The Issue Whether Petitioner was overpaid by the Florida Medicaid Program and, if so, the amount of the overpayment.
Findings Of Fact At all times material to this proceeding, Respondent has been the state agency charged with responsibility for overseeing the Florida Medicaid Program, including the recovery of overpayments to Medicaid providers pursuant to Section 409.913, Florida Statutes. At all times material to this proceeding, Petitioner was an authorized Medicaid provider, having been issued provider number 377290000. Petitioner had valid Medicaid Provider Agreements with the Agency for Health Care Administration (AHCA) during the Audit Period, which began on January 1, 1996, and ended on May 10, 1999. Petitioner graduated from the University of Puerto Rico School of Medicine in 1987, did an internship at Tulane University, did a residency in internal medicine at Eastern Virginia Graduate Medical School, and did a fellowship in hematology at Washington Hospital Center. He served as Chief of Hematology for Kessler Medical Center in Biloxi, Mississippi, while serving in the United States Air Force (with the rank of major). At the time of the final hearing, Petitioner was licensed to practice medicine in Florida, Virginia, Puerto Rico, and Washington, D.C. At the time of the final hearing, Petitioner was employed by the National Institutes of Health (NIH) as a Medical Officer, Health Scientist Administrator. Petitioner served as an advisor to the director of the NIH on issues related to HIV (human immunodeficiency virus) and AIDS (acquired immunodeficiency syndrome). Petitioner’s specialty is internal medicine with a sub- specialty in hematology. Petitioner has extensive experience treating persons suffering with HIV and AIDS dating back to 1987. Pursuant to his Medicaid Provider Agreements, Petitioner agreed to: (1) retain for five years complete and accurate medical records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program; (2) bill Medicaid only for services or goods that are medically necessary; and (3) abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. Respondent audited Petitioner’s Medicaid claims during the Audit Period and conducted a peer review of Petitioner’s billings and medical records of 25 of Petitioner’s patients as part of that audit.2 Joseph W. Shands, M.D., conducted the peer review of the documentation provided by Petitioner for purposes of the audit conducted by AHCA. Dr. Shands first reviewed documentation provided by Petitioner in 1999. He had no further participation in the audit until he reviewed information in preparation for his deposition in this proceeding. Dr. Shands graduated from medical school in 1956, trained in internal medicine, and worked as a microbiologist for approximately 15 years. He served as Chief of Infectious Diseases at the University of Florida for 23 years and also treated patients through the Alachua County Public Health Department and Shands Hospital at the University of Florida. Dr. Shands' practice was devoted almost entirely to the treatment of patients diagnosed with HIV/AIDS. Dr. Shands retired from the practice of medicine in May 2002. For three years prior to his retirement, Dr. Shands practiced medicine part-time. Petitioner was sent a Preliminary Agency Audit Report (PAAR) dated May 25, 1999, that found an overpayment in the amount of $862,576.72. In response to that PAAR, Petitioner had the attorney representing him at that time respond to AHCA in writing. The letter from the attorney, dated June 2, 1999, requested a copy of AHCA’s supporting materials and clarification of certain matters. AHCA did not respond. AHCA issued its FAAR on January 22, 2004, asserting that Petitioner was overpaid by the Florida Medicaid Program in the total amount of $261,336.14 for services that in whole or in part were not covered by Medicaid. There was no plausible explanation why the FAAR was not issued until 2004, whereas the audit period ended in 1999. The difference between the amount of the alleged overpayment reflected by the PAAR and the amount of the alleged overpayment reflected by the FAAR is attributable to the use of different methodologies in calculating the amounts overpaid. The FAAR used the correct methodology that was not challenged by Petitioner. The FAAR sets forth five categories of alleged overpayments. Each category accurately describes an overpayment based on applicable Medicaid billing criteria. The five categories are as follows: Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some service for which you billed and received payment were not documented. Medicaid requires documentation of the services and considers payments made for services not appropriately documented an overpayment. (For ease of reference, this will be referred to as Category I.) 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. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. (For ease of reference, this will be referred to as Category II.) Medicaid policy addresses the type of pathology services covered by Medicaid. You billed and received payment for laboratory tests that were performed outside your facility by an independent laboratory. Payments made to you in these instances are considered overpayments. (For ease of reference, this will be referred to as Category III.) Medicaid policy requires the Medicaid services be provided by or under the personal supervision of a physician. Personal supervision is defined as the physician being in the building when the services are rendered and signing and dating the medical records within twenty-four hours of service delivery. You billed and received payment for services which your medical records reflect you neither personally provided nor supervised. Payment made to you for all or a part of those services is considered an overpayment. (For ease of reference, this will be referred to as Category IV.) Medicaid policy requires services performed be medically necessary for the diagnosis and treatment of an illness. You billed and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, indicated that the services provided did not meet the Medicaid criteria for medical necessity. The claims which were considered medically unnecessary were disallowed and the money you were paid for these procedures is considered an overpayment. (For ease of reference, this will be referred to as Category V.) CATEGORY I CLAIMS The disputed Category I claims can be separated into two subcategories: services performed while an employee of a corporate employer and services performed while a recipient was hospitalized. As to both subcategories Petitioner argues that he has been prejudiced by Respondent’s delay in issuing the FAAR because Medicaid requires providers to retain medical records only for five years from the date of service.3 Although Respondent was dilatory in prosecuting this matter, Petitioner’s argument that Respondent should be barred (presumably on equitable grounds such as the doctrine of laches) should be rejected. Petitioner has cited no case law in support of his contention, and it is clear that any equitable relief to which Petitioner may be entitled should come from a court of competent jurisdiction, not from this forum or from an administrative agency. All billings for which there are no medical records justifying the services rendered should be denied. CATEGORY II CLAIMS The following findings as to the Category II claims are based on the testimony of the witnesses and on the information contained in the exhibits.4 Although nothing in the record prior to the final hearing reflects that position, Petitioner did not dispute most of the down-codings at the final hearing. Office visits, whether supported by a doctor’s note or a nurse’s note, for the sole purpose of administering IVIG treatment, will be discussed in the section of this Recommended Order dealing with Category V claims. The office visits, which were for the purpose of intravenous immunoglobulin (IVIG) treatment and for other reimbursable medical services, are set forth as part of the Category II disputes. The following findings resolve the Category II disputes. The date listed is the date the service was rendered. The billing code following the date is the billing code that is supported by the greater weight of the evidence. Recipient 1:5 01-20-98 99213 Recipient 2 09-27-96 99214 10-10-96 99213 11-13-96 99214 12-23-96 99212 02-24-97 99214 04-21-97 99213 04-28-97 99214 05-21-97 99213 06-02-97 99213 07-09-97 99213 07-23-97 99212 08-06-97 99213 08-11-97 99212 10-01-97 99213 10-10-97 99213 10-15-97 99214 10-21-97 99214 11-10-97 99213 12-08-97 99213 12-17-97 99213 12-29-97 99213 01-21-98 99213 Recipient 3 10-21-97 99213 11-04-97 99213 11-25-97 99213 12-16-97 99213 01-27-98 99214 02-26-98 99214 Recipient 4 01-03-98 99254 01-04-98 99261 01-05-98 99261 Recipient 5 09-29-97 99204 Recipient 6 11-11-97 99204 11-18-97 99213 Recipient 7 01-26-98 99204 02-23-98 99213 Recipient 8 09-26-96 99214 09-30-96 99213 10-03-96 99213 10-10-96 99212 10-25-96 99214 11-29-96 99213 12-04-96 99213 12-30-96 99213 01-22-97 99214 01-31-97 99211 02-14-97 99212 03-17-97 99214 04-04-97 99213 04-25-97 99212 05-30-97 99211 07-11-97 99213 08-08-97 99213 08-22-97 99213 09-05-97 99212 09-19-97 99214 10-31-97 99214 11-24-97 99214 12-03-97 99213 12-29-97 99213 01-09-98 99214 01-16-98 99213 01-30-98 99214 02-13-98 99214 Recipient 9 11-24-97 99203 Recipient 10 10-14-96 99205 11-04-96 99213 11-11-96 99213 11-25-96 99214 12-30-96 99213 01-27-97 99214 02-24-97 99214 03-10-97 99213 03-24-97 99212 04-07-97 99213 04-21-97 99214 05-05-97 99212 05-19-97 99213 05-21-97 Deny 06-09-97 99213 07-07-97 99212 08-04-97 99213 08-18-97 99213 09-24-97 992136 10-06-97 99213 10-10-97 99214 10-27-97 99213 11-10-97 99213 11-19-97 99214 11-24-97 99213 12-08-97 99213 02-02-98 99213 Recipient 11 06-30-97 99204 11-06-97 Recipient 12 Deny due to lack of documentation. 10-14-97 99213 11-06-97 99204 11-20-97 99213 12-16-97 99213 01-06-98 99213 Recipient 13 There are no Category II billings at issue for this Recipient. Recipient 14 There are no Category II billings at issue for this Recipient. Recipient 15 09-16-97 992157 Recipient 16 02-19-98 99212 Recipient 17 There are no Category II billings at issue for this Recipient. Recipient 18 There are no Category II billings at issue for this Recipient. Recipient 19 09-27-96 99212 10-01-96 99213 10-10-96 99213 10-23-96 99213 11-06-96 99213 11-20-96 99213 12-18-96 99211 12-30-96 Deny due to lack of 01-09-97 documentation. Deny due to lack of 01-22-97 documentation. 99211 02-05-97 99214 03-05-97 99214 03-19-97 99211 03-24-97 99214 03-26-97 04-02-97 Deny due to lack documentation. 99213 of 04-21-97 99213 05-05-97 99212 05-19-97 99213 06-02-97 99212 06-30-97 99213 07-07-97 99213 07-14-97 99213 07-28-97 99212 08-18-97 99213 08-25-97 99213 09-08-97 99213 09-15-97 99214 09-22-97 99213 10-28-97 99214 11-04-97 11-07-97 Deny due to lack documentation. 99213 of 11-24-97 99213 12-29-97 99213 01-12-98 99213 01-26-98 99213 02-19-98 99214 02-23-98 99213 Recipient 20 12-04-96 99204 12-13-96 99213 01-03-97 99213 01-17-97 99213 01-27-97 99213 02-07-97 99214 02-21-97 99213 03-07-97 99214 03-21-97 99212 04-04-97 99214 04-21-97 99212 05-06-97 99213 06-04-97 99213 06-13-97 99213 06-30-97 99213 07-14-97 99213 08-04-97 99213 01-19-98 99213 Recipient 21 04-29-97 99204 05-13-97 99214 05-16-97 99213 05-23-97 99212 06-09-97 99212 06-23-97 99212 07-11-97 99211 07-25-97 99213 08-11-97 99213 09-10-97 99213 11-05-97 99214 11-19-97 99213 12-22-97 99213 01-07-98 99214 01-21-98 99213 02-04-98 99213 Recipient 22 02-16-98 99205 02-20-98 99213 02-23-98 99213 Recipient 23 06-23-97 99215 10-02-97 992138 Recipient 24 There are no Category II billings at issue for this Recipient. Recipient 25 01-24-97 99213 02-07-97 99213 02-24-97 99212 03-10-97 99213 03-24-97 99212 05-05-97 99212 05-19-97 99212 06-02-97 99212 06-16-97 99212 07-14-97 99213 07-23-97 99212 07-28-97 99213 08-18-97 99213 08-25-97 99213 09-15-97 99213 10-01-97 99213 10-13-97 99213 10-27-97 99214 12-08-97 99213 12-22-97 99213 12-29-97 99213 01-13-98 99212 01-19-98 99214 02-02-98 99212 CATEGORY III As set forth in the Physician Coverage and Limitation Handbook (Respondent’s Exhibit 6), Petitioner is not entitled to billings for laboratory tests that were performed outside his facility by an independent laboratory. The only billing arguably in Category III is the billing for Recipient 1 on February 19, 1998. That billing should have been approved because it was for a urinalysis by dip stick or tablet that was administered and analyzed by Petitioner. It was not analyzed by an independent laboratory. CATEGORY IV All Category IV billings pertained to Petitioner’s supervision of his staff while patients were receiving treatments of IVIG. Those billings will be subsumed in the Category V billings discussion. CATEGORY V The alleged Category V overpayments relate to Petitioner’s IVIG treatment of Patients 2, 8, 10, 19, 20, 21, and 25, each of whom was an adult diagnosed with AIDS. In many of these cases a nurse administered the IVIG treatment. A dispute as to whether Petitioner properly supervised the nurse while he or she administered the IVIG treatment is moot because of the findings pertaining to the IVIG treatments set forth in Paragraphs 20 and 21. The Physician Coverage and Limitations Handbook requires that rendered services be medically necessary, as follows: Medicaid reimburses for services that are determined medically necessary and do not duplicate another provider’s service. In addition, the services must meet the following criteria: the services must be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient’s needs; the services cannot be experimental or investigational; the services must reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; and the services must be furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider. The use of IVIG in adult AIDS patients is not approved by the Federal Drug Administration (FDA). The use of a drug for a purpose other than the uses approved by the FDA is referred to as an “off-label” use. The off-label use of IVIG in adult AIDS patients is not effective either from a medical standpoint or from an economic standpoint. There was a conflict in the evidence as to whether any of the Recipients at issue in this proceeding had a medical condition or conditions other than AIDS that would justify the IVIG treatment administered by Petitioner. The following finding resolves that conflict. Utilizing applicable Medicaid billing criteria, the medical records produced by Petitioner fail to document that any of the Recipients at issue in this proceeding had a medical condition or conditions that warranted treatment with IVIG.9 All of Petitioner’s billings for IVIG treatments for Recipients 2, 8, 10, 19, 20, 21, and 25 were properly denied under the rationale of the FAAR’s Category V. Included in the billings that were properly denied were billings for office visits (whether documented by a doctor’s note or a nurse’s note) when the sole purpose of the office visit was the administration of an IVIG treatment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the Final Order require that Petitioner repay the sum of the overpayment as determined by Respondent’s staff based on the Findings of Fact set forth in this Recommended Order. DONE AND ENTERED this 20th day of January, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 20th day of January, 2005.
The Issue Whether the Agency for Health Care Administration (Agency or Petitioner) is entitled to recover from Ideal Pugh, Sr., d/b/a Services on Time, LLC (Respondent), alleged Medicaid overpayments, administrative fines, and investigative, legal, and expert witness costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Agency for Health Care Administration, enter a final order requiring Respondent, Ideal Pugh, Sr., d/b/a Services on Time, LLC: To repay the sum of $563,073.76, for overpayments on claims that did not comply with the requirements of Medicaid laws, rules, and provider handbooks; To pay interest on the sum of $563,073.76 at the rate of ten percent per annum from the date of the overpayment determination; To pay a fine of $1,000 for failure to furnish all Medicaid-related records within the requested timeframe; To pay a fine of $1,500 for violations of the requirements of Medicaid laws, rules, and provider handbooks; and To pay allowable costs pursuant to subsection 409.913(23)(a), Florida Statutes. If a disputed issue of material fact arises regarding the appropriate amount of those costs, the matter may be referred back to DOAH for a further recommendation regarding costs. DONE AND ENTERED this 31st day of May, 2012, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 31st day of May, 2012.
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 The issue is whether Petitioner overpaid Respondent Medicaid funds, for which Section 409.913(10), Florida Statutes (2002), authorizes Petitioner to seek repayment from Respondent.
Findings Of Fact During 1998, Respondent was an authorized Medicaid provider, pursuant to Medicaid provider number 105425200, and was a party to a valid Medicaid Provider Agreement with Petitioner. Respondent filed claims with Petitioner for payment, under the Medicaid program, for the goods and services that are the subject of the audit described below, and Petitioner paid Respondent for these claims. The audit period in this case is 1998. During 1998, Respondent submitted to Petitioner 36,257 claims for nearly 5.5 million units of over one thousand types of drugs. These claims totaled $3,075,449.88, which Petitioner paid Respondent. On June 2, 1999, Petitioner sent a letter to Respondent informing it of a review of its pharmacy claims for 1998. The letter requests documentation of all purchases of 12 named drugs for 1998 and documentation of all credits for these drugs during the same period. The letter states that acceptable documentation includes itemized wholesaler sales history reports, itemized manufacturer sales history reports, itemized invoices, and credit return receipts. By letter dated June 5, 1999, Respondent provided the requested information. By letter dated June 23, 2000, Petitioner advised Respondent that it had examined the paid Medicaid claims for 1998 and the acquisition documentation that Respondent had provided in June 1999. The letter states: "You have failed to provide adequate documentation to the effect that the available quantity of certain drugs of given strength was as great as the quantity of those drugs billed to and reimbursed by Medicaid.” Thus, Petitioner made a "provisional" determination that it had overpaid Respondent $1,092,205.32. The letter invites Respondent to provide additional information to reduce the overpayment determination. The June 23 letter contains an Overpayment Attachment that lists ten of the twelve drugs for which Petitioner had sought documentation in its earlier letter. For each of these ten drugs, the Overpayment Attachment lists the generic code, number of units for which Medicaid paid, the total amount of Medicaid payments, the total units documented by Respondent to have been available during the relevant period, and the number of units for which Respondent provided no availability documentation. The Overpayment Attachment also calculates the amount of Medicaid payments attributable to the unavailable units and the total overpayment, which is $1,092,205.32. The overpayment calculations described in the preceding paragraph assume that all available units of the audited drugs were sold to Medicaid patients. The effect of this improbable scenario reduces the amount of the overpayment. The overpayment calculations attempt no extrapolation of overpayments on the over 10,000 other drugs for which Respondent received Medicaid payments during 1998. The effect of limiting the overpayment calculation to the ten listed drugs reduces the amount of the overpayment. However, the ten listed drugs are the drugs that generated the most Medicaid payments to Respondent and account for over one-third of the total Medicaid payments during the relevant period. Respondent provided additional information to Petitioner on August 30 and November 3, 2000. However, after examining the information, Petitioner advised Respondent, by letter dated April 8, 2002, that its final determination was that Respondent owed $1,096,489.77 due to its receipt of Medicaid overpayments. The overpayment increased by over $4000 due to the determination that Respondent's records documented 1000 fewer available units of two dosages of Risperdone than Petitioner had previously determined.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order directing Respondent to pay Petitioner $1,096,489.77, plus interest, to repay overpayments that it received from the Medicaid program for the sale of drugs in 1998. DONE AND ENTERED this 3rd day of November, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2003. COPIES FURNISHED: Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Grant P. Dearborn Assistant General Counsel Building 3, Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308-5407 Jose M. Herrera Jose M. Herrera, P.A. 1401 Ponce de Leon Boulevard Suite 200 Coral Gables, Florida 33134
Conclusions This cause came before the Agency for Health Care Administration for issuance of a Final Order. 1. On April 8, 2013, the Agency sent a letter to the Petitioner notifying the Petitioner that it owed an overpayment in the amount of $63,378.06 to the Agency based upon an adjustment in the Petitioner’s overpayment rates (Exhibit A). On April 23, 2013, the Petitioner filed a Petition for Formal Hearing and the Agency Clerk referred the Petition for Formal Hearing to the Division of Administrative Hearings for further proceedings. On May 16, 2013, the Administrative Law Judge assigned to the case entered an Order Closing File and Relinquishing Jurisdiction based upon a Joint Motion to Relinquish Jurisdiction filed by the parties. On May 23, 2014, the Agency rescinded the overpayment letter (Exhibit B). The Agency’s rescission of the overpayment letter has rendered this matter moot. Filed August 14, 2014 9:31 AM Division of Administrative Hearings OA / CLERK P 33u Based on the foregoing, IT IS THEREFORE ORDERED AND ADJUDGED THAT: Respondent’s right to a hearing in this matter has been rendered moot and the Agency’s May 11, 2013 overpayment letter is rescinded. The parties shall govern themselves accordingly. DONE AND ORDERED this > day of Avow ot , 2014 in Tallahassee, Leon County, Florida. NOTICE OF RIGHT TO JUDICIAL REVIEW. A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE AGENCY FOR HEALTH CARE ADMINISTRATION, AND A COPY ALONG WITH THE FILING FEE 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. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. or interoffice mail to the persons named below on this Ut day of ZL Lisas OC, 2014. RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308 9850) 412-3630 COPIES FURNISHED TO: Douglas Lomonico Assistant General Counsel George N. Meros, Jr. GrayRobinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302-3189 Medicaid Program Integrity Office of the Inspector General Shawn McCauley Medicaid Contract Management Division of Medical Quality Assurance Department of Health
The Issue The issue for determination is whether Petitioner must reimburse Respondent an amount up to $1,048,242.62, which sum Petitioner received from the Florida Medicaid Program in payment of claims arising from Petitioner's treating of pediatric patients between October 28, 2000 and October 25, 2002. Respondent alleges that the amount in controversy represents an overpayment arising from Petitioner's submission of claims that were not covered by Medicaid, in whole or in part.
Findings Of Fact Respondent Agency for Health Care Administration ("AHCA" or the "Agency") is the state agency responsible for administering the Florida Medicaid Program ("Medicaid"). Petitioner The Children's Office, Inc. ("TCO") was, at all relevant times, a Medicaid provider authorized to receive reimbursement for covered services rendered to Medicaid beneficiaries. From time to time, therefore, TCO had entered into various written contracts with the Agency, which will be referred to collectively as the "Provider Agreement." Exercising its statutory authority to oversee the integrity of Medicaid, the Agency conducted a review or audit of TCO's medical records to verify that claims paid by Medicaid during the period from October 28, 2000 to October 25, 2002 (the "Audit Period") had not exceeded authorized amounts. During the Audit Period, TCO had submitted 30,193 claims for services rendered to 3,148 patients (or recipients), on which Medicaid had paid a total of $1,593,881.86. Rather than examine the records of all 3,148 recipients served, the Agency selected a sample of 30 patients, whose records were reviewed first by a nurse consultant, and then by a physician "peer reviewer." TCO had submitted 260 claims during the Audit Period in connection with the 30 patients in the sample population. Medicaid had paid a total of $13,582.78 on these claims. The Agency's reviewers determined that, for various reasons, TCO had received a total of $9,740.10 in reimbursement of claims in the sample for services not covered by Medicaid, in whole or in part. Having discovered this "empirical overpayment" of $9,740.10, the Agency employed a statistical formula to ascertain the "probable total overpayment" that TCO had received from Medicaid in connection with the 30,193 claims presented during the Audit Period.1 (TCO does not dispute the methodology that AHCA used in determining the probable total overpayment based on the empirical overpayment associated with the sample population. The parties agreed at hearing that if the undersigned were to find that the empirical overpayment should be adjusted, then the Agency——not the undersigned——would recalculate the probable total overpayment using the same statistical formula.) The statistical analysis revealed a probable total overpayment of $1,048,242.62. This is the amount that AHCA seeks to recoup from TCO. TCO's resistance to the Agency's proposed action proceeds along two main fronts. One involves systemic or global challenges to the audit as a whole, the aim being to land a knockout blow that would preclude that Agency from recouping any amount. The other entails fact-specific disputes about the reimbursement of individual claims in the sample, the goal being to reduce the empirical overpayment——and thereby reduce the probable total overpayment.2 The Systemic Challenges TCO's systemic challenges to the audit are largely, if not exclusively, legal in nature. Indeed, the relevant facts are not in dispute. The factual bases (including the pertinent statutory and regulatory language) for TCO's arguments are set forth below. 1. Florida Administrative Code Rule 59G-1.010(22) provides as follows: (22) "Audit" means: an examination of "records for audit" supporting amounts reported in the annual cost report or in order to determine the correctness and propriety of the report; or an analysis of "records for audit" supporting a provider's claim activity for a recipient's services during a year or less of claims activity in order to determine whether Medicaid payments are or were due and the amounts thereof, with claim activity for each separate year constituting a separate audit. The term "audit" also comprehends discussions and interviews related to said examination or analysis. Also see "records for audit."[3] (Emphasis added.) TCO asserts that the foregoing definition of the term "audit" limits AHCA to reviewing periods of no greater than one year at a time, per provider, when investigating possible fraud, abuse, or overpayment as part of its Medicaid oversight responsibility. Because the Audit Period is approximately two years, TCO argues that the audit should be deemed void.4 2. Section 409.9131(5)(a), Florida Statutes, requires that the Agency, in making a determination of overpayment to a physician, must, among other things, "make every effort to consider the physician's patient case mix, including, but not limited to, patient age and whether individual patients are clients of the Children's Medical Services Network." Many of TCO's patients were clients of the Children's Medical Services Network ("CMS"), a fact that, TCO contends, the Agency's reviewers failed adequately to take into account. Though the evidence on this issue is limited, the undersigned agrees with TCO——and finds——that, in general, AHCA's reviewers placed little weight on whether a particular patient participated in CMS. The Agency did, however, consider TCO's overall "case mix" and factors relevant thereto. The undersigned determines, as a matter of fact, that the Agency put forth a reasonable effort under the circumstances to "consider [TCO's] patient case mix" in accordance with the statute. The undersigned further determines that, in any event, "case mix" considerations are not dispositive of the disputed reimbursement issues at hand. 3. Section 409.913(5), Florida Statutes, provides that all Medicaid providers are subject to having goods and services that are paid for by the Medicaid program reviewed by an appropriate peer-review organization designated by the agency. The written findings of the applicable peer- review organization are admissible in any court or administrative proceeding as evidence of medical necessity or the lack thereof. (Emphasis added.) Section 409.9131(5)(b), Florida Statutes, adds that "when the agency's preliminary analysis indicates that an evaluation of the medical necessity, appropriateness, and quality of care needs to be undertaken to determine a potential overpayment" to a physician, the Agency must refer the claims at issue for "peer review." The term "peer review" is defined, for purposes of Section 409.9131, as follows: "Peer review" means an evaluation of the professional practices of a Medicaid physician provider by a peer or peers in order to assess the medical necessity, appropriateness, and quality of care provided, as such care is compared to that customarily furnished by the physician's peers and to recognized health care standards, and, in cases involving determination of medical necessity, to determine whether the documentation in the physician's records is adequate. § 409.9131(2)(d), Fla. Stat. (emphasis added). TCO argues that Section 409.913(5) "clearly requires" the use of a peer-review organization (rather than an individual peer) when auditing "non-physician claims," and it contends that this "requirement" should be held applicable, as well, to the review of physician service claims pursuant to Section 409.9131(5). In this case, the peer review of physician service claims was performed, not by an organization, but by Dr. Larry Deeb, a Florida-licensed pediatrician. Thus, TCO urges that the audit be declared invalid in its entirety. 4. It is undisputed that approximately four years elapsed from the beginning of the Audit Period to the issuance, on November 30, 2004, of the Final Agency Audit Report, which latter gave TCO a clear point of entry to challenge the Agency's overpayment determination. TCO contends that this four-year "delay" was prejudicial to TCO's ability to defend against AHCA's recoupment effort. Thus, TCO argues that this proceeding should be deemed time-barred. 5. TCO asserts, and AHCA did not genuinely dispute, that the medical records provided to the Agency during the audit reveal a number of Medicaid compensable services for which TCO never submitted claims. TCO argues that if an investigation into possible Medicaid overpayments yields information demonstrating the existence of valid, yet unmade claims, then the Agency is under a legal duty either to pay those claims or set them off against any overpayment that might be found. The Fact-Specific Disputes In addition to challenging the validity of the audit as a whole, TCO disputes, in the alternative, the Agency's determinations regarding 13 specific claims; it also urges that several miscellaneous adjustments be made as well.5 These will be examined below. First, however, it is necessary to make some preliminary findings, to place the disputed claims in context. The disputed claims involve what are known as "evaluation and management services" ("E/M services") provided in the doctor's office or other outpatient setting to new or established patients. E/M services are billed to Medicaid using codes that reflect the intensity level of service provided. The codes are called "CPT codes"——"CPT" being short for Current Procedural Terminology. Medicaid reimburses providers for E/M services pursuant to fee schedules that specify the amount payable for each level of service according to the CPT codes. It is the provider's responsibility, in presenting a claim to Medicaid for payment, to determine the appropriate CPT code for the service provided. Medicaid generally pays claims upon receipt, without second-guessing the provider's judgment regarding the level of care. When the Agency conducts an investigation to determine possible overpayment to a provider, however, one thing it might review is whether the provider's claims were properly "coded"—— that is, whether the CPT codes on the bills accurately reflected the level of service provided to the patients, as documented in the medical records. If the Agency determines that the level of service provided was lower than that claimed, then it will "downcode" the claim to the proper level and seek to recoup from the provider, as an overpayment, the difference between what Medicaid paid on the claim as originally coded and what it would have paid on the claim as downcoded. In this case, each of the 13 disputed claim determinations involves a downcode with which TCO disagrees. The following CPT codes are relevant to the claims in dispute: NEW PATIENT 99201 Office and other outpatient visit for the evaluation and management of a new patient, which requires these three key components: ? a problem focused history;? a problem focused examination;and? straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. 99202 Office and other outpatient visit for the evaluation and management of a new patient, which requires these three key components: ? an expanded problem focused history;? an expanded problem focused examination; and? straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family. 99203 Office and other outpatient visit for the evaluation and management of a new patient, which requires these three key components:? a detailed history;? a detailed examination; and? medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. 99204 Office and other outpatient visit for the evaluation and management of a new patient, which requires these three key components: ? a comprehensive history;? a comprehensive examination; and? medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are low to moderate severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. 99205 Office and other outpatient visit for the evaluation and management of a new patient, which requires these three key components: ? a comprehensive history;? a comprehensive examination; and? medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. ESTABLISHED PATIENT 99211 Office and other outpatient visit for the evaluation and management of an established patient, that may not require the presence of a physician. Usually the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services. 99212 Office and other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: ? a problem focused history;? a problem focused examination; and? straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. 99213 Office and other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components:? an expanded problem focusedhistory;? an expanded problem focused examination; and? straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. 99214 Office and other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: ? a detailed history;? a detailed examination; and? medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are of moderate severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. 99215 Office and other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: ? a comprehensive history;? a comprehensive examination; and? medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problems are low to moderate severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family. American Medical Association, Evaluation and Management (E/M) Services Guidelines at 9-10 (2001). Turning now to the 13 disputed claims, the following is a summary discussion of each, sorted by recipient and date of service. Recipient No. 2 Date of Service ("DOS") 03/05/01. Nurse Practitioner Beverly Armstrong saw this patient, then aged 10, on March 5, 2001, because he was experiencing nasal drainage and a cough. Ms. Armstrong diagnosed sinusitis and bronchitis and prescribed appropriate medications for those conditions. The child is profoundly developmentally delayed, which complicated the examination and medical decision-making process. TCO billed this visit to Medicaid under CPT Code 99215——the highest level of E/M services for an established patient——and was reimbursed $60.95. It is undisputed, however, that Medicaid does not permit an advanced registered nurse practitioner ("ARNP") to bill any visit at the 99215 level. (If a physician co-signs the medical record, then the claim can be properly submitted as a 99215 visit, but that did not happen on this claim or any other disputed claim here involving the services of an ARNP.) Thus, there is no dispute that this claim must be downcoded. The Agency contends that the claim properly should be reimbursed as a 99213 visit; TCO contends that 99214 is the correct level of service. It is concluded that this visit met the criteria for reimbursement at the 99214 level. The Medicaid fee for ARNP services in connection with a 99214-level visit was $32.82 in March 2001, which is $28.13 less than Medicaid paid on this claim. The Agency based its probable total overpayment determination on an alleged overcharge of $35.90. Thus, the empirical overpayment should be reduced by $7.77. DOS 05/16/02. This patient was seen by Dr. Barbara Chamberlain on May 16, 2005, because he was having difficulty sleeping and was waking up scared. TCO submitted the claim for this visit to Medicaid under CPT Code 99214 and was reimbursed the established fee for that level of service. During the instant audit, the Agency downcoded the visit to 99213, resulting in an alleged overpayment of $15.71 on the claim. At hearing, however, the Agency's counsel conceded that, in view of Dr. Deeb's deposition testimony, the claim had been properly coded as a 99214 visit. Therefore, the empirical overpayment should be reduced by $15.71. Recipient No. 13 DOS 11/01/00. This patient, aged 4, presented on November 1, 2000, with a cough and fever, and was seen by Nurse Armstrong, who diagnosed bronchitis and prescribed treatment therefor. TCO presented this claim to Medicaid as a 99215 visit, which was improper because ARNP services are not authorized for payment at such level, and was reimbursed $59.43. AHCA contends that the claim should be downcoded to 99213, giving rise to an alleged overpayment of $34.38. The undersigned determines, however, that 99214 is the proper code, based on the overall complexity of the case as reflected in the medical records. The appropriate reimbursement, therefore, is $31.85, resulting in an overpayment on this claim of $27.58. The empirical overpayment should, accordingly, be reduced by $6.80. DOS 04/27/01. The patient was seen by Nurse Armstrong on April 27, 2001, complaining of fever and a recent history of vomiting and diarrhea. He was diagnosed with a middle ear infection and allergic rhinitis. After the visit, on the night of April 27, a call was made on this patient's behalf to the on- call nurse to report an ongoing high fever; the patient was encouraged to go to the emergency room for treatment. TCO improperly billed this claim for nursing services as a 99215 visit and was paid $60.95. The undersigned is persuaded by Dr. Deeb's deposition testimony that the appropriate service level on this claim is 99213, as the Agency contends. When it calculated the probable total overpayment, however, the Agency assumed, incorrectly, that the fee for ARNP services on a 99213 claim in April 2001 was $25.05. In fact, such claims were reimbursed at the rate of $21.03 per visit. Thus, for this claim, the empirical overpayment should be increased by $4.02. DOS 04/30/01. The patient presented again on April 30, 2001, with a high fever and nasal congestion. He was seen by Nurse Armstrong, who ordered blood and urine tests and prescribed additional treatment. TCO billed the visit, improperly, as a 99215 and was paid $60.95. Based on the medical records, which document a high fever that was not responding as expected to treatment, the undersigned determines that 99214 is the proper code for this visit. The applicable fee for such a visit, at the time, was $32.82. Thus, the overpayment on this claim is $28.13, not $35.90 as AHCA alleged. The empirical overpayment should be reduced by $7.77. Recipient No. 17 Nurse Armstrong saw this three-year-old on November 29, 2000. The patient came in with redness and swelling of the eyelid. The ARNP referred the patient to an ophthalmologist. TCO submitted a claim to Medicaid, reporting the visit under CPT Code 99215, which was improper because, to repeat for emphasis, nursing services cannot be billed at this level——a point that TCO conceded at hearing. Medicaid paid TCO $59.43 for the visit. The Agency asserts, and the undersigned finds, that this claim should be reimbursed at the 99213 level. The key fact here is that the patient was referred to a specialist. While this was no doubt an appropriate disposition, deciding to make a routine referral to an eye doctor for evaluation of a possible eye infection or injury should be a relatively easy medical task. The fee for ARNP services on a 99213 claim was $20.80 in November 2000. In calculating the probable total overpayment, the Agency incorrectly assumed that the applicable fee was $25.05. Thus, the empirical overpayment should be increased by $4.25 to account for this claim, properly adjusted. Recipient No. 18 DOS 07/17/02. This patient, aged 5, was seen by Dr. Chamberlain on July 17, 2002, for treatment of a cough and low- grade fever. The doctor diagnosed pharyngitis and prescribed an antibiotic. TCO billed Medicaid for a 99215 visit and was reimbursed $63.37. The Agency contends that this claim should be downcoded to 99213. The undersigned agrees, because the medical record documents a routine visit involving a straightforward diagnosis and plan of treatment. Thus, there should be no change to the empirical overpayment on account of this claim. DOS 08/08/02. Dr. Chamberlain saw this patient on August 8, 2002, because he had a fever. The doctor again diagnosed pharyngitis and offered an antibiotic injection, which the patient's mother refused. Dr. Chamberlain spent additional time counseling the mother, but she continued to decline the recommended treatment, against medical advice. TCO presented a claim to Medicaid for a 99214 visit. The Agency urges that this visit be downcoded to 99213, creating an alleged overpayment of $15.71. The undersigned finds, however, that 99214 was the appropriate code for this claim, primarily because of the need for additional counseling as a result of the mother's refusal of treatment. Thus, the empirical overpayment should be reduced by $15.71 for this claim. Patient No. 19 DOS 05/17/02. Nurse Armstrong saw this medically complex three-year-old as a new patient on May 17, 2002. The medical record does not document the specific medical complaint that drove the visit, but states that the patient wanted a nebulizer machine. The nurse examined the patient in some detail and decided to stay the course charted by other providers, directing that the patient continue taking the same medications. TCO reported the visit to Medicaid as a 99205 claim and received $85.00. This was improper on its face because nursing services cannot be billed at this level. The Agency contends that the claim should be downcoded to 99203, and the undersigned agrees. Based on the evidence presented, it is found that the medical decision-making required for this visit should not have exceeded a low level of complexity, especially since no material changes were made to the preexisting treatment plan. The fee for ARNP services on a 99203 visit was $40.23 in May 2002, not $38.70 as shown in the Agency's work papers. Consequently, the empirical overpayment should be reduced by $1.53 to reflect the adjustment of this claim. DOS 06/05/02. Dr. Chamberlain saw the patient on June 5, 2002, because she was vomiting, sleeping too much, and experiencing a loss of appetite. The doctor ordered emergency blood work, which revealed that one of the medications that the patient was taking had reached a toxic level in her bloodstream. This was a potentially life-threatening situation that required prompt medical attention. TCO billed this visit at the 99215 level. AHCA argues that the claim should be downcoded to 99213, at which level an alleged overpayment of $30.81 would result. The undersigned agrees with TCO, however, that 99215 was the proper code under the circumstances. The empirical overpayment should be reduced by $30.81 for this claim. DOS 07/08/02. The patient was seen by Dr. Chamberlain on July 8, 2002, for a "pre-op" examination ahead of a scheduled surgery to repair a hernia. The visit was billed to Medicaid as a 99215 claim, and TCO received $63.37. In this proceeding, TCO has conceded that 99215 was excessive, but it presses for a downcode only to 99214. The Agency asserts that 99213 is the proper code for this claim. The undersigned is persuaded that this focused pre-op examination should not have required a level of care beyond 99213. In July 2002, the fee for a physician's services on a 99213 visit was $32.56. The overpayment on this claim therefore is $30.81. Because the Agency mistakenly recorded the overpayment as $37.32 in its work papers and used that figure in calculating the probable total overpayment, the empirical overpayment should be reduced by $6.51. DOS 07/25/02. On this day, the medical records show that the patient was seen by Nurse Armstrong for "labs only" and to have a form completed for school. TCO submitted a claim to Medicaid for a 99215 visit (which was facially improper) and was reimbursed $63.37. AHCA now seeks to deny the claim in its entirety based on the absence of a medical record. Yet, as TCO points out, there is a record of this visit. It reflects that minimal services were performed and no examination of the patient was conducted. Thus, the claim should be downcoded to 99211. For ARNP services at this level, Medicaid paid $10.37 at the relevant time. Thus, the empirical overpayment should be reduced by $10.37 to account for this claim. DOS 09/04/02. Nurse Armstrong saw the patient, who presented with a fever and cough, on September 4, 2002. This visit took place a couple of weeks after the patient's hernia had been surgically repaired. The nurse diagnosed pharyngitis or tonsillitis. TCO presented the claim to Medicaid, improperly, as a level 99215 visit and received $63.37. AHCA contends that the claim should be downcoded to 99213. This would have been the appropriate code, the undersigned believes, but for the fact that the child had recently undergone surgery, which added an element of complexity to the case. The undersigned finds that the proper code for this claim is 99214. At the time, Medicaid paid $34.52 for ARNP services on a 99214 claim. Thus, the overpayment on this claim is $28.85. Because AHCA based its determination of the probable total overpayment on an alleged overpayment of $37.32 on this claim, the empirical overpayment should be reduced by $8.47. Miscellaneous Adjustments TCO has identified a number of alleged errors in the Agency's work papers, which will be discussed below. Recipient No. 15, DOS 12/07/00. This claim for a doctor's services was coded 99664. Medicaid paid TCO $8.00 on the claim. As part of the audit, AHCA reduced the allowable fee to $6.40, because the services at issue were in fact performed by an ARNP. This created an alleged overpayment on the claim of $1.60. TCO does not dispute that an ARNP performed the services; it asserts that the applicable fee is more than $6.40. TCO is correct. The fee for ARNP services on a 99664 claim was, in December 2000, $8.57. Thus, the empirical overpayment should be reduced by $2.17 (0.57 + 1.60). Recipient No. 30, DOS 05/03/02. TCO billed Medicaid for a doctor's services at the 99203 level and was reimbursed $50.30. AHCA determined in the audit that an ARNP actually performed the services in question and reduced the allowable fee to $40.24, resulting in an alleged overpayment of $10.06. The applicable ARNP fee schedule shows an allowable fee of $40.23. Thus, the empirical overpayment should be increased by 0.01 to account for this claim. Recipient No. 18, DOS 08/09/02. TCO correctly notes that, contrary to the Agency's allegation, there is a medical record for this visit, which shows that the ARNP gave the patient a shot of antibiotic medicine. Thus, while the Agency properly determined that TCO's claim for a physician's services at level 99215 resulted in an overpayment, it should have downcoded the claim to 99211, rather than denied the claim in its entirety, and allowed reimbursement at the ARNP fee of $10.37. Accordingly, the empirical overpayment should be reduced by $10.37. Recipient No. 17, DOS 07/10/01. TCO has identified a typographical error in a one of the Agency's work papers, where the date of service for this claim incorrectly was recorded as July 10, 2000, instead of July 10, 2001. This error did not affect the overpayment calculations, however, and thus no adjustment to the empirical overpayment is required. Recipient No. 22, DOS 09/03/02. TCO alleges that the allowed fee of $48.27 "is wrong." According to the applicable fee schedule, however, this is indeed the correct figure. Therefore, no change in the Agency's calculations is warranted. Recipient No. 23, DOS 08/07/02. TCO points out that a work paper of the Agency fails to mention the allowed CPT Code for this claim. The omission had no effect on the Agency's overpayment calculations. Recipient No. 26, DOS 07/20/01. TCO notes a typographical error in a work paper that had no effect on the Agency's overpayment calculations. Recipient No. 26, DOS 03/13/01. TCO notes a typographical error in a work paper that had no effect on the Agency's overpayment calculations. Other Discrepancies In the course of reviewing the Agency's work papers and the medical records in evidence, the undersigned discovered several minor discrepancies that should be corrected in recalculating the probable total overpayment. Recipient No. 2. The total alleged overpayment for this patient, before making any of the adjustments described above, is $1,571.93, not $1,594.42, which latter figure was used by the Agency in determining the probable total overpayment. Therefore, the empirical overpayment should be reduced by $22.49. Recipient No. 5. The total alleged overpayment for this patient, before making any of the adjustments described above, is $27.63, not $26.38, which latter figure was used by the Agency in determining the probable total overpayment. Therefore, the empirical overpayment should be increased by $1.25. Recipient No. 15. The total alleged overpayment for this patient, before making any of the adjustments described above, is $367.35, not $372.44, which latter figure was used by the Agency in determining the probable total overpayment. Therefore, the empirical overpayment should be reduced by $5.09. Recipient No. 30. The total alleged overpayment for this patient, before making any of the adjustments described above, is $42.62, not $44.16, which latter figure was used by the Agency in determining the probable total overpayment. Therefore, the empirical overpayment should be reduced by $1.54. Summary The Agency based its determination of the probable total overpayment on an empirical overpayment of $9,740.10. In accordance with the foregoing findings, it is determined that this figure should be increased by a total of $9.53, and reduced by a total of $153.11, making a net empirical overpayment of $9,596.52. In other words, the undersigned finds that, of the $13,582.78 which TCO received from Medicaid for the 260 total claims submitted during the Audit Period in connection with medical services provided to the sample population of 30 patients, $9,596.52 constituted an overpayment. Thus, it is this figure——$9,596.52——that should be used in calculating the probable total overpayment arising from the 30,193 claims presented during the Audit Period, for which Medicaid paid TCO a grand total of $1,593,881.86.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency recalculate the probable total overpayment using the statistical formula previously employed but substituting $9,596.52 in place of $9,740.10 as the empirical overpayment, and enter a final order requiring TCO to repay the Agency the principal amount determined through such recalculation. DONE AND ENTERED this 3rd day of February, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 2006.
The Issue Whether Emergency Rule 10CER92-4 should be invalidated because it constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact The Medicaid program is a program authorized under Title XIX of the federal Social Security Act that provides for payments for medical items or services for eligible recipients. Section 409.901(7), Florida Statutes. Prior to July 1, 1993, the Medicaid program was administered by the Department of Health and Rehabilitative Services (HRS). Effective July 1, 1993, Section 20.42, Florida Statutes, 1992 Supplement, was amended by Chapter 93-129, Section 58, Laws of Florida, to give the Agency for Health Care Administration (AHCA) the responsibility for the Medicaid program. The Medicaid program provides for mandatory and optional services to eligible recipients. Prescribed drug services are optional Medicaid services. Medicaid services may be provided only when medically necessary, must be provided in accordance with state and federal law, and are subject to any limitation established by the general appropriations act or Chapter 216, Florida Statutes. Sections 409.905 and 409.906, Florida Statutes. Medical providers participating in the Medicaid program receive reimbursement from Medicaid. Section 409.908, Florida Statutes. States are given the option to charge Medicaid recipients copayments for services. 42 CFR Section 447.50. Certain categories of services and recipients are exempt from copayments. 42 CFR Section 447.53. Forty-five percent of the Medicaid program is funded by state funds and fifty-five percent is funded with federal "matching funds." In order to receive federal matching funds for its Medicaid program, the state must submit a plan describing the nature and scope of its Medicaid program and giving assurances that the program will be administered in accordance with Title XIX and applicable federal regulations. This plan is known as the State plan. Effective February 14, 1992, the Legislature enacted Chapter 92-5, Laws of Florida, which amended the appropriations Act for fiscal year 1991-92. Proviso language in Chapter 92-5 relating to Specific Appropriation 1035 for Medicaid prescribed medicine/drug provides: The Department of Health and Rehabilitative Services is directed to implement, beginning April 1, 1992, a co-payment program for Prescribed Medicine in order to implement spending reductions of at least $770,213 from general revenue and $929,661 from the Medical Care Trust Fund in Specific Appropriation 1035. The State plan was amended effective April 10, 1992, to require a copayment of $1.00 per prescription for pharmacy services provided to Medicaid recipients. Certain categories of services and recipients were exempted from the copayment requirement. Providers were prohibited from denying services to recipients who were unable to pay the copayment. Prior to April 10, 1992, copayments had not been required for prescribed drug services. HRS adopted Emergency Rule 10CER92-4, effective April 10, 1992. HRS published notice of the emergency rule in the Florida Administrative Weekly, Vol. 18, No. 16, April 17, 1992. In this notice under the section entitled "SPECIFIC REASONS FOR FINDING AN IMMEDIATE DANGER TO THE PUBLIC HEALTH, SAFETY OR WELFARE," it states in pertinent part: The 1992 Legislature reduced the prescribed drug services program FY 1991-1992 budget in Senate Bill 2408 which was signed by the Governor on February 14, 1992. This law requires the Medicaid program to implement a copayment requirement for prescription drugs by April 1992. . . . The emergency rule amended Rule 10C-7.042, Florida Administrative Code and required recipients to pay the pharmacy provider a $1.00 co-payment for each prescription or other prescribed drug service reimbursed by Medicaid. Certain categories of recipients and services were exempted from the copayment requirement. The pharmacy provider was required to request a copayment from non-exempt recipients. The pharmacy must determine a recipient's ability to pay the copayment based on the recipient's reply to the request for copayment, the recipient's past purchase history with that provider, and the recipient's recent purchase of non-essential items. A provider could not deny prescribed drug services to eligible recipients because of inability to pay the copayment. Although a recipient may not be able to pay the copayment, the recipient remains liable for the copayment. HRS began the rulemaking process to adopt the same amendments to Rule 10C-7.042 as a regular rule. Emergency Rule 10CER92-4 was challenged via a lawsuit in state court and was later removed to federal court. The proposed amendments to Rule 10C-7.042 were challenged in an administrative rule challenge, which was withdrawn and added to the lawsuit in federal court dealing with the challenge to the emergency rule. Chapter 92-293, Laws of Florida, the Appropriations Act for fiscal year beginning July 1, 1992 and ending June 30, 1993 contains the following proviso language relating to Medicaid prescribed drug services: Funds in Specific Appropriation 1019 are reduced by $18,581,894 from the General Revenue Fund, $3,281,004 from the Grants and Donations Trust Fund, $22,647,089 from the Medical Care Trust Fund, $2,632,000 from the Public Medical Assistance Trust Fund, and $58,013 from the Special Grants Trust Fund for the Department to implement a Medicaid comprehensive cost containment program. This program shall, at a minimum, incorporate: a prior authorization component; a co-payment program; an on site education program for providers prescribing the drugs; enhancements to the Department's ability to identify fraud and abuse; utilization of specific nursing home pharmacy consultants; and, shall implement new electronic technology to speed payments and capture third party liability information. By notice in the Florida Administrative Weekly, Rule 10CER92-4 has been continued pursuant to Section 120.54(9)(c), Florida Statutes. Chapter 93-184, Laws of Florida, the Appropriations Act for the fiscal year beginning July 1, 1993 and ending June 30, 1994, contains no language concerning reductions in the appropriations for Medicaid prescription medicine services and contains no language concerning copayments for recipients receiving Medicaid prescription medicine services. The amounts appropriated for the Medicaid prescription medicine services was at or below the amounts appropriated in Chapter 92-293 Laws of Florida. Chapter 93-129, Section 48, Laws of Florida, created section 409.9081, Florida Statutes, which requires Medicaid recipients to pay nominal copayments for hospital outpatient services and physician services effective July 1, 1993. Prior to the enactment of section 409.9081, Florida Statutes, a one dollar copayment had been required for Medicaid outpatient hospital and physician service. Effective July 1, 1993, the copayments were raised to two dollars. Current revenues generated by the copayments for the Medicaid prescribed drug services is approximately $12 million. Thus, the discontinuance of the copayment would result in a $12 million shortfall for the provision of Medicaid prescribed drug services, and a restriction on services to the extent necessary to account for the shortfall. The Social Services Estimating Conference (SSEC) is a statutorily created body established to develop official information relating to the social service system of the state for use in the state planning and budgeting system. Section 216.136(6), Florida Statutes. Section 216.134(1), Florida Statutes, provides in pertinent part: Unless otherwise provided by law or decided by unanimous agreement of the principals of the conference, all official information developed by the conference shall be based on the assumption that current law and current administrative practices will remain in effect throughout the period for which the official information is to be used. . . . The social services estimating conference for 1993-94 took into consideration the revenues from the copayments for the Medicaid prescribed drug services. Petitioner, Mildred Henry, resides in Jacksonville, Florida, and is disabled. She has received Medicaid since December, 1991. Her only income is Supplemental Income ("SSI") benefits of $434 per month. Ms. Henry suffers from many disabilities including chronic obstructive pulmonary disease, asthma, hypertension, severe and chronic urinary tract infections, and depression. Her physicians have prescribed a number of medications to address these conditions including Cardizem (for high blood pressure), Zantac (for ulcers), Cipro (for chronic urinary tract infections), Phenazopyridine (for bladder problems), Imipramine (for depression), Premarin (hormone), Thes-dur (for asthma), Brethine (for asthma), Ventalin (for asthma), Furosemide (for excess fluid), K-Dur (potassium), Propoxy N (for pain), Nizoral (for skin irritations), Darvoset (for pain), Tylenol 3 (for pain), and Halcion (for anxiety). She needs to refill most of these prescriptions each month. Copayments for all of Ms. Henry's prescription medications amount to $16.00. Ms. Henry's income is below the federal poverty level. She cannot afford to pay a copayment for all her medications. Petitioner has informed her pharmacy that she does not have the money to pay copayments. However, the pharmacy has refused to provide the medications without payment of the co-payments. As a result, Petitioner runs out of medications and delays getting her prescriptions refilled until she can pay the copayment.
Conclusions This cause came before the Agency for Health Care Administration for issuance of a Final Order. 1. On March 26, 2013, the Agency sent a letter to the Petitioner notifying the Petitioner that it owed an overpayment in the amount of $565,279.55 to the Agency based upon an adjustment in the Petitioner’s overpayment rates (Exhibit A). 2. On April 16, 2013, the Petitioner filed a Petition for Formal Hearing and the Agency Clerk referred the Petition for Formal Hearing to the Division of Administrative Hearings for further proceedings. 4. On May 13, 2013, the Administrative Law Judge assigned to the case entered an Order Closing File and Relinquishing Jurisdiction based upon a Joint Motion to Relinquish Jurisdiction filed by the parties. 5. On May 23, 2014, the Agency rescinded the overpayment letter (Exhibit B). 6. The Agency’s rescission of the overpayment letter has rendered this matter moot. Filed August 14, 2014 9:26 AM Division of Administrative Hearings Based on the foregoing, IT IS THEREFORE ORDERED AND ADJUDGED THAT: Respondent’s right to a hearing in this matter has been rendered moot and the Agency’s May 11, 2013 overpayment letter is rescinded. The parties shall govern themselves accordingly. DONE AND ORDERED this S day of Novurt , 2014 in Tallahassee, Leon County, Florida. K ELIZABETH DUDEK, SECRETARY AGENCY FOR HEALTH CARE ADMINISTRATION
