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? (Exira Fea) ves 2, Article Number Ganetertiomsoriceteboy 008 EBe0 OOOL Sb?) 53b8 PS Form 3811, February 2004 Domestic Return Recelpt 102595-02-M-1640 ; UniTeD States Postac SERVICE | } | | FI LORIDA AGENCY Fon SEAR CORE 2727 Mahan Dri ve, MS #6 Tallahassee Florid; Medical Unit 052308 Falbssh locas dasbaldadaElbasbeadashatbnllaht i i { { i ' ‘ i Englion Customer Service &4aUSPSCOM Quick Tools Track & Confirm YOUR LABEL NUMBER | 7o097820000188719388 i Check on Another Item What's your label (or receipt) number? LEGAL Privacy Policy » Terms of Use > FOIA> No FEAR Act EEO Oata > OTHER USPS SITES. ‘Business Custamar Gataway > Postal inspectors » Inspector General » Postal Explorer > Copyright® 2012 USPS. AN Rights Raservad. 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The Issue The issue for determination is whether Respondent must repay Petitioner an amount of up to $144,471.25 in alleged Medicaid overpayments, for paid claims covering the period from January 1, 2010, to December 31, 2012.
Findings Of Fact AHCA is the agency responsible for administering Medicaid in the state of Florida. VMC was, at all relevant times, an enrolled Medicaid provider authorized to receive reimbursement for covered goods and services rendered to Medicaid beneficiaries. Exercising its statutory authority to oversee the integrity of Medicaid, the Agency conducted a review of VMC's medical records to verify that claims paid by Medicaid during the period from January 1, 2010, to December 31, 2012 (the "Audit Period"), had not exceeded authorized amounts. During the Audit Period, VMC had submitted claims for 9,783 discrete billable goods or services ("BGOSs") rendered to 1,313 patients (or recipients), on which Medicaid had paid a total of $459,572.82. Rather than examine the records of all 1,313 recipients served, the Agency selected a sample of 35 patients, whose records were reviewed first by a nurse consultant, and then by a physician "peer reviewer." VMC had submitted claims for 302 BGOSs during the Audit Period in connection with the 35 patients in the sample population. Medicaid had paid a total of $13,909.94 on these claims. The Agency's reviewers determined that, for various reasons, VMC had received a total of $6,901.64 in reimbursement of claims in the sample for services not covered by Medicaid, in whole or in part. Having discovered this alleged "empirical overpayment" of $6,901.64, the Agency employed a statistical formula for cluster sampling——for purposes of which a "cluster" comprises all claims relating to an individual patient in the sample population——to ascertain the alleged "probable total overpayment" that VMC had received from Medicaid for the 9,783 BGOSs presented in the totality of claims submitted during the Audit Period.1/ The statistical analysis revealed a probable total overpayment of $179,660.46, with a 95 percent probability that the actual overpayment is equal to or greater than such amount. (As discussed below, VMC disputes the cluster sampling methodology that AHCA used in determining the probable total overpayment based on the empirical overpayment associated with the sample population.) Shortly before the final hearing, based on documents which VMC belatedly produced, the Agency revised its preliminary adjudication of certain claims associated with four of the patients in the sample population, resulting in a reduction of the alleged empirical overpayment to $5,976.00. AHCA's statistical formula extended this figure to VMC's entire patient population for the Audit Period, calculating a total probable overpayment of $144,471.25. VMC does not dispute every one of AHCA's preliminary adjudications. To begin, for five recipients (Patient Nos. 15, 17, 19, 21, and 28) AHCA found no overpayments. Thus, none of the claims presented for BGOSs furnished to these patients is in dispute. In many additional instances, VMC agrees not only with the Agency's determination that Medicaid paid too much for a particular BGOS (or "encounter" as VMC refers to an individual good or service for which a claim was submitted), but also with the amount of the alleged overpayment. As a result of these admissions, none of the claims presented for BGOSs furnished to Patient Nos. 2, 9, 11, 13, 16, 25, and 34 is in dispute. In some instances, VMC suggests that the empirical overpayment for a particular BGOS should be more than the amount that AHCA has alleged. The sum of these suggested additional overpayments ("SAOs") is $303.19. Owing to VMC's inculpatory suggestions of insufficiently aggressive recoupment, it is undisputed that all of the overpayments AHCA has alleged in connection with the claims submitted for the treatment of Patient Nos. 3, 10, 23, 24, 26, and 32 are, in fact, overpayments. In sum, out of 35 patients in the sample population, only 17 involve one or more disputed encounters, where the existence of an overpayment must be decided. As for the 18 patients listed in the two preceding paragraphs, all of the overpayments alleged in those clusters are accepted as such based on the evidence presented, including the Agency's work papers and VMC's admissions, leaving only the question of what to do about the SAOs. All told, VMC admits having received an empirical overpayment of at least $2,488.50. VMC contends, however, that it was underpaid a total of $27.76 in connection with two BGOSs provided to Patient No. 18. VMC asserts that this alleged underpayment offsets the admitted overpayment by an equal amount, so that, in VMC's eyes, the net admitted empirical overpayment (taking into account the SAOs totaling $303.19) is $2,763.93.2/ VMC disputes the Agency's determinations regarding 55 specific BGOSs. Of these, AHCA found in 48 instances that the particular service which VMC had provided was not medically necessary. These 48 determinations relate to ten separate diagnostic procedures. AHCA further found a single instance of incomplete documentation in connection with one of those same ten procedures, bringing to 49 the total number of disputed adjudications pertaining to ten different procedures. Four disputed Agency determinations relate to what are known as "evaluation and management services" ("E/M services") provided (a) in the doctor's office or other outpatient setting to new or established patients or (b) to patients in hospitals. 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®, a registered trademark of the American Medical Association, which developed and keeps up-to-date this widely used system for reporting medical procedures and services. 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, four of the 55 disputed claim determinations involve a downcode. Collectively, these four disputed items total $13.55. In two instances involving Patient No. 18, VMC agrees with AHCA's determination that there was no overpayment for the BGOS in question, but it asserts that Medicaid paid too little on the claims, which could have been billed under higher paying codes. As mentioned above, these alleged underpayments ("UPs") total $27.76. The table below summarizes the disputed overpayments, sorted by disputed overpayment ("OP") amount per patient (largest to smallest): Pt. # Disputed OP (w/SAOs) Admitted OP (w/SAOs) Alleged OP Number of Disputed BGOSs Number of SAOs Amount of SAOs Number of alleged UPs Amount of Claimed UP 22 545.00 401.83 946.83 8 7 523.79 57.75 581.54 5 35 466.10 112.83 578.93 7 6 376.65 91.89 468.54 5 1 15.98 31 194.88 73.21 268.09 3 1 14.85 27 157.73 479.12 636.85 2 8 157.73 12.85 170.58 2 5 153.54 16.61 170.15 4 18 150.97 280.56 431.53 5 2 -27.76 4 106.29 38.85 145.14 1 33 105.44 182.80 288.24 2 14 89.94 120.37 210.31 1 1 20.60 20 84.39 264.56 348.95 6 11 168.79 12 51.09 0 51.09 1 30 47.53 0 47.53 1 29 35.46 50.99 86.45 1 1 15.98 1 4.77 0 4.77 1 Subtotal 3,251.30 2,184.22 5,435.52 55 15 236.20 2 -27.76 Pt. # Disputed OP (w/SAOs) Admitted OP (w/SAOs) Alleged OP Number of Disputed BGOSs Number of SAOs Amount of SAOs Number of alleged UPs Amount of Claimed UP 2 0 23.32 23.32 9 0 23.32 23.32 11 0 37.58 37.58 13 0 32.57 32.57 16 0 33.10 33.10 25 0 46.85 46.85 34 0 36.14 36.14 Subtotal 0 232.88 232.88 32 (1.50) 37.64 36.14 1 1.50 26 (2.00) 203.04 201.04 1 2.00 3 (15.56) 37.64 22.08 1 15.56 24 (15.97) 34.13 18.16 1 15.97 10 (15.98) 31.07 15.09 1 15.98 23 (15.98) 31.07 15.09 1 15.98 Subtotal (66.99) 374.59 307.60 6 66.99 15 n/a 0 17 n/a 0 19 n/a 0 21 n/a 0 28 n/a 0 TOTAL 3,184.31 2,791.69 5,976.00 55 21 303.19 2 -27.76 Before addressing the disputed BGOSs, two subjects will be resolved, to further refine the issues. First, the undersigned has decided that each of the 21 separate SAOs should be treated as no more or less than corroboration that the alleged overpayment is correct——not used as a basis for increasing the amount AHCA alleges is due. Thus, for example, if AHCA alleged that the overpayment for a particular encounter was $36.14 and VMC offered evidence that the overpayment for that encounter was actually $37.64, the undersigned will find that the undisputed overpayment is $36.14. As a result, nothing else needs to be decided in regard to any of the claims presented for BGOSs furnished to Patient Nos. 3, 10, 23, 24, 26, and 32. Second, the undersigned rejects VMC's assertion that the empirical overpayment should be reduced by a total of $27.76 because it provided BGOSs to Patient No. 18 for which it did not bill Medicaid enough.3/ This reduces the number of disputed encounters from 55 to 53. The table below summarizes the disputed overpayments after taking account of the foregoing determinations, sorted by disputed overpayment amount per patient (largest to smallest): Pt. # Disputed OP Admitted OP Alleged OP Number of Disputed BGOSs 22 545.00 401.83 946.83 8 7 523.79 57.75 581.54 5 35 466.10 112.83 578.93 7 6 392.63 75.91 468.54 5 20 253.18 95.77 348.95 6 31 209.73 58.36 268.09 3 27 157.73 479.12 636.85 2 8 157.73 12.85 170.58 2 5 153.54 16.61 170.15 4 18 150.97 280.56 431.53 3 14 110.54 99.77 210.31 1 4 106.29 38.85 145.14 1 33 105.44 182.80 288.24 2 29 51.44 35.01 86.45 1 12 51.09 0 51.09 1 30 47.53 0 47.53 1 1 4.77 0 4.77 1 Subtotal 3,487.50 1,948.02 5,435.52 53 2 0 23.32 23.32 0 3 0 22.08 22.08 0 9 0 23.32 23.32 0 10 0 15.09 15.09 0 11 0 37.58 37.58 0 13 0 32.57 32.57 0 16 0 33.10 33.10 0 23 0 15.09 15.09 0 24 0 18.16 18.16 0 25 0 46.85 46.85 0 Pt. # Disputed OP Admitted OP Alleged OP Number of Disputed BGOSs 26 0 201.04 201.04 0 32 0 36.14 36.14 0 34 0 36.14 36.14 0 Subtotal 0 540.48 540.48 0 15 n/a 0 n/a 17 n/a 0 n/a 19 n/a 0 n/a 21 n/a 0 n/a 28 n/a 0 n/a TOTAL 3,487.50 2,488.50 5,976.00 53 Each side presented opinion testimony regarding the compensability of the disputed BGOSs under Medicaid. On the question of medical necessity, AHCA's medical expert was Ronald Machado, M.D., upon whose testimony, together with the notations of the Agency's nurse reviewer appearing in the audit worksheets, AHCA relies in support of its overpayment allegations. VMC's medical expert was Dr. Michael Sterns, whose written opinions were presented through the report of L. Lamar Blount, a health-care consultant who, at VMC's request, conducted a shadow audit of the claims AHCA had examined. To assist in his review, Mr. Blount engaged the services of a coding specialist (Rae Freeman) and a statistician (Frank Collins) in addition to Dr. Sterns. The undersigned has considered all of the opinion testimony presented, together with the medical records and other evidence received. Each of the findings that follow is based upon a preponderance of the evidence which the undersigned deemed credible and persuasive, and each constitutes a rejection of other evidence to the extent of any conflict between the finding and such evidence. In determining whether a particular claim should be allowed or disallowed, the undersigned considered, as necessary, the relevant provisions of the pertinent statutes, rules, and Medicaid handbooks, the operative terms of which are identified in the Conclusions of Law following these Findings of Fact. The undersigned's determinations as to each of the disputed BGOSs are set forth below in summary fashion, using abbreviations where possible. This is consistent with the manner in which the parties' respective experts addressed the individual claims. The brevity of the discrete rulings is not a reflection of the attention that has been given each item, all of which were carefully and thoroughly examined. For analytical efficiency, the undersigned sorted the disputed claims by procedure, from highest to lowest overpayment subtotal. The claim-specific findings are presented below in that fashion. The descriptions of the procedures are adapted from the American Medical Association's Physician's Current Procedural Terminology® Handbook. Each disputed claim is identified by Patient Number – Encounter Number ("Pt. # - Enc. #"), using the recipient numbers assigned by AHCA. The Encounter Numbers correspond to the identically designated numbers in column C of Appendix D to Respondent's Exhibit JJ, which in turn match the claim numbers appearing in AHCA's "Listing of All Claims in Sample by recip name" worksheet, a 73- page document attached to the FAR, Petitioner's Exhibit 4. Ultrasound, retroperitoneal (e.g., renal, aorta, nodes), real time with image documentation, complete – CPT 76770. A complete ultrasound examination of the retroperitoneum consists of real time scans of the kidneys, abdominal aorta, common iliac artery origins, and inferior vena cava, including any demonstrated retroperitoneal abnormality. If the clinical history suggests urinary tract pathology, a complete evaluation of the kidneys and urinary bladder also comprises a complete retroperitoneal ultrasound. The undersigned makes the following findings of fact regarding VMC's claims for this BGOS: Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 76770 5-15 NMN 52.00 MN established by diagnosis of microscopic hematuria. 0.00 6-2 NMN 53.44 78-year-old man presents with hematuria and nocturia plus a renal cyst. MN established to rule out BPH (enlarged prostate). 0.00 8-1 NMN 51.44 Patient reports pain and history of kidney stones during review of genitourinary ("GU") system plus low back pain. MN established to rule out recurrence of renal calculi. 0.00 18-12 NMN 51.44 Patient complains of flank pain, giving reason to rule out renal calculi. No evidence that a kidney, ureter, and bladder ("KUB") X-ray would have been cheaper, nor proof that renal US was outside generally accepted standards of medical practice. MN shown. 0.00 18-27 NMN 52.00 Patient continues to complain of unexplained right flank/abdominal pain. Diagnoses of hydronephrosis and renal colic. MN established. 0.00 Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 76770 20-8 NMN 51.44 Patient presents with complaint of dark- colored urine. Dysuria and hematuria noted. MN shown. 0.00 22-2 NMN 53.44 1/11/10 Patient experiencing unexplained hematuria. US revealed two kidney cysts. MN shown. 0.00 22-11 NMN 53.44 7/12/10 US to follow up on kidneys cysts. No documentation of symptoms or need for such close monitoring. NMN 53.44 22-16 NMN 53.44 11/10/10 Repeat US of kidney to monitor cysts. Excess of need for a benign condition. NMN 53.44 22-21 NMN 51.44 11/29/11 Patient presents with hematuria and history of kidney cysts. MN established in light of symptom and need to reexamine the cysts for possible enlargement. 0.00 27-17 NMN 53.44 No reason given for repeat study of kidney after apparently asymptomatic cyst found via renal US on 6/30/10. NMN 53.44 29-4 NMN 51.44 Contemporaneous urinalysis ("UA") found occult blood and renal epithelial cells, warranting study to rule out kidney disease. MN shown. 0.00 31-12 NMN 51.44 Patient in his early 70s complains of dysuria and abdominal pain. US not preceded by review of UA results and prostate exam. NMN 51.44 31-20 NMN 52.00 Progress notes do not provide grounds for this study. NMN 52.00 33-6 NMN 53.44 Patient presents with persistent hematuria notwithstanding treatment of UTI. MN shown. 0.00 33-11 NMN 52.00 Patient reports dysuria and renal colic. MN for US established by new symptoms. 0.00 35-2 NMN 51.44 Progress note reports patient complaint of nephrolithiasis plus hematuria per UA results. MN established. 0.00 35-26 NMN 50.00 Patient presents with undiagnosed hematuria plus absence of menstruation. MN shown. 0.00 Subtotal 938.72 263.76 Echocardiography, transthoracic, real-time with image documentation, complete, with spectral Doppler echocardiography, and with color flow Doppler echocardiography – CPT 93306. A standard echocardiogram is also known as a transthoracic echocardiogram ("TTE"). The echocardiography transducer (or probe) is placed on the chest wall of the patient, and images are taken through the chest wall. This noninvasive procedure allows for the assessment of the overall health of the patient's heart valves and degree of heart muscle contraction, which is an indicator of the ejection fraction. The undersigned makes the following findings of fact regarding VMC's claims for this BGOS: Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 93306 4-3 NMN 106.29 Patient presents with heart murmur and/or rub. TTE ordered to assess left ventricular ejection fraction ("LVEF") and rule out valvular disease of heart, which was confirmed by finding of mitral valve disease. MN shown. 0.00 7-4 NMN 104.29 Patient presents with history of palpitations and chest pain and has a heart murmur on examination. MN for TTE shown. 0.00 8-2 NO DOC 106.29 Patient presents with murmur, palpitation, and chest pain, as documented in progress note. TTE ordered to rule out valvular disease. Echocardiogram Report is in the file. Documentation shown. 0.00 14-4 NMN 110.54 Teenage patient presents with recent history of seizure and loss of consciousness. TTE ordered to rule out mitral valve prolapse. MN shown. 0.00 27-14 NMN 104.29 85-year-old man reports dizziness and has murmur on examination. TTE ordered to rule out worsening of valvular disease and assess LVEF. MN shown. 0.00 31-10 NMN 106.29 Patient presents with heart murmur. TTE one year earlier found numerous abnormalities. TTE ordered to assess function and rule out worsening of condition. MN shown. 0.00 35-23 NMN 104.29 Patient presents with complaint of migraine. No cardiac symptoms. History of mitral valve prolapse indicated. NMN 104.29 Subtotal 742.28 104.29 Duplex scan of lower extremity arteries or arterial bypass grafts, complete bilateral study – CPT 93925. Duplex Doppler ultrasound uses standard ultrasound methods to produce an image of a blood vessel and the surrounding organs. A computer converts the Doppler sounds into a graph that provides information about the speed and direction of blood flow through the blood vessel being evaluated. The undersigned makes the following findings of fact regarding VMC's claims for this BGOS: Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 93925 6-9 NMN 156.21 Patient presents with limb swelling, symptomatic varicose veins, chronic venous insufficiency, and peripheral edema. MN shown. 0.00 7-7 NMN 156.21 Patient presents with limb pain or swelling and symptomatic varicose veins. Diagnoses of peripheral artery disease and venous insufficiency. MN shown. 0.00 35-9 NMN 156.21 Patient presents with lower extremity swelling, chronic venous insufficiency, and peripheral edema; heart murmur noted on exam. MN shown. 0.00 Subtotal 468.63 0.00 Noninvasive physiologic studies of upper or lower extremity arteries, multiple levels or with provocative functional maneuvers, complete bilateral study (e.g., segmental blood pressure measurements, segmental Doppler waveform analysis, segmental volume plethysmography, segmental transcutaneous oxygen tension measurements, measurements with postural provocative tests, measurements with reactive hyperemia) – CPT 93923. The undersigned makes the following findings of fact regarding VMC's claims for this BGOS: Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 93923 6-10 NMN 91.02 Patient presents with limb swelling, symptomatic varicose veins, chronic venous insufficiency, and peripheral edema. This study excessive in combination with lower extremity study of same date. NMN 91.02 7-8 NMN 91.02 Patient presents with limb pain or swelling and symptomatic varicose veins. Diagnoses of peripheral artery disease and venous insufficiency. This study excessive in combination with lower extremity study of same date. NMN 91.02 22-6 NMN 91.02 Patient presents with muscle pain in the left leg but progress note lacks support for this study to check blood flow. NMN 91.02 35-10 NMN 91.02 Patient presents with lower extremity swelling, chronic venous insufficiency, and peripheral edema; heart murmur noted on exam. This study excessive in combination with lower extremity study of same date. NMN 91.02 Subtotal 364.08 364.08 Duplex scan of extremity veins including responses to compression and other maneuvers, complete bilateral study – CPT 93970/93971. The CPT code 93970 is described as a "complete bilateral study." The CPT code 93971 states: "unilateral or limited study." The undersigned makes the following findings of fact regarding VMC's claims for this BGOS: Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 93970/93971 7-5 NMN 122.74 Patient presents with limb pain or swelling and symptomatic varicose veins. Diagnoses of peripheral artery disease and venous insufficiency. This study excessive in combination with lower extremity study of same date. NMN 122.74 22-7 NMN 122.74 Patient presents with muscle pain in the left leg but progress note lacks support for this study. NMN 122.74 22-27 (93971) NMN 70.20 Insufficient support in the progress notes for this study. NMN 70.20 Subtotal 315.68 315.68 Ultrasound, pelvic (nonobstetric), real time with image documentation; complete – CPT 76856. Pelvic ultrasound codes are used for both female and male anatomy. Elements of a complete female pelvic examination include a description and measurement of the uterus and adnexal structures, endometrium, bladder, and of any pelvic pathology (e.g., ovarian cysts, uterine leiomyomata, free pelvic fluid). Elements of a complete male pelvic examination include the evaluation and measurement (when applicable) of the urinary bladder, prostate and seminal vesicles to the extent they are visualized transabdominally, and any pelvic pathology (e.g., bladder tumor, enlarged prostate, free pelvic fluid, pelvic abscess). The undersigned makes the following findings of fact regarding VMC's claims for this BGOS: Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 76856 5-5 NMN 51.09 Patient is reported to have pelvic pain on 5/3/11 and referral to GYN is made. Pelvic pain again noted on 8/24/11. Study performed on 9/13/11 found uterine fibroid. MN established. 0.00 5-16 NMN 47.68 Excessive in light of retroperitoneal US of same date. NMN 47.68 6-4 NMN 51.09 78-year-old man presents with hematuria and nocturia plus a renal cyst. Excessive in light of retroperitoneal US of same date. NMN 51.09 12-2 NMN 51.09 Patient presents complaining of irregular periods, pelvic pain (non- radiating, pressure-like), nausea, and urinary changes for several weeks. MN for study shown. 0.00 20-9 NMN 51.09 Patient presents with complaint of dark-colored urine. Dysuria and hematuria noted. Excessive in light of retroperitoneal US of same date. NMN 51.09 Subtotal 252.04 149.86 Ultrasound, soft tissues of the head and neck (e.g., thyroid, parathyroid, parotid), real time with image documentation – CPT 76536. The undersigned makes the following findings of fact regarding VMC's claims for this BGOS: Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 76536 7-3 NMN 49.53 Patient presents complaining of neck mass and swollen glands. MN shown. 0.00 18-10 NMN 47.53 Patient presents with complaints of memory loss and dizziness. Progress notes reflect presence of carotid bruits and possible neck swelling. Insufficient documentation of grounds for this study. NMN 47.53 20-4 NMN 49.53 Patient presents with swollen glands and physical exam reveals thyroid abnormality. MN established. 0.00 22-30 NMN 49.28 Insufficient documentation of grounds for the study; no mention of history or findings relating to thyroid issue. NMN 49.28 30-1 NMN 47.53 Patient presents with swollen glands and neck lumps, complaining of dizziness, and physical exam reveals thyroid abnormality. MN established. 0.00 Subtotal 243.40 96.81 Ultrasound, abdominal, real time with image documentation, limited (e.g., single organ, quadrant, follow-up) – CPT 76705. The undersigned makes the following findings of fact regarding VMC's claims for this BGOS: Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 76705 6-3 NMN 40.87 78-year-old man presents with hematuria and nocturia plus a renal cyst. Excessive in light of retroperitoneal US of same date. NMN 40.87 20-7 NMN 42.87 Patient presents with complaint of dark-colored urine. Dysuria and hematuria noted. Excessive in light of retroperitoneal US of same date. NMN 42.87 Subtotal 83.74 83.74 Ultrasound, abdominal, real time with image documentation; complete – CPT 76700. A complete ultrasound examination of the abdomen consists of scans of the liver, gallbladder, common bile duct, pancreas, spleen, kidneys and the upper abdominal aorta and inferior vena cava including any demonstrated abdominal abnormality. The undersigned makes the following findings of fact regarding VMC's claims for this BGOS: Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 76700 20-17 NMN 55.01 Patient presents with abdominal pain and abdominal mass related to an incisional hernia. This study was in excess of need in light of CT scan ordered same date. NMN 55.01 Subtotal 55.01 55.01 Electrocardiogram, routine EKG with at least 12 leads; with interpretation and report – CPT 93000. The undersigned makes the following findings of fact regarding VMC's claims for this BGOS: Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 93000 35-25 NMN 10.37 Patient presents with heart murmur. TTE one year earlier found numerous abnormalities. This EKG excessive in combination with TTE ordered on same date to assess function and rule out worsening of condition. NMN 10.37 Subtotal 10.37 10.37 Office or other outpatient visit (established patient) – CPT 99213. This level of care is located in the middle of the coding spectrum for office visits with established patients. Usually the presenting problems are of low to moderate severity. The documentation for this encounter requires two out of three of the following: (1) expanded problem focused history; (2) expanded problem focused examination; and (3) low complexity medical decision making. Physicians typically spend 15 minutes face-to-face with the patient in connection with a 99213-level appointment. In contrast, 99212 is a CPT code for office or other outpatient visit for the evaluation and management of an established patient with a problem focused history and examination, and straightforward medical decision making. The documentation for this encounter requires two out of three of the following: problem focused history; (2) problem focused examination; and (3) straightforward medical decision making. Physicians typically spend ten minutes face-to-face with the patient in connection with a 99212-level appointment. The undersigned makes the following findings of fact regarding VMC's claims for office or other outpatient visits: Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 99213 1-1 LL - 99212 4.77 Problem focused history and exam plus straightforward medical decision making. 99212 4.77 5-6 LL - 99212 2.77 Problem focused history and exam plus straightforward medical decision making. 99212 2.77 35-19 LL - 99212 2.77 Problem focused history and exam plus straightforward medical decision making. 99212 2.77 Subtotal 10.31 10.31 Initial Hospital Care – CPT 99223. The undersigned makes the following findings of fact regarding VMC's claim for a patient being admitted to the hospital: Pt.# - Enc.# AHCA Determination Disputed Overpayment ALJ Determination of Overpayment – CPT 99223 20-20 LL - 99221 3.24 Evidence supports 99221, not 99223 as billed. Applicable Fee Schedule (eff. Jan. 1, 2011) provides for payment of 49.12, not 52.36 as VMC urges. 3.24 Subtotal 3.24 3.24 The table below summarizes the foregoing findings, showing the per-patient overpayments (including both the adjudicated and admitted subtotals per patient, listed in separate columns), sorted from lowest to highest numbered patient: Pt. # ALJ Disallow Admitted OP Finding of OP 1 4.77 0 4.77 2 Undisputed 23.32 23.32 3 Undisputed 22.08 22.08 4 0 38.85 38.85 5 50.45 16.61 67.06 6 182.98 75.91 258.89 7 213.76 57.75 271.51 8 0 12.85 12.85 9 Undisputed 23.32 23.32 10 Undisputed 15.09 15.09 11 Undisputed 37.58 37.58 12 0 0 0 13 Undisputed 32.57 32.57 14 0 99.77 99.77 15 n/a n/a n/a 16 Undisputed 33.10 33.10 17 n/a n/a n/a 18 47.53 280.56 328.09 19 n/a n/a n/a 20 152.21 95.77 247.98 21 n/a n/a n/a 22 440.12 401.83 841.95 23 Undisputed 15.09 15.09 24 Undisputed 18.16 18.16 25 Undisputed 46.85 46.85 26 Undisputed 201.04 201.04 27 53.44 479.12 532.56 Pt. # ALJ Disallow Admitted OP Finding of OP 28 n/a n/a n/a 29 0 35.01 35.01 30 0 0 0 31 103.44 58.36 161.80 32 Undisputed 36.14 36.14 33 0 182.80 182.80 34 Undisputed 36.14 36.14 35 208.45 112.83 321.28 TOTAL 1,457.15 2,488.50 3,945.65 Thus, the undersigned finds that the entire empirical overpayment for the Audit Period is $3,945.65, an amount that comprises $1,457.15 as the sum of all adjudicated overpayments and $2,488.50 as the sum of all admitted overpayments. To be clear, each of the numbers in the "ALJ Disallow" column above is based on findings supported by a preponderance of the evidence. The figure of $1,457.15 is not supported, however, by clear and convincing evidence. The grand total of $3,945.65 is, more likely than not, the correct empirical overpayment for the claims in the sample population. The figure of $3,945.65 is not supported, however, by clear and convincing evidence. As mentioned above, AHCA determines the probable total overpayment based upon the empirical overpayment observed in the sample population, using a statistical formula for cluster sampling to extend the empirical data to the provider's entire patient population. AHCA is statutorily authorized to use generally accepted statistical methods in making a determination of overpayment to a provider, and to offer the results of such statistical methods as proof of overpayment.4/ The formula that AHCA uses is reproduced below: VMC contends that the statistical formula upon which AHCA has relied produces less accurate results than other methods that could have been used, and that AHCA made mistakes when it employed the formula in this case. The latter argument is rejected as contrary to the persuasive evidence, which shows that AHCA correctly performed the calculations required to implement the statistical formula for cluster sampling. As for the efficacy of the Agency's formula, the undersigned accepts that there are other statistical methodologies that AHCA could use, and that it would be possible to obtain a more accurate result using other methods. The Agency does not dispute this. But, according to AHCA's expert witness, Dr. Fred Huffer, a statistician whose testimony the undersigned credits with qualifications as explained below, increasing the accuracy of the statistical methodology most likely would result in a higher probable total overpayment because there is supposed to be only a five percent chance that the figure AHCA's formula produces is too high. The undersigned determines that the statistical formula for cluster sampling that AHCA uses is a generally accepted, valid, and reliable method of extending the overpayment observed in a sample population to the entire relevant population. That said, there is less to the relative persuasiveness of the number produced by the Agency's formula than meets the eye. The confidence level of 95 percent assumes that every numerical value going in to the formula is absolutely (not just probably) true. For some of the values, i.e., F, Bi, U, and N, this degree of confidence (namely, 100 percent) is justified. For others, i.e., Ai, it clearly is not. The total overpayment in the sample cluster is not an objective truth, such as the number of clusters in the random sample, or a mathematical constant such as pi. Rather, each alleged overpaid claim in the sample reflects a judgment by AHCA (or more precisely its medical reviewers) founded on findings of historical fact, legal conclusions, and determinations of ultimate fact. Indeed, each figure contributing to the total empirical overpayment numerically represents an ultimate factual determination based upon the application (and interpretation when necessary) of Medicaid rules to a limited body of evidence——mostly medical records——of past events. Of none (or very few) of those figures can it be said with 100 percent certainty that the number is absolutely (not just probably) true. No one involved in the decision making process is omniscient or infallible. As here, the provider may dispute some or all of AHCA's preliminary adjudications of the claims behind the total alleged overpayment in the sample cluster and demand a hearing, at which each (disputed) individual overpayment in the sample cluster must be proved by a preponderance of the evidence. The standard of proof being what it is, the Agency does not need to prove each of the disputed overpayments to an absolute certainty. To recoup an overpayment, it is sufficient for AHCA to show with a 51 percent probability that the amount alleged to have been overpaid for a given claim is, in fact, the amount overpaid. In the paragraphs above, the undersigned has set forth his findings regarding the disputed claims. Each individual finding of an overpayment reflects the undersigned's determination that the disallowed amount is, more likely than not, the correct adjudication of the disputed claim. There is, in the undersigned's estimation, approximately a 60 percent probability that the sum of all adjudicated overpayments ($1,457.15) is the correct figure, which satisfies the preponderance of evidence standard. In contrast, the undersigned estimates that there is approximately an 80 percent probability that the sum of all admitted overpayments ($2,488.50) is the correct figure, meaning that this portion of the empirical overpayment was established by clear and convincing evidence. This discussion of the undersigned's relative confidence in the overpayment findings made in this Recommended Order is meant to demonstrate that using the figure $3,945.65 as the value Ai in the Agency's formula for cluster sampling, while consistent with the standard of proof for an action to recoup an overpayment, nevertheless injects uncertainty into the equation, which logically must reduce the confidence level in the formula's outcome from 95 percent to something less than that.5/ Based on the instant record, the undersigned cannot quantify the probable accuracy of the formula's output, as applied to the facts found here. The bottom line is that although the undersigned finds AHCA's statistical formula to be a sufficiently reliable method of calculating, to the degree of certainty required under the preponderance of evidence standard of proof, the total probable overpayment to VMC, the formula's output (in this instance) does not satisfy the stricter clear and convincing standard.6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA: Recalculate the probable total overpayment using the statistical formula for cluster sampling to extend the empirical overpayment of $3,945.65 in the sample population to the entire population during the Audit Period. Make a preliminary determination of the amount of costs that may be recovered from VMC, taking into consideration the financial resources, earning ability, and needs of VMC to the extent VMC demonstrates such factors. Remand the matter to DOAH for an evidentiary hearing on recovery of costs if necessary. Enter a final order directing VMC to repay the Agency the total probable overpayment as recalculated using the findings herein, plus statutory interest, for paid claims covering the period from January 1, 2010, to December 31, 2012; imposing an administrative fine against VMC in the amount of $5,000; and taxing recoverable costs, full payment of these monies to be due within 30 days after the rendition of the final order and payable on the Agency's instructions. DONE AND ENTERED this 10th day of April, 2015, 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 April, 2015
The Issue Whether Medicaid overpayments were made to Petitioners, Jeanette E. Norris, M.D., and Sandcastle Pediatrics, and, if so, what is the total amount of these overpayments.
Findings Of Fact The Agency is the state agency charged with administration of the Medicaid program in Florida under Section 409.907, Florida Statutes. Petitioner Norris is a physician who, during the period of January 1, 1997, through October 16, 1999, provided Medicaid services to Medicaid beneficiaries pursuant to a valid Medicaid provider agreement with the Agency under provider number 0543756-00. Petitioner Norris at all times relevant to this matter, provided Medicaid services in an office owned by Petitioner Norris, doing business as Sandcastle Pediatrics, but all Medicaid claims were claimed by and paid to Petitioner. The Agency performed an audit of paid Medicaid claims for services claimed to have been performed by Petitioner Norris during the period January 1, 1997, through October 16, 1999. On March 12, 2201, the Agency issued a Final Agency Audit Report ("Audit Report" or "FAAR"), requesting Petitioner Norris to reimburse the Agency $39,534.32, alleged for overpayments of Medicaid claims submitted by and paid to Petitioner Norris. The determination of overpayment was based upon audit findings that services provided by Petitioner Norris did not meet Medicaid criteria. These criteria included: lack of documentation of services rendered; lack of documentation to support the higher level of service billed; failure to document the required elements for early periodic screening for diagnosis; failure to document performance of treatment services; and billing for two codes when one code incorporated the elements of the other code. During the Audit period, the applicable statutes, laws, rules and policy guidelines (Medicaid rules) in effect required Petitioner Norris to maintain all Medicaid-related records and information that supported any and all Medicaid invoices or claims made by Petitioner Norris during the Audit period. During the Audit period, the Medicaid rules required Petitioner Norris to provide the Agency or the Agency's authorized representatives all the Medicaid-related records and other information that supported all the Medicaid-related invoices or claims for which Petitioner Norris billed Medicaid during the Audit period. Petitioner Norris was required to maintain all medical and Medicaid-related records for a period of five years to satisfy all necessary inquiries by the Agency. During all times relevant to this matter, Petitioner Norris had an affirmative duty to assure that each claim presented to the Agency was true and accurate, and that goods and services were provided in accord with applicable provisions of the Medicaid rules. Medicaid goods and services are deemed excessive or medically unnecessary unless both the medical basis and specific need for them are fully and properly documented in the recipient's medical record. At the request of Ms. Lynne Edwards, the Agency's auditor, the Agency generated a random list of 24 Medicaid recipients (cluster sample) rendered services by Petitioner Norris during the audit period. In addition, the Agency generated work papers of: the total number of recipients to whom Petitioner Norris rendered services during the audit period; the total number of claims by Petitioner Norris with dates of service during the audit period; the total amount paid to Petitioner Norris for all claims with dates of service during the audit period; and worksheets representing each recipient's claims for the audit period. Ms. Edwards obtained the work papers generated by the Agency concerning the random cluster sample, provided 24-hour advance notice to Petitioner Norris of an on-site visit, and performed an on-site visit at the office where Petitioner Norris provided medical services and maintained patient records. After the on-site visit, Ms. Edwards prepared an on-site investigative summary. When Ms. Edwards performed the on-site visit, she spoke with Petitioner Norris. Ms. Edwards presented Petitioner Norris with a questionnaire and printout of the names of the 24 patients in the cluster sample, and asked Petitioner Norris to fill out the questionnaire and mail back to Ms. Edwards the completed questionnaire along with copies of the medical records of the 24 patients in the cluster sample. Ms. Edwards also asked to see medical records of a few of the patients in the cluster sample while she was on-site. Petitioner Norris did not mail a completed questionnaire to Ms. Edwards. Subsequent to the on-site visit, Petitioner Norris provided the Agency with medical records for five of the 24 recipients in the sample. The records were given to Ms. Blanca Notman, the Agency's registered nurse consultant, for policy compliance review. Thereafter, Petitioner Norris submitted medical records for an additional five recipients in the sample. Ms. Edwards forwarded the additional medical records to Ms. Notman for review. After Ms. Notman reviewed the medical records and provided her comments on the claims worksheets, Ms. Notman forwarded the records and worksheets to Dr. Larry Deeb, a pediatrician physician consultant, for a review relating to medical necessity and level of care issues. After review and comments by Dr. Deeb, the records and worksheets were returned to Ms. Notman, who calculated adjustments on the claims worksheets based on the opinions of Dr. Deeb. Ms. Notman returned the medical records and worksheets to Ms. Edwards, along with a Professional Medical Review Report signed by Ms. Notman and Dr. Deeb. Ms. Edwards received the medical records, worksheets, and the Professional Medical Review Report, totaled the overpayments per patient/cluster in the sample, and arrived at a figure of $3,298.45 as the total overpayment for all cluster sample claims. Ms. Edwards submitted the cluster sampling information and the audit review results to another Agency employee for the generation of the extrapolated overpayment calculation, using the Agency's formula. The Agency employee generated and provided to Ms. Edwards the overpayment calculation that represented the findings of the audit of the cluster sampling extrapolated to the total paid claims in the audit period, which was $39,534.32. The Agency prepared its February 6, 2001, Preliminary Agency Audit Report (PAAR) based on the audit review of the medical records provided by Petitioner Norris for the paid claims in the cluster sample. Petitioner Norris provided no documentation for 14 of the 24 patients in the cluster sample, and the audit took this into account. The PAAR was mailed to Petitioner Norris. The PAAR identified all policy violations and determinations found in the audit review. Petitioner Norris closed her medical practice in March 2001. Petitioner Norris joined the employees of a group that provides physicians to hospitals on contract for limited periods of time. This required Petitioner Norris to be away from home and unavailable for large periods of time, which complicated all aspects of this case. The PAAR informed Petitioner Norris that the findings were preliminary and encouraged Petitioner Norris to submit any additional documentation she felt would serve to reduce the overpayment within 30 days. Petitioner Norris did not submit additional documentation to the Agency. Pursuant to Section 409.9131, Florida Statutes (2000 Supp.), the Agency prepared and mailed to Petitioner Norris its March 12, 2001, Final Agency Audit Report (FAAR), asserting a total overpayment determination of $39,534.32 and again identifying all policy violations and determinations found in the audit review. After receipt of the FAAR, Petitioner Norris requested an informal hearing, which the Agency received on April 13, 2001. In her hearing request Petitioner Norris said the 30 days given between the PAAR and FAAR for the submission of additional documentation was not sufficient because she was in the process of closing her medical office and relocating her files and medical records. Petitioner Norris requested an additional 60 days for the submission of additional information, and the letter inferred there were disputed issues of material fact. On April 26, 2001, the Agency's clerk submitted a request to Petitioner Norris that she clarify her hearing request, given what appeared to be disputed issues of material fact. On September 12, 2001, Petitioner Norris sent the Agency a letter that informed the Informal Hearing Officer of dates of availability and acknowledged there were disputed issues of material fact. The matter was subsequently referred to the Division of Administrative Hearings. On March 28, 2002, the Agency took the deposition of Dr. Deeb in lieu of live trial testimony. Prior to the commencement of the deposition, the determination of the Agency as to the paid claims in the cluster sample was reviewed by the parties and stipulations were entered into between the Agency and Petitioner Norris. The stipulations were restated during the deposition. Based on the stipulations prior to and during the deposition of Dr. Deeb, the Agency re-calculated the total overpayment for the paid claims in the cluster sample, extrapolated the sample findings to the population, and determined the adjusted total overpayment of paid Medicaid claims. Prior to the commencement of the final hearing on April 1, 2002, the parties agreed that the information set forth in AHCA Exhibit 10A represented the Agency's final determination as to the claims in the cluster sample determined to be overpayments by the Agency, with the exception of the "No Documentation" overpayment for the date of service of March 3, 1997, which the parties agreed should not be listed on the exhibit because the Agency represented that it would recalculate the extrapolated total overpayment, based upon the final determinations set forth in the Agency Exhibit 10A (subtracting out the "No Documentation" March 3, 1997 listing), and the parties were permitted to supplement AHCA Exhibit 30 with any updated total overpayment determination. The Agency recalculated the extrapolated total overpayment after April 1, 2002, which was determined to be $4,000.48, and supplemented AHCA Exhibit 30 by filing AHCA Exhibit 30A on June 7, 2002. On April 1, 2002, when the final hearing commenced, the parties agreed that the only Medicaid claims overpayment determinations made by the Agency concerning the audit of the claims in the cluster sample that were in dispute were the following: Blood count/fingerstick hemoglobin and hemocrit tests performed as a part of a physician office visits as follows: Recipient/ Patient Date of Service Procedure Billed Reason for Claim Denial Overpayment 13 3/25/97 Blood Count/HE Part of OV $ 2.00 14 2/24/97 Blood Count/HE Part of OV $ 2.00 14 3/10/97 Blood Count/HE Part of OV $ 2.00 16 4/4/98 Blood Count/HE Part of OV $ 2.00 16 5/12/98 Blood Count/HE Part of OV $ 2.00 16 6/18/98 Blood Count/HE Part of OV $ 2.00 Office visit (OV) cannot be billed the same day that an EPSDT is billed, when patient only seen once that day: Recipient/ Patient Date of Service Procedure Billed Reason for Claim Denial Overpayment 22 7/29/97 OV-99202 OV billed same $31.35 same day as EPSDT On April 1, 2002, when the final hearing commenced, the parties agreed that the following claims overpayment determinations made by the Agency concerning the audit of the claims in the cluster sample were not in dispute: Claims were no medical records existed to indicate services were performed: Recipient/ Patient Date of Service Procedure Billed Reason for Claim Denial Overpayment 3 5/12/97 EPSDT No Med. Rec. $64.98 3 5/12/97 blood count No Med. Rec. $ 2.00 3 5/12/97 immunization No Med. Rec. $10.00 3 5/12/97 immunization No Med. Rec. $10.00 3 5/12/97 immunization No Med. Rec. $10.00 3 8/27/97 immunization No Med. Rec. $10.00 3 8/27/97 immunization No Med. Rec. $10.00 3 8/27/97 immunization No Med. Rec. $10.00 3 8/27/97 immunization No Med. Rec. $10.00 7 7/30/97 OV-99213 No Med. Rec. $25.00 22 7/14/98 EPSDT No Med. Rec. $65.33 Office visit (OV) claims, to include Early and Periodic Screening, Diagnosis, and Treatment Services claims (EPSDTs), that lacked all EPSDT components, adjusted to appropriate level of care OV claims. Recipient/ Date of Adjustment Reason for Patient Service Made Adjustment Overpayment 3 8/27/97 EPSDT to 99214 OV Lacked components $27.72 3 8/27/98 99205 OV to 99204 OV Level of Service $38.18 9 10/17/97 99205 OV to 99204 OV Level of Service $17.04 10 4/3/97 99204 OV to 99203 OV Level of Service $21.36 14 3/24/97 99214 OV to 99213 OV Level of Service $12.26 14 4/28/97 99214 OV to 99213 OV Level of Service $12.26 16 1/20/97 99205 OV to 99204 OV Level of Service $17.04 16 3/5/97 99214 OV to 99213 OV Level of Service $12.26 19 3/11/97 99205 OV to 99204 OV Level of Service $17.04 20 4/2/97 99214 OV to 99213 OV Level of Service $12.26 21 2/13/98 99205 OV to 99204 OV Level of Service $16.77 23 8/4/97 99204 OV to 99203 OV Level of Service $21.36 As to the disputed claims concerning the blood count/fingerstick hemoglobin and hemocrit test performed as a part of a physician office visit, Petitioner Norris testified that she did not see the test as a routine part of an office visit, she disagreed with the policy that the test could not be billed separately, and she indicated that usually her nurse would perform the test, which she agreed involved a little prick of blood run through something and took about five minutes. The preponderance of the evidence established that the Agency's determination as to these disputed claims was correct--the Medicaid Handbooks in effect during the audit prohibited Petitioner Norris from separately billing for these tests because they were done during an office visit. The one disputed claim concerning an EPSDT and office visit billed on the same day when the patient was only seen once was for the treatment of the patient's oral infection (thrush). Petitioner Norris admitted that she received reimbursement for office visit procedure Code 99202, in addition to being reimbursed for an EPSDT, even though the patient was seen only once on that day. It was undisputed that prior to the issuance of the Agency's audit report, a peer review was performed by Dr. Larry C. Deeb, a pediatrician in active practice pursuant to Section 409.9131, Florida Statutes (2000 Supp.) Based on the documentation that Petitioner Norris provided to the Agency before the issuance of the Agency audit report, the Agency audit report and related work papers, the adjustment made because of stipulations between the parties after the Agency Audit Report was issued, a preponderance of the evidence establishes there is a Medicaid claims overpayment of $4,000.48 to Petitioner Norris for paid Medicaid claims for the audit period. On April 1, 2002, at the final hearing, Petitioner Norris announced that she disputed the appropriateness of the Agency's statistical formula regarding the extrapolation of the Agency's audit findings concerning the paid claims in the cluster sample to the universe/population of all paid claims during the audit period. The Agency objected on numerous grounds, all of which were overruled. The Agency was permitted to present rebuttal testimony at the conclusion of the presentation of evidence by Petitioner Norris, which the Agency did on June 3, 2002. The statistical formula utilized by the Agency when it made findings based on the cluster sample audit and applied to extrapolate those findings to the population of patient claims paid during the audit period is found on page two of the agency audit report. It was undisputed that during the audit period, Petitioner Norris saw 305 Medicaid patients and had a total of 3,035 Medicaid claims paid. It also was undisputed that a random sample of 24 Medicaid patients who were provided services by Petitioner Norris during the audit period was selected by the Agency for this audit, and all Medicaid paid claims during the audit period for each of the 24 randomly selected patients were reviewed in this audit. Petitioner Norris presented the expert testimony of Dr. Ibrahim Ahmad, regarding the Agency's challenged formula.1 The formula used by the Agency is the one used for infinite populations. In this case, the audited cases were a sample of a finite population. This builds an error into the calculation which can only be corrected by testing the sample against the population to determine if it is reflective of the population. Dr. Ahmad observed that this "proofing" had not been done and in the absence of such a proof of the sample he could not deem the results accurate. The Agency presented the expert testimony of Dr. Mark Johnson on the statistics issue.2 Dr. Johnson explained that there is an adjustment term in the challenged formula--"U" minus "N" under the square root--that adjusts the challenged formula for finite populations.3 In addition to reviewing the Agency's final audit report letter and Agency materials related to the generation of the sample in this case, Dr. Johnson conducted his own analysis of the data, using an Excel spreadsheet program and a statistical package. He was able to reproduce, independently, the same numerical results as the Agency--the estimated overpayment, variance estimates, and the lower 95 percent confidence interval limit. In this case, Dr. Johnson determined the sample was representative of the population because, looking at some of their summary values, they were consistent with the population as a whole. Dr. Johnson indicated that by using the Agency's formula, he arrived at the same calculated values as the Agency. He also investigated assumptions underlying the procedures used in the analysis of this cluster sampling design. Dr. Johnson reviewed the random distribution of the 24 clusters, compared the dollar per claim values in the sample with the figures for the population, and compared the number of claims per patient in the sample with the number of claims per patient in the population. Dr. Johnson's investigation of these properties of the random sample in comparison to the properties of the whole population led him to the conclusion that the sample was representative of the population in this case. The Agency's statistical formula adjusts the "best guess" estimate the total Medicaid overpayment ($7,803.10) downward based on the lower end of the 95 percent confidence interval, causing the overpayment being sought by the Agency to be 4,000.48. The confidence interval is plus or minus the estimate--in this case, the 95 percent confidence interval is $4,000.48 to $11,605.62 (i.e., $7,803.10 plus or minus $3,802.62). Statistically, there is 95 percent confidence that the true overpayment lies within this interval, and the Agency, by seeking the overpayment at the low end of the confidence interval, is giving Petitioner Norris the entire benefit of all of the uncertainty associated with the sampling process. Prior to the commencement of the final hearing in this cause, the Agency had filed its notice of intent to seek investigative costs, expert witness costs, and attorney's fees. At the final hearing, it was determined, as a matter of record, that jurisdiction would be retained for the determination of the Agency's request for such costs and fees. The procedural record of the case reveals that this case was forwarded to DOAH precipitously and before the Petitioner Norris would informally present information which reduced the claim from almost $40,000 to $4,000. At the commencement of the hearing, the parties stipulated to most of the operative facts. The statistical formula was a real issue, and in sum, Petitioner Norris was right; the formula reported was inappropriate. The Agency showed it did not use the reported formula, but one that adjusted for a finite population. Further, the testimony of Petitioner Norris' expert witness was not that the amount of alleged overpayment was wrong, but that the formula was not appropriate. The Agency's expert testified that a factor not stated in the letter was used to adjust the challenged formula for a finite population. Further, the Agency's expert testified he normed the stratified sample against the sampled population, and it did represent that population. This was one of the approaches Dr. Ahmad had suggested to validate the process when using the stated formula. However, Dr. Johnson did this after the challenge, not before. In sum, the burden was on the Agency to prove its case, and by failing to adopt its formula by rule, the Agency placed itself in the position of proving the formula's appropriateness at every hearing. It is so in this case. The request for costs and fees is denied.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration issue a final order requiring Petitioner Norris to reimburse the Agency for Medicaid overpayments in the total amount of $4,000.48, plus such interest as may statutorily accrue. For the reasons found above, the Agency's motion for investigative costs, expert witness fees, and attorney's fees is denied. DONE AND ENTERED this 28th day of February, 2003, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 28th day of February, 2003.
The Issue Whether Petitioner is entitled to an award of attorney's fees against Respondent pursuant to Section 57.111, Florida Statutes.
Findings Of Fact Petitioner was a prevailing small business party in DOAH Case 93-4194. Petitioner timely applied for an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes. The statutory cap of $15,000 is a reasonable amount for the award should it be concluded that Petitioner is entitled to fees and costs. In DOAH Case 93-4194, the Petitioner successfully challenged the Respondent's action in temporarily withholding all of Petitioner's payments under the medicaid program. John Whiddon, the Chief of the Florida Medicaid Program Integrity at that time, made the decision to withhold the payments to Petitioner. The information which triggered Mr. Whiddon's decision was a letter from John G. Morris, Jr., who was director of the Medicaid Fraud Control Unit. Mr. Morris advised that ". . . there is reliable evidence that the [Petitioner] billed for home health care services that were not provided and this investigation will be referred for criminal prosecution". The provisions of 42 CFR 455.23 authorize a State Medicaid agency such as the Respondent to withhold Medicaid payments, in whole or in part, upon receipt of the State agency of ". . . reliable evidence that the circumstances giving rise to the need for a withholding of payments involve fraud or willful misrepresentation under the Medicaid program." In DOAH Case 93-4194, it was concluded that Respondent had failed to establish that it had "reliable evidence" to withhold Petitioner's Medicaid payments. It was further found that even if Respondent had such reliable evidence, it could not withhold all of Petitioner's payments unless it proceeded pursuant to Section 120.59(3), Florida Statutes. Absent such emergency order pursuant to Section 120.59(3), Florida Statutes, it was concluded that any withholding would be subject to the following limitations on the withholding of Medicaid payments contained in Section 409.913(17), Florida Statutes: (17) The department may withhold Medicaid payments to a provider, up to the amount of the alleged overpayment, pending completion of an investigation under this section if it has reasonable cause to believe that the provider has committed one or more violations in relation to such payments. With the exception of providers terminated under the provisions of s. 120.59(3), in which case all payments shall be immediately terminated, the department may withhold payments under this provision, the monthly Medicaid payment may not be reduced by more than 10 percent, and the payments withheld must be paid to the provider within 60 days with interest at the rate of 10 percent a year upon determining that no such violation has occurred. If the amount of the alleged overpayment is in excess of $75,000, the department may reduce the Medicaid payments up to $25,000 per month. The Recommended Order in DOAH Case 93-4194 was adopted in toto by Respondent as a Final Order on January 28, 1994. The Medicaid Program Integrity is responsible for the oversight and regulatory aspect of the Florida Medicaid Program. Program Integrity is a part of the Agency for Health Care Administration and was formerly a part of the Department of Health and Rehabilitative Services. The Medicaid Fraud Control Unit (MFCU) is a part of the Office of the Auditor General. The MFCU is responsible for investigating abuse and criminal fraud pertaining to the medicaid program. Federal regulations require that Program Integrity and MFCU be totally separate and apart from each other. MFCU and Program Integrity operate under a memorandum of agreement which allows them to conduct separate investigations. When MFCU advises Program Integrity that it is investigating a Medicaid provider, Program Integrity routinely stops any investigation it may have started so as not to jeopardize the criminal investigation by the MFCU. Program Integrity is not provided any information about MFCU's criminal investigation until certain kinds of actions have occurred or when MFCU desires certain support. Mr. Whiddon testified that Program Integrity routinely takes administrative action against a Medicaid provider when it learns that MFCU is conducting a criminal investigation against that provider. Mr. Whiddon also testified that information received by Program Integrity from MFCU has historically proven to reliable. Mr. Whiddon did not testify as to the nature of the administrative action that is routinely taken when Program Integrity learns that MFCU is conducting a criminal investigation. There was no evidence as to the rules or statutes, other than a reference to 42 CFR 455.23, upon which Program Integrity bases such administrative actions. Based upon information from the Medicaid claims processing subsystem and the information from MFCU, Mr. Whiddon had reason to suspect that substantial sums were being paid to Petitioner for services for which there was no entitlement. The Petitioner was receiving approximately $28,900 per week from Medicaid when it was decided to temporarily withhold Medicaid payments. After the receipt of the MFCU letter, Mr. Whiddon believed something had to be done and began to review the options that he believed were available to him. Mr. Whiddon concluded that the most appropriate remedy was to withhold Medicaid payments pursuant to 42 CFR 455.23, which provides for a hearing at which the Petitioner could submit information that would justify its billings. Mr. Whiddon did not believe at the time he decided to temporarily withhold Petitioner's Medicaid payments that the issue was one of an overpayment. He also did not believe that it would be appropriate to issue an immediate final order pursuant to Section 120.59(3), Florida Statutes, because of the limited information available to him. Respondent failed to establish that it had reliable evidence to temporarily withhold all of Petitioner's Medicaid payments.
The Issue The issue in this case is whether Petitioner must reimburse Respondent for overpayments totaling $2,851.19 which Petitioner received from the Florida Medicaid Program during the period May 24, 1999 through January 26, 2001.
Findings Of Fact Respondent, the Agency for Health Care Administration (hereinafter referred to as the "Agency"), is an agency of the State of Florida. The Agency is responsible for administering the Florida Medicaid Program. See Chapter 409, Florida Statutes. Among other responsibilities, the Agency is authorized "to recover overpayments . . . as appropriate . . . ." Section 409.913, Florida Statutes. Petitioner, Meji, Inc., d/b/a 7th Avenue Pharmacy (hereinafter referred to as "Meji"), was, at all times pertinent to this case, a duly authorized Medicaid provider, having entered into a Medicaid Provider Agreement with the Agency. Meji was assigned Medicaid Provider Number 0165076-00. Meji is also a licensed pharmacy in Florida, having been issued license number PH0016158. As a Medicaid provider, Meji is authorized to dispense drugs and supplies to Medicaid recipients, for which Meji is entitled to reimbursement from the Medicaid Program. In return, Meji has agreed to comply with all governing statutes, rules, and policies, including policies set forth in the Florida Medicaid Prescribed Drug Services Coverage Limitations and Reimbursement Handbook, incorporated by reference into Rule 59G- 4.250(2), Florida Administrative Code. On March 20, 2001, an audit was performed of payments from the Medicaid Program to Meji. On January 24, 2002, a Provisional Agency Audit Report was issued finding that Meji had received $40,062.52 in overpayments from the Medicaid Program and offering Meji an opportunity to respond to the Agency's provisional determination. When Meji failed to respond to the Provisional Agency Audit Report, the Agency issued a Final Agency Audit Report informing Meji that the Agency intended to seek reimbursement of the $40,062.52 in overpayments Meji had received for services provided during the period May 24, 1999 through January 26, 2001. The Final Agency Audit Report was issued March 8, 2002. Meji requested a hearing to contest the Agency's determination and provided documentation not previously provided to the Agency. On March 19, 2003, after reviewing the newly provided documentation, the Agency issued an Amended Final Agency Audit Report in which the Agency informed Meji that it had received overpayments of $2,851.19. In response to this notice, Meji requested a formal administrative hearing by letter dated March 20, 2003. The amount of the overpayments which the Agency seeks to recoup in this proceeding was determined by taking a statistically valid random sample of Meji's submitted Medicaid claims submitted during the audit period. The amount of the overpayments found in the random sample was then extended to the total of Meji's claims for the audit period based upon generally accepted statistical formulas and methods. By failing to respond to the Agency's Request for Admissions, Meji is deemed to have admitted the validity of the statistical formula utilized by the Agency. The Amended Final Agency Audit Report, along with the supporting work papers, were offered and accepted in evidence in this case. The Amended Final Agency Audit Report, in an attached Pharmacy Audit-Final Report, sets out the manner in which the overpayments were calculated. Those calculations are further described in proposed finding of fact P.(1) through (6) of the Respondent's Proposed Recommended Order and Incorporated Closing Argument. Those findings are hereby accepted and incorporated into this Recommended Order by reference. The Amended Final Agency Audit Report and supporting work papers admitted in evidence in this case show that Meji received overpayments in the amount of $2,851.19. No evidence to the contrary was offered by Meji. The Agency incurred costs during the investigation of this matter. The amount of those costs was not known at the time the final hearing was conducted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Meji's to repay the Agency the principal amount of $2,851.19 plus interest as provided in Section 409.913, Florida Statutes. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 15th day of July, 2003. COPIES FURNISHED: Debora A. Fridie, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Mail Station 3 Tallahassee, Florida 32308 Sola Gafaru, President Meji, Inc. 14812 Northwest 7th Avenue Miami, Florida 33168 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive, Suite 3116 Fort Knox Building III Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Fort Knox Building III Tallahassee, Florida 32308
The Issue Whether the Petitioner, Agency for Health Care Administration (Petitioner or Agency), is entitled to a Medicaid reimbursement and, if so, in what amount.
Findings Of Fact The Petitioner is the state agency charged with the authority and responsibility of administering the Florida Medicaid Program. As part of this authority, the Petitioner is required to recover Medicaid overpayments when appropriate. See § 409.913, Fla. Stat. (2006). At all times material to the allegations of this case, the Respondent was a licensed physician and a Medicaid provider subject to the provisions of Chapter 409. As a Medicaid provider, the Respondent was authorized to provide services to eligible patients but was obligated to comply with the Medicaid Provider Agreement in doing so. The Medicaid Program contemplates that authorized providers will provide services to eligible patients, bill the program and be paid according to the Medicaid standards. All Medicaid providers must practice within the guidelines of the Physicians Coverage and Limitations Handbook and applicable law. Providers may be audited so that it can be verified the process was appropriately followed. In this case, the Respondent was audited. According to the audit findings, the Respondent received payment for services that he did not perform. Dr. Eiber (a physician not part of the Respondent’s practice group) reviewed and signed off on x-ray studies and reports for which the Respondent billed and was paid by Medicaid. Dr. Eiber is a Medicaid provider but he is not affiliated with the Respondent or the Respondent’s group. In order for the Respondent to bill and receive payment for Dr. Eiber’s work, the latter physician would have to be listed and identified within the group in which the Respondent practiced. The Respondent was responsible for all billings for which he received payments. In connection with billing, the Respondent was required to maintain and retain all Medicaid- related invoices or claims for the audit period. In this regard, the Physician Coverage and Limitations Handbook specifies that when a radiological study is performed in an office setting, either the physician billing the maximum fee must have performed or indirectly supervised the performance and interpreted the study; or if a group practice, a member of the group must perform all components of the services. That procedure was not followed. When the Agency disallows a paid Medicaid claim, it must seek to recover the overpayment from the Medicaid provider who received payment on the claim. This is the basis of the “pay and chase” methodology used in the Medicaid program. The claims are paid, subject to audit, and recovery is sought when the claim is disallowed. Based on the audit findings in this cause, the Agency seeks $32,935.96 as an overpayment of Medicaid claims paid to the Respondent. The Petitioner also seeks an administrative fine in the amount of $1000.00. The Respondent was given the results of the audit and afforded an opportunity to respond and provide additional information to the Agency to show that the amounts billed were correct. The Respondent has presented no supplemental information to corroborate the correctness of the claims at issue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a Final Order sustaining the Final Audit Report and finding an overpayment against the Respondent in the amount of $32,9935.96. The Final Order should also impose an administrative fine in the amount of $1,000.00. S DONE AND ENTERED this 21st day of February, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2007. COPIES FURNISHED: Craig A. Brand, Esquire Law Offices of Craig A. Brand, P.A. Grove Forest Plaza 2937 Southwest 27th Avenue, Suite 101 Miami, Florida 33133 Willis Melvin, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III, Mail Stop 3 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
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
