and refilled. This hard copy printout shall contain the following information: Unique identification number of the prescription; Date of dispensing; Patient name; Prescribing practitioner's name; Name and strength of the drug product actually dispensed, if generic name, the brand name or manufacturer of drug dispensed; Quantity dispensed; Initials or an identification code of the dispensing pharmacist; and If not immediately retrievable via CRT display, the following shall also be included on the hard-copy printout: Patient's address; Prescribing practitioner's address; Practitioner's DEA registration number, if the prescription drug order is for a controlled substance; Quantity prescribed, if different from the quantity dispensed; Date of issuance of the prescription drug order, if different from the date of dispensing; and Total number of refills dispensed to date for that prescription drug order. The daily hard-copy printout shall be produced within 72 hours of the date on which the prescription drug orders were dispensed and shall be maintained in a separate file at the pharmacy. Records of controlled substances shall be readily retrievable from records of non-controlled substances. Each individual pharmacist who dispenses or refills a prescription drug order shall verify that the data indicated on the daily hard-copy printout is correct, by dating and signing such document in the same manner as signing a check or legal document (e.g., J. H. Smith, or John H. Smith) within seven days from the date of dispensing. In lieu of producing the printout described in subparagraphs (b) and (c) of this section, the pharmacy shall maintain a log book in which each individual pharmacist using the data processing system shall sign a statement each day, attesting to the fact that the information entered into the data processing system that day has been reviewed by him or her and is correct as entered. Such log book shall be maintained at the pharmacy employing such a system for a period of two years after the date of dispensing provided, however, that the data processing system can produce the hard-copy printout on demand by an authorized agent of the Department of Health. If no printer is available on site, the hard-copy printout shall be available within 48 hours with a certification by the individual providing the printout, which states that the printout is true and correct as of the date of entry and such information has not been altered, amended or modified. The prescription department manager and the permit holder are responsible for the proper maintenance of such records and responsible that such data processing system can produce the records outlined in this section and that such system is in compliance with this subsection. Failure to provide the records set out in this section, either on site or within 48 hours for whatever reason, constitutes failure to keep and maintain records. In the event that a pharmacy which uses a data processing system experiences system downtime, the following is applicable: An auxiliary procedure shall ensure that refills are authorized by the original prescription drug order and that the maximum number of refills has not been exceeded or that authorization from the prescribing practitioner has been obtained prior to dispensing a refill; and All of the appropriate data shall be retained for on-line data entry as soon as the system is available for use again. * * * (5) Authorization of additional refills. Practitioner authorization for additional refills of a prescription drug order shall be noted as follows: On the daily hard-copy printout; or Via the CRT display. The Audit and Aftermath Commencing on April 16, 2001, Heritage Information Systems, Inc. (Heritage), on behalf of AHCA, conducted an audit of Petitioner's paid Medicaid claims for the period from May 23, 1999, through February 23, 2001.4 Petitioner had submitted 37,416 such claims (Audit Period Claims), for which it had received payments totaling $2,797,964.36. The purpose of the audit was to determine whether, and if so to what extent, Petitioner was overpaid for these Audit Period Claims. Prior to the audit, Heritage provided Pharmacy personnel a Notice to Medicaid Provider of Initiation of On-Site Audit, which read as follows: The Agency for Health Care Administration (Agency), under federal and state laws, has the responsibility to oversee the activities of Medicaid providers. This is to advise you that an on-site audit of your billings to the Medicaid program has been initiated. Audits are performed in order to determine if Medicaid billings conform to applicable laws, rules, and policies. The fact that an audit is performed carries with it no implication of any wrongdoing. Audits are conducted as part of the responsibility of Medicaid for ensuring the integrity of the program. Medicaid audits generally involve a review of provider medical, professional, financial, and business records as required to determine the propriety of billings. Attachment B is a summary of applicable laws and rules governing the access to required information. If additional information is desired, please notify the auditor named below. In conducting the audit, Heritage performed both a "prescription record review" and "purchase invoice analysis."5 For the "prescription record review," Heritage first selected a non-random, "judgmental sample" of 271 Audit Period Claims, for which Petitioner had received payments totaling $222,559.65. It then selected (from the remaining Audit Period Claims) a "random sample" of 250 claims,6 for which Petitioner had received payments totaling $18,250.05. Thereafter, Petitioner's records were examined to determine whether they contained documentation sufficient to support the claims in the "judgmental sample" and in the "random sample." Heritage's December 10, 2001, Final Report: In-Depth Audit (Final Heritage Report) contained an Executive Summary, which summarized what the audit had revealed to date. This Executive Summary read, in pertinent part, as follows: Heritage Information Systems, Inc. ("Heritage") conducted an in-depth audit of Colonial Drug ("Colonial") at the request of the Florida Agency for Health Care Administration ("AHCA"). The audit documented possible billing, policy and regulatory violations that resulted in apparent overpayments. The audit findings include the following: Auditors sampled 271 judgmental and 250 random prescription claims. A review of the judgmental sample documented $134,926.14 in overcharges. Findings from the random sample extrapolated to $1,568,499.62. The 95% one-sided lower confidence limit extrapolation is $1,189,026.15. Adding the judgmental sample findings to the 95% one- sided lower confidence limit for the extrapolated random sample findings totals $1,323,952.29. The discrepancies identified in the sample include the following: Pharmacy staff was unable to produce hard copy prescription records corresponding to 253 claims ("CF"). Fifteen (15) claims were billed for quantities greater than those ordered by the prescribers or dispensed to the patients ("OBQ"). Days supply amounts for nine (9) claims were billed incorrectly ("DS"). Nine (9) hard copy prescription records for controlled substances did not contain the prescribers' addresses ("NDAD"). Nine (9) hard copy prescriptions for controlled substances did not contain the prescribers' DEA numbers ("NDEA"). Seven (7) quantities were cut resulting in additional dispensing fees paid to the pharmacy ("CQ"). Seven (7) hard copy prescription records for controlled substances did not indicate the quantities of drug to be dispensed ("NQTY"). Two (2) prescription claims were billed for drugs that differed from those ordered by the prescriber (WDB"). * * * Heritage's audit documented apparent overcharges of $1,323,952.29. This figure represents a combination of non-extrapolated findings from the judgmental sample plus the 95% one-sided lower confidence limit for the extrapolated random sample findings. This report is submitted to AHCA for action deemed appropriate. Based on the information Heritage provided, AHCA preliminarily determined that Petitioner had been overpaid a total of $1,323,952.29 for the Audit Period Claims. By letter dated February 20, 2002, which it denominated its Provisional Agency Audit Report, AHCA advised Petitioner of this preliminary determination. AHCA's Provisional Agency Audit Report read, in pertinent part, as follows: An on-site audit of your pharmacy was initiated on April 16, 2001. The Florida Medicaid Program through the Agency for Health Care Administration has determined that you have been overpaid $1,323,952.29 in connection with claims submitted to Medicaid during the audit period(s). This conclusion is supported by the audit results. This review and the determination were made in accordance with the provisions of Chapter 409, Florida Statutes (F.S.), and Chapter 59G, Florida Administrative Code (F.A.C.). In applying for Medicaid reimbursement, providers are required to follow applicable statutes, rules, Medicaid provider handbooks, statements of Medicaid policy, and federal laws and regulations. Medicaid cannot properly pay for claims that do not meet Medicaid requirements. When a provider receives payment in violation of these provisions, those funds must be repaid. This is, however, a provisional finding and we encourage you to submit any additional information or documentation that you may have that you feel may serve to change the overpayment. REVIEW DETERMINATION The audit included a judgmental sample review of selected paid claims and a separate review of a statistical[ly] valid random sample taken from the remaining population of paid claims with dates of service during the audit period. The overpayment found in the random sample was extended to the population using generally accepted statistical formulas and methods. The audit period for this review was from May 23, 1999, through February 23, 2001. This review identified an overpayment of $1,323,952.29. Attached are the overpayment calculations, a summary of documented discrepancies, and an itemized listing of discrepancies noted in the review of the judgmental and random sample. * * * Accordingly, we have determined at this time that you have been overpaid by the Medicaid program in the amount of $1,323,952.29. If you have documentation that you wish to submit that you feel would alter these findings, submit your written explanation and legible copies of the organized documentation to us within 30 days of receipt of this notice. . . . If you concur or accept these findings, please send your check in the amount of $1,323,952.29 for the identified overpayment . . . . If you have not submitted a written explanation and documentation or made payment within 30 days, we will send you notice regarding the agency's final determination. * * * Petitioner subsequently furnished additional documentation to AHCA. On or about May 30, 2002, AHCA sent this additional documentation to Heritage for "review, placement in [Heritage's] file, and action deemed appropriate." By letter dated November 15, 2002, AHCA informed Petitioner of its opportunity "to submit [any] further documentation" it wanted AHCA to consider. The letter read, in pertinent part, as follows: An audit of your pharmacy was initiated on April 16, 2001. The Florida Medicaid Program, through the Agency for Health Care Administration (Agency), issued a Provisional Agency Audit Report, dated February 20, 2002, and made a provisional overpayment determination. Subsequent to this determination, your pharmacy submitted additional documentation. However, the Agency extends to you an opportunity to submit further documentation that has not already been submitted that may change the overpayment. This review and determination were made in accordance with the provisions of Chapter 409, Florida Statutes (F.S.), and Chapter 59G, Florida Administrative Code (F.A.C.). In applying for Medicaid reimbursement, providers are required to follow the applicable statutes, rules, Medicaid provider handbooks, statements of Medicaid policy, and federal laws and regulations. Medicaid cannot properly pay for claims that do not meet Medicaid requirements. We encourage you to submit any additional information or documentation not already sent that you may have that you feel may serve to change the provisional overpayment. * * * Documentation standard for statistical audit review: Documents submitted after the completion of an audit may require an affidavit or other sworn statement, in addition to the documents, as a means to authenticate the documentation. Documentation that appears to be altered, or in any other way appears not to be authentic, will not serve to reduce the overpayment. Furthermore, additional documentation must clearly identify which discrepancy (claim) as set forth in the attached audit findings it purports to support. * * * Having reviewed the additional documentation that Petitioner had provided AHCA, Heritage prepared and submitted to AHCA an Addendum, dated May 13, 2003, to the Final Heritage Report it had previously submitted.7 The Addendum contained an Executive Summary, which stated the following, in pertinent part, regarding the "post audit review" conducted by Heritage: Post Audit Review/Revised Findings Post audit documentation from the pharmacy was forwarded to Heritage by AHCA and received on 1/3/03. Post audit documentation included copies of prescriptions and clinical records. The accepted documentation was incorporated into the audit findings and a revised overcharge amount was calculated. The revised judgmental sample review resulted in documented overcharges of $42,987.50. Revised findings from the random sample extrapolated to $701,790.88. The 95% one- sided lower confidence limit for this extrapolation is $484,189.15. Adding the judgmental sample findings to the 95% one- sided lower confidence limit of the random sample findings totals $527,176.65. Appended to the Addendum were, what Heritage referred to as, "discrepancy listings," accompanied by "edit sheets." The "discrepancy listings" specified those Audit Period Claims in the "judgmental sample" and in the "random sample" that were "discrepant" and, with respect to each such "discrepant" claim, identified, using the following "codes," the nature of the "discrepancy" from which the claim suffered and, in addition, set forth (in the "overcharges" column) the amount of any resulting overpayment: CF (Original hard copy prescription cannot be found on file during the audit)[8] CQ (A quantity less than that prescribed and less than that allowed, is billed and additional refills are dispensed resulting in undue dispensing fees)[9] DS (The days supply value submitted by the pharmacy is not consistent with the quantity and directions) DUP (Multiple claims for the same prescription fill are submitted and paid)[10] NDAD (The hard copy prescription does not include the prescriber's address)[11] NDEAC (The hard copy prescription does not contain a DEA number) NQTYC (The hard copy prescription does not indicate the quantity of drug to be dispensed) OBQ (Quantity paid exceeds the quantity authorized by the prescriber or dispensed to the recipient) UR (The number of refills billed and paid to the pharmacy exceeds the number authorized by the prescriber. Refills are dispensed without documented authorization from the prescriber) WDB (A pharmacy submits a claim for a medication that is different from the medication authorized to be dispensed to the patient)[12] WDBC (A pharmacy submits a claim for a medication that is different from the medication authorized to be dispensed to the patient, but with a showing of cause) WMDC (The claim for the prescription contains an incorrect prescriber license number, but the correct prescriber's name is documented in the pharmacy computer or is similar to the name of the prescriber billed)[13] WPB (The patient identified on a hard copy prescription is not the patient on the paid claim) These "discrepancy listings" are accurate as to all listed claims other than those denominated in Joint Exhibit 1 as "discrepant" claims 26 (August 9, 2000, fill), 52, 56, 61, 81, and 91. There were a total of 190 "discrepant" claims listed (including "discrepant" claims 26 (August 9, 2000, fill), 52, 56, 61, 81, and 91), some of which had "multiple discrepancies"14: 69 coded "CF"15 (with associated "overcharges" equal to the total amount paid for these claims); seven coded "CQ" (with associated "overcharges" equal to the undue "dispensing fees");16 11 coded "DS" (with no associated "overcharges"); four coded "DUP" (with associated "overcharges" equal to the total amount paid for these duplicate claims); nine coded "NDAD" (with no associated "overcharges"); 11 coded "NDEAC" (with associated "overcharges" equal to the "dispensing fees"); 8 coded "NQTYC" (with associated "overcharges" equal to the "dispensing fees"); 30 coded "OBQ" (with associated "overcharges" equal to the amount paid for the quantity in excess of that authorized); 16 coded "UR" (with associated "overcharges" equal to the total amount paid for these claims); one coded "WDB" (with an associated "overcharge" equal to the total amount paid for this claim); two coded "WDBC" (with associated "overcharges" equal to the "dispensing fees"); 59 coded "WMBC" (with associated overcharges " equal to the "dispensing fees"); and two coded "WPB" (with associated "overcharges" equal to the total amount paid for these claims). Of the 190 "discrepant" claims, 96 were in the "judgmental sample" and 94 were in the "random sample." On or about October 31, 2003, AHCA sent Petitioner a letter advising Petitioner of the status of AHCA's audit of the Audit Period Claims. The letter read, in pertinent part, as follows: The Agency for Health Care Administration, Office of Medicaid Program Integrity, with regard to the above-referenced audit, made a preliminary overpayment determination and sent a Preliminary Agency Audit Report to your attention. At this time, the Agency is temporarily placing this audit on hold, pending the outcome of litigation in an unrelated audit. Therefore, please maintain all of your Medicaid-related records and all documentation that supports the claims at issue in this matter until such time as this audit is finalized. Almost two years after having received Heritage's May 13, 2003, Addendum, AHCA prepared and sent to Petitioner its Final Agency Audit Report,17 which was dated April 8, 2005, and read, in pertinent part, as follows: The Agency for Health Care Administration, Office of Medicaid Integrity has completed the review of your Medicaid claims for the procedures specified below for dates of service during the period May 23, 1999, through February 23, 2001. A provisional agency audit report, dated February 20, 2002, was sent to you indicating that we had determined you were overpaid $1,323,952.29. Based upon a review of all documentation submitted, we have determined that you were overpaid $527,176.65 for services that in whole or in part are not covered by Medicaid. This report is not intended to imply any particular claim is or was covered. At a later date, the Agency may again review claims submitted during this period of time. Be advised that pursuant to Section 409.913(23)(a), Florida Statutes (F.S.), the Agency is entitled to recover all investigative, legal, and expert witness costs. Additionally pursuant to Section 409.913, F.S., this letter shall serve as notice of the following sanction(s): The provider is subject to a comprehensive follow-up review in six months. This review and the determinations of overpayment were made in accordance with the provisions of Section 409.913, F.S. In determining payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, and the limitations and exclusions found in the Medicaid provider handbooks. In applying for Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks, billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to our review of your claims and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are attached, referencing the claims that were reviewed and found to be discrepant by this determination. REVIEW DETERMINATION(S) The audit included the review of a judgmental sample of selected claims and the review of a statistically valid random sample taken from the population of paid claims with dates of service during the audit period. The overpayment found in the random sample was extended to the population using generally accepted statistical formulas and methods. The audit period for this review was from May 23, 1999, through February 23, 2001. This review identified an overpayment of $527,176.65. Attached are the overpayment calculations, a summary of documented discrepancies, and an itemized listing of discrepancies noted in the review of the judgmental and the random sample[s]. * * * If you are not in bankruptcy and you concur with our findings, remit by check in the amount of $527,176.65. . . . * * * You have a right to request a formal or informal hearing pursuant to Section 120.569, F.S. . . . . [I]f a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. . . . * * * As noted in the Preliminary Statement of this Recommended Order, Petitioner requested a "formal hearing," which ultimately was held on September 6 through 8, 2006. During the course of the hearing, AHCA made another downward revision in its total overpayment calculation (to $480,832.31), after determining that one "discrepant" claim in the "judgmental sample" ("discrepant" claim 26 (August 9, 2000, fill) previously coded "OBQ" should instead be coded "WMDC" (and that therefore the "overcharge" associated with this "discrepant" claim was $4.23, not $601.50), and further determining that five claims in the "random sample" ("discrepant" claims 52, 56, 61, 81, and 91) previously determined to be "discrepant" were in fact not "discrepant" (and that therefore Petitioner was not overpaid anything for these claims). Joint Exhibit 1 reflects this recalculation made by AHCA. The total amount that Petitioner was overpaid for the "discrepant" claims in the "judgmental sample" was $42,310.17. The total amount that Petitioner was overpaid for the 89 "discrepant" claims in the "random sample" was $4,339.32, or 17.36 dollars for each of the 250 claims in the sample. Extrapolating or projecting this result, in accordance with accepted statistical principles, to the entire universe of Audit Period Claims (which numbered 37,416) minus the 271 claims in the "judgmental sample" (a total of 37,145 claims), using a "95% one-sided lower confidence limit," yields an overpayment of $438,522.14. Adding this $438,522.14 overpayment to the $42,310.17 overpayment for the "discrepant" claims in the "judgmental sample" produces a total overpayment of $480,832.31 AHCA has made no additional revisions to its overpayment calculation in the instant case. It continues to maintain (and correctly so) that Petitioner received $480,832.31 in Medicaid overpayments for services claimed to have been provided during the Audit Period.18
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Petitioner received $480,832.31 in Medicaid overpayments for paid claims covering the period from May 23, 1999, through February 23, 2001, and requiring Petitioner to repay this amount to AHCA; and that AHCA decline to order a "comprehensive follow- up review [of Petitioner] in six months." DONE AND ENTERED this 14th day of December, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2006.
The Issue Whether Petitioner is liable for overpayment of Medicaid claims for the period of January 1, 2001, through January 1, 2003, as stated in Respondent's Final Agency Audit Report dated October 26, 2004, in violation of Sections 409.907 and/or 409.913, Florida Statutes (2002), and, if so, in what amount.
Findings Of Fact Based upon the stipulations of the parties and the evidence presented at the hearing, the following relevant Findings of Fact are made: Respondent is the state agency charged with the regulation of the Medicaid program in the State of Florida and has the authority to perform Medicaid audits and collect overpayments, pursuant to Section 409.913, Florida Statutes (2002). Petitioner is a Florida-licensed physician and an authorized Medicaid provider. He was paid by Medicaid for providing services to Medicaid patients during the Audit Period of calendar years 2001 and 2002. Blanca Notman, R.N., Medicaid health care analyst in Respondent's Medicaid Program Integrity Unit, conducted the audit of Petitioner's Medicaid billing during the Audit Period. Respondent's audit involved a review of services Petitioner provided during the Audit Period of 30 randomly chosen Medicaid patients. Upon completion of the audit, Respondent alleged that during the Audit Period, Petitioner violated Medicaid policy and law in that: (1) some services for which Petitioner billed and received payment were not documented; (2) the documentation/medical records Petitioner provided to Respondent support a lower level of office or hospital visit than the one for which Petitioner billed and received payment; (3) Petitioner billed for radiology services when a radiologist outside of the office/group previously billed the reading and interpretation; and (4) Petitioner's records indicate instances of double- billing Medicaid for services by using two CPT codes when one of these codes incorporates the elements of the other. With respect to each of the services reviewed, Respondent relied upon the opinion of its expert, Dr. Averbuch, as to whether or not Petitioner billed Medicaid correctly. Dr. Averbuch based his opinion on a review of documents regarding each service which were provided to him by Respondent. Respondent did not establish that the records provided to Dr. Averbuch were complete, and in several instances, the records reviewed by Dr. Averbuch were incomplete. The most common difference of opinion between what was billed by Petitioner for each service and what Dr. Averbuch felt should have been billed, involved the "level of service." Billing codes are five-digit numbers, the last digit denoting the degree of difficulty of the service. Generally, there are five "levels of service," with "1" being the least difficult and "5" being the most difficult. There are general guidelines for establishing the "level of service" (or degree of difficulty) which are set forth in documents such as Documentation Guidelines for Evaluation and Management Services, published by the American Medical Association. However, the correct coding can only be established through expert testimony, which is based upon established and identified criteria. With respect to each of the 30 patients being reviewed, Respondent prepared a worksheet listing each service provided by Petitioner for that patient during the two-year Audit Period, the code and amount billed for each of those services, and Dr. Averbuch's opinion of the code which he felt should have been billed. Dr. Averbuch testified that in his opinion, Petitioner's claims contained an inordinate number of level "4" and "5" claims and that his records did not support the level of coding billed to Respondent. Someone on Respondent's staff then filled in the purported dollar value for each adjusted code. That amount was subtracted from the amount originally billed by Petitioner, and an average error (dollar amount) for each sample claim was calculated. Respondent then applied the average error in the sample claims to all the claims during the Audit Period. A further statistical calculation was performed to arrive at a 95 percent confidence level which Respondent alleged to be the amount of overpayment it was seeking from Respondent. That amount was shown as $81,682.06.1/ Dr. Averbuch is a knowledgeable medical practitioner, who specializes in orthopedic surgery. Respondent did not establish what records he reviewed, where they came from, or that they were complete. Additionally, Dr. Averbuch's deposition testimony did not set forth much information regarding the reason he felt as he did when his opinion differed from that of Petitioner. Also, Respondent did not establish what criteria Dr. Averbuch relied upon in arriving at his opinion. Jeffrey Howard, a consultant for Petitioner, although not a physician or other health care provider, is an experienced CPT code reviewer. He testified at length about each billing code in which he disagreed with Dr. Averbuch. In his testimony, he included details about each patient and each billed service. He also testified that he relied upon the 1995 Documentation Guidelines for Evaluation and Management Services, which has been adopted by HCFA, to base his opinions. Howard did not support all of Petitioner's billings. There are 40 instances in which Petitioner challenges the billing codes urged by Respondent. This is a substantial proportion of the billing codes which were in dispute. There are eight billing codes, the values of which need to be established to calculate the overpayment in this case. Those codes are: 99204, 99213, 99214, 99243, 99244, 99245, 29876, and 76140. In carefully reviewing each of the joint exhibits admitted in this case, the dollar amount for code 99204 was established by the worksheet on Patients 10 and 30, to be $68.74. The dollar amount for code 99213 is a variable amount. In January 2001 through April 3, 2001, it is $26.29 (Patients 2, 24, and 4). The amount goes up to $31.31 (Patient 21) in June and July 2001, then returns to $26.29 in August and September for Patients 13 and 7. Once again, the amount goes up to $31.31 in October 2001 (Patient 29), before backing down to $26.47, where it remains until March 5, 2002, when it once again goes to $31.31 (Patients 2, 14, and 6). On April 23, 2002, the dollar value for code 99213 returns to $26.47, where it stays for the rest of the Audit Period, except for June 21, 2002, when it changes to $31.31 for Patient 21. The dollar amount for code 99214 seems to fluctuate even more than code 99213. It is valued at anywhere from $39.03 (Patients 24, 13, and 7) to $48.27 (Patients 16, 17, 9, and 11) and at least four values in between. It changes 13 times, both up and down, during the two-year Audit Period. The dollar amount for code 99243 fluctuates between $62.11 and $64.28, with the majority approved at $64.28. The dollar amount of code 99244 is not reflected anywhere in the record. The dollar amount for code 99245 fluctuates in an apparently random fashion between $112.18 and $122.84, with three values in between. The dollar amount for code 29876 is $121.00, according to the worksheet for Patient 2. The dollar amount for code 76140 is not reflected anywhere in the record. Because of the seemingly random variation in the dollar amounts for codes 99213, 99214, 99243, and 99245, which were not explained and could be the result of clerical error, it is found that Petitioner shall be given credit for the highest dollar amount for each of those three codes that are reflected in the record, that is: 99213 + $31.31; 99214 + $48.27; 99243 + $64.28; and 99245 + $122.84, unless those amounts are greater than that originally billed by Petitioner, in which case he shall be given credit for the amount billed. Since there is nothing in the record to establish the value of code 99244, it is found that Petitioner shall be given credit for the value of the next higher level of service (code 99245), which is valued at $122.84 or any lesser amount which was originally billed. Since there is nothing in the record to establish the value of code 76140, it is found that Petitioner shall be given credit for the value of the service as he originally billed it at $42.81 [Patient 24, Date of Service [DOS] January 7, 2002, code 72148]. Patient 1 was a 64-year-old woman that was referred to Petitioner and presented with numbness and pain in the right hand and wrist. The patient had a stroke in 1994 on her left side and had numbness and tingling in the right upper extremity. The patient had been referred by a neurologist, Dr. Jeronimo, who had performed an electromyography and nerve conduction studies. The symptoms indicated carpal tunnel syndrome. The patient had not received treatment for this condition and was, at the time of the visit, on nine different medications. The fact of a prior cerebral vascular accident and the multitude of medications added complexity to this case. Petitioner recommended surgery, but the patient requested alternatives. The patient was placed in a splint and instructed on home therapies. The greater weight of evidence demonstrates that the correct code should be 99244, and Petitioner shall receive credit for $116.12 for DOS October 15, 2002, thus reducing the total amount disallowed to $13.04. Patient 2 was a 24-year-old woman who saw Petitioner for the first time in 2001. The patient had injured her knee in 1998 and was not treated by an orthopedist. The patient had pain in the right knee, and it popped and moved in a funny way. She had difficulty ambulating. Petitioner reviewed the patient's history, examined the patient, and X-rays were taken. Petitioner's impression was a torn medial meniscus, which had been left untreated for three years. Petitioner counseled the patient about further diagnostic work, but the patient opted for surgery. Petitioner performed and billed two separate procedures, arthroscopy knee surgical synovectomy (code 29876) and arthroscopy knee surgical meniscusectomy (code 29880). Dr. Averbuch testified that this was "unbundling," but Howard explained how it was not according to the National Correct Coding Edits. The greater weight of evidence demonstrates that Petitioner should receive credit for $115.18 for DOS January 4, 2001, code 99244; and $121.00 for DOS January 19, 2001, code 29876, thus reducing the total amount disallowed to $61.50. Patient 3 was a 37-year-old female with chronic back pain for several years. She had been previously treated with various treatments without relief. The patient was on Social Security disability because of her condition. The patient was upset and crying during her visit to Petitioner on July 3, 2001, because of her back pain. Recently, the patient reported the pain had been getting worse. The patient did not bring any previous medical records with her. Petitioner observed that she was limited in her motion. Petitioner based his diagnosis solely upon his physical examination and discussion with the patient. Because of the nature of her injury, this was a highly complex patient. The greater weight of evidence demonstrates that the correct code should be 99244, and Petitioner should receive credit for $113.18 for DOS July 3, 2001, thus reducing the total amount disallowed to zero. Patient 4 was seen by Petitioner five years prior to the visit of April 3, 2001. The patient presented with swelling and pain in the right elbow. She had recently experienced soreness and redness in the area of the right elbow. She had been seen at a diagnostic center where she had been X-rayed, but was not treated other than she was advised to take Ibuprofen. The patient had not improved. The patient had also experienced a severe sprain of her knee in the past, but was allergic to codeine. Petitioner reviewed her past medical history and gave her an examination. The bursitis appeared to be resolving. The patient was counseled to come back if she had any more swelling and that she might need an aspiration. This patient was complex due to insufficient history and past treatment. Since the patient had not been seen in over three years, she was considered a "new patient" per the CPT guidelines. The greater weight of evidence demonstrates that the correct code should be 99204 for DOS April 3, 2001, and Petitioner should receive credit for $68.74 (the value of code 99204 as established by Patients 10 and 30), thus reducing the total amount disallowed to $15.48. Patient 5 was a new patient, who was referred by Dr. Cosic. She was a 13-year-old female who had been having pain in her right knee for two years. She had not seen any other physician for this problem. In 1995, the patient had been struck by a vehicle and sustained some damage. Petitioner reviewed the patient's history and examined the patient. He took an X-ray, which showed a possible tumor. This is a complex case. Dr. Averbuch recognized in his deposition that this patient had been referred by another physician, yet he opined that the proper coding should not be for a referral. The greater weight of evidence demonstrated that Petitioner should receive credit for $115.18 for DOS June 19, 2001, because the correct code is 99245, thus reducing the total amount disallowed to zero. Patient 6 was a 17-year-old male who injured his hand when he struck a telephone pole. The majority of the pain was on the fifth metacarpal. Petitioner reviewed the patient's history and examined the patient. Tenderness was found on the border of the hand, which localized the ulna aspect, and X-rays were taken. The patient was given a short-arm cast and aluminum splint for his little finger. The age of this patient contributed to the complexity of this case. The greater weight of evidence shows that the correct code should be 99244, and Petitioner should receive credit for $118.12 for DOS February 12, 2002, thus reducing the total amount disallowed to $15.11. Patient 7 was a 59-year-old female with pain in her right shoulder for four months. The patient was seen by another physician, Dr. Lynch, who referred her to Petitioner. The patient had difficulty raising her arms and sleeping. She had pain all over the subacromial clavicle region of the shoulder. She denied any trauma. Unexplained pain increases the complexity of a case. The greater weight of evidence demonstrates that the correct code should be 99244, and Petitioner should receive credit for $113.18 for DOS August 20, 2001, thus reducing the total amount disallowed to $12.74. Patient 8 had a chief complaint of pain in the right knee. She was a 73-year-old female from Sulfur Springs (over an hour's drive away from Petitioner's office), who had been having problems for three months with her right knee. It resulted from an injury when she slipped and fell at home. The pain was on the medial side of the knee. She had seen a physician in Sebring and received an MRI. The MRI revealed a tear in the posterior medial meniscus. She was referred to Petitioner, who reviewed the history and performed an examination. His impression was a torn medial meniscus, and the plan was for arthroscopic surgery. Although Petitioner initially agreed with the lower code, the need for surgery added to the complexity of this case. The greater weight of evidence demonstrates that the correct code should be 99244, and Petitioner should receive credit for $116.12 for DOS July 1, 2002, thus reducing the total amount disallowed to $15.97. Patient 9 was a 13-year-old male with pain in his right hand, who saw Petitioner on February 15, 2001. He had fallen off his bicycle and had abrasions on this right hand. The patient had been seen at another facility where he was X-rayed and received a splint. Due to pain, the patient had removed the splint. Petitioner reviewed the patient's history and examined the patient. He took X-rays, which demonstrated a fracture of the second metacarpal of the distal limb. The patient was treated with an aluminum splint. Although Petitioner initially agreed with the lower code, due to the previous treatment which did not work, this was a relatively complex case. On the May 28, 2002, visit, Patient 9 had an injured left ankle, again from a bicycle accident, five days prior. The patient had difficulty walking. He had received a splint at another facility. There was tenderness over the anterior lateral aspect of the ankle, and X-rays were taken. The complexity of this patient was influenced by the patient's Tourette's Syndrome and his Attention Deficit Disorder. The patient was changed from a splint to a hand-walker. The greater weight of evidence demonstrates that the correct code for DOS February 15, 2001, should be 99244, and Petitioner should receive credit for $115.18. For DOS May 28, 2002, the correct code should be 99214, and Petitioner should be given credit for $8.27, thus reducing the total amount disallowed to $36.90. Patient 10 was a referral from Dr. Madedes of Suncoast Community Center, Inc. The patient was diagnosed as a "classic gamekeepers thumb." The correct code should be 99243. Therefore, Petitioner should not be given any credit for DOS December 5, 2002. Patient 11 was a referral from the Nativity Clinic. He was a 13-year-old male who had fallen off his bicycle approximately 31 days previously. He was diagnosed with a fracture and was treated without a reduction. He had been placed in a cast. Petitioner reviewed the medical history and performed an examination. Petitioner checked the patient's range of motion and took X-rays. Petitioner diagnosed a fracture of the left distal radius. He told the patient to return in two weeks for removal of the cast. A complicating factor in this case is that the patient also had back pain. The greater weight of evidence demonstrates that the correct code should be 99244, and Petitioner should receive credit for $122.84 for DOS July 21, 2002, thus reducing the total amount disallowed to $21.80. Patient 12 was a 37-year-old female from Avon Park who was referred to Petitioner by another physician. She had been in an auto accident three years prior, and her shoulder was hurting and getting worse. She had seen other physicians and had MRIs. At the November 12, 2002, visit, she did not bring any medical records with her. The patient was a poor historian. At the time of her visit, she said that the pain was going into her back as well. Petitioner reviewed the history and performed an examination, which included palpation of the shoulder, which did not reveal tenderness or swelling. Petitioner also performed range of motion tests. X-rays did not show any abnormalities. Petitioner's clinical impression was "shoulder pain, etiology undetermined." The patient was sent for an MRI. An old injury, which although being treated, continues to get worse, increases the complexity of this case. With respect to the visit of November 26, 2002, the patient did not show signs of improvement, and a decision was made for surgery. This decision was not complex. The greater weight of evidence demonstrates that the correct code for DOS November 12, 2002, should be 99244, and Petitioner should receive credit for $115.12. The correct code for DOS November 26, 2002, should be 99213, thus reducing the total amount disallowed to $39.51. Patient 13 was a referral from Dr. Haiger and was seen by Petitioner on June 5, 2001. The patient was a 65-year-old deaf female, who presented experiencing severe pain in her left knee for almost ten years. Eight years prior she had undergone arthroscopic surgery on the knee, but it had not gotten better. The patient was in physical therapy and using canes. Petitioner reviewed the history and performed an examination. Communication between Petitioner and the patient was by writing. This was a complex patient, both because of the difficulty in communication and the fact that this was an old injury which had received much treatment, including surgery, and had not improved. On her return visit on August 7, 2001, the patient had not improved using the ordered medication. After consultation, a decision for surgery was made. With respect to the visit of June 4, 2002, the patient's complaint was pain in her left shoulder for a month. The patient continues to regress, in spite of Petitioner's treatment. This is a complex patient, and her medical record is voluminous. However, the visit of August 13, 2002, was merely routine. The greater weight of evidence demonstrates that Petitioner should be given credit for $113.18 for DOS June 5, 2001, since the correct code is 99244; the correct code for DOS August 7, 2001, is 99213; the correct code for DOS June 4, 2002, is 99214; and the correct code for DOS August 13, 2002, is 99213, thus reducing the total amount disallowed to $89.21. Patient 14 was a referral from Dr. Bagloo, who presented to Petitioner on January 15, 2002, with pain in her left foot. She had twisted her ankle at home a week previously and actually heard bones cracking. She was initially seen at the hospital. A computed tomography scan did not reveal a fracture. A week later on January 15, 2002, she came to see Petitioner. Her examination revealed tenderness of the dorsal aspect of the left foot. An X-ray revealed a fracture of the second-base metatarsal. The patient received a short-leg cast. The patient was seen again on February 12, 2002, and examination indicated that the patient was "healed." On July 9, 2002, the patient again saw Petitioner with pain in her left foot. She had experienced a seizure a week and a half prior. The seizure and the prior injury added to the complexity of this case. The greater weight of evidence demonstrates that the correct code for DOS January 15, 2002, is 99244, and Petitioner should be given credit for $118.12. The correct code for DOS February 12, 2002, is 99213, and Petitioner should receive no credit; the correct code for DOS July 9, 2002, is 99214, and Petitioner should be given credit for $48.27, thus reducing the total amount disallowed to $32.33. Patient 15 was a 15-year-old male from Avon Park, with scoliosis. He had hurt himself when he fell off his boogie board and hit his chest. After reviewing the history, performing an examination, and taking X-rays, the patient was referred to a pediatric orthopedist. The age of the patient and the pre-existing condition affected the complexity of this case, although the scoliosis was previously diagnosed. The greater weight of evidence supports a finding that the correct code for DOS June 11, 2002, is 99243, and Petitioner should not be given credit. Therefore, there is no reduction of the total amount disallowed. Patient 16 was a referral from Dr. Libbrato. However, the patient was previously diagnosed, Petitioner billed at code 99245, and Respondent's expert opined that the code should be 99203. The billing code should account for this being a referral. The greater weight of evidence supports a finding that the correct code for DOS March 25, 2002, is 99243, and Petitioner should be given credit for $64.28, thus reducing the total amount disallowed to $75.64. Patient 17 was a referral from a Medicaid clinic. The patient was a 10-year-old male who had hurt his left elbow playing football a week prior. Petitioner reviewed the history and examined the patient, who was in a long-arm splint. Petitioner replaced the splint with a long-arm cast. The age of the patient and the prior inappropriate treatment added to the complexity of this case. The greater weight of evidence demonstrates that for DOS May 14, 2002, the correct code is 99244, and Petitioner should be given credit for $122.84. The correct code DOS June 6, 2002, is 99213, and Petitioner should be given credit for $31.31, thus reducing the total amount disallowed to $38.76. Patient 18 was a 63-year-old male who had been referred by another physician for pain in his right-hand ring finger of six months' duration. The patient claimed no trauma. The age of the patient and the unexplained injury added to the complexity of this case. The greater weight of evidence demonstrates that the correct code for DOS June 18, 2002, should be 99244, and Petitioner should be given credit for $116.12, thus reducing the total amount disallowed to zero. Patient 19 presented with a fracture that appeared to be healing, but it was difficult to tell if the patient's problem was from the fracture or from osteoporosis. The patient was not responding to treatment. The greater weight of evidence demonstrates that the correct code for DOS August 12, 2002, is 99214, and Petitioner should be given credit for $41.51, thus reducing the total amount disallowed to $15.04. Patient 20 was an eight-year-old male who had pain in his left heel from jumping off a truck and falling. He was referred from his primary care physician. The complexity of this case was increased due to the age of the patient and the fact that prior treatment had not been effective. The greater weight of evidence demonstrates that the correct code for DOS October 17, 2002, is 99244, and Petitioner should be given credit for $122.84, thus reducing the total amount disallowed to zero. Patient 21 was a 10-year-old male from Plant City, who injured his right arm and shoulder in a fall from monkey bars. Petitioner's diagnosis was a fractured right humerus. The young age of this patient, plus the fact that he was a referral, added to the complexity of this case. The greater weight of evidence demonstrates that the correct code for DOS May 24, 2001, is 99244, and Petitioner should be given credit for $115.18, thus reducing the total amount disallowed to $45.33. Patient 22 was a nine-year-old male referred by Dr. Narvez for right leg pain. He was injured when another child fell on him. Also, the patient had broken the same leg about a year prior. A re-injury and young age added to the complexity of this case. The greater weight of evidence demonstrates that the correct code for DOS January 8, 2002, is 99244, and Petitioner should be given credit for $118.12, thus reducing the total amount disallowed to zero. Patient 23 was a 37-year-old male from Lake Placid, referred by Dr. Campbell. He presented with right shoulder pain. Approximately two years prior he was shot in that shoulder. The pain was in the acromioclavicular joint. The pain was felt to be a result of the injury from the gunshot wound, and surgery was recommended. The pre-existing condition increased the complexity of this case. The greater weight of evidence demonstrates that the correct code for DOS January 29, 2002, is 99244, and Petitioner should be given credit for $116.12, thus reducing the total amount disallowed to $14.47. Patient 24 was referred by Dr. Rivas for ongoing low back pain. The patient presented on January 16, 2001, as a 53-year-old female and stated that the pain had been getting worse in spite of treatment. It was localized in the left groin, the left posterior iliac region, the left buttock, the posterior aspect of the thigh, and the calf. The long-standing nature of the pain, without improvement from treatment, added to the complexity of this case, as well as the multiple therapies employed. The MRI reading on February 1, 2001, should be allowed. On the visit of March 1, 2001, the patient reports a new problem with pain in her knee. The visit of June 5, 2001, revealed that the patient is improved, but still in pain. The greater weight of evidence demonstrates that Petitioner should be given credit for $115.18 for DOS January 16, 2001, code 99245; $42.81 for DOS February 11, 2001, code 76140; $31.31 for DOS March 1, 2001, code 99213; $31.31 for DOS June 5, 2001, code 99213, thus reducing the total amount disallowed to $28.18. Patient 25 was a seven-year-old female from Lake Wales, referred by Dr. Powell for bilateral leg deformities and fallen arches. The patient also had scoliosis. The greater weight of evidence demonstrates that the correct code for DOS January 27, 2001, is 99244, and Petitioner should be given credit for $115.18, thus reducing the total amount disallowed to $32.56. Patient 26 was an 18-year-old male with scoliosis, who had recently come to the United States from Cuba and was referred to Petitioner for evaluation. The greater weight of evidence demonstrates that the correct code for DOS September 12, 2002, is 99243, and Petitioner should not be given credit, thus the total amount disallowed remains at $58.56. Patient 27 was a 36-year-old female who was referred by Dr. Korabathing for left hip pain. She had injured it two or three weeks prior when she fell. She was initially seen in the emergency room. The discoloration persisted and the knee continued to "give out." The complexity of the case is increased because of the patient's lack of improvement. The greater weight of evidence demonstrates that the correct code is 99244 for DOS April 11, 2002, and for April 23, 2002, the correct code is 99214, thus reducing the total amount disallowed to $29.87. There was no challenge to the adjusted coding of Patient 28 to 99213. Patient 29 was a referral from Dr. Katherinlin. He was a 13-year-old male, who injured his left foot while playing football two or three days prior. He was initially treated at an outpatient facility. Petitioner changed the treatment plan. The greater weight of evidence demonstrates that the correct code for DOS October 2, 2001, is 99244, and although he did not initially challenge the change in coding, Petitioner should be given credit for $116.12, thus reducing the total amount disallowed to $15.11. Patient 30 was referred by Family Medical Center of Lakeland, Florida. The patient was a 56-year-old male with pain in the right hip and pelvis. He had been in a motorcycle accident three years prior with numerous and substantial injuries. Due to the number and substantiality of the injuries, this was a complex case. The greater weight of evidence demonstrates that the correct code for DOS February 26, 2002, is 99244, and Petitioner should be given credit for $118.12, thus reducing the total amount disallowed to zero. The adjustments in the preceding paragraphs drop the total overpayments for the 30 sample patients as shown in Respondent's Audit Report from $2,405.10 to $790.99. Dividing that by the total number of sample claims reviewed (133), yields a disallowance per claim of $5.94. Multiplying $5.94 by the total number of claims for the Audit Period (5,399), yields a "point estimate of overpayment" of $32,070.06. Calculating the 95 percent confidence level can be accomplished by Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Care Administration, enter a final order revising its Final Agency Audit Report as directed herein. DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 30th day of December, 2005.
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 The issue for determination is whether Petitioner was overpaid by the Medicaid program as indicated in Respondent's Final Agency Audit Report dated June 20, 2001.
Findings Of Fact Dr. Henson was an authorized Medicaid provider during the audit period of January 1, 1998 through September 30, 2000.1 During the audit period, Dr. Henson had been issued Medicaid provider number 0467243-00.2 No dispute exists that, during the audit period, Dr. Henson had a valid Medicaid Provider Agreement(s) with AHCA.3 During the audit period, Dr. Henson was employed by Latin Quarter Medical Center, located at 855 Southwest 8th Street, Miami, Florida, at which he treated Medicaid recipients. Dr. Henson had been a surgeon but had suffered a stroke in December 1997, which caused him to be incapable of continuing to practice as a surgeon. He agreed to become employed with Latin Quarter Medical Center to work at its new clinic and to receive compensation for his services every two weeks. Latin Quarter Medical Center's patients were suffering from AIDS. Dr. Henson agreed to several terms and conditions in executing a Medicaid Provider Agreement (Agreement) with AHCA. Those terms and conditions included the following: Quality of Service. The provider agrees to provide medically necessary services or goods . . . agrees that services and goods billed to the Medicaid program must be medically necessary . . . The services and goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim. Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulation, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they may be amended from time to time. Term and signatures This provider agreement . . . shall remain in effect until July 1, 1999, unless otherwise terminated. . . . Provider Responsibilities. The Medical provider shall: * * * (b) Keep and maintain . . . all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical . . . records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid. . . . The Agreement was signed by Dr. Henson in 1996. In a Noninstitutional Professional and Technical Medicaid Provider Agreement, Dr. Henson agreed to terms and conditions including the following: The provider agrees to keep complete and accurate medical . . . records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program . . . . The provider agrees that services or goods billed to the Medicaid program must be medically necessary . . . and the services and goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting a claim. The provider agrees to submit Medicaid claims in accordance with program policies and that payment by the program for services rendered will be based on the payment methodology in the applicable Florida Administrative Rule. . . . * * * 8. The provider and the Department [Department of Health and Rehabilitative Services] agree to abide by the provisions of the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The Agreement was signed by Dr. Henson in 1988. AHCA audited certain of Dr. Henson's Medicaid claims pertaining to services rendered between January 1, 1998 and September 30, 2000. By Preliminary Agency Audit Report (PAAR) dated April 12, 2001, AHCA notified Dr. Henson that, after a physician consultant with a specialty in infectious disease reviewed the Medical claims and medical records provided by Dr. Henson, a preliminary determination was made that certain claims in the amount of $124,556.83 were not covered by Medicaid. After the issuance of the PAAR, no further documentation was submitted by Dr. Henson to AHCA. As a result, AHCA issued a FAAR dated June 20, 2001, upholding the overpayment of $124,556.83. The FAAR indicated, among other things, that the documentation provided by Dr. Henson supported a lower level of office visit than the one billed and for which payment was received and, therefore, the difference between the payment for the appropriate level of service and the amount actually paid was an overpayment; that some of Dr. Henson's medical records failed to contain documentation for services which were billed and for which payment was made and, therefore, the payments for the inappropriate documentation was an overpayment; that some of the services rendered were inappropriately coded and the difference between payment for the proper code and the inappropriate code was an overpayment; and that some of the services for which billing was made and payment received were not medically necessary and those services were disallowed and were, therefore, an overpayment. The FAAR further provided how the overpayment was calculated, indicating, among other things, that a sample of 30 recipients of the 2936 claims submitted by Dr. Henson were reviewed for the period from January 1, 1998 through September 30, 2000; that a statistical formula for cluster sampling, with the formula being presented, was used; that the statistical formula was generally accepted; and that the statistical formula showed an overpayment in the amount of $124,556.83, with a 95 percent probability of correctness. The majority of the overpayment was due to denied claims for intravenous infusions of multi-vitamins, epogen and nupogen to adult HIV/AIDS patients. AHCA's representative primarily responsible for handling the audit of Dr. Henson was Sharon Dewey, a registered nurse employed in the Medicaid Program Integrity (MPI) division of AHCA. Nurse Dewey conducted an audit of Medicaid payments only under Dr. Henson's Medicaid Provider number. An on-site visit of Dr. Henson's office was made by Nurse Dewey. During the on-site visit, she provided Dr. Henson with a questionnaire, which was completed by her and signed by Dr. Henson, and which indicated that Dr. Henson was the only Medicaid Provider at the office at which he was located, Latin Quarter Medical Center, 855 Southwest 8th Street, Miami, Florida. At the on-site visit, Dr. Henson provided all of the medical documentation and medical recipient records for the audit period involved. All the Medicaid claims for the medical recipients were paid Medicaid claims originating only from Dr. Henson's Medical Provider number. Dr. Henson made available and provided to AHCA or AHCA's representatives any and all required Medicaid-related records and information pertaining to the audit that he had in his possession.4 He never refused to allow access to the records or information. Having received the medical recipient records from Dr. Henson, Nurse Dewey organized the records by patient names and dates of service and provided them to Dr. Joseph W. Shands, Jr., along with a worksheet for the audited claims for each patient. Dr. Shands is an expert in infectious diseases and the treatment and management of AIDS and HIV. Dr. Shands retired in 2002, and his practice was basically the same as Dr. Henson. No objection was made at hearing that Dr. Shands met the statutory definition of "peer." § 409.9131(1)(c), Florida Statutes (1999).5 The undersigned finds Dr. Shands' testimony persuasive. Dr. Shands reviewed the medical documentation provided by Dr. Henson to AHCA. The medical documentation that he reviewed indicated that the patients were "all HIV AIDS patients." Dr. Shands reviewed the particular medications given the patients; reviewed the reasons why the medications were given; considered and made a determination as to whether a justification existed for the administration of the medication; and, based on his determination, either allowed or disallowed the claim. He made no determinations as to the actual dollar amount of services provided. After reviewing the medical records, Dr. Shands made notations on the worksheets, signed the worksheets, and returned the worksheets to Nurse Dewey. Specific instances of acute attention involved the administration of intravenous (IV) multi-vitamins, epogen, nupogen, and Intravenous Immunoglobulin (IVIG). As to the IV of multi-vitamins, Dr. Henson prescribed this administration for almost all of his patients. Dr. Shands found that the patients were coming into the facility two to three times a week for the treatment, but he found no documented medical information to justify the use of IV multi-vitamins and determined these services were not medically necessary. In Dr. Shands' opinion an oral multi-vitamin would have been more appropriate and achieved the same result. An oral multi-vitamin is not recommended, according to Dr. Shands, where the patient is unable to digest the oral multi-vitamin. Notably, for one patient a notation was made that the patient refused pills, but a further notation indicated that Dr. Henson had prescribed the same patient pill-based medications for treatment, which negated the basis for the intravenous use. Furthermore, IV administration to an HIV/AIDS patient places the patient at an unnecessary risk of infection, which is not present with oral multi-vitamins. Dr. Henson testified that he was continuing the treatment of another physician, but he failed to make an independent medical judgment based upon his own medical findings. Further, no justification was in the medical records for the former physician's administration of IV multi-vitamins. Additionally, IV multi-vitamins were more costly than oral administration. And, with patients returning to the facility two to three times a week, the cost increased even more. Regarding epogen, Dr. Shands opined that certain administration was not medically necessary for the HIV/AIDS' patients. As to nupogen, Dr. Shands opined that certain administration was not medically necessary for the HIV/AIDS' patients. Regarding the administration of IVIG, Dr. Shands opined that the administration was not medically necessary for the HIV/AIDS' patients. As to certain office visits for the administration of IV multi-vitamins, epogen, nupogen, and IVIG, Dr. Shands opined that the office visits were unnecessary. Using the worksheets, with Dr. Shands' notations on them, together with Dr. Shands denials or reductions, Nurse Dewey calculated the overpayment associated with each of Dr. Henson's patients. Subsequently, a statistical calculation was applied by AHCA to extend the audit sample's total overall payment to all of Dr. Henson's Medicaid claims during the audit period, which resulted in a determination of an overpayment in the amount of $124,556.83. Dr. Henson suggests that his signature may have been falsified or forged on the medical records and information that he submitted to AHCA for its audit. Prior to hearing, he had an opportunity to review the medical records and information but could not identify one instance that his signature was falsified or forged. Consequently, a finding of fact is made that Dr. Henson signed the medical records and documentation provided to AHCA by him for the audit. Dr. Henson presented no expert testimony or any testimony to support the medical necessity or cost-effectiveness of the procedures that he used. Further, Dr. Henson contends that Latin Quarter Medical Center, the facility that employed him, received the Medicaid payments, not he. However, as the Medicaid Provider, he was not relieved of his responsibility to make sure that the medical procedures were medically necessary and cost-effective.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Arthur Henson, D.O., received overpayments in the Medicaid program in the amount of $124,556.83, during the audit period January 1, 1998 through September 30, 2000, and requiring Arthur Henson, D.O., to repay the overpayment amount. DONE AND ENTERED this 29th day of June, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2006.
The Issue Whether Respondent, Florida Hospital Orlando (Respondent or FHO), was overpaid by Medicaid for care provided to the patient, L.D., in the amount of $52,606.04, as alleged by Petitioner, Agency for Health Care Administration (Petitioner or AHCA); or, whether, as Respondent maintains, such care was medically necessary and supported by the record presented in this cause. Petitioner also maintains an administrative fine in the amount of $2,000.00 is warranted in this matter.
Findings Of Fact Petitioner is the state agency charged with the responsibility of monitoring the Medicaid Program in Florida. Petitioner, through MPI, audited FHO for the dates of service from January 1, 2007, through June 30, 2008 (the audit period). At all times material to the audit period, FHO was enrolled as a Medicaid provider, governed by a Medicaid provider agreement, and subject to all pertinent Medicaid rules and regulations related to the provision of Medicaid services to Medicaid recipients/patients. Respondent's Medicaid Provider No. was 0010129001. All services provided to Medicaid patients are billed and identified by patient name, date of service, and provider. For purposes of confidentiality, the names of patients are redacted in MPI proceedings. Although this case began with a number of patients being identified as part of the audit dispute, only one patient, L.D., and the services provided to her remain at issue. Before a Medicaid provider is authorized to bill Medicaid for medical services rendered to a patient, several checks are considered. First, the patient must be Medicaid-eligible. There is no dispute that L.D. was Medicaid-eligible. Second, before an inpatient stay is reimbursable, a Medicaid provider must seek prior authorization. To do so, at all times material to this case, AHCA enlisted the assistance of, and contracted with, KePro South (KePro) to perform utilization management for inpatient hospital services for Medicaid recipients. This meant the Medicaid provider contacted KePro by email through a system known as "I-Exchange." In this case, FHO followed the protocol and requested prior approval for patient L.D. KePro approved the inpatient stay for L.D. All patient records for L.D. have been revisited in the course of this case and have been thoroughly debated by doctors for both parties. In summary, AHCA's expert, Dr. Walter, opined that the records for L.D. do not support the "medical necessity" for the extended inpatient stay that was provided for her care. In contrast, Dr. Busowski, opined that L.D. required the inpatient stay based upon the medical conditions she and her babies presented. The events leading up to the instant dispute, set in chronological context, are as follows: FHO provided medical services to a patient, L.D.; those services were billed to and paid by Medicaid; AHCA conducted its audit of FHO for the audit period prior to August 12, 2008; on that date, AHCA issued its Preliminary Audit Report (PAR); the PAR claimed a Medicaid overpayment in the amount of $359,107.65 (overpaid claims for the full audit period); in response, FHO set about to furnish additional documentation to support its Medicaid billings; such documentation was reviewed by Petitioner and its medical consultants before the Final Audit Report (FAR) was entered; then, the FAR reduced the amount claimed as overpayment, gave Respondent the opportunity to challenge the FAR, and forwarded the case to DOAH. Respondent continued to provide additional information to AHCA throughout the pre-hearing and post-hearing times. Subsequent to discovery in this case, AHCA considered information from FHO and, ultimately, the overpayment claim was reduced to $52,606.04 as noted above. Prior to entering the FAR, Petitioner did not have the benefit of testimony from Dr. Busowski or Dr. Fuentes. Additionally, Dr. Walter, AHCA's consultant, did not have the benefit of reviewing the records from Dr. Busowski's point of reference. It is undisputed that FHO billed Medicaid and was paid $52,606.04 for patient L.D. Dr. Busowski is a board-certified physician whose specialty is OB/GYN and whose subspecialty is Maternal Fetal Medicine, also described as "perinatologist" in this record. L.D. presented to a clinic staffed by Dr. Busowski and his former associate, Dr. Fuentes. Both doctors have privileges at FHO and took turns monitoring patients admitted to the hospital. In examining L.D., it was discovered that her cervix had shrunk from 2.6 to 1.2 centimeters. As L.D. was pregnant with twins, the patient was admitted to FHO as a "high risk" pregnancy. Simply stated, the medical concern for L.D. was that she would deliver her children prematurely and, thereby, cause additional medical issues for herself, as well as her babies. L.D. was only 26 weeks, two days along at the time, and it would be very difficult for the twins to be delivered at that time. Further, L.D. had had two prior deliveries by C-section, so it was anticipated that her twins would also be delivered in that fashion. Finally, the twins were locked with one in a breached position so that if the children had prematurely delivered vaginally, other complications would have been likely. L.D. remained at FHO until she was discharged at 35 weeks, six days. During her stay at FHO, doctors were able to monitor contractions, make sure her C-section scar did not dehisce, and chart the growth, well-being, and viability of the children. Some patients, such as L.D., may be monitored in a home setting with "take home" equipment. That device is not covered by Medicaid and was, therefore, not an option for L.D. It may have provided a less expensive treatment option had it been available to L.D. and had her home environment been suitable for its use. It is unknown whether L.D. and her home environment would have been conducive to the home monitoring some patients can use. Another consideration in keeping L.D. hospitalized was the well-being of the unborn twins. Medical costs for premature babies are higher than full-term children. Had L.D. delivered prematurely, there would have been three Medicaid patients with serious medical needs rather than one. Dr. Busowski candidly admitted that all considerations in keeping L.D. hospitalized were not listed in the patient's chart. As a specialist, Dr. Busowski did not think it was necessary to have certain facts documented. It is not Dr. Busowski's policy to keep any mother hospitalized unnecessarily. It was not Dr. Busowski's practice to write "a whole bunch because nothing has changed." L.D.'s chart contained daily notes from an attending OB/GYN or resident, but orders were not written for medication unless it changed or was new. For example, if an order for prenatal vitamins were written, it would naturally continue throughout the patient's stay without additional orders. In this case, L.D. was on the medication Procardia. It was used to stop pre-term contractions. When L.D. was discharged and the babies were not in danger, presumably, Procardia was not necessary. Until she was stabilized during her hospitalization, it was necessary. Thus, the length of stay ultimately is the issue of this proceeding. Not that L.D. was admitted inappropriately or without medical basis, but that she was kept as an inpatient longer than medically necessary. Since L.D. was admitted at 26 weeks, two days and discharged at 35 weeks, six days, the question then essentially is: When in the interim should she have been discharged because her continued inpatient care was not necessary? Arguably she could have taken the medication to stop contractions at home, monitored herself somehow, and rushed to the emergency room (ER) if delivery was imminent. Delivery of the twins short of a prescribed gestation period would have placed the children at risk. Who would have borne the medical responsibility for pre-term twins born under ER conditions when it was avoidable and was, in fact, avoided in this case? Medicaid has a "pay and chase" policy of paying Medicaid claims as submitted by providers. Audits performed by the Agency then, after-the-fact, reconcile the amounts paid to providers with the amounts that were payable under the Medicaid guidelines and pertinent rules. The Medicaid provider agreement executed between the parties governs the contractual relationship between FHO and AHCA. The parties do not dispute that the provider agreement, together with the pertinent laws or regulations, control the billing and reimbursement of the claim that remains at issue. The amount, if any, that was overpaid related solely to the period of inpatient treatment that L.D. received from week 27 of her pregnancy until her discharge. Dr. Walter conceded perhaps a week would be required to stabilize the patient under her presenting conditions. The provider agreement pertinent to this case was voluntarily entered into by the parties. Any Medicaid provider whose billing is not in compliance with the Medicaid billing policies may be subject to the recoupment of Medicaid payments. Petitioner administers the Medicaid program in Florida. Pursuant to its authority, AHCA conducts audits to ensure compliance with the Medicaid provisions and provider agreements. The audits are routinely performed and Medicaid providers are aware that they may be audited. Audits are to ensure that the provider bill and receive payment in accordance with applicable rules and regulations. Respondent does not dispute Petitioner's authority to perform audits. Respondent does, however, dispute that a recoupment is appropriate, because FHO sought and was given prior approval for the inpatient stay for L.D. through the KePro system. If the inpatient length of stay was medically necessary for L.D., Petitioner does not dispute the amount billed as accurately reflecting the services provided to L.D. during that stay. There is no question that L.D. stayed in the hospital for the length of stay noted in the record. Based upon the weight of the persuasive evidence in this case, it is determined that L.D.'s length of stay until week 35 of her pregnancy was medically appropriate and necessary to protect the medical health and well-being of L.D. and her unborn children.
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 dismissing the case, with each party bearing its own costs and expenses of the litigation. Further, to the extent that Petitioner may have already sought recoupment against Respondent for the alleged overpayment, it is recommended that those funds be credited back to FHO. DONE AND ENTERED this 11th day of August, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2010. COPIES FURNISHED: Thomas Arnold, Secretary Agency for Health Care Administration Fort Knox Building III 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration Fort Knox Building III 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration Fort Knox Building III 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 John D. Buchanan, Jr., Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Drawer 14079 Tallahassee, Florida 32317 Debora E. Fridie, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308
