The Issue The issues in this case are whether Petitioner received Medicaid overpayments, and, if so, what is the aggregate amount of the overpayments.
Findings Of Fact The Parties Respondent, the Agency for Health Care Administration, is the single state agency charged with administration of the Medicaid program in Florida under Section 409.907, Florida Statutes. Petitioner, The Doctor's Office, was a Florida corporation approved by the Agency to provide group Medicaid services. At all times relevant to this matter, Petitioner was owned entirely by non-physicians who employed salaried physicians to provide Medicaid services. Petitioner, at all times relevant to this matter, offered physician services to Medicaid beneficiaries pursuant to a contract with the Agency under provider number 371236P-00. Petitioner, pursuant to the specific terms in the contract with the Agency, agreed to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program, and Federal laws and regulations. Petitioner, pursuant to its contract with the Agency, agreed to only seek reimbursement from the Medicaid program for services that were "medically necessary" and "Medicaid compensable." The Audit In mid-1996, the Agency, pursuant to its statutory responsibility, advised Petitioner that it intended to audit Petitioner's paid Medicaid claims for the alleged medical services it provided between July 1, 1994 and June 30, 1996. In September 1996, the Agency conducted an initial audit site visit, and randomly selected 61 patient files for review. The complete patient files, provided by Petitioner, were reviewed by Sharon Dewey, a registered nurse consultant and Agency employee, as well as Dr. Solenberger, a physician consultant and Agency employee. In accordance with its procedure, the Agency determined that Petitioner had submitted a total of 580 claims for reimbursement relating to the 61 patient files and had received full payment from the Medicaid program for each claim. On March 3, 1997, the Agency issued a Preliminary Agency Audit Report (PAAR), and advised Petitioner that it had over-billed Medicaid and received an overpayment from the program. Shortly thereafter, the Agency auditors, Dr. Solenberger and Ms. Dewey, met with Frank Colavecchio, Petitioner's Corporate Representative, and discussed the Medicaid violations alleged in the review. During the meeting, the Agency requested Mr. Colavecchio to instruct Petitioner's staff physicians to review their records and provide a written rebuttal to the Agency's initial determinations. Within days, and prior to any further action, the Agency placed the audit on indefinite hold. The Agency decided to delay the audit until certain proposed legislation relating to peer review and the integrity of the Medicaid reimbursement program was enacted. Two years later, Section 409.9131, Florida Statutes, was enacted during the 1999 legislative session and became law. Shortly thereafter, in 1999, the Agency hired Dr. Larry Deeb, a board-certified, practicing pediatrician, to perform a peer review of Petitioner's practices and procedures. Dr. Deeb has performed similar medical records reviews for the Medicaid program since 1981 and possesses a thorough understanding of CPT coding and the EPSDT requirements. Dr. Deeb received the medical files provided by Petitioner, and reviewed each patient file in the random sample, including the medical services and Medicaid-related claim records. On November 11, 1999, Dr. Deeb completed his peer review of 564 of the 580 claims provided in the random sample and forwarded his findings to the Agency. Dr. Deeb advised the Agency that 16 reimbursement claims involved adult patients and he therefore did not review them. Utilizing Dr. Deebs findings, the Agency employed appropriate and valid auditing and statistical methods, and calculated the total Medicaid overpayment that Petitioner received during the two year audit period. On July 17, 2000, approximately four years after the original audit notification, the Agency issued its Final Agency Audit Report (FAAR). The Agency advised Petitioner that, based upon its review of the random sample of 61 patients for whom Petitioner submitted 580 claims for payment between 1994 and 1996, Petitioner received $875,261.03 in total overpayment from the Medicaid program during the audit period. Petitioner denied the overpayment and requested a formal administrative hearing. Following the initial commencement of the final hearing in this matter in December 2001, Dr. Deeb, again, reviewed the disputed claims and modified his opinion relating to 6 claims. Thereafter, the Agency recalculated the alleged overpayment and demanded Petitioner to pay $870,748.31. The Allegations The Agency alleges that specific claims submitted by Petitioner, which were paid by the Medicaid program, fail to comply with specific Medicaid requirements and therefore must be reimbursed. Since its inception, the Medicaid program has required providers to meet the Medicaid program's policies and procedures as set forth in federal, state, and local law. To qualify for payment, it is the provider's duty to ensure that all claims "[a]re provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with . . . state . . . law." Section 409.913(5)(e), Florida Statutes (1993). Medicaid manuals are available to all Providers. Petitioner, as a condition of providing Medicaid services pursuant to the Medicaid program, is bound by the requirements and restrictions specified in the manuals, and under the contract, is required to reimburse the Medicaid program for any paid claims found to be in violation of Medicaid policies and procedures. The evidence presented at hearing established that Petitioner frequently violated various Medicaid policies and procedures. First, Petitioner repeatedly failed to comply with Section 10.9 of the Medicaid Physician's Provider Handbook, (MPPH), and Sections 409.905(9), 409.913(5)(e), 409.913(7)(e), and 409.913(7)(f), (1993, 1994 Supp. 1995, and 1996), Florida Statutes, which require all medical services to be rendered by, or supervised by a physician, and attested to by the physician's signature. Medical records reflecting services for paid claims must be physician signature certified and dated, or the services are not defined as physician's services. In addition, Petitioner routinely failed to correctly document the provision of certain physician's assistant (P.A.) Medicaid services that require the personal supervision of a physician or osteopath. See Chapter 1 of the Physician Assistant Coverage and Limitations Handbook, March 1995, and Appendix D (Glossary) in the Medicaid Provider Reimbursement Handbook, HCFA-1500 (HCFA-1500). In addition, Petitioner failed to comply with Medicaid regulations that require an approved physician to be present in the facility when certain P.A. services are delivered and to attest to it by signature within twenty-four hours of service. See Section 11.1 of the MPPH, effective July 1994, and Sections 409.905, and 409.913 (1993, 1994 Supp., 1995, and 1996 Supp.), Florida Statutes. The evidence presented at hearing also demonstrates that Petitioner repeatedly violated specific record keeping requirements located in Section 10.9 of the MPPH, Sections 10.6 and 11.5 of the Medicaid EPSDT Provider Handbook (EPSDT), and Sections 409.913(5)(e), 409.913(7)(e), and 409.913(7)(f), (1993, 1994 Supp., 1995, and 1996), Florida Statutes. In addition, the Agency demonstrated that Petitioner occasionally failed to document support for the necessity of certain services or simply billed for services that were not medically necessary. As indicated, Medicaid policy limits a physician to bill only for services that are medically necessary and defines the circumstances and varying levels of care authorized. In fact, Section 11.1 of the MPPH, effective July 1994, provides in part: The physician services program pays for services performed by a licensed physician or osteopath within the scope of the practice of medicine or osteopathy as defined by state law . . . . The services in this program must be performed for medical necessity for diagnosis and treatment of an illness on an eligible Medicaid recipient. Delivery of all services in this handbook must be done by or under the personal supervision of a physician or osteopath . . . at any place of service . . . . Each service type listed has special policy requirements that apply specifically to it. These must be adhered to for payment. The manual further provides clear guidelines defining authorized services for reimbursement which Petitioner apparently overlooked. For example, the manual defines the four types of medical history exams that Medicaid providers may conduct, the nature of the problems presented, and the appropriate and authorized tests. The manual also identifies the varying degrees of medical decision-making complexity related to Medicaid services and provides instructions relating to the method of selecting the correct evaluation and management code for billing. Petitioner consistently violated coding restrictions. Moreover, the Medicaid policy manual also outlines the specific procedures and billing requirements necessary for seeking payment for medical services including the early periodic screening for diagnosis and treatment (EPSDT) services. Chapter 10 and 11 of the MPPH specifically state that services that do not include all listed components of the EPSDT are not defined as an EPSDT, and upon audit, the Agency re-calculated Petitioner's medical services at the appropriate procedure code. Stipulation Prior to the commencement of the hearing, the parties stipulated that certain paid claims were correctly determined by the Agency to be overpayments. Specifically, the parties agreed that portions of samples 1, 3, 14, 21, 28, 41, 46, 47, 51, 53, and 56 could not be claimed for reimbursement since lab services which are part of an office visit reimbursement and/or lab service fees performed by an independent outside lab are not permitted. In addition, the parties agreed that specific portions of samples 1, 13, 14, 27, 28, 33, 35, 43, 46, 47, 52, 53, and 55 could not be claimed since Modifier 26 billing, the professional component, is only appropriate when the service is rendered in a hospital and Petitioner's services were rendered in an office. Pediatric Sample With regard to the random sample of pediatric files, upon careful review, the evidence presented at hearing sufficiently demonstrates that Petitioner was overpaid the following amounts on the following paid claims for the following reasons: The prolonged physician's services billed to Medicaid were not documented as having been provided or medically necessary. Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 1 1/18/1996 99354 $ 36.64 1 5/14/1996 99354 $ 36.64 13 9/25/1995 99354 $ 36.64 19 9/28/1994 99354 $ 39.50 21 12/18/1995 99354 $ 36.64 28 3/06/1995 99354 $ 36.64 42 6/04/1996 99354 $ 36.64 43 12/19/1994 99354 $ 36.64 47 9/28/1994 99354 $ 39.50 47 10/17/1995 99354 $ 36.64 51 4/05/1995 99354 $ 36.64 53 11/02/1995 99354 $ 36.64 56 5/01/1996 99354 $ 36.64 The level of care billed to and reimbursed by Medicaid at the 99215 office visit procedure code level was improper since the level of care provided was at the 99213 office visit procedure code level. Cluster Number Date of Service Overpayment 1 9/14/1995 $ 34.14 1 1/18/1996 $ 34.14 1 5/14/1996 $ 34.14 33 9/28/1994 $ 20.00 47 10/17/1995 $ 34.14 The level of care billed and paid at the 99215 office visit procedure code level was improper since the level of care that was provided was at the 99214 office visit procedure code level. Cluster Number Date of Service Overpayment 53 5/31/1995 $ 21.69 The level of care billed and paid at the 99205 office visit procedure code level was improper since the level of care that was provided was at the 99204 office visit procedure code level. Cluster Number Date of Service Overpayment 25 7/27/1994 $ 2.00 The level of care that was billed and paid at the 99205 office visit procedure code level was improper since the level of care that was provided was at the 99203 office visit procedure code level. Cluster Number Date of Service Overpayment 35 5/11/1995 $ 37.96 51 12/08/1994 $ 15.00 55 11/21/1995 $ 37.96 58 9/22/1995 $ 37.96 The level of care that was billed and paid at the 99215 office visit procedure code level was improper since the level of care that was provided was at the 99204 office visit procedure code level. Cluster Number Date of Service Overpayment 43 12/11/1994 ($ 3.00) credit The level of care that was billed and paid at the 99205 office visit procedure code level was improper since the medical services provided and documentation supported an EPSDT visit. Cluster Number Date of Service Overpayment 53 2/06/1995 $ 16.53 The required components of the EPSDT were not documented as being performed at the office visit that had been claimed and paid as an EPSDT and therefore, the difference between the EPSDT payment received and the value of the procedure code for the documented level of office visit that occurred (i.e., 99214, 99213, 99212, 99211, or 99203), is deemed an overpayment. Cluster Number Date of Service Level of Visit Overpayment 1 7/28/1995 99213 $ 39.82 3 6/28/1995 99213 $ 39.82 5 3/03/1995 99203 $ 21.43 6 7/07/1994 99213 $ 5.00 10 8/17/1995 99212 $ 43.82 12 1/31/1996 99204 $ 0.00 14 5/31/1995 99213 $ 39.82 18 10/04/1994 99213 $ 5.00 18 1/29/1996 99214 $ 27.37 20 8/25/1994 99213 $ 5.00 21 12/11/1995 99214 $ 27.37 29 8/17/1994 99212 $ 9.00 Cluster Number Date of Service Level of Visit Overpayment 29 9/06/1995 99213 $ 39.82 40 7/25/1994 99203 $ 0.00 41 5/06/1996 99214 $ 27.37 46 9/19/1994 99213 $ 5.00 46 10/19/1995 99213 $ 39.82 47 11/02/1994 99213 $ 5.00 51 9/07/1995 99213 $ 39.82 53 7/10/1995 99213 $ 39.82 53 1/19/1995 99213 $ 39.82 59 5/02/1996 99203 $ 43.39 Adult Samples At hearing, Petitioner disputed all of the Agency's findings relating to patients over the age of 21 and objected to Dr. Deeb, a pediatrician, performing any review of their files. While Dr. Deeb is not the appropriate peer to review adult patient files, the following adult claims did not require substantive peer review and resulted in overpayment due to the stated reason: There were not any medical records in existence to indicate that any medical services were performed. Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 2 2/20/1995 99215 $ 53.00 2 7/11/1995 99215 $ 59.14 2 8/09/1995 99215 $ 57.14 2 9/07/1995 99213 $ 23.00 2 10/11/1995 99213 $ 23.00 2 1/02/1996 99213 $ 23.00 2 3/22/1996 73560/Rad.Ex. $ 16.36 2 4/01/1996 99215 $ 57.14 2 4/05/1996 99213 $ 23.00 2 4/23/1996 99213 $ 23.00 15 2/16/1996 99213 $ 23.00 15 2/19/1996 99215 $ 57.14 16 5/14/1996 Blood Count $ 8.00 Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 16 5/14/1996 UA $ 3.00 16 5/14/1996 99215 $ 57.14 23 7/28/1994 99213 $ 23.00 23 5/09/1995 72069/26 Rad.Ex. $ 6.98 23 5/09/1995 72069/Rad.Ex. $ 17.45 23 10/20/1995 99213 $ 23.00 34 4/24/1996 99214 $ 35.45 57 11/17/1995 99215 $ 59.14 60 4/10/1996 99215 $ 57.14 61 5/22/1995 99213 $ 23.00 The medical records failed to contain the required physician's signature and date authenticating the fact that the services billed were performed by either P.A. Olsen or P.A. Avidon under physician supervision. The services provided by the non-physician employee were reviewed and down-coded by the Agency to the appropriate level physician's office visit code. Cluster Number Date of Service Proc. Code Pd./ P. Code Allowed Overpayment 2 6/30/1995 99215/99212 $ 36.14 2 7/20/1995 99215/99213 $ 34.14 2 7/28/1995 99215/99213 $ 34.14 2 9/05/1995 99215/99212 $ 36.14 8 4/17/1995 99205/99203 $ 35.96 17 3/27/1995 99205/99203 $ 35.96 23 5/09/1995 99215/99213 $ 32.14 23 6/09/1995 99215/99213 $ 32.14 34 4/23/1996 99205/99203 $ 35.96 The medical records failed to contain the required physician signature authenticating the fact that the services were provided by a physician. The services provided were reviewed and down-coded by the Agency to the appropriate level physician's office visit code. Procedure Code Cluster Number Date of Service Billed and Paid Overpayment 2 6/14/1995 99215/99211 $ 45.14 16 5/15/1996 99215/99211 $ 45.14 61 5/05/1995 99205/99204 $ 14.53 The provider improperly sought payment for lab services that were part of the office visit reimbursement and/or lab services performed by an independent outside lab. Cluster Number Date of Service Procedure Billed and Paid Overpayment 2 3/08/1996 UA $ 3.00 2 4/03/1996 UA $ 3.00 15 2/08/1996 UA $ 3.00 16 5/15/1996 Blood Count $ 8.50 16 5/15/1996 Blood Count $ 8.00 The provider improperly sought payment for Modifier 26 billings (professional component) which are only appropriate when the service is rendered in a hospital. Cluster Number Date of Service Procedure Billed and Paid Overpayment 2 2/17/1995 Radiologic exam $ 6.98 2 6/14/1995 Radiologic exam $ 7.20 8 4/17/1995 Tympanometry $ 9.00 16 5/13/1996 Radiologic exam $ 5.45 16 5/15/1996 Radiologic exam $ 6.98 In addition to the policy and procedural violations, Petitioner, in egregious violation of the Medicaid program, admittedly submitted Medicaid claims for the services of specialist physicians (such as an allergist, OB/GYN, podiatrist, psychologists, and ophthalmologists) not within its Provider group, collected Medicaid funds based on those claims, and reimbursed the respective specialist. While Petitioner's corporate representative, Mr. Colavecchio, was admittedly responsible for the coding and billing of the Medicaid services submitted for reimbursement, he was minimally aware of the Medicaid policy requirements and possessed limited working knowledge of CPT coding and EPSDT billing. In addition, Petitioner's employees, Dr. Keith Wintermeyer and Dr. Marcia Malcolm, were only moderately familiar with the CPT coding and EPSDT component requirements. They provided little input to Petitioner regarding CPT coding and the sufficiency of certain physician's services relating to EPSDT billing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency re-calculate the overpayment consistent with the Findings of Fact, and include only those identified violations in the cluster samples of the adult patient files, and issue a Final Order requiring Petitioner to reimburse, within 60 days, the Agency for the Medicaid overpayments plus any interest that may accrue after entry of the Final Order. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 February, 2003. COPIES FURNISHED: Susan Felker-Little, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 Charles D. Jamieson, Esquire Ward, Damon & Posner, P.A. 4420 Beacon Circle West Palm Beach, Florida 33407 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
The Issue The issue for determination is whether Petitioner was overpaid by the Medicaid program as indicated in Respondent's Final Agency Audit Report dated June 20, 2001.
Findings Of Fact Dr. Henson was an authorized Medicaid provider during the audit period of January 1, 1998 through September 30, 2000.1 During the audit period, Dr. Henson had been issued Medicaid provider number 0467243-00.2 No dispute exists that, during the audit period, Dr. Henson had a valid Medicaid Provider Agreement(s) with AHCA.3 During the audit period, Dr. Henson was employed by Latin Quarter Medical Center, located at 855 Southwest 8th Street, Miami, Florida, at which he treated Medicaid recipients. Dr. Henson had been a surgeon but had suffered a stroke in December 1997, which caused him to be incapable of continuing to practice as a surgeon. He agreed to become employed with Latin Quarter Medical Center to work at its new clinic and to receive compensation for his services every two weeks. Latin Quarter Medical Center's patients were suffering from AIDS. Dr. Henson agreed to several terms and conditions in executing a Medicaid Provider Agreement (Agreement) with AHCA. Those terms and conditions included the following: Quality of Service. The provider agrees to provide medically necessary services or goods . . . agrees that services and goods billed to the Medicaid program must be medically necessary . . . The services and goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim. Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulation, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they may be amended from time to time. Term and signatures This provider agreement . . . shall remain in effect until July 1, 1999, unless otherwise terminated. . . . Provider Responsibilities. The Medical provider shall: * * * (b) Keep and maintain . . . all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical . . . records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid. . . . The Agreement was signed by Dr. Henson in 1996. In a Noninstitutional Professional and Technical Medicaid Provider Agreement, Dr. Henson agreed to terms and conditions including the following: The provider agrees to keep complete and accurate medical . . . records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program . . . . The provider agrees that services or goods billed to the Medicaid program must be medically necessary . . . and the services and goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting a claim. The provider agrees to submit Medicaid claims in accordance with program policies and that payment by the program for services rendered will be based on the payment methodology in the applicable Florida Administrative Rule. . . . * * * 8. The provider and the Department [Department of Health and Rehabilitative Services] agree to abide by the provisions of the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The Agreement was signed by Dr. Henson in 1988. AHCA audited certain of Dr. Henson's Medicaid claims pertaining to services rendered between January 1, 1998 and September 30, 2000. By Preliminary Agency Audit Report (PAAR) dated April 12, 2001, AHCA notified Dr. Henson that, after a physician consultant with a specialty in infectious disease reviewed the Medical claims and medical records provided by Dr. Henson, a preliminary determination was made that certain claims in the amount of $124,556.83 were not covered by Medicaid. After the issuance of the PAAR, no further documentation was submitted by Dr. Henson to AHCA. As a result, AHCA issued a FAAR dated June 20, 2001, upholding the overpayment of $124,556.83. The FAAR indicated, among other things, that the documentation provided by Dr. Henson supported a lower level of office visit than the one billed and for which payment was received and, therefore, the difference between the payment for the appropriate level of service and the amount actually paid was an overpayment; that some of Dr. Henson's medical records failed to contain documentation for services which were billed and for which payment was made and, therefore, the payments for the inappropriate documentation was an overpayment; that some of the services rendered were inappropriately coded and the difference between payment for the proper code and the inappropriate code was an overpayment; and that some of the services for which billing was made and payment received were not medically necessary and those services were disallowed and were, therefore, an overpayment. The FAAR further provided how the overpayment was calculated, indicating, among other things, that a sample of 30 recipients of the 2936 claims submitted by Dr. Henson were reviewed for the period from January 1, 1998 through September 30, 2000; that a statistical formula for cluster sampling, with the formula being presented, was used; that the statistical formula was generally accepted; and that the statistical formula showed an overpayment in the amount of $124,556.83, with a 95 percent probability of correctness. The majority of the overpayment was due to denied claims for intravenous infusions of multi-vitamins, epogen and nupogen to adult HIV/AIDS patients. AHCA's representative primarily responsible for handling the audit of Dr. Henson was Sharon Dewey, a registered nurse employed in the Medicaid Program Integrity (MPI) division of AHCA. Nurse Dewey conducted an audit of Medicaid payments only under Dr. Henson's Medicaid Provider number. An on-site visit of Dr. Henson's office was made by Nurse Dewey. During the on-site visit, she provided Dr. Henson with a questionnaire, which was completed by her and signed by Dr. Henson, and which indicated that Dr. Henson was the only Medicaid Provider at the office at which he was located, Latin Quarter Medical Center, 855 Southwest 8th Street, Miami, Florida. At the on-site visit, Dr. Henson provided all of the medical documentation and medical recipient records for the audit period involved. All the Medicaid claims for the medical recipients were paid Medicaid claims originating only from Dr. Henson's Medical Provider number. Dr. Henson made available and provided to AHCA or AHCA's representatives any and all required Medicaid-related records and information pertaining to the audit that he had in his possession.4 He never refused to allow access to the records or information. Having received the medical recipient records from Dr. Henson, Nurse Dewey organized the records by patient names and dates of service and provided them to Dr. Joseph W. Shands, Jr., along with a worksheet for the audited claims for each patient. Dr. Shands is an expert in infectious diseases and the treatment and management of AIDS and HIV. Dr. Shands retired in 2002, and his practice was basically the same as Dr. Henson. No objection was made at hearing that Dr. Shands met the statutory definition of "peer." § 409.9131(1)(c), Florida Statutes (1999).5 The undersigned finds Dr. Shands' testimony persuasive. Dr. Shands reviewed the medical documentation provided by Dr. Henson to AHCA. The medical documentation that he reviewed indicated that the patients were "all HIV AIDS patients." Dr. Shands reviewed the particular medications given the patients; reviewed the reasons why the medications were given; considered and made a determination as to whether a justification existed for the administration of the medication; and, based on his determination, either allowed or disallowed the claim. He made no determinations as to the actual dollar amount of services provided. After reviewing the medical records, Dr. Shands made notations on the worksheets, signed the worksheets, and returned the worksheets to Nurse Dewey. Specific instances of acute attention involved the administration of intravenous (IV) multi-vitamins, epogen, nupogen, and Intravenous Immunoglobulin (IVIG). As to the IV of multi-vitamins, Dr. Henson prescribed this administration for almost all of his patients. Dr. Shands found that the patients were coming into the facility two to three times a week for the treatment, but he found no documented medical information to justify the use of IV multi-vitamins and determined these services were not medically necessary. In Dr. Shands' opinion an oral multi-vitamin would have been more appropriate and achieved the same result. An oral multi-vitamin is not recommended, according to Dr. Shands, where the patient is unable to digest the oral multi-vitamin. Notably, for one patient a notation was made that the patient refused pills, but a further notation indicated that Dr. Henson had prescribed the same patient pill-based medications for treatment, which negated the basis for the intravenous use. Furthermore, IV administration to an HIV/AIDS patient places the patient at an unnecessary risk of infection, which is not present with oral multi-vitamins. Dr. Henson testified that he was continuing the treatment of another physician, but he failed to make an independent medical judgment based upon his own medical findings. Further, no justification was in the medical records for the former physician's administration of IV multi-vitamins. Additionally, IV multi-vitamins were more costly than oral administration. And, with patients returning to the facility two to three times a week, the cost increased even more. Regarding epogen, Dr. Shands opined that certain administration was not medically necessary for the HIV/AIDS' patients. As to nupogen, Dr. Shands opined that certain administration was not medically necessary for the HIV/AIDS' patients. Regarding the administration of IVIG, Dr. Shands opined that the administration was not medically necessary for the HIV/AIDS' patients. As to certain office visits for the administration of IV multi-vitamins, epogen, nupogen, and IVIG, Dr. Shands opined that the office visits were unnecessary. Using the worksheets, with Dr. Shands' notations on them, together with Dr. Shands denials or reductions, Nurse Dewey calculated the overpayment associated with each of Dr. Henson's patients. Subsequently, a statistical calculation was applied by AHCA to extend the audit sample's total overall payment to all of Dr. Henson's Medicaid claims during the audit period, which resulted in a determination of an overpayment in the amount of $124,556.83. Dr. Henson suggests that his signature may have been falsified or forged on the medical records and information that he submitted to AHCA for its audit. Prior to hearing, he had an opportunity to review the medical records and information but could not identify one instance that his signature was falsified or forged. Consequently, a finding of fact is made that Dr. Henson signed the medical records and documentation provided to AHCA by him for the audit. Dr. Henson presented no expert testimony or any testimony to support the medical necessity or cost-effectiveness of the procedures that he used. Further, Dr. Henson contends that Latin Quarter Medical Center, the facility that employed him, received the Medicaid payments, not he. However, as the Medicaid Provider, he was not relieved of his responsibility to make sure that the medical procedures were medically necessary and cost-effective.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Arthur Henson, D.O., received overpayments in the Medicaid program in the amount of $124,556.83, during the audit period January 1, 1998 through September 30, 2000, and requiring Arthur Henson, D.O., to repay the overpayment amount. DONE AND ENTERED this 29th day of June, 2006, in Tallahassee, Leon County, Florida. S ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2006.
The Issue The issue for determination is whether Petitioner was overpaid by the Medicaid program as set forth in Petitioner's Final Agency Audit Report dated June 12, 2006 for the period January 1, 2002 through December 31, 2004.
Findings Of Fact AHCA audited certain of Dr. Negrette's Medicaid claims pertaining to services rendered between January 1, 2002 and December 31, 2004, hereinafter the audit period. Dr. Negrette was an authorized Medicaid provider during the audit period. During the audit period, Dr. Negrette had been issued Medicaid provider number 061422000. No dispute exists that, during the audit period, Dr. Negrette had a valid Medicaid Provider Agreement with AHCA. For services provided during the audit period, Dr. Negrette received in excess $79,523.70 in payments for services to Medicaid recipients. By a preliminary audit report dated August 25, 2005, AHCA notified Dr. Negrette that a preliminary determination was made that he was overpaid by the Medicaid program in the amount of $137,051.25. Subsequently, by a FAR dated June 12, 2006, AHCA notified Dr. Negrette that, after a review of all documentation submitted, it determined that he had been overpaid by the Medicaid program in the amount of $79,523.70, thus, reducing the amount of the overpayment. The FAR further provided how the overpayment was calculated using a sample of the claims submitted during the audit period, including the statistical formula for cluster sampling; and indicated that the statistical formula was generally accepted and that the statistical formula showed an overpayment in the amount of $79,523.70, with a 95 percent probability of correctness. Dr. Negrette agrees that the mathematical computation of the audit is correct.
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 Jesus Negrette, M.D., received overpayments from the Medicaid program in the amount of $79,523.70, during the audit period January 1, 2002 through December 31, 2004, and requiring Jesus Negrette, M.D., to repay the amount of overpayment. DONE AND ENTERED this 5th day of February, 2007, 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 5th day of February, 2007.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the" day of le , 2013, in Tallahassee, Leon County, Florida. ‘LM, fo: ABETH DUDEK, SECRETA “Agency for Health Care Administration 1 Filed May 8, 2013 11:26 AM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Mario Rub, M.D. Pediatric Pulmonologist 20776 W. Dixie Highway Aventura, Florida 33180 (Via U.S. Mail) Errol H. Powell Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Willis F. Melvin Assistant General Counsel Agency for Health Care Administration Office of the General Counsel (Via Electronic Mail) Ken Yon, Acting Bureau Chief, Medicaid Program Integrity Finance and Accounting Health Quality Assurance (via email) DOH (via email) License number ME69331 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, Laserfiche or electronic mail on this the 5 day of By » 2013. —) Richard Shoop, Esqu: Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158 ire STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. DOAH Case No.: 13-0129MPI AHCA CLI. No.: 12-1694-000 MARIO RUB, M.D., Respondent. / SETTLEMENT AGREEMENT STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION (“AHCA” or “the Agency”), and MARIO RUB, M.D. (“PROVIDER”), by and through the undersigned, hereby stipulates and agrees as follows: 1. This Agreement is entered into for the purpose of memorializing the final resolution of the matters set forth in this Agreement. 2. PROVIDER is a Medicaid provider (Medicaid Provider No. 256291000) and was a provider during the audit period, September 1, 2008 to February 28, 2011. 3. In its final audit report (FAR) dated November 13, 2012 for the case referenced as C.I. No. 12-1694-000, AHCA notified PROVIDER that review of Medicaid claims performed by Medicaid Program Integrity (MPI) indicated that, in its opinion, some claims in whole or in part had been inappropriately paid. The Agency sought recoupment of this overpayment in the amount of $14,039.92. In response to the FAR, PROVIDER filed a petition for a formal administrative hearing. It was assigned DOAH Case No. 13-0129MPI. 4. Subsequent to the original audit, and in preparation for trial, AHCA re-reviewed the PROVIDER’s claims and evaluated additional documentation submitted by the PROVIDER. As a result of the additional review, AHCA determined the overpayment should be adjusted to $5,752.06 plus $1,154.41 in fines and $1,659.66 in costs for a total due of $8,566.13. 5. In order to resolve this matter without further administrative proceedings, PROVIDER and the AHCA expressly agree as follows: (1) AHCA agrees to accept the payment set forth herein in settlement of the overpayment issues arising from the captioned audit. (2) The amount in dispute that is now being resolved is five thousand seven hundred fifty-two dollars and six cents ($5,752.06) on the indebtedness, one thousand one hundred fifty-four dollars and forty-one cents ($1,154.41) in fines, plus one thousand six hundred fifty-nine dollars and sixty-six cents ($1,659.66) in investigative costs for a total of eight thousand five hundred sixty-six dollars and thirteen cents ($8,566.13). PROVIDER will make an initial payment of one thousand seven hundred thirteen dollars and twenty-three cents ($1,713.23) followed by eleven (11) monthly payments of six hundred two dollars and forty- eight cents ($602.48) and one final payment of six hundred two dollars and forty- six cents ($602.46). The first payment will be due beginning thirty (30) days after the Final Order date. This amount due will be offset by any amount already received by the Agency in this matter. Furthermore, PROVIDER is advised that pursuant to Section 409.913, Florida Statutes, failure to pay in full, or enter into and abide by the terms of any repayment schedule set forth by the Agency may result in termination from the Medicaid program, withholding of future Medicaid payments, or other such remedies as provided by law. Any outstanding balance accrues at 10% interest per year. Full payment will fully and completely settle all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 13-0129MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (3) In the event any interim payments are received or withheld, by whatever means, prior to the entry of the Final Order, Medicaid Accounts Receivable shall make the adjustment to credit such amounts, dollar for dollar, as quickly as is practicable. (4) Compliance with this repayment agreement fully and completely settles all claims in these proceedings before the Division of Administrative Hearings (DOAH Case No. 13-0129MPI). Should the provider’s enrollment with Medicaid be terminated, the full amount owed will be due within 30 days of termination. (5) PROVIDER and AHCA agree that full payment, as set forth above, resolves and settles this case completely. It will release both parties from any administrative or civil liabilities or claims arising from the findings in audit C.I. 12-1694-000. (6) PROVIDER agrees that it will not rebill the Medicaid Program in any manner for claims that were not covered by Medicaid, which are the subject of the audit in this case. 6. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. The C.J. number listed on the first page of this agreement must be legibly entered on the check to assure proper credit. Please mail payment to: AGENCY FOR HEALTHCARE ADMINISTRATION Medicaid Accounts Receivable — MS # 14 2727 Mahan Drive, Bldg. 2, Suite 200 Tallahassee, Florida 32308 7. PROVIDER agrees that failure to pay any monies due and owing under the terms of this Agreement shall constitute PROVIDER’S authorization for the Agency, without further notice, to withhold the total remaining amount due under the terms of this agreement from any monies due and owing to PROVIDER for any Medicaid claims. 8. AHCA reserves the right to enforce this Agreement under the laws of the State of Florida, the Rules of the Medicaid Program, and all other applicable rules and regulations. 9. This settlement does not constitute an admission of wrongdoing or error by either party with respect to this case or any other matter. 10. Each party shall bear its own attorneys’ fees and costs, with the exception that the Respondent shall reimburse, as part of this settlement, $1,659.66 in Agency costs and $1,154.41 in fines. This amount is included in the calculations and demand of paragraph 5(2). 11. The signatories to this Agreement, acting in a representative capacity, represent that they are duly authorized to enter into this Agreement on behalf of the respective parties. 12. | This Agreement shall be construed in accordance with the provisions of the laws of Florida. Venue for any action arising from this Agreement shall be in Leon County, Florida. 13. This Agreement constitutes the entire agreement between PROVIDER and AHCA, including anyone acting for, associated with or employed by them, concerning all matters and supersedes any prior discussions, agreements or understandings; there are no promises, representations or agreements between PROVIDER and the AHCA other than as set forth herein. No modification or waiver of any provision shall be valid unless a written amendment to the Agreement is completed and properly executed by the parties. 14. This is an Agreement of settlement and compromise, made in recognition that the parties may have different or incorrect understandings, information and contentions, as to facts and law, and with each party compromising and settling any potential correctness or 4 incorrectness of its understandings, information and contentions as to facts and law, so that no misunderstanding or misinformation shall be a ground for rescission hereof. 15. PROVIDER expressly waives in this matter its right to any hearing pursuant to sections 120.569 or 120.57, Florida Statutes, the making of findings of fact and conclusions of law by the Agency, and all further and other proceedings to which it may be entitled by law or rules of the Agency regarding this proceeding and any and all issues raised herein. PROVIDER further agrees that it shall not challenge or contest any Final Order entered in this matter which is consistent with the terms of this settlement agreement in any forum now or in the future available to it, including the right to any administrative proceeding, circuit or federal court action or any appeal. 16. | This Agreement is and shall be deemed jointly drafted and written by all parties to it and shall not be construed or interpreted against the party originating or preparing it. 17. To the extent that any provision of this Agreement is prohibited by law for any reason, such provision shall be effective to the extent not so prohibited, and such prohibition shall not affect any other provision of this Agreement. 18. This Agreement shall inure to the benefit of and be binding on each party’s successors, assigns, heirs, administrators, representatives and trustees. 19. All times stated herein are of the essence of this Agreement. THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK MARIO RUB, M.D. Printed Representativé$ Name BY. Nacio buh, 305 0060381 DEA BR 4969664 20776 W. DDGE HWY. AVENTURA, FL 33180 (905) 931-1812 + FAX (305) 931-1632 FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Wl « CC mMmActeR General Counsel Aoegack dll Chief Medicaid Counsel hy. Willis F. Melvin, Jr. Assistant General Counsel Dated: Dated: Dated: Dated: Dated: 2| \3 , 2013 S/3 ,2013 r// 2 ,2013 3 5 2013 Februany LF ,2013 RICK SCOTT FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION GOVERNOR Better Health Care for all Floridians CERTIFIED MAIL No.:7009 2820 0001 5671 9368 November 13, 2012 Provider No: 2562910-00 NPI No: 1790889996 License No.:ME69331 Mario Rub, M.D. 20776 West Dixie Highway North Miami Beach, Florida 33180 In Reply Refer to FINAL AUDIT REPORT C.L: No. 12-1694-000 Dear Provider: ELIZABETH DUDEK SECRETARY The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity, has completed a review of claims for Medicaid reimbursement for dates of service during the period September 1, 2008, through February 28, 2011. A preliminary audit report dated July 16, 2012, was sent to you indicating that we had determined you were overpaid $279,132.60. Based upon a review of all documentation submitted, we have determined that you were overpaid $14,039.92 for services that in whole or in part are not covered by Medicaid. A fine of $2,807.98 has been applied. The cost assessed for this audit is $1,359.66. The total amount due is $18,207.56. Be advised of the following: (1) In accordance with Sections 409.913(15), (16), and (17), Florida Statutes (F.S.), and Rule 59G- 9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. This letter shall serve as notice of the following sanction(s): e A fine of $2,807.98 for violation(s) of Rule Section 59G-9.070(7) (e), F.A.C. (2) Pursuant to Section 409.913(23) (a), F.S., the Agency is entitled to recover all investigative, legal, and expert witness costs. 2727 Mahan Drive, MS# 6 Tallahassee, Florida 32308 Visit AHCA online at http://ahca.myflorida.com Mario Rub, M.D. Provider ID: 2562910-00 CI. No.:12-1694-000 Page 2 This review and the determination of overpayment were made in accordance with the provisions of Section 409.913, F.S. In determining the appropriateness of Medicaid payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, limitations and requirements found in the Medicaid provider handbooks and Section 409.913, F.S. In applying for 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 the review of your claims, and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are attached, listing the claims that are affected by this determination. REVIEW DETERMINATION(S) Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office visits. The documentation you provided supports a lower level of office visit than the one for which you billed and received payment. This determination was made by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. Medicaid policy requires that services performed be medically necessary for the diagnosis and treatment ofan illness. You billed and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, were insufficient to justify billing for code indicated. The documentation failed to meet the Medicaid criteria for medical necessity. The claims were either disallowed or adjusted by the peer to reflect service documented. OVERPAYMENT CALCULATION A random sample of 35 recipients respecting whom you submitted 173 claims was reviewed. For those claims in the sample, which have dates of service from September 1, 2008, through February 28, 2011, an overpayment of $846.51 or $4.89312139 per claim, was found. Since you were paid for a total (population) of 3,994 claims for that period, the point estimate of the total overpayment is 3,994 x 4,89312139 = $19,543.13. There is a 50 percent probability that the overpayment to you is that amount or more. We used the following statistical formula for cluster sampling to calculate the amount due the Agency: E- oe) ses 4 - -YB,y Where: N N E = point estimate of overpayment = SA, > B | Mario Rub, M.D. Provider ID: 2562910-00 CI. No.:12-1694-000 Page 3 U F = number of claims in the population = s B is] A, = total overpayment in sample cluster B, = number of claims in sample cluster U =number of clusters in the population N = number of clusters in the random sample N N Y = mean overpayment per claim = > A, > B, i=] j= t = t value from the Distribution of ¢ Table All of the claims relating to a recipient represent a cluster. The values of overpayment and number of claims for each recipient in the sample are shown on the attachment entitled “Overpayment Calculation Using Cluster Sampling.” From this statistical formula, which is generally accepted for this purpose, we have calculated that the overpayment to you is $14,039.92, with a ninety-five percent (95%) probability that it is that amount or more. If you are currently involved in a bankruptcy, you should notify your attorney immediately and provide a copy of this letter for them. Please advise your attorney that we need the following information immediately: (1) the date of filing of the bankruptcy petition; (2) the case number; (3) the court name and the division in which the petition was filed (e.g., Northern District of Florida, Tallahassee Division); and, (4) the name, address, and telephone number of your attorney. If you are not in bankruptcy and you concur with our findings, remit by certified check in the amount of $18,207.56, which includes the overpayment amount as well as any fines imposed and assessed costs. The check must be payable to the Florida Agency for Health Care Administration. Questions regarding procedures for submitting payment should be directed to Medicaid Accounts Receivable, (850) 412-3901. To ensure proper credit, be certain you legibly record on your check your Medicaid provider number and the C.J. number listed on the first page of this audit report. Please mail payment to: Medicaid Accounts Receivable - MS # 14 Agency for Health Care Administration 2727 Mahan Drive Bldg. 2, Ste. 200 Tallahassee, FL 32308 Pursuant to section 409.913(25)(d), F.S., the Agency may collect money owed by all means allowable by law, including, but not limited to, exercising the option to collect money from Medicare that is payable to the provider. Pursuant to section 409.913(27), F.S., if within 30 days following this notice you have not either repaid the alleged overpayment amount or entered into a satisfactory repayment agreement with the Agency, your Medicaid reimbursements will be withheld; they will continue to be withheld, even during the pendency of an administrative hearing, until such time as the overpayment amount is satisfied. Pursuant to section 409.913(30), F.S., the Agency shall terminate your participation in the Medicaid program if you fail to repay an overpayment or enter into a satisfactory repayment agreement with the Agency, within 35 days after the date of a final order which is no longer subject to further appeal. Pursuant to sections 409.913(15)(q) and 409.913(25)(c), F.S., a provider that does not adhere to the terms of a repayment agreement is subject to termination from the Medicaid program. Mario Rub, M.D. Provider ID: 2562910-00 C.J. No.:12-1694-000 Page 4 Finally, failure to comply with all sanctions applied or due dates may result in additional sanctions being imposed. You have the right to request a formal or informal hearing pursuant to Section 120.569, F.S. Ifa request for a formal hearing is made, the petition must be made in compliance with Section 28-106.201, F.A.C. and mediation may be available. If a request for an informal hearing is made, the petition must be made in compliance with rule Section 28-106.301, F.A.C. Additionally, you are hereby informed that ifa request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. For more information regarding your hearing and mediation rights, please see the attached Notice of Administrative Hearing and Mediation Rights. Any questions you may have about this matter should be directed to: : Jennifer Ellingsen, Investigator, Agency for Health Care Administration, Office of Inspector General, Medicaid Program Integrity, 2727 Mahan Drive, Mail Stop #6, Tallahassee, Florida 32308-5403, telephone (850) 412- 4600, facsimile (850) 410-1972. Sincerely, Se Be Fred Becknell AHCA Administrator Office of Inspector General Medicaid Program Integrity FB/jse Enclosure(s) Copies furnished to: Finance & Accounting (Interoffice mail) Health Quality Assurance (E-mail) Department of Health (E-mail) Mario Rub, M.D. Provider ID: 2562910-00 C.J. No.:12-1694-000 Page 5 NOTICE OF ADMINISTRATIVE HEARING AND MEDIATION RIGHTS You have the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If you disagree with the facts stated in the foregoing Final Audit Report (hereinafter FAR), you may request a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. If you do not dispute the facts stated in the FAR, but believe there are additional reasons to grant the relief you seek, you may request an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. Additionally, pursuant to Section 120.573, Florida Statutes, mediation may be available if you have chosen a formal administrative hearing, as discussed more fully below. The written request for an administrative hearing must conform to the requirements of either Rule 28- 106.201(2) or Rule 28-106.301(2), Florida Administrative Code, and must be received by the Agency for Health Care Administration, by 5:00 P.M. no later than 21 days after you received the FAR. The address for filing the written request for an administrative hearing is: Richard J. Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Fax: (850) 921-0158 Phone: (850) 412-3630 The request must be legible, on 8 % by 11-inch white paper, and contain: 1. Your name, address, telephone number, any Agency identifying number on the FAR, if known, and name, address, and telephone number of your representative, if any; 2. An explanation of how your substantial interests will be affected by the action described in the FAR; 3. A statement of when and how you received the FAR; 4. Fora request for formal hearing, a statement of all disputed issues of material fact; 5. Fora request for formal hearing, a concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle you to relief; 6. Fora request for formal hearing, whether you request mediation, if it is available; 7. For a request for informal hearing, what bases support an adjustment to the amount owed to the Agency; and 8. A demand for relief. A formal hearing will be held if there are disputed issues of material fact. Additionally, mediation may be available in conjunction with a formal hearing. Mediation is a way to use a neutral third party to assist the parties in a legal or administrative proceeding to reach a settlement of their case. If you and the Agency agree to mediation, it does not mean that you give up the right to a hearing. Rather, you and the Agency will try to settle your case first with mediation. If you request mediation, and the Agency agrees to it, you will be contacted by the Agency to set up a time for the mediation and to enter into a mediation agreement. If a mediation agreement is not reached within 10 days following the request for mediation, the matter will proceed without mediation. The mediation must be concluded within 60 days of having entered into the agreement, unless you and the Agency agree to a different time period. The mediation agreement between you and the Agency will include provisions for selecting the mediator, the allocation of costs and fees associated with the mediation, and the confidentiality of discussions and documents involved in the mediation. Mediators charge hourly fees that must be shared equally by you and the Agency. If a written request for an administrative hearing is not timely received you will have waived your right to have the intended action reviewed pursuant to Chapter 120, Florida Statutes, and the action set forth in the FAR shall be conclusive and final. FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Provider: 256291000 - MARIO RUB Overpayment Calculation Using Cluster Sampling by Recip Name Dates Of Service: 9/1/2008 through 2/28/2011 Number of recipients in population: Number of recipients in sample: Total payments in population: No. of claims in population: Totals: Using Overpayment per claim method Overpayment per sample claim: Point estimate of the overpayment: Variance of the overpayment: Standard error of the overpayment: Half confidence interval: Overpayment at the 95 % Confidence level: Overpayment run on 11/9/2012 COON ADH RWHNA 600 35 $1,083,860.97 3,994 $4.89312139 $19,543.13 $10,592,145.98 $3,254.56 $5,503.21 $14,039.92 33 FP NN FB HOMER ANNA aNWaAn = =a nN 173 Case ID: Confidence level: t value: $228.96 $145.15 $281.20 $121.92 $153.25 $68.64 $747.83 $228.96 $121.92 $168.96 $28,469.80 $76.70 $87.60 $236.70 $2,803.99 $229.95 $297.69 $171.41 $87.60 $129.39 $259.20 $3,257.45 $234.17 $87.60 $251.87 $75.97 $57.55 $34.32 $693.77 $87.60 $173.92 $87.60 $20,625.31 $121.92 $75.97 $60,981.84 Page 4 of 4 NPI: 1790889996 12-1694-000 95 % 1.690924 $0.00 $0.00 $117.70 $0.00 $0.00 $52.55 $194.73 $0.00 $0.00 $0.00 $126.76 $19.16 $0.00 $38.32 $0.00 $0.00 $38.30 $0.00 $0.00 $41.79 $54.28 $0.00 $68.75 $0.00 $0.00 $0.00 $0.00 $0.00 $94.17 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $846.51 Page 1 of 1) ( | SENDER: COMPLETE THIS SECTION ® Complete Items 1, 2, and 3. Also complete Htam 4 If Reatricted Delivery Is desired, @ Print your name and address on the reverse 80 that we can return the card to you. ® Attach this card to the back of the malipisce, ot aathn dront. Ihsvares. rete pew ™ Attach this card to the back of the mallplece, or on the front If space permits, 1. Article Addressed to: &. Hecwived by ( Printed Name) D. Is delivary address different from item 17 1 Yes IC YES, enter delivery address below: = No Mario Rub, M.D. '" 20776 West Dixie Highwa: . 'y 3. Service Type North Miami Beach, Florida 33180 Centtied Mat ©) Express Mail Cl. # 12+1694-000 JE-re Ci Regletered —-C) Return Recelpt for Merchandlee - D Insured Mall = 6.0.0, 4, Restricted Delivery? 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The Issue The issue for determination is whether Petitioner must reimburse Respondent an amount up to $1,048,242.62, which sum Petitioner received from the Florida Medicaid Program in payment of claims arising from Petitioner's treating of pediatric patients between October 28, 2000 and October 25, 2002. Respondent alleges that the amount in controversy represents an overpayment arising from Petitioner's submission of claims that were not covered by Medicaid, in whole or in part.
Findings Of Fact Respondent Agency for Health Care Administration ("AHCA" or the "Agency") is the state agency responsible for administering the Florida Medicaid Program ("Medicaid"). Petitioner The Children's Office, Inc. ("TCO") was, at all relevant times, a Medicaid provider authorized to receive reimbursement for covered services rendered to Medicaid beneficiaries. From time to time, therefore, TCO had entered into various written contracts with the Agency, which will be referred to collectively as the "Provider Agreement." Exercising its statutory authority to oversee the integrity of Medicaid, the Agency conducted a review or audit of TCO's medical records to verify that claims paid by Medicaid during the period from October 28, 2000 to October 25, 2002 (the "Audit Period") had not exceeded authorized amounts. During the Audit Period, TCO had submitted 30,193 claims for services rendered to 3,148 patients (or recipients), on which Medicaid had paid a total of $1,593,881.86. Rather than examine the records of all 3,148 recipients served, the Agency selected a sample of 30 patients, whose records were reviewed first by a nurse consultant, and then by a physician "peer reviewer." TCO had submitted 260 claims during the Audit Period in connection with the 30 patients in the sample population. Medicaid had paid a total of $13,582.78 on these claims. The Agency's reviewers determined that, for various reasons, TCO had received a total of $9,740.10 in reimbursement of claims in the sample for services not covered by Medicaid, in whole or in part. Having discovered this "empirical overpayment" of $9,740.10, the Agency employed a statistical formula to ascertain the "probable total overpayment" that TCO had received from Medicaid in connection with the 30,193 claims presented during the Audit Period.1 (TCO does not dispute the methodology that AHCA used in determining the probable total overpayment based on the empirical overpayment associated with the sample population. The parties agreed at hearing that if the undersigned were to find that the empirical overpayment should be adjusted, then the Agency——not the undersigned——would recalculate the probable total overpayment using the same statistical formula.) The statistical analysis revealed a probable total overpayment of $1,048,242.62. This is the amount that AHCA seeks to recoup from TCO. TCO's resistance to the Agency's proposed action proceeds along two main fronts. One involves systemic or global challenges to the audit as a whole, the aim being to land a knockout blow that would preclude that Agency from recouping any amount. The other entails fact-specific disputes about the reimbursement of individual claims in the sample, the goal being to reduce the empirical overpayment——and thereby reduce the probable total overpayment.2 The Systemic Challenges TCO's systemic challenges to the audit are largely, if not exclusively, legal in nature. Indeed, the relevant facts are not in dispute. The factual bases (including the pertinent statutory and regulatory language) for TCO's arguments are set forth below. 1. Florida Administrative Code Rule 59G-1.010(22) provides as follows: (22) "Audit" means: an examination of "records for audit" supporting amounts reported in the annual cost report or in order to determine the correctness and propriety of the report; or an analysis of "records for audit" supporting a provider's claim activity for a recipient's services during a year or less of claims activity in order to determine whether Medicaid payments are or were due and the amounts thereof, with claim activity for each separate year constituting a separate audit. The term "audit" also comprehends discussions and interviews related to said examination or analysis. Also see "records for audit."[3] (Emphasis added.) TCO asserts that the foregoing definition of the term "audit" limits AHCA to reviewing periods of no greater than one year at a time, per provider, when investigating possible fraud, abuse, or overpayment as part of its Medicaid oversight responsibility. Because the Audit Period is approximately two years, TCO argues that the audit should be deemed void.4 2. Section 409.9131(5)(a), Florida Statutes, requires that the Agency, in making a determination of overpayment to a physician, must, among other things, "make every effort to consider the physician's patient case mix, including, but not limited to, patient age and whether individual patients are clients of the Children's Medical Services Network." Many of TCO's patients were clients of the Children's Medical Services Network ("CMS"), a fact that, TCO contends, the Agency's reviewers failed adequately to take into account. Though the evidence on this issue is limited, the undersigned agrees with TCO——and finds——that, in general, AHCA's reviewers placed little weight on whether a particular patient participated in CMS. The Agency did, however, consider TCO's overall "case mix" and factors relevant thereto. The undersigned determines, as a matter of fact, that the Agency put forth a reasonable effort under the circumstances to "consider [TCO's] patient case mix" in accordance with the statute. The undersigned further determines that, in any event, "case mix" considerations are not dispositive of the disputed reimbursement issues at hand. 3. Section 409.913(5), Florida Statutes, provides that all Medicaid providers are subject to having goods and services that are paid for by the Medicaid program reviewed by an appropriate peer-review organization designated by the agency. The written findings of the applicable peer- review organization are admissible in any court or administrative proceeding as evidence of medical necessity or the lack thereof. (Emphasis added.) Section 409.9131(5)(b), Florida Statutes, adds that "when the agency's preliminary analysis indicates that an evaluation of the medical necessity, appropriateness, and quality of care needs to be undertaken to determine a potential overpayment" to a physician, the Agency must refer the claims at issue for "peer review." The term "peer review" is defined, for purposes of Section 409.9131, as follows: "Peer review" means an evaluation of the professional practices of a Medicaid physician provider by a peer or peers in order to assess the medical necessity, appropriateness, and quality of care provided, as such care is compared to that customarily furnished by the physician's peers and to recognized health care standards, and, in cases involving determination of medical necessity, to determine whether the documentation in the physician's records is adequate. § 409.9131(2)(d), Fla. Stat. (emphasis added). TCO argues that Section 409.913(5) "clearly requires" the use of a peer-review organization (rather than an individual peer) when auditing "non-physician claims," and it contends that this "requirement" should be held applicable, as well, to the review of physician service claims pursuant to Section 409.9131(5). In this case, the peer review of physician service claims was performed, not by an organization, but by Dr. Larry Deeb, a Florida-licensed pediatrician. Thus, TCO urges that the audit be declared invalid in its entirety. 4. It is undisputed that approximately four years elapsed from the beginning of the Audit Period to the issuance, on November 30, 2004, of the Final Agency Audit Report, which latter gave TCO a clear point of entry to challenge the Agency's overpayment determination. TCO contends that this four-year "delay" was prejudicial to TCO's ability to defend against AHCA's recoupment effort. Thus, TCO argues that this proceeding should be deemed time-barred. 5. TCO asserts, and AHCA did not genuinely dispute, that the medical records provided to the Agency during the audit reveal a number of Medicaid compensable services for which TCO never submitted claims. TCO argues that if an investigation into possible Medicaid overpayments yields information demonstrating the existence of valid, yet unmade claims, then the Agency is under a legal duty either to pay those claims or set them off against any overpayment that might be found. The Fact-Specific Disputes In addition to challenging the validity of the audit as a whole, TCO disputes, in the alternative, the Agency's determinations regarding 13 specific claims; it also urges that several miscellaneous adjustments be made as well.5 These will be examined below. First, however, it is necessary to make some preliminary findings, to place the disputed claims in context. The disputed claims involve what are known as "evaluation and management services" ("E/M services") provided in the doctor's office or other outpatient setting to new or established patients. E/M services are billed to Medicaid using codes that reflect the intensity level of service provided. The codes are called "CPT codes"——"CPT" being short for Current Procedural Terminology. Medicaid reimburses providers for E/M services pursuant to fee schedules that specify the amount payable for each level of service according to the CPT codes. It is the provider's responsibility, in presenting a claim to Medicaid for payment, to determine the appropriate CPT code for the service provided. Medicaid generally pays claims upon receipt, without second-guessing the provider's judgment regarding the level of care. When the Agency conducts an investigation to determine possible overpayment to a provider, however, one thing it might review is whether the provider's claims were properly "coded"—— that is, whether the CPT codes on the bills accurately reflected the level of service provided to the patients, as documented in the medical records. If the Agency determines that the level of service provided was lower than that claimed, then it will "downcode" the claim to the proper level and seek to recoup from the provider, as an overpayment, the difference between what Medicaid paid on the claim as originally coded and what it would have paid on the claim as downcoded. In this case, each of the 13 disputed claim determinations involves a downcode with which TCO disagrees. The following CPT codes are relevant to the claims in dispute: NEW PATIENT 99201 Office and other outpatient visit for the evaluation and management of a new patient, which requires these three key components: ? a problem focused history;? a problem focused examination;and? straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. 99202 Office and other outpatient visit for the evaluation and management of a new patient, which requires these three key components: ? an expanded problem focused history;? an expanded problem focused examination; and? straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family. 99203 Office and other outpatient visit for the evaluation and management of a new patient, which requires these three key components:? a detailed history;? a detailed examination; and? medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. 99204 Office and other outpatient visit for the evaluation and management of a new patient, which requires these three key components: ? a comprehensive history;? a comprehensive examination; and? medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are low to moderate severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. 99205 Office and other outpatient visit for the evaluation and management of a new patient, which requires these three key components: ? a comprehensive history;? a comprehensive examination; and? medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. ESTABLISHED PATIENT 99211 Office and other outpatient visit for the evaluation and management of an established patient, that may not require the presence of a physician. Usually the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services. 99212 Office and other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: ? a problem focused history;? a problem focused examination; and? straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. 99213 Office and other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components:? an expanded problem focusedhistory;? an expanded problem focused examination; and? straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. 99214 Office and other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: ? a detailed history;? a detailed examination; and? medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are of moderate severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. 99215 Office and other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: ? a comprehensive history;? a comprehensive examination; and? medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are low to moderate severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family. American Medical Association, Evaluation and Management (E/M) Services Guidelines at 9-10 (2001). Turning now to the 13 disputed claims, the following is a summary discussion of each, sorted by recipient and date of service. Recipient No. 2 Date of Service ("DOS") 03/05/01. Nurse Practitioner Beverly Armstrong saw this patient, then aged 10, on March 5, 2001, because he was experiencing nasal drainage and a cough. Ms. Armstrong diagnosed sinusitis and bronchitis and prescribed appropriate medications for those conditions. The child is profoundly developmentally delayed, which complicated the examination and medical decision-making process. TCO billed this visit to Medicaid under CPT Code 99215——the highest level of E/M services for an established patient——and was reimbursed $60.95. It is undisputed, however, that Medicaid does not permit an advanced registered nurse practitioner ("ARNP") to bill any visit at the 99215 level. (If a physician co-signs the medical record, then the claim can be properly submitted as a 99215 visit, but that did not happen on this claim or any other disputed claim here involving the services of an ARNP.) Thus, there is no dispute that this claim must be downcoded. The Agency contends that the claim properly should be reimbursed as a 99213 visit; TCO contends that 99214 is the correct level of service. It is concluded that this visit met the criteria for reimbursement at the 99214 level. The Medicaid fee for ARNP services in connection with a 99214-level visit was $32.82 in March 2001, which is $28.13 less than Medicaid paid on this claim. The Agency based its probable total overpayment determination on an alleged overcharge of $35.90. Thus, the empirical overpayment should be reduced by $7.77. DOS 05/16/02. This patient was seen by Dr. Barbara Chamberlain on May 16, 2005, because he was having difficulty sleeping and was waking up scared. TCO submitted the claim for this visit to Medicaid under CPT Code 99214 and was reimbursed the established fee for that level of service. During the instant audit, the Agency downcoded the visit to 99213, resulting in an alleged overpayment of $15.71 on the claim. At hearing, however, the Agency's counsel conceded that, in view of Dr. Deeb's deposition testimony, the claim had been properly coded as a 99214 visit. Therefore, the empirical overpayment should be reduced by $15.71. Recipient No. 13 DOS 11/01/00. This patient, aged 4, presented on November 1, 2000, with a cough and fever, and was seen by Nurse Armstrong, who diagnosed bronchitis and prescribed treatment therefor. TCO presented this claim to Medicaid as a 99215 visit, which was improper because ARNP services are not authorized for payment at such level, and was reimbursed $59.43. AHCA contends that the claim should be downcoded to 99213, giving rise to an alleged overpayment of $34.38. The undersigned determines, however, that 99214 is the proper code, based on the overall complexity of the case as reflected in the medical records. The appropriate reimbursement, therefore, is $31.85, resulting in an overpayment on this claim of $27.58. The empirical overpayment should, accordingly, be reduced by $6.80. DOS 04/27/01. The patient was seen by Nurse Armstrong on April 27, 2001, complaining of fever and a recent history of vomiting and diarrhea. He was diagnosed with a middle ear infection and allergic rhinitis. After the visit, on the night of April 27, a call was made on this patient's behalf to the on- call nurse to report an ongoing high fever; the patient was encouraged to go to the emergency room for treatment. TCO improperly billed this claim for nursing services as a 99215 visit and was paid $60.95. The undersigned is persuaded by Dr. Deeb's deposition testimony that the appropriate service level on this claim is 99213, as the Agency contends. When it calculated the probable total overpayment, however, the Agency assumed, incorrectly, that the fee for ARNP services on a 99213 claim in April 2001 was $25.05. In fact, such claims were reimbursed at the rate of $21.03 per visit. Thus, for this claim, the empirical overpayment should be increased by $4.02. DOS 04/30/01. The patient presented again on April 30, 2001, with a high fever and nasal congestion. He was seen by Nurse Armstrong, who ordered blood and urine tests and prescribed additional treatment. TCO billed the visit, improperly, as a 99215 and was paid $60.95. Based on the medical records, which document a high fever that was not responding as expected to treatment, the undersigned determines that 99214 is the proper code for this visit. The applicable fee for such a visit, at the time, was $32.82. Thus, the overpayment on this claim is $28.13, not $35.90 as AHCA alleged. The empirical overpayment should be reduced by $7.77. Recipient No. 17 Nurse Armstrong saw this three-year-old on November 29, 2000. The patient came in with redness and swelling of the eyelid. The ARNP referred the patient to an ophthalmologist. TCO submitted a claim to Medicaid, reporting the visit under CPT Code 99215, which was improper because, to repeat for emphasis, nursing services cannot be billed at this level——a point that TCO conceded at hearing. Medicaid paid TCO $59.43 for the visit. The Agency asserts, and the undersigned finds, that this claim should be reimbursed at the 99213 level. The key fact here is that the patient was referred to a specialist. While this was no doubt an appropriate disposition, deciding to make a routine referral to an eye doctor for evaluation of a possible eye infection or injury should be a relatively easy medical task. The fee for ARNP services on a 99213 claim was $20.80 in November 2000. In calculating the probable total overpayment, the Agency incorrectly assumed that the applicable fee was $25.05. Thus, the empirical overpayment should be increased by $4.25 to account for this claim, properly adjusted. Recipient No. 18 DOS 07/17/02. This patient, aged 5, was seen by Dr. Chamberlain on July 17, 2002, for treatment of a cough and low- grade fever. The doctor diagnosed pharyngitis and prescribed an antibiotic. TCO billed Medicaid for a 99215 visit and was reimbursed $63.37. The Agency contends that this claim should be downcoded to 99213. The undersigned agrees, because the medical record documents a routine visit involving a straightforward diagnosis and plan of treatment. Thus, there should be no change to the empirical overpayment on account of this claim. DOS 08/08/02. Dr. Chamberlain saw this patient on August 8, 2002, because he had a fever. The doctor again diagnosed pharyngitis and offered an antibiotic injection, which the patient's mother refused. Dr. Chamberlain spent additional time counseling the mother, but she continued to decline the recommended treatment, against medical advice. TCO presented a claim to Medicaid for a 99214 visit. The Agency urges that this visit be downcoded to 99213, creating an alleged overpayment of $15.71. The undersigned finds, however, that 99214 was the appropriate code for this claim, primarily because of the need for additional counseling as a result of the mother's refusal of treatment. Thus, the empirical overpayment should be reduced by $15.71 for this claim. Patient No. 19 DOS 05/17/02. Nurse Armstrong saw this medically complex three-year-old as a new patient on May 17, 2002. The medical record does not document the specific medical complaint that drove the visit, but states that the patient wanted a nebulizer machine. The nurse examined the patient in some detail and decided to stay the course charted by other providers, directing that the patient continue taking the same medications. TCO reported the visit to Medicaid as a 99205 claim and received $85.00. This was improper on its face because nursing services cannot be billed at this level. The Agency contends that the claim should be downcoded to 99203, and the undersigned agrees. Based on the evidence presented, it is found that the medical decision-making required for this visit should not have exceeded a low level of complexity, especially since no material changes were made to the preexisting treatment plan. The fee for ARNP services on a 99203 visit was $40.23 in May 2002, not $38.70 as shown in the Agency's work papers. Consequently, the empirical overpayment should be reduced by $1.53 to reflect the adjustment of this claim. DOS 06/05/02. Dr. Chamberlain saw the patient on June 5, 2002, because she was vomiting, sleeping too much, and experiencing a loss of appetite. The doctor ordered emergency blood work, which revealed that one of the medications that the patient was taking had reached a toxic level in her bloodstream. This was a potentially life-threatening situation that required prompt medical attention. TCO billed this visit at the 99215 level. AHCA argues that the claim should be downcoded to 99213, at which level an alleged overpayment of $30.81 would result. The undersigned agrees with TCO, however, that 99215 was the proper code under the circumstances. The empirical overpayment should be reduced by $30.81 for this claim. DOS 07/08/02. The patient was seen by Dr. Chamberlain on July 8, 2002, for a "pre-op" examination ahead of a scheduled surgery to repair a hernia. The visit was billed to Medicaid as a 99215 claim, and TCO received $63.37. In this proceeding, TCO has conceded that 99215 was excessive, but it presses for a downcode only to 99214. The Agency asserts that 99213 is the proper code for this claim. The undersigned is persuaded that this focused pre-op examination should not have required a level of care beyond 99213. In July 2002, the fee for a physician's services on a 99213 visit was $32.56. The overpayment on this claim therefore is $30.81. Because the Agency mistakenly recorded the overpayment as $37.32 in its work papers and used that figure in calculating the probable total overpayment, the empirical overpayment should be reduced by $6.51. DOS 07/25/02. On this day, the medical records show that the patient was seen by Nurse Armstrong for "labs only" and to have a form completed for school. TCO submitted a claim to Medicaid for a 99215 visit (which was facially improper) and was reimbursed $63.37. AHCA now seeks to deny the claim in its entirety based on the absence of a medical record. Yet, as TCO points out, there is a record of this visit. It reflects that minimal services were performed and no examination of the patient was conducted. Thus, the claim should be downcoded to 99211. For ARNP services at this level, Medicaid paid $10.37 at the relevant time. Thus, the empirical overpayment should be reduced by $10.37 to account for this claim. DOS 09/04/02. Nurse Armstrong saw the patient, who presented with a fever and cough, on September 4, 2002. This visit took place a couple of weeks after the patient's hernia had been surgically repaired. The nurse diagnosed pharyngitis or tonsillitis. TCO presented the claim to Medicaid, improperly, as a level 99215 visit and received $63.37. AHCA contends that the claim should be downcoded to 99213. This would have been the appropriate code, the undersigned believes, but for the fact that the child had recently undergone surgery, which added an element of complexity to the case. The undersigned finds that the proper code for this claim is 99214. At the time, Medicaid paid $34.52 for ARNP services on a 99214 claim. Thus, the overpayment on this claim is $28.85. Because AHCA based its determination of the probable total overpayment on an alleged overpayment of $37.32 on this claim, the empirical overpayment should be reduced by $8.47. Miscellaneous Adjustments TCO has identified a number of alleged errors in the Agency's work papers, which will be discussed below. Recipient No. 15, DOS 12/07/00. This claim for a doctor's services was coded 99664. Medicaid paid TCO $8.00 on the claim. As part of the audit, AHCA reduced the allowable fee to $6.40, because the services at issue were in fact performed by an ARNP. This created an alleged overpayment on the claim of $1.60. TCO does not dispute that an ARNP performed the services; it asserts that the applicable fee is more than $6.40. TCO is correct. The fee for ARNP services on a 99664 claim was, in December 2000, $8.57. Thus, the empirical overpayment should be reduced by $2.17 (0.57 + 1.60). Recipient No. 30, DOS 05/03/02. TCO billed Medicaid for a doctor's services at the 99203 level and was reimbursed $50.30. AHCA determined in the audit that an ARNP actually performed the services in question and reduced the allowable fee to $40.24, resulting in an alleged overpayment of $10.06. The applicable ARNP fee schedule shows an allowable fee of $40.23. Thus, the empirical overpayment should be increased by 0.01 to account for this claim. Recipient No. 18, DOS 08/09/02. TCO correctly notes that, contrary to the Agency's allegation, there is a medical record for this visit, which shows that the ARNP gave the patient a shot of antibiotic medicine. Thus, while the Agency properly determined that TCO's claim for a physician's services at level 99215 resulted in an overpayment, it should have downcoded the claim to 99211, rather than denied the claim in its entirety, and allowed reimbursement at the ARNP fee of $10.37. Accordingly, the empirical overpayment should be reduced by $10.37. Recipient No. 17, DOS 07/10/01. TCO has identified a typographical error in a one of the Agency's work papers, where the date of service for this claim incorrectly was recorded as July 10, 2000, instead of July 10, 2001. This error did not affect the overpayment calculations, however, and thus no adjustment to the empirical overpayment is required. Recipient No. 22, DOS 09/03/02. TCO alleges that the allowed fee of $48.27 "is wrong." According to the applicable fee schedule, however, this is indeed the correct figure. Therefore, no change in the Agency's calculations is warranted. Recipient No. 23, DOS 08/07/02. TCO points out that a work paper of the Agency fails to mention the allowed CPT Code for this claim. The omission had no effect on the Agency's overpayment calculations. Recipient No. 26, DOS 07/20/01. TCO notes a typographical error in a work paper that had no effect on the Agency's overpayment calculations. Recipient No. 26, DOS 03/13/01. TCO notes a typographical error in a work paper that had no effect on the Agency's overpayment calculations. Other Discrepancies In the course of reviewing the Agency's work papers and the medical records in evidence, the undersigned discovered several minor discrepancies that should be corrected in recalculating the probable total overpayment. Recipient No. 2. The total alleged overpayment for this patient, before making any of the adjustments described above, is $1,571.93, not $1,594.42, which latter figure was used by the Agency in determining the probable total overpayment. Therefore, the empirical overpayment should be reduced by $22.49. Recipient No. 5. The total alleged overpayment for this patient, before making any of the adjustments described above, is $27.63, not $26.38, which latter figure was used by the Agency in determining the probable total overpayment. Therefore, the empirical overpayment should be increased by $1.25. Recipient No. 15. The total alleged overpayment for this patient, before making any of the adjustments described above, is $367.35, not $372.44, which latter figure was used by the Agency in determining the probable total overpayment. Therefore, the empirical overpayment should be reduced by $5.09. Recipient No. 30. The total alleged overpayment for this patient, before making any of the adjustments described above, is $42.62, not $44.16, which latter figure was used by the Agency in determining the probable total overpayment. Therefore, the empirical overpayment should be reduced by $1.54. Summary The Agency based its determination of the probable total overpayment on an empirical overpayment of $9,740.10. In accordance with the foregoing findings, it is determined that this figure should be increased by a total of $9.53, and reduced by a total of $153.11, making a net empirical overpayment of $9,596.52. In other words, the undersigned finds that, of the $13,582.78 which TCO received from Medicaid for the 260 total claims submitted during the Audit Period in connection with medical services provided to the sample population of 30 patients, $9,596.52 constituted an overpayment. Thus, it is this figure——$9,596.52——that should be used in calculating the probable total overpayment arising from the 30,193 claims presented during the Audit Period, for which Medicaid paid TCO a grand total of $1,593,881.86.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency recalculate the probable total overpayment using the statistical formula previously employed but substituting $9,596.52 in place of $9,740.10 as the empirical overpayment, and enter a final order requiring TCO to repay the Agency the principal amount determined through such recalculation. DONE AND ENTERED this 3rd day of February, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 3rd day of February, 2006.
The Issue Whether Respondent, Sun States Services, Inc., a/k/a Always Care Nursing Service, received Medicaid overpayments that Petitioner, Agency for Health Care Administration (AHCA), is entitled to recoup, and whether a fine should be imposed against Respondent.
Findings Of Fact AHCA is the state agency responsible for administering the Medicaid program in Florida. The Medicaid program is a federal and state partnership to provide health care services to certain qualified individuals. From January 1, 2005, through December 31, 2008, Respondent was an enrolled Medicaid provider operating under provider number 6815065-96. Beginning in 2003, the State of Florida accepted Lynk Services, Inc. (Lynk), as a waiver support coordinator for Medicaid. Lynk was, at all times material to this matter, an enrolled waiver support coordinator for Medicaid. In January 2004, there were discussions between Lynk and Respondent about the possibility of Respondent providing Medicaid services to a Medicaid recipient identified as B.L. B.L. required insulin injections. In a letter dated January 16, 2004, Lynk's waiver support coordinator supervisor, Thomas Engelke, wrote the following to Respondent (addressed to "To Whom It May Concern"): [B.L.] is authorized to receive nursing services from [Respondent] at an accelerated rate of $6.65 per quarter hour. He is to receive 9 quarter hours for a total of $59.85 per visit. The Department of Children and Families has approved this rate on December 22, 2003 by Cindy Totten and Linda Schneider department liaisons. Per the Service Authorization form that was sent to you on December 22, 2003,[8/] you [Respondent] are to provide service to [B.L.] for the duration of his current support plan year. Should you have any further concerns or questions please contact Julie Buckner [B.L.'s] support coordinator. . . . (emphasis added). Later on January 22, 2004, Lynk and Respondent exchanged emails. The first email is from Howard Gruensfelder, Respondent's "VP," to Mr. Engelke and Julie Buckner, support coordinator of Lynk. It reads: I have a concern that billing 9 units says that the nurse is there for a full hour and forty five minutes administering his injection, when the nurse is not there for a full hour and forty five minutes. I want to make sure that we are not committing any type of fraud by doing this. This message is to confirm that the negotiated price for LPN insulin injections for [B.L.] is $59.85 per injection under the Skilled Waiver program. To do this, administratively we must bill nine units to achieve this price for service. You have waved [sic] the normal definition of unit (one quarter hour) for us in this case in order to end up with the agreed upon rate. According to your instructions we are to bill for nine units for each injection regardless of how much or how little time is required to complete the nursing service visit. Please confirm our understanding by replying to this message with an affirmative answer. Less than an hour later, Lynne Ballou, Lynk's president, sent the following response to Mr. Gruensfelder: Per the Service Authorization[9/] we sent to you 1/5/04 you can bill 9 quarter hours each visit. The negotiated rate was approved by the Department of Children and Families liaison and liaison's supervisor. Your company stated they needed this amount to provide the service. The actual time spent with the individual is no where [sic] near the 2 hours and 15 minutes that is being charged but the only way you can bill in the system is using the quarter hour. By DCF approving the 9 quarter hours a visit they are waiving the time requirement to be able to have the service provided to the client. Shortly after the letter and emails, Respondent began to provide medical services to B.L. During the audit period, Respondent provided skilled nursing services to B.L., submitted claims to AHCA for services allegedly provided to B.L., and received payment from AHCA on those claims. The claims identified in AHCA's Exhibit 9 represent claims submitted by Respondent for services to B.L. and paid by AHCA. Respondent billed $59.85 "per visit," regardless of the actual time spent by Respondent's employees providing the services. In all but 12 of the claims identified in AHCA's Exhibit 9, Respondent billed AHCA for nine units of service ($59.85), each unit of service representing 15 minutes of time. In the other 12 claims identified in AHCA's Exhibit 9, Respondent billed AHCA for 18 units of service and received a higher reimbursement. The nursing notes, contained in AHCA's Exhibit 15, reflect that Respondent did not spend two hours and 15 minutes performing the services for which it billed nine units of service, nor did it spend four hours and 30 minutes performing the services for which it billed 18 units of service. No evidence was offered or received to define the term "current support plan year." However, common sense dictates that without any other definition, the entities operated on a calendar year of January 1 to December 31 of each year.10/ Thus, the letter itself (AHCA's Exhibit 10, page 347) reflects that the 2004 current support plan year would have ended on December 31, 2004, six months prior to the audit period. AHCA conducted an audit of the claims submitted by Respondent between July 1, 2005, and December 31, 2008.11/ AHCA determined that Respondent was overpaid $16,518.60, which figure was later reduced by AHCA based on further review of the claims at issue. All communications regarding services to be provided to B.L. were between Respondent and Lynk. Respondent relied on the January 16, 2004, letter and subsequent email exchange as authorization to bill "per visit," rather than on an hourly basis. However, it is undisputed that the audit period was between July 1, 2005, through December 31, 2008. AHCA is responsible for conducting investigations and audits to determine possible fraud, abuse, overpayment, or neglect, and must report any findings of overpayment in audit reports. AHCA is not only authorized to conduct random audits; AHCA is required to conduct at least five percent of its audits on a random basis. In this instance, in February 2010, AHCA notified Respondent that it was in the process of reviewing claims billed to Medicaid between July 1, 2005, and December 31, 2008. The purpose of the audit was to verify that claims for which Respondent had already been paid by the Medicaid program were for services that were provided, billed, and documented in accordance with Medicaid statutes, rules, and provider handbooks. While Respondent certified with each claim submission that the claim was proper and that all records required to be maintained in support of each claim were in fact maintained, the audit goes behind that certification by actually reviewing those records. The medical records for B.L. were provided to AHCA for review. AHCA established the amount of overpayment for the claims. No evidence was offered of any additional "authorization letter" (to support a "flat fee" payment for services to B.L.) from AHCA, DCF, or Lynk for any period between July 1, 2005, and December 31, 2008. No credible evidence was offered that AHCA authorized that the Medicaid payment to Respondent would be by a flat "per visit" payment between July 1, 2005, and December 31, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order requiring Respondent, Sun States Services, Inc.: To repay the sum of $15,627.50 for overpayments on claims that did not comply with the requirements of Medicaid laws, rules, and provider handbooks; and To pay a fine of $1,000.00 for the violations of the requirements of Medicaid laws, rules, and provider handbooks. DONE AND ENTERED this 1st day of November, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 1st day of November, 2012.
The Issue Whether Petitioner, Agency for Health Care Administration (“AHCA”), is entitled to recoup from Respondent, JRM Pharmacy, Inc., d/b/a Super Drugs Pharmacy (“JRM”), $156,657.05 as Medicaid overpayments; and whether investigative, legal, expert witness costs, and fines should be imposed against JRM.
Findings Of Fact AHCA is the designated state agency responsible for administering the Medicaid Program in Florida. At all times material to this case, JRM has been a licensed pharmacy and authorized Medicaid provider pursuant to a Medicaid Provider Agreement with AHCA. The Medicaid Provider Agreement is a voluntary contract between AHCA and JRM. JRM’s Medicaid provider number is 102451500. As an enrolled Medicaid provider, JRM is subject to the duly-enacted federal and state statutes, regulations, rules, policy guidelines, Medicaid provider publications, and the Medicaid Provider Agreement between it and AHCA. At all times during the audit period, JRM was required to follow the Florida Medicaid Prescribed Drugs, Services, Coverage, Limitations, and Reimbursement Handbook (“Prescribed Drugs Services Handbook”). This case involves a Medicaid audit by AHCA of JRM as to dates of service from January 1, 2010, through December 31, 2010 (“audit period”). AHCA’s Bureau of Medicaid Program Integrity (“MPI”), pursuant to its statutory authority, conducted an audit of JRM of paid Medicaid claims for medical goods and services to Medicaid recipients which occurred during the period from January 1, 2010, through December 31, 2010. The audit included a comparison of the amount of prescription medications billed to Medicaid by JRM during the audit period with the units of the corresponding medications JRM purchased from licensed wholesalers. The audit concluded that JRM was overpaid a total of $156,657.05 for various prescription medications it billed to AHCA and received payment from AHCA. The claims which make up the overpayment alleged by AHCA of $156,657.05 were filed and paid by AHCA prior to the institution of this matter. JRM does not dispute that it was overpaid $43,890.02 for various prescription medications, and JRM concedes that AHCA is entitled to recover this amount as an overpayment. However, JRM disputes the remaining balance of AHCA’s alleged overpayment of $112,767.03, which AHCA attributes to an overpayment to JRM for the brand named prescription drug Prevacid 30 mg Capsule DR (“Prevacid”). The audit involved a review of JRM’s purchases of Prevacid from McKesson, and Lansoprazole from Bellco, the authorized wholesalers, during the audit period. The audit established that JRM billed to AHCA and received payment from AHCA for more Prevacid than JRM had available during the audit period to dispense to Medicaid recipients. Specifically, the persuasive evidence adduced at hearing demonstrates JRM was overpaid $112,767.03 for Prevacid. When a Medicaid pharmacy provider submits a claim to Medicaid for payment, Medicaid identifies the prescription drug on the claim by the National Drug Code (“NDC”). The generic form of Prevacid is Lansoprazole. Prevacid and Lansoprazole have different NDC numbers. JRM was required to submit the entire 11-digit NDC number for the actual product dispensed on the claim. During the audit period, JRM billed to Medicaid and was paid by Medicaid for “NDC: 00300304613 PREVACID 30 MG CAPSULE DR, NDC: 00300304619 PREVACID 30 MG CAPSULE DR, AND NDC: 64664004613 PREVACID DR 30 MG CAPSULE.” The persuasive evidence adduced at hearing demonstrates that JRM billed Medicaid and was paid by Medicaid for 31,650 Prevacid capsules. However, JRM only purchased 10,907 units of Prevacid, leaving a shortage of 20,744 capsules of Prevacid and an overpayment of $112,767.03. Thus, JRM received payment from Medicaid for $112,767.03 for Prevacid that JRM did not purchase and did not dispense to Medicaid recipients. There is a significant cost difference between the brand name Prevacid and generic Lansoprazole, with the brand name Prevacid being billed at a much higher rate than the generic Lansoprazole. JRM purchased a large amount of Lansoprazole from Bellco during the audit period, but billed and received payment from Medicaid for Prevacid. Only prescription drugs that are on the Florida Medicaid Preferred Drug List are allowed to be paid for by Medicaid. During the audit period, generic Lansoprazole was not on AHCA’s preferred drug list. However, Prevacid was on AHCA’s preferred drug list. JRM often dispensed Lansoprazole and billed and received payment from Medicaid for dispensing Prevacid.
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 of recoupment of a Medicaid overpayment from JRM in the amount of $156,657.05; impose a fine of $5,000.00; and remand this matter to the undersigned for a determination of the amount of investigative, legal, and expert witness costs, should a final order be entered by AHCA indicating that AHCA ultimately prevailed, and if there is any dispute as to the amount of such costs following the issuance of the final order by AHCA. DONE AND ENTERED this 13th day of January, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 13th day of January, 2015.
The Issue The issue is whether Respondent violated federal and state laws addressing Medicaid payments, and, if so, what is an appropriate remedy.
Findings Of Fact AHCA is the single state agency charged with the administration of the Medicaid program in Florida pursuant to Chapter 409, Florida Statutes, and federal law. One of AHCA's duties is to recover overpayments. Overpayments are any amounts paid to providers that were not authorized. Dr. Valente, during all times pertinent, was a licensed medical doctor in the State of Florida. She was an authorized Medicaid Provider and held provider number 253493200. As such, she was on notice of Medicaid billing policy and rules. AHCA conducted a generalized analysis of obstetricians in Florida who submitted Medicaid claims during the period January 1, 2003, through December 31, 2005. AHCA investigated over-billing in three different categories: (1) excessive prenatal visits, (2) billing for Healthy Start Prenatal Risk Screening (Screening) more than once during a pregnancy, and billing for the W1992 Screening during the second and third trimesters. The W1992 Screening was and is only applicable to the first trimester of pregnancy. Dr. Valente was one of the obstetricians AHCA found to have over-billed in the three categories. With regard to Category 1, excessive prenatal visits, the Physician Coverage and Limitations Handbook provides, at page 2-53, that "Antepartum visits are limited to a maximum of 10 for low-medical risk recipients and 14 for high-medical risk recipients. Payment for antepartum care is based on a total amount for complete care. Antepartum care is prorated, based on an average standard of 10 visits for a low-medical risk recipient or 14 for a high-risk recipient. Reimbursement for the 10 or 14 visits is the maximum reimbursement for the full course of antepartum care. If additional visits are provided, payment is considered to have already been made, and the provider may not bill the additional visits to Medicaid or the recipient." For Category 1, the audit searched for instances when Dr. Valente billed for excessive prenatal visits 38 times, as follows: Patient 1: This was a high-risk patient. Dr. Valente billed for 16 visits, which was two more than the 14 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $102.00 more than allowed. Patient 2: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Therefore, according to AHCA, Dr. Valente billed Medicaid $52.00 more than allowed. However, Dr. Valente stated, and medical records indicated, that Patient 2 was a high-risk patient even though her claimed Physician Coverage and Limitations Handbook diagnosis code, 642.43, a code for high risk, did not appear on the billing submission. Upon consideration of all of the evidence, this charge was permissible. Patient 3: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente asserted that the patient was a high-risk patient because of high blood pressure. However, in the billing submission there is no code indicating high risk. Dr. Valente claimed at the hearing that it should have been coded 645.13. That is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 4: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente claimed the patient had an iron deficiency and should have been coded 281.2. That is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 5: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for patients who are not high risk. The medical record revealed that Patient 5 was obese with poor sugar control, and Dr. Valente asserted she should have been coded 642.43, which is high risk. She did not use this code in the bill. However, upon consideration of all of the evidence, this charge was permissible. Patient 6: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for patients who are not high risk. Dr. Valente stated that this was a high- risk patient because she was suffering from oligohydramnious. Dr. Valente did not code this on the bill. The code she claimed, 656.93, is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 7: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for patients who are not high risk. This patient had lung problems. Dr. Valente asserted she should have been coded 496.0 and 491.2 instead of the V22.0 presented on the bill. Codes 496.0 and 491.2 are not high-risk codes. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 8: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for a patient that was not high risk. Dr. Valente suspected a possible birth defect and coded the patient 759.9 and 655.23. Code 655.23 is a high-risk code. Dr. Valente did not use this code in the bill. However, upon consideration of all of the evidence, this charge was permissible. Patient 9: AHCA asserted this was a low-risk patient. Dr. Valente billed for only five visits, thus never reaching the ten visit threshold. The assertion that Dr. Valente over-billed with regard to Patient 9 was not proven. Patient 10: AHCA asserted this was a low-risk patient. Dr. Valente stated that the records revealed decreased fetal movement, codes 655.73 and V28.4. Code 655.73 is a high-risk code. Dr. Valente did not put this code on the bill. However, upon consideration of all of the evidence, this charge was permissible. Patient 11: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 12: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $50.00 more than allowed. Patient 13: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 14: This was a low-risk patient. Dr. Valente billed for 12 visits, which was two more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $100.00 more than allowed. Patient 15: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 16: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 17: This was a low-risk patient. Dr. Valente billed for 12 visits, which was two more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $104.00 more than allowed. Patient 18: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 19: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 20: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 21: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente said this patient was at risk for cervical cancer and entered diagnosis codes 795.0 and 795.09. These are not high- risk codes. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 22: AHCA asserted this was a low-risk patient. AHCA asserted Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente stated, and the records revealed, that the patient had a psychiatric disorder and, therefore, should have had a diagnosis code of 648.43, which is high risk. Dr. Valente did not assert this code on the bill. However, upon consideration of all of the evidence, the amount billed was permissible. Patient 23: AHCA asserted this was a low-risk patient. AHCA asserted that Dr. Valente billed for 11 visits, which was one more than the 10 allowed. This patient's baby had dilated kidneys. The patient was coded 655.0, which is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 24: AHCA asserted this was a low-risk patient. AHCA asserted that Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente's records indicated that this patient had impending pre-eclampsia, which she coded 642.03, as hypertension. This is a high-risk code. Dr. Valente failed to assert that code on the Medicaid bill. However, upon consideration of all of the evidence, Dr. Valente did not bill more than was permissible. Patient 25: This was a high-risk patient. Dr. Valente billed for 15 visits, which was one more than the 14 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $50.00 more than allowed. Patient 26: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 27: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for a low-risk patient. Dr. Valente stated that the patient had a heart murmur and was asthmatic requiring medicine, which is code 493.0. She billed for 493.0, a high-risk code, and, therefore, was entitled to see the patient 14 times. Dr. Valente only saw the patient 11 times. Therefore, Dr. Valente did not bill more than allowed. Patient 28: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits that she coded V22.0. She said the patient had a childhood seizure disorder and should have been coded 345.0, which is high risk. Therefore, Dr. Valente did not bill more than allowed. Patient 29: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente found this patient to have high-risk viral cells and assigned diagnosis code 622.1. According to the Physician Coverage and Limitations Handbook, this is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 30: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 31: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 32: AHCA asserted that this was a low- risk patient. Dr. Valente billed for 11 visits, which is one more than permitted. Dr. Valente stated that this patient had a mild pregnancy-induced hypertension and should have been assigned diagnosis code 642.43, which is high risk. However, no such code was assigned. The only code assigned on the Medicaid bill was V22.0. This is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 33: AHCA asserted this was a low-risk patient. Dr. Valente stated that the patient was an alcohol abuser and that the patient developed decreased fetal movement late in the pregnancy. Dr. Valente assigned the code 655.43, which is a high- risk code. The patient was entitled to 14 visits. Dr. Valente billed for 11, which was within the allowed limits. Patient 34: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 35: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 36: AHCA asserted this was a low-risk patient and that Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente decided that the patient's baby was not reactive to a stress test, and the patient had to be induced. Dr. Valente coded this 658.03, which is not high risk. AHCA's witness, Dr. Franz, agreed with this. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 37: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 38: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. The total amount over-billed in Category 1 was $1,602.00. Category 2 addressed billing for the Screening more than once during a pregnancy. The Physician Coverage and Limitation Handbook provides for Florida's Healthy Start Prenatal Risk Screening. It states, "The Healthy Start Prenatal Risk Screening should be offered at the first antepartum visit. The antepartum visit that includes completion of the Healthy Start Prenatal Risk Screening is reimbursed once per pregnancy by billing code W1991 antepartum visit plus Healthy Start Prenatal Risk Screening, or W1992 antepartum visit plus Healthy Start Prenatal Risk Screening performed during the first trimester of pregnancy." Therefore, for Category 2, the audit searched for situations where there was more than one Healthy Start prenatal visit per pregnancy. In other words, a W1991 might be billed or a W1992 might be billed, but both could not be billed during a single pregnancy. The audit asserts this occurred nine times as follows: Patient 1: Dr. Valente billed for the W1991, which is an antepartum visit with the Screening after the first trimester, and then billed for a W1992, which is the Screening during the first trimester, for the same recipient. This overpayment was in the amount of $148. Patient 2: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $98. Patient 3: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 4: Dr. Valente billed for the W1991, which is an antepartum visit with the Screening after the first trimester, and then billed for a H1001, which is the Screening during the first trimester for the same recipient. This overpayment was in the amount of $104. Patient 5: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 6: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 7: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 8: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 9: Dr. Valente billed for the W1991, which is an antepartum visit with the Screening after the first trimester, and then billed for a W1992, which is the Screening during the first trimester for the same recipient. This overpayment was in the amount of $150. The total amount overpaid in Category 2 was $1,000. Dr. Valente pointed out that even though she over-billed in this category, she should have received $50 on each occurrence for an office visit. Although this may be true, it is beyond the jurisdiction of this forum to make recommendations with regard to that. Category 3 included a search for billings for W1992, which is the Screening during the first trimester, that were made subsequent to the end of the first trimester. AHCA defines the first trimester as the first 13 weeks of a pregnancy. The Screening form says the first trimester is determined to be 13 weeks (or 91 days) from the date of the last menstrual cycle. The audit asserted 61 instances of billing for the Screening, subsequent to the first trimester. In determining whether the Screening was accomplished later than the first trimester, 181 days were subtracted from the delivery date. This meant that a Screening provided less than 181 days before delivery was, perforce, beyond the first trimester. The auditors found 61 instances where this occurred. Dr. Valente agreed that she screened subsequent to the first trimester for patients number 2-8, 11-14, 16-18, 20-22, 25-31, 33-36, 38, 40, 43-46, 48-49, 51-54, and 56-61. This amounted to 44 over-bills at $50 and two at $49.34, for a total of $2,298.68. When evaluating the audit at this point, it is helpful to recall that the medical records of the patients were not available when the final audit was issued, but they were available at the time of the hearing. The Medicaid bills for the Healthy Start Prenatal Risk Screening Instruments are typically submitted before the baby is born. Thus, the physician at the time of submission cannot know the actual delivery date with mathematical precision. Accordingly, the physician has to estimate the due date using the date of the last menstrual period (LMP); by ultrasounds; and by following the progress of the pregnancy. Moreover, babies arrive before their predicted due date as well as after. The disputed cases in Category 3 are discussed below. Patient 1: The estimated delivery date (EDD) was July 9, 2003. The actual delivery date was May 15, 2003. The EDD on December 3, 2002, was determined by ultrasound to be nine weeks and by LMP to be ten weeks. The Screening date was December 3, 2002. This was well within the 13-week window for the Screening. Dr. Valente did not improperly bill for this patient. Patient 9: This patient did not agree to the screening. If the patient does not agree to the Screening, AHCA is not permitted to pay for the Screening. Accordingly, Dr. Valente over-billed $50.00. Patient 10: This patient did not agree to the screening. If the patient does not agree to the Screening, AHCA is not permitted to pay for the Screening. Accordingly, Dr. Valente over-billed $50.00. Patient 15: An ultrasound on this patient on June 18, 2003, indicated the patient was nine weeks pregnant. The Screening was accomplished on the same day. Accordingly, Dr. Valente did not improperly bill for this patient. Patient 19: This patient did not agree to the screening. If the patient does not agree to the Screening, AHCA is not permitted to pay for the Screening. Accordingly, Dr. Valente over-billed $50.00. Patient 23: The Screening for this patient is dated February 26, 2003, according to the Screening form signed by the patient. The delivery date provided to AHCA is incorrect because due to an absence of fetal heartbeat the patient experienced a "Suction D&E followed by sharp D&C of the uterine cavity." This occurred about the 13th week, on March 28, 2003. In other words, there was no delivery. However, the Screening was not signed at the bottom and that is a reason for rejecting payment. Accordingly, Dr. Valente over-billed $50.00 for this patient. Patient 24: The Screening form is completely absent for this patient. Accordingly, Dr. Valente over-billed $50.00 for this patient. Patient 32: This patient declined screening, so Dr. Valente over-billed $49.34. Patient 37: The Screening form is completely absent for this patient. Accordingly, Dr. Valente over-billed $50.00 for this patient. Patient 39: This patient declined screening, so Dr. Valente over-billed $50.00. Patient 41: The Screening date for this patient was October 30, 2002. The first ultrasound on this patient was provided on the same day and indicated the baby was at 12.7 weeks with an EDD of May 9, 2003. The baby was delivered April 19, 2003, which means it came earlier than anticipated and that the Screening was accomplished during the first trimester. Accordingly, Dr. Valente did not improperly bill for this patient. Patient 42: The screening form is completely absent for this patient. Accordingly, Dr. Valente over-billed $50.00 for this patient. Patient 47: The Screening for this patient listed on the AHCA spreadsheet was May 8, 2003. However, the form indicates it was signed by the patient on March 27, 2003. The patient's LMP was February 13, 2003, and the first ultrasound indicated the patient was eight and one-half weeks pregnant on April 10, 2003. Even if the Screening was accomplished May 8, 2003, as alleged, it was accomplished in the first trimester. Accordingly, Dr. Valente did not improperly bill for this patient. Patient 55: The alleged Screening was accomplished August 7, 2003. The Screening date is unreadable as to month, but the day is 31. Dr. Valente's testimony is that it was in March and that the patient was at 11 weeks and three days. This appears more correct than AHCA's allegation. Accordingly, Dr. Valente did not improperly bill for this patient. The over-payment alleged was a total of $3,048.68. The evidence indicates that on five occasions Dr. Valente was correct in her assertion that the Screening for five of the patients, at $50.00 per patient, was actually within the first trimester. Accordingly, it is found that Dr. Valente only owes $2,748.02 for Category 3. A request for records was sent to Dr. Valente via certified mail to the address she maintained on file with AHCA, on or about October 29, 2007. This provided Dr. Valente with the preliminary audit findings and invited her to illuminate or explain the findings so they could be adjusted if appropriate. The letter was returned. AHCA found a more current address and sent the same letter, and it was delivered to that address in Jacksonville on December 6, 2007. The receipt was signed by Dr. Valente's father. Eventually, Dr. Valente received the materials and called AHCA Investigator Terri Dean, who was listed as the contact point in the letter sent to Dr. Valente. Dr. Valente informed Investigator Dean that she could not get the records. Accordingly, the audit became final as written on March 21, 2008, and was provided to Dr. Valente. The report stated that Dr. Valente owed $6,118.68 for overpayments and should pay a $500.00 fine for failure to provide records. Dr. Valente provided the records about six months later, in late September or early October of 2008. AHCA reviewed the records and determined that there were overpayments in the amount of $7,344.00. Because litigation was already underway, AHCA did not attempt to extract the additional amount from Dr. Valente.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Agency for Health Care Administration enter a final order requiring Dr. Grace Valente, M.D.: to pay the sum of $5,350.02 for the purpose of reimbursing improperly billed Medicaid services; to pay a fine of $1,500 for failing to provide medical records in a timely fashion; and to pay interest at the rate of 10 percent per annum on the sum of $5,350.02, from March 21, 2008, the date of the final audit report; and interest at the rate of 10 percent per annum on the sum of $1,500 from the date the final order is entered, until the sums are paid completely. DONE AND ENTERED this 9th day of February, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 9th day of February, 2009. COPIES FURNISHED: William Blocker, II, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Grace Valente, M.D. 3474 Paddle Point Spring Hill, Florida 34609 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Holly Benson, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue for determination is whether Respondent is liable to Petitioner for the principal sum of $94,675.83, which equals the amount that the Florida Medicaid Program paid Respondent for the "professional component" of claims for radiologic services rendered to Respondent's patients between July 1, 2001 and December 31, 2005.
Findings Of Fact Petitioner Agency for Health Care Administration ("AHCA" or the "Agency") is the state agency responsible for administering the Florida Medicaid Program ("Medicaid"). Respondent Harold L. Murray, M.D. ("Murray") was, at all relevant times, a Medicaid provider authorized to receive reimbursement for covered services rendered to Medicaid beneficiaries. Exercising its statutory authority to oversee the integrity of Medicaid, the Agency sent investigators to Murray's office on November 22, 2005. The purpose of this visit was to verify that claims paid by Medicaid had not exceeded authorized amounts. To this end, the investigators inspected Murray's facilities and reviewed his medical records. What the investigators saw gave them reasons to believe that Medicaid had been overpaying Murray for radiologic services. They focused on the period from July 1, 2001 to December 31, 2005 (the "Audit Period"). During the Audit Period, Murray had submitted approximately 2,000 claims seeking the "maximum fee" for radiologic services, which Medicaid had paid. The maximum fee includes compensation for "professional component" services. (Medicaid uses the term "professional component" to describe the physician's services of interpreting a radiologic study and reporting his or her findings. These services are distinguished from those comprising the "technical component," which are routinely performed by technicians. These latter services include operating the radiologic equipment (e.g. an X-ray or sonographic machine) and performing the exam.) It appeared to the investigators that Murray had not, in fact, been performing the professional component. Using information in its database, the Agency determined that, during the Audit Period, Murray had received Medicaid payments totaling $94,675.83 for professional component services. The Agency repeatedly requested that Murray supply additional information that might substantiate his prior claims for fees relating to the professional component. Murray failed, refused, or was unable to comply with the Agency's requests. Murray did testify at hearing, however, providing a reasonably clear picture of what had occurred. On direct examination, Murray explained that he had performed the "first preliminary" review of each radiologic examination in question before sending the study to a radiologist, whom he paid "out of [his own] pocket" to interpret the exam and make a report. According to Murray, Medicaid paid only for his (Murray's) professional component services——not the radiologist's. Murray argues that he is entitled to compensation for the professional component services that he personally performed, notwithstanding that another doctor performed the same services. Analysis of the Facts Although Murray's position might have some superficial appeal, it does not withstand scrutiny as a matter of fact, the undersigned has determined. To explain why this is so requires an analysis of Murray's testimony that entails neither legal conclusions nor findings of historical fact. The undersigned's rationale, being essentially fact-based, is explicated here in the interests of organizational coherence and readability. Assume first, for the sake of argument, that Murray's "first preliminary" review constituted an authoritative interpretation of the radiologic study. Because it is reasonable to infer (and the undersigned finds) that the radiologist's subsequent interpretation of the study was authoritative——Murray's routine practice of ordering and personally paying for the "second opinion" would have been inexplicable, and indeed irrational, if the radiologist's interpretation were of dubious value——the inevitable conclusion, assuming Murray's findings were authoritative, is that the "second opinion" was nearly always duplicative, excessive, and unnecessary.i Murray's responses to that conclusion doubtless would be: (1) Medicaid did not pay for the second opinion, so whether it was excessive and unnecessary is irrelevant; and (2) there is no statute, rule, or Medicaid policy that forbids a provider from procuring, at his own expense, a second opinion——even an unnecessary one. It is not accurate to say, however, that Medicaid did not pay for the second opinion; this, ultimately, is the fatal flaw in Murray's reasoning. To the contrary, Murray's testimony shows clearly that Medicaid did pay for some or all of the expense of the second opinion, albeit indirectly, when it paid Murray for the same work. As his own account reveals, Murray was, in effect, merely a conduit for the Medicaid money, which passed through his hands on its way to the radiologist. Murray contends, of course, that the Medicaid payments for the professional component were "his," that he had earned them by performing the "first preliminary" read, and that he was free to spend his income however he chose. If our initial assumption were true, namely that Murray's preliminary interpretation were authoritative, then his claim to the Medicaid payments at issue might have merit. But, on reflection, this assumption is difficult, if not impossible, to square with the fact that Murray found it necessary always to pay another doctor to perform the very same professional component services. Indeed, having a second opinion was so important to Murray that he was willing to perform his purported preliminary read at a substantially discounted rate, at least, if not for free——or even, maybe, at a financial loss: in every instance, one of these was necessarily the net economic result of his actions.ii If, as we have assumed, Murray were performing a valuable professional service each time he interpreted a radiologic exam, then——the question naturally arises——why would he effectively have given away his expert opinions? Murray testified that he did so for "the safety of [his] patient" and because the radiologist is "educated for that." But these "answers," far from being persuasive, actually undermine the assumption that spawns the question of motive. Indeed, Murray's testimony confirms a reasonable inference contrary to our initial assumption, which inference is that Murray lacked sufficient confidence in his so-called "preliminary" interpretations ever to rely on them alone. This inference, which the undersigned accepts as a finding, arises from the basic undisputed fact that Murray routinely sought "second opinions" for every patient. It is ultimately determined, therefore, that whatever Murray's "first preliminary" reviews comprised, they did not constitute authoritative interpretations of the radiologic studies at hand. That being the case, it is determined that Murray's preliminary opinions added little or no actual value to the subject medical transactions. Offering some sort of provisional opinion that holds only until the "real" opinion can be obtained from the radiologist is not tantamount to performing the professional component.iii Based on the evidence presented, it is determined that the radiologist performed the professional component of the radiologic studies at issue, not Murray. As a result of improperly claiming that he had performed professional component services when in fact he had not, Murray received from Medicaid a total of $94,675.83 in payments that were not authorized to be paid. This grand total of $94,675.83 constitutes an overpayment that Murray must return to the Agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Murray to repay the Agency the principal amount of $94,675.83, together with an administrative fine of $1,000. DONE AND ENTERED this 10th day of July, 2007, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 10th day of July, 2007.
