The Issue The issue is whether Respondent violated federal and state laws addressing Medicaid payments, and, if so, what is an appropriate remedy.
Findings Of Fact AHCA is the single state agency charged with the administration of the Medicaid program in Florida pursuant to Chapter 409, Florida Statutes, and federal law. One of AHCA's duties is to recover overpayments. Overpayments are any amounts paid to providers that were not authorized. Dr. Valente, during all times pertinent, was a licensed medical doctor in the State of Florida. She was an authorized Medicaid Provider and held provider number 253493200. As such, she was on notice of Medicaid billing policy and rules. AHCA conducted a generalized analysis of obstetricians in Florida who submitted Medicaid claims during the period January 1, 2003, through December 31, 2005. AHCA investigated over-billing in three different categories: (1) excessive prenatal visits, (2) billing for Healthy Start Prenatal Risk Screening (Screening) more than once during a pregnancy, and billing for the W1992 Screening during the second and third trimesters. The W1992 Screening was and is only applicable to the first trimester of pregnancy. Dr. Valente was one of the obstetricians AHCA found to have over-billed in the three categories. With regard to Category 1, excessive prenatal visits, the Physician Coverage and Limitations Handbook provides, at page 2-53, that "Antepartum visits are limited to a maximum of 10 for low-medical risk recipients and 14 for high-medical risk recipients. Payment for antepartum care is based on a total amount for complete care. Antepartum care is prorated, based on an average standard of 10 visits for a low-medical risk recipient or 14 for a high-risk recipient. Reimbursement for the 10 or 14 visits is the maximum reimbursement for the full course of antepartum care. If additional visits are provided, payment is considered to have already been made, and the provider may not bill the additional visits to Medicaid or the recipient." For Category 1, the audit searched for instances when Dr. Valente billed for excessive prenatal visits 38 times, as follows: Patient 1: This was a high-risk patient. Dr. Valente billed for 16 visits, which was two more than the 14 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $102.00 more than allowed. Patient 2: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Therefore, according to AHCA, Dr. Valente billed Medicaid $52.00 more than allowed. However, Dr. Valente stated, and medical records indicated, that Patient 2 was a high-risk patient even though her claimed Physician Coverage and Limitations Handbook diagnosis code, 642.43, a code for high risk, did not appear on the billing submission. Upon consideration of all of the evidence, this charge was permissible. Patient 3: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente asserted that the patient was a high-risk patient because of high blood pressure. However, in the billing submission there is no code indicating high risk. Dr. Valente claimed at the hearing that it should have been coded 645.13. That is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 4: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente claimed the patient had an iron deficiency and should have been coded 281.2. That is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 5: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for patients who are not high risk. The medical record revealed that Patient 5 was obese with poor sugar control, and Dr. Valente asserted she should have been coded 642.43, which is high risk. She did not use this code in the bill. However, upon consideration of all of the evidence, this charge was permissible. Patient 6: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for patients who are not high risk. Dr. Valente stated that this was a high- risk patient because she was suffering from oligohydramnious. Dr. Valente did not code this on the bill. The code she claimed, 656.93, is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 7: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for patients who are not high risk. This patient had lung problems. Dr. Valente asserted she should have been coded 496.0 and 491.2 instead of the V22.0 presented on the bill. Codes 496.0 and 491.2 are not high-risk codes. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 8: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for a patient that was not high risk. Dr. Valente suspected a possible birth defect and coded the patient 759.9 and 655.23. Code 655.23 is a high-risk code. Dr. Valente did not use this code in the bill. However, upon consideration of all of the evidence, this charge was permissible. Patient 9: AHCA asserted this was a low-risk patient. Dr. Valente billed for only five visits, thus never reaching the ten visit threshold. The assertion that Dr. Valente over-billed with regard to Patient 9 was not proven. Patient 10: AHCA asserted this was a low-risk patient. Dr. Valente stated that the records revealed decreased fetal movement, codes 655.73 and V28.4. Code 655.73 is a high-risk code. Dr. Valente did not put this code on the bill. However, upon consideration of all of the evidence, this charge was permissible. Patient 11: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 12: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $50.00 more than allowed. Patient 13: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 14: This was a low-risk patient. Dr. Valente billed for 12 visits, which was two more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $100.00 more than allowed. Patient 15: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 16: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 17: This was a low-risk patient. Dr. Valente billed for 12 visits, which was two more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $104.00 more than allowed. Patient 18: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 19: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 20: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not dispute AHCA's finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 21: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente said this patient was at risk for cervical cancer and entered diagnosis codes 795.0 and 795.09. These are not high- risk codes. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 22: AHCA asserted this was a low-risk patient. AHCA asserted Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente stated, and the records revealed, that the patient had a psychiatric disorder and, therefore, should have had a diagnosis code of 648.43, which is high risk. Dr. Valente did not assert this code on the bill. However, upon consideration of all of the evidence, the amount billed was permissible. Patient 23: AHCA asserted this was a low-risk patient. AHCA asserted that Dr. Valente billed for 11 visits, which was one more than the 10 allowed. This patient's baby had dilated kidneys. The patient was coded 655.0, which is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 24: AHCA asserted this was a low-risk patient. AHCA asserted that Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente's records indicated that this patient had impending pre-eclampsia, which she coded 642.03, as hypertension. This is a high-risk code. Dr. Valente failed to assert that code on the Medicaid bill. However, upon consideration of all of the evidence, Dr. Valente did not bill more than was permissible. Patient 25: This was a high-risk patient. Dr. Valente billed for 15 visits, which was one more than the 14 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $50.00 more than allowed. Patient 26: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 27: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed for a low-risk patient. Dr. Valente stated that the patient had a heart murmur and was asthmatic requiring medicine, which is code 493.0. She billed for 493.0, a high-risk code, and, therefore, was entitled to see the patient 14 times. Dr. Valente only saw the patient 11 times. Therefore, Dr. Valente did not bill more than allowed. Patient 28: AHCA asserted this was a low-risk patient. Dr. Valente billed for 11 visits that she coded V22.0. She said the patient had a childhood seizure disorder and should have been coded 345.0, which is high risk. Therefore, Dr. Valente did not bill more than allowed. Patient 29: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente found this patient to have high-risk viral cells and assigned diagnosis code 622.1. According to the Physician Coverage and Limitations Handbook, this is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 30: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 31: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 32: AHCA asserted that this was a low- risk patient. Dr. Valente billed for 11 visits, which is one more than permitted. Dr. Valente stated that this patient had a mild pregnancy-induced hypertension and should have been assigned diagnosis code 642.43, which is high risk. However, no such code was assigned. The only code assigned on the Medicaid bill was V22.0. This is not a high-risk code. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 33: AHCA asserted this was a low-risk patient. Dr. Valente stated that the patient was an alcohol abuser and that the patient developed decreased fetal movement late in the pregnancy. Dr. Valente assigned the code 655.43, which is a high- risk code. The patient was entitled to 14 visits. Dr. Valente billed for 11, which was within the allowed limits. Patient 34: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 35: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 36: AHCA asserted this was a low-risk patient and that Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente decided that the patient's baby was not reactive to a stress test, and the patient had to be induced. Dr. Valente coded this 658.03, which is not high risk. AHCA's witness, Dr. Franz, agreed with this. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 37: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. Patient 38: This was a low-risk patient. Dr. Valente billed for 11 visits, which was one more than the 10 allowed. Dr. Valente did not contest this finding. Therefore, Dr. Valente billed Medicaid $52.00 more than allowed. The total amount over-billed in Category 1 was $1,602.00. Category 2 addressed billing for the Screening more than once during a pregnancy. The Physician Coverage and Limitation Handbook provides for Florida's Healthy Start Prenatal Risk Screening. It states, "The Healthy Start Prenatal Risk Screening should be offered at the first antepartum visit. The antepartum visit that includes completion of the Healthy Start Prenatal Risk Screening is reimbursed once per pregnancy by billing code W1991 antepartum visit plus Healthy Start Prenatal Risk Screening, or W1992 antepartum visit plus Healthy Start Prenatal Risk Screening performed during the first trimester of pregnancy." Therefore, for Category 2, the audit searched for situations where there was more than one Healthy Start prenatal visit per pregnancy. In other words, a W1991 might be billed or a W1992 might be billed, but both could not be billed during a single pregnancy. The audit asserts this occurred nine times as follows: Patient 1: Dr. Valente billed for the W1991, which is an antepartum visit with the Screening after the first trimester, and then billed for a W1992, which is the Screening during the first trimester, for the same recipient. This overpayment was in the amount of $148. Patient 2: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $98. Patient 3: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 4: Dr. Valente billed for the W1991, which is an antepartum visit with the Screening after the first trimester, and then billed for a H1001, which is the Screening during the first trimester for the same recipient. This overpayment was in the amount of $104. Patient 5: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 6: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 7: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 8: Dr. Valente billed for the W1992, which is the Screening during the first trimester, and then billed for a W1991, which is an antepartum visit with the Screening after the first trimester, for the same recipient. This overpayment was in the amount of $100. Patient 9: Dr. Valente billed for the W1991, which is an antepartum visit with the Screening after the first trimester, and then billed for a W1992, which is the Screening during the first trimester for the same recipient. This overpayment was in the amount of $150. The total amount overpaid in Category 2 was $1,000. Dr. Valente pointed out that even though she over-billed in this category, she should have received $50 on each occurrence for an office visit. Although this may be true, it is beyond the jurisdiction of this forum to make recommendations with regard to that. Category 3 included a search for billings for W1992, which is the Screening during the first trimester, that were made subsequent to the end of the first trimester. AHCA defines the first trimester as the first 13 weeks of a pregnancy. The Screening form says the first trimester is determined to be 13 weeks (or 91 days) from the date of the last menstrual cycle. The audit asserted 61 instances of billing for the Screening, subsequent to the first trimester. In determining whether the Screening was accomplished later than the first trimester, 181 days were subtracted from the delivery date. This meant that a Screening provided less than 181 days before delivery was, perforce, beyond the first trimester. The auditors found 61 instances where this occurred. Dr. Valente agreed that she screened subsequent to the first trimester for patients number 2-8, 11-14, 16-18, 20-22, 25-31, 33-36, 38, 40, 43-46, 48-49, 51-54, and 56-61. This amounted to 44 over-bills at $50 and two at $49.34, for a total of $2,298.68. When evaluating the audit at this point, it is helpful to recall that the medical records of the patients were not available when the final audit was issued, but they were available at the time of the hearing. The Medicaid bills for the Healthy Start Prenatal Risk Screening Instruments are typically submitted before the baby is born. Thus, the physician at the time of submission cannot know the actual delivery date with mathematical precision. Accordingly, the physician has to estimate the due date using the date of the last menstrual period (LMP); by ultrasounds; and by following the progress of the pregnancy. Moreover, babies arrive before their predicted due date as well as after. The disputed cases in Category 3 are discussed below. Patient 1: The estimated delivery date (EDD) was July 9, 2003. The actual delivery date was May 15, 2003. The EDD on December 3, 2002, was determined by ultrasound to be nine weeks and by LMP to be ten weeks. The Screening date was December 3, 2002. This was well within the 13-week window for the Screening. Dr. Valente did not improperly bill for this patient. Patient 9: This patient did not agree to the screening. If the patient does not agree to the Screening, AHCA is not permitted to pay for the Screening. Accordingly, Dr. Valente over-billed $50.00. Patient 10: This patient did not agree to the screening. If the patient does not agree to the Screening, AHCA is not permitted to pay for the Screening. Accordingly, Dr. Valente over-billed $50.00. Patient 15: An ultrasound on this patient on June 18, 2003, indicated the patient was nine weeks pregnant. The Screening was accomplished on the same day. Accordingly, Dr. Valente did not improperly bill for this patient. Patient 19: This patient did not agree to the screening. If the patient does not agree to the Screening, AHCA is not permitted to pay for the Screening. Accordingly, Dr. Valente over-billed $50.00. Patient 23: The Screening for this patient is dated February 26, 2003, according to the Screening form signed by the patient. The delivery date provided to AHCA is incorrect because due to an absence of fetal heartbeat the patient experienced a "Suction D&E followed by sharp D&C of the uterine cavity." This occurred about the 13th week, on March 28, 2003. In other words, there was no delivery. However, the Screening was not signed at the bottom and that is a reason for rejecting payment. Accordingly, Dr. Valente over-billed $50.00 for this patient. Patient 24: The Screening form is completely absent for this patient. Accordingly, Dr. Valente over-billed $50.00 for this patient. Patient 32: This patient declined screening, so Dr. Valente over-billed $49.34. Patient 37: The Screening form is completely absent for this patient. Accordingly, Dr. Valente over-billed $50.00 for this patient. Patient 39: This patient declined screening, so Dr. Valente over-billed $50.00. Patient 41: The Screening date for this patient was October 30, 2002. The first ultrasound on this patient was provided on the same day and indicated the baby was at 12.7 weeks with an EDD of May 9, 2003. The baby was delivered April 19, 2003, which means it came earlier than anticipated and that the Screening was accomplished during the first trimester. Accordingly, Dr. Valente did not improperly bill for this patient. Patient 42: The screening form is completely absent for this patient. Accordingly, Dr. Valente over-billed $50.00 for this patient. Patient 47: The Screening for this patient listed on the AHCA spreadsheet was May 8, 2003. However, the form indicates it was signed by the patient on March 27, 2003. The patient's LMP was February 13, 2003, and the first ultrasound indicated the patient was eight and one-half weeks pregnant on April 10, 2003. Even if the Screening was accomplished May 8, 2003, as alleged, it was accomplished in the first trimester. Accordingly, Dr. Valente did not improperly bill for this patient. Patient 55: The alleged Screening was accomplished August 7, 2003. The Screening date is unreadable as to month, but the day is 31. Dr. Valente's testimony is that it was in March and that the patient was at 11 weeks and three days. This appears more correct than AHCA's allegation. Accordingly, Dr. Valente did not improperly bill for this patient. The over-payment alleged was a total of $3,048.68. The evidence indicates that on five occasions Dr. Valente was correct in her assertion that the Screening for five of the patients, at $50.00 per patient, was actually within the first trimester. Accordingly, it is found that Dr. Valente only owes $2,748.02 for Category 3. A request for records was sent to Dr. Valente via certified mail to the address she maintained on file with AHCA, on or about October 29, 2007. This provided Dr. Valente with the preliminary audit findings and invited her to illuminate or explain the findings so they could be adjusted if appropriate. The letter was returned. AHCA found a more current address and sent the same letter, and it was delivered to that address in Jacksonville on December 6, 2007. The receipt was signed by Dr. Valente's father. Eventually, Dr. Valente received the materials and called AHCA Investigator Terri Dean, who was listed as the contact point in the letter sent to Dr. Valente. Dr. Valente informed Investigator Dean that she could not get the records. Accordingly, the audit became final as written on March 21, 2008, and was provided to Dr. Valente. The report stated that Dr. Valente owed $6,118.68 for overpayments and should pay a $500.00 fine for failure to provide records. Dr. Valente provided the records about six months later, in late September or early October of 2008. AHCA reviewed the records and determined that there were overpayments in the amount of $7,344.00. Because litigation was already underway, AHCA did not attempt to extract the additional amount from Dr. Valente.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Agency for Health Care Administration enter a final order requiring Dr. Grace Valente, M.D.: to pay the sum of $5,350.02 for the purpose of reimbursing improperly billed Medicaid services; to pay a fine of $1,500 for failing to provide medical records in a timely fashion; and to pay interest at the rate of 10 percent per annum on the sum of $5,350.02, from March 21, 2008, the date of the final audit report; and interest at the rate of 10 percent per annum on the sum of $1,500 from the date the final order is entered, until the sums are paid completely. DONE AND ENTERED this 9th day of February, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2009. COPIES FURNISHED: William Blocker, II, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Grace Valente, M.D. 3474 Paddle Point Spring Hill, Florida 34609 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Holly Benson, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
The Issue The issue in these cases is whether Petitioners are entitled to the Medicaid payments which they received or whether the claims filed by Petitioners were improper. At hearing Petitioners presented the testimony of Gary Allen Kitos; Joseph Namey, D.O.: Herbert Moselli; Robert Grenitz, M.D.; Mary Bone; Herbert Topol, D.O.; Sylvan Goldin, D.O.; and Mildred Martin. Topol Exhibits 1-3 and 5 were admitted in evidence. Goldin Exhibits 1-4, 6 and 7 were admitted in evidence. Topol-Goldin General Practice (GP) Exhibits 1-7 and 35-37 were admitted in evidence. The Department of Health and Rehabilitative Services (HRS) presented the testimony of Jules J. Cohen, D.O.; Morton T. Smith, D.O.; and Mildred Martin. HRS also presented the testimony by deposition of Lawrence E. Stivers and Michael W. Forsthoefel, M.D. HRS Exhibits 1-23 were admitted in evidence. Joint Exhibits 1-4 were also admitted, which include three inventory lists and four separate large boxes of patient records. The parties filed proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. A ruling has been made on each proposed finding of fact in the Appendix hereto and made a part hereof.
Findings Of Fact During 1932, Petitioners Goldin, Topol, and the Topol- Goldin General Practice Clinic were all operating out of the same facility but each billed Medicaid under a separate physician provider number. Medicaid is a joint state and federal program that is completely voluntary. In entering into a provider agreement with Medicaid, Topol, Goldin and the General Practice Clinic agreed to abide by the provisions of the Florida Administrative Rules, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and federal laws and regulations. Under the Medicaid Program, a state may limit the services provided for under federal regulations. As part of the requirements for participation in Medicaid, the State of Florida has a peer review process to monitor all providers. Peer review is a recognized process utilized by third party payors (such as Medicaid, Medicare and insurance companies) to assure that they are getting the services for which they are paying. Florida's Medicaid peer review process is modeled after the federal Medicare Program's process. In Florida approximately 7,000 physicians are enrolled in the Medicaid program at any one time. In order to monitor all of these physicians' practices, the Medicaid Program reviews those physicians whose practice exceeds the parameters of the average Medicaid physician's practice. Reviews of physicians' practices number between 60 to 85 physicians per year. Approximately 40-50% of those physicians reviewed are referred for peer review. The Medicaid review for physicians consists of a Level I review of the physician's activity in the program compared to the physician's peers. If the physician exceeds the upper limits in the Level I review, a desk review is done by medical consultants who review a "claims detail" of all claims for payment made by the provider. If further review is needed, a disproportionate stratified random sample (DSRS) of the physician's claims is obtained and the physician's patient records for those claims are obtained. The physician's records are first reviewed by a Medicaid physician consultant who determines if peer review is necessary. After a peer review is done, an in-house consultant does a line-by-line evaluation based on the peer review findings and medical necessity and makes a recommendation for denial of claims. Those claims denied are then converted into an amount of money for disallowance. The Medicaid program does not review physicians just because of the amount of money they make in the program. In September of 1981 the Medicaid Investigative Section requested updates on providers who had previously been investigated in 1977. Goldin, Topol, and the General Practice Clinic were among those providers. Cases for review were then opened for Goldin, Topol, and the General Practice-Clinic in 1982. A preliminary cursory review of the practices of Goldin, Topol, and the General Practice Clinic was prepared by a nursing consultant who recommended that the investigation go forward. During the same time period that the review of Goldin, Topol, and the General Practice Clinic was beginning, a separate review of a Medicaid recipient raised questions of pingponging (going from one doctor to another) between Drs. Topol and Goldin that would justify a further review of their practice. In February and March of 1983, Level II Review reports (desk analysis) were issued on Goldin, Topol, and the General Practice Clinic. These reports contained the Level I Reviews, documentation of the provider's 1982 Medicaid practice, complaints, conclusions, and recommendations. The Level I Review reports included in the Level II Review indicated those areas where the providers exceeded the upper limits of their peers. For example, Dr. Goldin averaged 1,998 Medicaid office visits per quarter compared to an average of 86 for other Medicaid physicians. Dr. Goldin's average exceeded two standard deviations above the average for his peers. The Level II Reviews concluded that the allegations of overutilization for Goldin, Topol, and the General Practice Clinic had been substantiated and it was recommended that they be referred to Peer Review. In March of 1983, a meeting was held to discuss these cases because of their complicated nature. At that meeting, Mildred Martin was instructed to proceed with Peer Review In preparing for Peer Review, disproportionate stratified random samples (DHRS) for Goldin, Topol, and the General Practice Clinic were obtained. A DSRS is the tabulation of the provider's activities or the amounts paid to him for each recipient during a specific period of time. It lists the recipients in ascending order of amounts paid to the provider. Total amounts of the payments made during the period are divided into five strata of the same or close to the same amounts of money. A DSRS is used to give an overall view of the physician's practice. On each DSRS the computer randomly picked 30 patients for a detailed review of their patient records. Because of the volume of practice of Goldin, Topol, and the General Practice Clinic, it would not have been fair to evaluate their entire practice using only 30 records. Therefore, HRS decided to review 7% of records of Topol and Goldin. The General Practice Clinic records were reviewed as randomly selected by the computer. In order to enlarge the sample to 7%, Ms. Martin utilized a random selection process employed by Medicare, which entailed selecting every third patient beginning from the bottom of each strata and working up until a 7% sample was achieved. This does mean that patients in the 7% samples represent the patients in each strata for whom the highest claims were made. When the same patient record appeared in two different samples, the next patient on the list was used to avoid duplication and disallowance of two of the providers for the same patient. The records selected for review were selected randomly and selected utilizing generally accepted statistical techniques. In June of 1983, Goldin, Topol, and the General Practice Clinic were requested to submit the records of those claims selected from the DSRS and the 7% sample process. When it was obvious that the records received were not complete, Ms. Martin contacted the offices of Goldin, Topol and the General Practice Clinic, requesting the missing records. Those records received from Goldin, Topol, and the General Practice Clinic were referred to the Florida Osteopathic Medical Association's (FOMA) Peer Review Committee along with information indicating the areas of concern and a letter of explanation from Dr. Goldin. The FOMA Peer Review Committee is an independent organization made up of approximately ten osteopathic physicians from various parts of the State of Florida. The FOMA contracts with third party carriers (Medicaid) to review peers. The cases supplied to the FOMA Peer Review Committee are reviewed and discussed and the committee issues its opinion on overutilization. The FOMA Peer Review Committee's findings are either no overutilization, minimal overutilization (5-20%) overutilization), moderate overutilization (20-50%) or excessive overutilization (over 50%). Upon receipt of the referral from HRS, the FOMA Peer Review Committee set up a meeting and invited Drs. Topol and Goldin. At that meeting held April 28, 1984, eight (8) physicians of the Peer Review Committee reviewed the charts and interviewed Drs. Topol and Goldin. The Peer Review Committee looked for a trend in the physicians' overall practice. The Peer Review Committee found that the records were poorly documented and difficult to read. The Peer Review Committee found that the patients were being seen more than medically necessary. It was a consensus of the members of the FOMA Peer Review Committee that there was moderate overutilization. By letters dated May 9, 1984, the FOMA Peer Review Committee notified Drs. Topol and Goldin and HRS of their findings. The medical records of Topo1 and Goldin were then sent to Dr. Michael Forsthoefel, M.D., for a line-by-line disallowance of services based upon the Medicaid rules and regulations and the Peer Review Committee's findings. Dr. Forsthoefel disallowed an amount of claims in the range of 30-35% which fell within the level of moderate overutilization (20-50%) determined by the Peer Review Committee, however, since Dr. Forsthoefel was an M.D. and not a D.O., HRS decided that in all fairness the determinations should be made by a D.O. who was a peer of the doctors being reviewed. The medical records of Topol and Goldin under review were-then sent to Dr. Morton T. Smith, D.O., for the line-by- line determination. In order to assure further fairness of the review, Dr. Smith was instructed not to review and disallow any claims by a physician that appeared on a record of the other physician being reviewed. As a result of the new review by Dr. Smith and the instructions given him, the total amount disallowed dropped to 16 or 17%. (The Transcript, p. 635, says 60-70%, but that is a typographical error and should read 16-17%). It is found that the peer review and the disallowances by Dr. Smith were reasonable and accurate. It was then necessary to apply the amount disallowed in the 7% sample to the overall Medicaid claims of Topol and Goldin. HRS performed this calculation by determining the average overpayment for the recipients in each strata sample and multiplying that average by the total number of recipients in each strata. However, because the samples were selected from those recipients in each strata with the highest claims (See Finding of Fact 32), the "average overpayment per recipient" method of extending the overpayments in each sample to the total population of claims is arbitrarily skewed. The result is that Topol and Goldin were exposed to liability greatly in excess of the total amount claimed. The more reasonable method for extending the overpayments in each sample to the total population of claims would be to determine the percentage of disallowed claims in each strata sample and to apply that percentage to the total paid in each strata. For example for Dr. Goldin in Strata I a total of $922 was paid and $30 was disallowed, or a 3.25% disallowance. Applied to the total paid in that strata of $21,600.28, a total overpayment for Strata I is shown to be $702.01. Using this method of calculation, it is determined that Dr. Goldin has been overpaid as follows: Strata I $702.01 (30/922 X 21,600.28) Strata II $2,957.64 (204/1490.92 X 21,620.18) Strata III $2,238.49 (274.24/2378.94 X 21,627.92) Strata IV $3,506.92 (617.95/3805.88 X 21,594.33) Strata V $5,886.05 (1841.36/6729.80 X 21,513.33) Total $15,291.11 Using this method of calculation, it is determined that Dr. Topol has been overpaid as follows: Strata I $1,417.87 (60.98/728.16 X 16,939.88) Strata II $2,263.31 (160.00/1199.63 X 16,966.34) Strata III $2,099.45 (225.74/1823.52 X 16,958.37) Strata IV $2,335.17 (402.96/2935.57 X 17,007.75) Strata V $4,195.75 (1358.14/5443.97 X 16,816.65) Total $12,311.55 The General Practice Clinic was treated differently because it was operated differently. The provider number issued to the General Practice Clinic was applied for and granted to Drs. Topol and Goldin as authorized agents. General Practice Clinic was actually operated and run by Mary Petruff Bone. At the General Practice Clinic, Ms. Bone prescribed and mixed antigens for allergy patients, determined what testings were to be done, and handled other medical problems of patients. Neither Dr. Topol nor Dr. Goldin had any expertise in the field of allergy treatment. The records of the General Practice Clinic were the responsibility and the product of Ms. Bone. At all times material hereto, Ms. Bone was a certified physician's assistant competent to provide services to allergy patients. A physician's assistant is not a physician. At all times material hereto, physicians' assistants could not receive a provider number from Medicaid under which they could bill the Medicaid Program. Ms. Bone billed Medicaid for her services under the General-Practice Clinic's physician provider number. Medicaid was billed for physician's services by the General Practice Clinic even though a physician did not see the patient. It is not usual and customary practice for physicians to bill for their services when they do not see the patients. The State of Florida's Medicaid Program does not authorize payment for services to a physician's assistant under the supervision of a physician. The Medicaid program paid $75,654.73 to the General Practice Clinic in 1982 under its physician provider number. Medicaid did not learn that the General Practice Clinic's billings were for non-physician's services until the Peer Review Committee met with Petitioners on April 28, 1984. For the General Practice Clinic, Dr. Goldin admitted that $40,642.85 should have been disallowed due to improper billing procedures. The $40,642.85 calculated by Dr. Goldin did not take into account any possible double billing or the fact that the clinic's services were performed by a physician's assistant. The records for the General Practice Clinic were not referred to a physician consultant because the payment denials were due strictly to noncompliance with Medicaid rules and regulations, not the overutilization findings of the Peer Review Committee. Medicaid claims for the General Practice Clinic were denied for four basic reasons: 1) No records provided to substantiate the claim; 2) improper billing for B-12 injections; 3) duplicate billing where the General Practice Clinic and Topo or Goldin billed on the same day; and 4) office visits not rendered by a physician. Antigen injections and allergy testing were not disallowed in the claims submitted by the General Practice Clinic because those services are commonly reimbursable when done by someone other than a physician under a physician's supervision. The amounts disallowed for the sample of claims for the General Practice Clinic was then applied to the overall clinic practice in the same manner that the Topol and Goldin amounts were applied to their practice in order to obtain an amount owed the HRS Medicaid Program for the disallowed services. However, again the method used by HRS to extend the overpayment amount determined from the sample to the total population of claims is unreasonable because it does not accurately project the total amount overpaid. For example, in Strata I for the General Practice Clinic, a total of $15,177.73 in Medicaid benefits were paid in 1982. Yet, using the HRS method, a total overpayment of $22,201.44 is determined for that strata, or $7,023.71 more than was ever paid in that strata. Such a result must be unreasonable. If instead the percentage method applied above is used, it is determined that the General Practice Clinic has been overpaid as follows: Strata I $12,659.76 (362/434 X 15,177.73) Strata II $12,784.78 (1447/1719 X 15,188.00) Strata III $12,578.68 (3284/4001 X 15,325.00) Strata IV $13,102.67 (4244/4969 X 15,341.00) Strata V $12,215.79 (5369/6427 X 14,623.00) Total S63,341.68 Some disallowances were made on all three provider numbers because no documentation was provided, even after Ms. Martin asked a second time. These disallowances are proper and correct because Medicaid will not pay for services where there is no documentation justifying the services. The fact that Petitioners now claim to have that documentation is irrelevant to the correctness of the disallowances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order which provides: That Dr. Herbert Topol, D.O., reimburse the Medicaid Program for $12,311.55 in Medicaid overpayments for 1982. That Dr. Sylvan Goldin, D.O., reimburse the Medicaid Program for $15,291.11 in Medicaid overpayments for 1982. That the Topol-Goldin General Practice reimburse the Medicaid Program for $63,341.68 in Medicaid overpayments for 1982. DONE and ORDERED this 23rd day of September, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1986. COPIES FURNISHED: Herbert Topol, D.O. 1111 W. Broward Boulevard Ft. Lauderdale, Florida 33312 Sylvan Goldin, D.O. 1111 W. Broward Boulevard Ft. Lauderdale, Florida 33312 Theodore E. Mack, Esquire 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32301 William Page, Jr., Secretary Dept. of HRS 1323 Winewood Blvd. Tallahassee, Florida 32301 APPENDIX The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Petitioners' proposed Findings of Fact Proposed Finding of Fact 3 is adopted in substance as modified in Finding of Fact 32. Proposed Finding of Fact 6 is adopted in substance as modified in Finding of Fact 76. Proposed Finding of Fact 8 is adopted in substance as modified in Finding of Fact 77. Proposed Finding of Fact 39 is adopted in substance as modified in Finding of Fact 70. Proposed Finding of Fact 52 is adopted in substance as modified in Finding of Fact 55. . 6. Proposed Findings of Fact 1, 5, 9, 11, 12, 13, 14, 25, 26, 27, 29, 31, 32, 37, 38, 40, 41, 43, 47 and 48 are rejected as constituting argument and as being conclusory. 7. Proposed Findings of Fact 2, 4, 16, 22, 23, 24, 30, 33, 35, 36, 40, 46, 49 and 50 are subordinate to the fact actually found. 8. Proposed Findings of Fact 7, 10, 17, 18, 19, 20, 21, 34, 38, 40, 42, 44, 45 and 46 are irrelevant and/or unnecessary. 9. Proposed Findings of Fact 17, 25, 28, 32, 43 and 51 are not supported by the competent, substantiated evidence. Additionally, Proposed Findings of Fact 25, 28 and 32 are based on and refer to exhibits which were not admitted in evidence. The exhibits are attached to the proposed order and are rejected as an inappropriate attempt to supplement the record. Rulings on Respondent's proposed Findings of Fact. Each of the following proposed Findings of Fact are adopted in substance or as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the pro- posed Findings of Fact: 1(1); 2(58); 3(59); 4(60); 5(S1); 6(62); 7(63); 8(64); 9(65); 10(66); 11(67); 12(68); 13(69), 14(70) 15(71); 16(72); 17(60); 18(2); 19(3); 20(4); 21(5); 22(6); 24(7) 25(8); 26(9); 27(10); 28(11); 29(12); 30(13); 31(14); 32(15), 33(16); 34(17); 35(18); 36(19); 37(20); 38(21); 39(22); 40(23). 41(24); 42(25); 43(26); 44(27); 45(28); 46(29); 47(30); 48(31), 49(32); 50(33); 51(34); 52(35); 53(36) 54(37); 55(38); 56(39). 57(40); 58(41); 59(42); 60(43); 61(44); 62(45); 64(46); 65(47) 66(48). 67(49); 68(50); 69(51); 70(53); 74(73); 75(74); 76(76); 79(75); 81(78). Proposed Findings of Fact 23, 63, and 80 are irrelevant. Proposed Findings of Fact 71, 72, 73, 77 and 78 are subordinate to the facts found.
The Issue Whether Respondent, a Medicaid provider, committed the violations alleged in the agency action letter dated March 14, 2011, and, if so, the penalties that should be imposed.
Findings Of Fact At all times relevant to this proceeding, Respondent has been a provider with the Florida Medicaid Program and has had a valid Medicaid Provider Agreement with Petitioner. Petitioner is the agency of the State of Florida charged with the responsibility of administering the Florida Medicaid Program. At all times relevant to this proceeding, Respondent was subject to all applicable federal and state laws, regulations, rules, and Medicaid Handbooks. Respondent is required to comply with the Florida Medicaid Provider General Handbook (the General Handbook). The General Handbook requires a provider to have medical documentation that justifies the necessity of services provided to a recipient. The General Handbook advises that sanctions may be imposed if appropriate documentation is not kept. Respondent is an "Assistive Care Services" provider under the Florida Medicaid Program and is required to comply with the "Assistive Care Services Coverage and Limitation Handbook" (ACS Handbook). The ACS Handbook requires that each recipient of Assistive Care Services from the Florida Medicaid Plan have a RSP, and provides, in relevant part (at Petitioner's Exhibit 7, page 39): Every [Assistive Care Services] recipient must have a service plan completed by the [Assistive Care Services] service provider. . . . The ALF [is] responsible for ensuring the service plan is developed and implemented. The ACS Handbook further requires (at Petitioner's Exhibit 7, page 40): The Resident Service Plan for Assistive Care Services (AHCA-Med Serv [sic] Form 036) must be completed within 15 days after the initial health assessment or annual assessment, be in writing, and based on information contained in the health assessment. . . . The ACS handbook further provides (at Petitioner's Exhibit 7, page 40), that both the recipient (or the recipient's guardian or designated representative) and the ALF administrator (or the person designated in writing by the administrator) must sign and date the RSP. The RSP is considered complete as of the last date signed by either party. The provider (in this case Respondent) is responsible for timely completing the RSP for each Medicaid recipient in its facility. Inspector Marie Josue conducted an on-site visit to Respondent's premises on February 1, 2011. At the time of that inspection, Respondent reviewed a sample of ten RSPs for ten residents who received Assistive Care Services from the Florida Medicaid Program. Two of those ten RSPs had been timely signed and dated by the resident (or the resident's guardian or designee) and by Respondent's administrator (or the administrator's designee). The remaining eight RSPs had been timely signed and dated by the resident (or the resident's guardian or designee), but each had not been signed or dated by Respondent's facility administrator (or the administrator's written designee). Each RSP pre-dated February 1, 2011, by more than 15 days. The respective health assessments that formed the basis for each RSP occurred between March 23 and December 25, 2010. Respondent subsequently provided Ms. Josue with certain records that she had requested, including copies of the eight RSPs at issue in this proceeding. When she reviewed those records, Ms. Josue discovered that Respondent's administrator had signed and dated each previously unsigned RSP on February 1, 2011. Those signings by the administrator were untimely. Ms. Josue forwarded the results of her investigation to Mr. Dozier with a recommendation that Respondent be sanctioned for violating the provisions of section 409.913(15)(e), Florida Statutes, by the imposition of a $1,000.00 fine for each of the eight violations pursuant to Florida Administrative Code Rule 59G-9.070(7)(e). When she made her recommendation, Ms. Josue understood that the cited rule required a minimum fine of $1,000.00 per violation. Mr. Dozier accepted that recommendation and prepared the agency action letter dated March 14, 2011. Mr. Dozier consulted with two of his fellow administrators before concluding that the fine recommended by Ms. Josue was appropriate. He testified that he could have charged Respondent with violating section violating section 409.913(15)(d), which could have resulted in an administrative fine in the amount of $20,000.001/ Mr. Dozier considered an administrative fine in the amount of $8,000.00 to be more appropriate. Based on services provided to Medicaid patients pursuant to approved RSPs, Respondent submits claims to the Florida totaling between $6,450.00 and $9,200.00 per month. Petitioner routinely pays those claims. Each RSP at issue in this proceeding complied with the ACS Handbook except for the failure of the facility administrator (or designee) to timely sign the eight RSPs. RSPS are the guides to the services that will be provided by Respondent and reimbursed by the Medicaid Program by Petitioner. The requirement that the administrator (or designee) sign each plan is an effort to combat fraud. There was no evidence that the failure to sign the eight plans at issue in this proceeding was more than an error. Specifically, there was no evidence of fraud. There was no allegation that the lack of the administrator's signature on the eight plans at issue had any effect on the care provided to the eight Medicaid patients. Ms. Pace has been Respondent's administrator for over 13 years. Ms. Pace is familiar with RSPs and the rules and regulations governing the Florida Medicaid Program. Ms. Pace knew that the RSPs must be completed within 15 days of the assessment by a physician. Ms. Pace knew that the patient (or designee) and the administrator (or designee) must sign the RSP for it to be complete. Ms. Pace acknowledged that the eight RSPs at issue in this proceeding were not signed by anyone on behalf of the provider until February 1, 2010. Ms. Pace had designated a subordinate to sign the eight PSAs at issue in this proceeding on behalf of the provider. She had no explanation why those RSPs were not timely signed by anyone on behalf of the provider.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding La Hacienda Gardens, LLC, guilty of the eight violations of section 409.913(15)(e) alleged in the agency action letter dated March 14, 2011. It is further recommended that the final order impose administrative fines in the amount of $1,000.00 per violation for a total of $8,000.00. S DONE AND ENTERED this 1st day of February, 2012, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2012.
The Issue Whether Respondent engaged in sanctionable conduct in violation of Medicaid laws, as alleged in the April 9, 2012, sanction letters the Agency for Health Care Administration (ACHA) sent to Respondent in the above-styled cases, and, if so, what sanction(s) should be imposed.
Findings Of Fact AHCA is the state agency charged with administering and overseeing the Medicaid program in Florida. Housed within AHCA is the Bureau of Medicaid Program Integrity (MPI). Among MPI's responsibilities is to conduct audits and investigations to ensure that the state's Medicaid providers are in compliance with programmatic requirements. At all times material to the instant cases, Respondent was enrolled in the Florida Medicaid program under two separate provider numbers (Provider No. 679849796, as a provider of Developmental Disabilities Home and Community-Based Medicaid Waiver services, and Provider No. 142150600, as a provider of assistive care services) and subject to the terms of Medicaid Provider Agreements,3/ which contained the following provisions, among others: (5) Provider Responsibilities: The Medicaid provider shall: * * * (b) Keep, maintain, and make available in a systematic and orderly manner all medical and Medicaid-related records as AHCA requires for a period of at least five (5) years. * * * (d) Send, at the provider's expense, legible copies of all Medicaid-related information to authorized state and federal employees, including their agents. The provider shall give state and federal employees access to all Medicaid patient records and to other information that cannot be separated from Medicaid-related records; and, in connection with Provider No. 679849796, it was also subject to the terms of a Medicaid Waiver Services Agreement with the Florida Agency for Persons with Disabilities (APD),4/ in which it had agreed, among other things, to do the following: To permit persons duly authorized by APD, the Agency for Health Care Administration (AHCA), or representatives of either, to monitor, audit, inspect, and investigate any recipient records, payroll and expenditure records, (including electronic storage media), papers, documents, facilities, goods and services of the Provider, which are relevant to this Agreement . . . . * * * Upon demand, and at no additional cost to the APD, AHCA, or their authorized representatives, the Provider will facilitate the duplication and transfer of any records or documents (including electronic storage media), during the required retention period . . . . At all times material to DOAH Case No. 12-1664MPI Respondent, as an enrolled Medicaid provider of Developmental Disabilities Home and Community-Based Medicaid Waiver services, was bound by the following provisions of the Developmental Disabilities Waiver Services Coverage and Limitations Handbook dealing with employee training and recordkeeping requirements, which handbook provisions were incorporated by reference (along with the other provisions of the handbook) in Florida Administrative Code 59G-13.083: Companion Provider Requirements * * * Training Requirements Proof of training in the areas of Cardiopulmonary Resuscitation (CPR), HIV/AIDS and infection control is required within 30 days of initially providing companion services. Proof of annual or required updated training shall be maintained on file for review. The provider is responsible for all training requirements outlined in the Core Assurances. Note: Refer to the Core Assurances in Appendix A for the provider training requirements. . . . * * * Appendix A: Core Assurances for Providers of Developmental Disabilities Home and Community-Based Waiver Services Program * * * 2.1 Required Training The provider and its employees will ensure they receive the specific training required to successfully serve each recipient including the following topics: * * * H. All direct service providers hired after 90 days from the effective date of this rule are required to complete the Agency for Persons with Disabilities developed Zero Tolerance Training course prior to rendering direct care services (as a pre-service training activity). Said training may only be completed via APD's web-based instruction or classroom-led instruction (using APD's approved classroom curriculum presented either by APD staff or an individual who has been trained and approved by APD to conduct such classroom trainings). In addition, all direct service providers shall be required to complete the APD developed Zero Tolerance training course at least once every three years. The provider shall maintain on file for review, adequate and complete documentation to verify its participation, and the participation of its employees, in the required training sessions. The documentation for the above listed training shall, at a minimum, include the training topic(s), length of training session, date and location of training, name and signature of trainer, name and signature of person(s) in attendance. Proof of training shall be on file and available for monitoring and review. At all times material to DOAH Case No. 12-1841MPI, Respondent, as an enrolled Medicaid provider of assistive care services, was bound by the following provisions of the Assistive Care Services Coverage and Limitations Handbook dealing with health assessments, which handbook provisions were incorporated by reference (along with the other provisions of the handbook) in Florida Administrative Code Rule 59G-4.025: Recipients receiving Assistive Care Services must have a complete assessment at least annually by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) or sooner if a significant change in the recipient's condition occurs (see below for a definition of a significant change). An annual assessment must be completed no more than one year plus fifteen days after the last assessment. An assessment triggered by a significant change must be completed no more than fifteen days after the significant change. -The assessment for a resident of a ALF or AFCH must be completed by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) acting within the scope of practice under state law, physician assistant or advanced registered practitioner. -The assessment for a resident of a RTF must be completed by a physician or licensed mental health professional. The assessment must document the need for at least two of the four ACS components. The assessment for ALF residents must be recorded on the Resident Health Assessment for Assisted Living Facilities, AHCA Form 1823. At all times material to both DOAH Case No. 12-1664MPI and DOAH Case No. 12-1841MPI, Respondent was also bound by the following provisions of the Florida Medicaid Provider General Handbook, which were incorporated by reference in Florida Administrative Code Rule 59G-5.020 and applied to all enrolled Medicaid providers, including providers of Developmental Disabilities Home and Community-Based Medicaid Waiver services and providers of assistive care services: Record Keeping Requirement Medicaid requires that the provider retain all business records as defined in 59G- 1.010(30) F.A.C., medical-related records as defined in 59G-1.010(154) F.A.C., and medical records as defined in 59G-1.010(160) F.A.C. on all services provided to a Medicaid recipient.[5/] Records can be kept on paper, magnetic material, film, or other media including electronic storage, except as otherwise required by law or Medicaid requirements. In order to qualify as a basis for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamped signatures must be initialed. The records must be accessible, legible and comprehensible. * * * Record Retention Records must be retained for a period of at least five years from the date of service. * * * Right to Review Records Authorized state and federal agencies and their authorized representatives may audit or examine a provider's or facility's records. This examination includes all records that the agency finds necessary to determine whether Medicaid payment amounts were or are due. This requirement applies to the provider's records and records for which the provider is the custodian. The provider must give authorized state and federal agencies and their authorized representatives access to all Medicaid patient records and to other information that cannot be separated from Medicaid- related records. The provider must send, at his expense, legible copies of all Medicaid-related information to the authorized state and federal agencies and their authorized representatives upon request of AHCA. At the time of the request, all records must be provided regardless of the media format on which the original records are retained by the provider. All medical records must be reproduced onto paper copies. * * * Incomplete Records Providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped. Note: See Chapter 5 in this handbook for information on administrative sanctions and Medicaid payment recoupment The foregoing contractual and handbook provisions supplemented section 409.913(9), Florida Statutes, which then provided (as it still does) as follows: A Medicaid provider shall retain medical, professional, financial, and business records pertaining to services and goods furnished to a Medicaid recipient and billed to Medicaid for a period of 5 years after the date of furnishing such services or goods. The agency may investigate, review, or analyze such records, which must be made available during normal business hours. However, 24-hour notice must be provided if patient treatment would be disrupted. The provider is responsible for furnishing to the agency, and keeping the agency informed of the location of, the provider's Medicaid- related records. The authority of the agency to obtain Medicaid-related records from a provider is neither curtailed nor limited during a period of litigation between the agency and the provider. On or about December 6, 2011, MPI investigators visited Respondent's facility to review Respondent's Medicaid-related records, but left before completing their review. Approximately a month later, MPI sent Respondent a letter, dated January 5, 2012, concerning claims that Respondent had filed under its Provider No. 679849796 as a provider of Developmental Disabilities Home and Community-Based Medicaid Waiver services (January 5 Letter). The letter read as follows: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity is in the process of completing a review of claims billed to Medicaid during the period June 01, 2011, through December 01, 2011, to determine whether the claims were billed and paid in accordance with Medicaid policy. Pursuant to Section 409.913, Florida Statutes (F.S.), this is official notice that the Agency requests the documentation for services paid by the Florida Medicaid provider to the above provider number [679849796]. The Medicaid-related records to substantiate billing for the [four] recipients identified on the enclosed printout are due within fifteen (15) calendar days of your receipt of this notification. Please submit the documentation and the attached Certification of Completeness of Records to the Agency within this timeframe, or other mutually agreed upon timeframe. Correspondence and requested records should be sent to the following address: Victor Rivera, Investigator Agency for Health Care Administration Medicaid Program Integrity 400 West Robinson Street, Suite S309 South Tower, Hurston Building Orlando, Florida 32801 In accordance with Section 409.913, F.S., and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. Pursuant to the aforementioned provisions, failure to provide all Medicaid-related records in compliance with this request will result in the application of sanctions, which include, but are not limited to, fines, suspension and termination. The Medicaid-related records associated with this review should be retained until [the review is] completed. If you have any questions, please contact Victor Rivera, Investigator, at (407)420- 2524. The Certification of Completeness of Records form enclosed with the letter was to be completed by the provider's "official custodian of records," and it contained the following verification and certification: I hereby verify that I have searched the Medicaid-related records maintained by the Provider and have determined that the attached records consisting of (# of pages) are true and correct copies of the Medicaid- related records requested by the Agency for Health Care Administration, Office of the Inspector General, Bureau of Medicaid Program Integrity. I further certify that these are all of the Medicaid-related records that were made at or near the time that the services were rendered by, or from information transmitted by, the Provider; are kept in the course of the regularly conducted business of the Provider; and that it is the regular practice of the Provider to keep such records. Also accompanying the letter was a printout providing information concerning "documentation organization." Among other things, it advised that the "employee documentation" that needed to be submitted included "[c]opies of all required AHCA training certificates," and it contained the further advisement that "[f]ailure to follow the aforementioned guidelines and/or failure to provide the [sic] ALL of the requested documentation for ALL staff members who provided services to Medicaid Recipients during the predetermined audit period w[ould] result in the [a]application of sanctions," including "fines." The January 5 Letter and accompanying documents were received by Respondent on January 9, 2012. Ten days later, MPI sent Respondent a second letter, dated January 19, 2012 (January 19 Letter). This letter concerned claims that Respondent had filed under its Provider No. 142150600 as a provider of assistive care services, and it provided as follows: The Agency for Health Care Administration (Agency), Office of Inspector General, Bureau of Medicaid Program Integrity is in the process of completing a review of claims billed to Medicaid during the period January 1, 2011, through November 30, 2011, to determine whether the claims were billed and paid in accordance with Medicaid policy. Pursuant to Section 409.913, Florida Statutes (F.S.), this is official notice that the Agency requests the documentation for services paid by the Florida Medicaid provider to the above provider number [143150600]. The Medicaid-related records to substantiate billing for the [four] recipients identified on the enclosed printout are due within fifteen (15) calendar days of your receipt of this notification. Please submit copies of the Medicaid-related records and the attached Certification of Completeness of Records to the Agency within this timeframe, or other mutually agreed upon timeframe. Correspondence and requested records should be sent to the following address: Victor Rivera, Investigator Agency for Health Care Administration Medicaid Program Integrity 400 West Robinson Street, Suite 309 South Tower, Hurston Building Orlando, Florida 32801 In accordance with Section 409.913, F.S., and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency shall apply sanctions for violations of federal and state laws, including Medicaid policy. Pursuant to the aforementioned provisions, failure to provide all Medicaid-related records in compliance with this request will result in the application of sanctions, which include, but are not limited to, fines, suspension and termination. The Medicaid-related records associated with this review should be retained until [the review is] completed. If you have any questions, please contact Victor Rivera, Investigator, at (407)420- 2524. At the bottom of the "enclosed printout" referenced in the letter was the following cautionary advisement: Please refer to your Assistive Care Services handbook, July 2009, for information on the required documentation for recipient files. The Certification of Completeness of Records form enclosed with the letter was identical to the Certification of Completeness of Records form that had accompanied the January 5 Letter. The January 19 Letter and accompanying documents were received by Respondent on January 21, 2012. Respondent, through its owner/administrator Angel Cox, responded to the records requests made in the January 5 and January 19 Letters by providing MPI with copies of numerous documents, along with two completed, signed, and dated Certifications of Completeness of Records (one for each records request), on January 24, 2012.6/ Ms. Cox supplemented this response by faxing additional copies to MPI on February 7, 2012. Victor Rivera, the MPI investigator to whom Respondent had been directed to send its responses to MPI's January 5, 2012, and January 19, 2012, records requests, reviewed the documentation that Ms. Cox had submitted and determined that the following Medicaid-related records that Respondent had been requested to produce in the January 5 and January 19 Letters were missing (hereinafter referred to collectively as the "Further Required Documentation"): written proof that D. S., an employee of Respondent's who had helped deliver services for which Respondent had billed the Florida Medicaid program from June 1, 2011, through December 1, 2011, under its Developmental Disabilities Home and Community-Based Medicaid Waiver services provider number, had completed the infection control and zero tolerance training required by the Developmental Disabilities Waiver Services Coverage and Limitations Handbook; and the annual health assessments required by the Assistive Care Services Coverage and Limitations Handbook for the four recipients of the services for which Respondent had billed the Florida Medicaid program from January 1, 2011, through November 30, 2011, under its assistive care services provider number. At all times material to the instant cases, Respondent had the Further Required Documentation in its possession,7/ however, Ms. Cox had inadvertently failed to include these documents in the submissions she made (on behalf of Respondent) in response to MPI's January 5 and January 19 Letters. Ms. Cox first learned that the Further Required Documentation was missing during a telephone conversation she had with Mr. Rivera at the end of March 2012, when he advised her of the omission and told her that she needed to get these documents to him "as soon as possible."8/ On April 1 or 2, 2012, no more than three or four days after this telephone conversation, Ms. Cox provided Mr. Rivera, by fax, with copies of the following: a certificate of completion issued by APD to employee D. S. on April 28, 2010, for "Zero Tolerance Training"; a certificate of completion issued by All Metro Health Care to employee D. S. for "Infection Control Guidelines" training completed on February 12, 2011; and a completed March 2011 annual health assessment recorded on AHCA Form 1823 (2011 Health Assessment Form) for each of the four recipients identified in the printout accompanying the January 19 Letter. Respondent also had in its possession the previous year's completed AHCA Form 1823 (2010 Health Assessment Form) for each of these recipients, but Ms. Cox did not fax copies of these forms9/ to Mr. Rivera because she reasonably believed that Mr. Rivera had asked only for the 2011 Health Assessment Forms.10/ MPI tries to "work with the [Medicaid] providers." If a provider is asked by MPI to provide, "as soon as possible," a specified document or documents previously requested but not produced and the provider, in response to such a follow-up request, produces the document(s) in question within a matter of days, it is MPI's practice to not impose any sanctions on the provider and, instead, to "move on to the next case."11/ In the instant cases, however, in an unexplained departure from that practice, MPI chose to issue the April 9, 2012, sanction letters set out above. It is these sanction letters that frame the issues to be resolved in these cases.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration dismiss the allegations made against Respondent in the April 9, 2012, sanction letters issued in these cases and it not impose any sanctions against Respondent for the conduct alleged in these letters. DONE AND ENTERED this 21st day of February, 2013, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2013.
Conclusions THE PARTIES resolved all disputed issues and executed a repayment agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached repayment agreement. Based on the foregoing, this case is CLOSED. DONE AND ORDERED this -( 6 rf,,-- day of &pt , 2009, in Tallahassee, Florida. Holly Benson, Secretary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BYLAW, 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 MUSTBE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies Furnished to: Scott Wicke EmCare 1717 Main Street Suite 5200 Dallas, TX 75201 Karen Dexter, Assistant General Counsel Agency for Health Care Administration (Interoffice) Peter Williams, Inspector General Agency for Health Care Administration (Interoffice) D. Kenneth Yon, Bureau Chief Medicaid Program Integrity (Interoffice) Finance & Accounting (Interoffice) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served to the x{r above named addresses by mail or interoffice mail this£ yof 2009. R Ag ealth Car 272 n Drive, Bld Tallahassee, Florida 32308-5403 (850) 922-5873 f-:
The Issue An Administrative Complaint dated February 2, 1998, alleges that Respondent, Dennis Gross, M.D., violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. More specifically the Administrative Complaint alleges that Dr. Gross failed to properly diagnose and treat a 20-month old patient on August 8, 1994, which patient expired that same day.
Findings Of Fact Dennis Gross, M.D., is now and since December 31, 1973, has been licensed as a medical doctor in the state of Florida with license no. ME0021286. Dr. Gross is board-certified in pediatrics. He has had an active, private general pediatric practice in central Florida for the last 22 years, seeing an average of 30-35 patients a day. His practice consists of well child care, routine visits, physicals, and immunizations, but also includes acute care, illnesses, and injuries. His office hours are Monday through Friday and a half-day on Saturday; he routinely takes calls from his patients' parents and does not rely on his nurses to handle those calls. He also sees patients at night or on weekends at the hospital, but generally if a patient is critically ill and requires in-hospital care, he calls for a consult from a pediatric intensivist, a sub-specialty of pediatric care for critically ill children. Dr. Gross was the pediatrician for the M. family for about 12 years. R.M., a male child was born on November 18, 1992, and Dr. Gross began treating him from birth. During the course of his treatment of R.M., Dr. Gross learned that the child had a rare immunodeficiency syndrome, cyclic neutropenia, characterized by cyclical (generally 14-45 days) reduction in the patient's neutrophils (the most prevelant type of white blood cells.) R.M.'s father and older half-sibling also had this condition. When the patient's neutrophils are low, bacterial infections occur. In the infant R.M. such infections occured frequently. Between his birth and August 1994, Dr. Gross treated R.M. for various infections on approximately 24 occasions. These included boils and abcesses, infected rashes and other infections primarily localized on the skin. R.M. was also treated for normal childhood illnesses such as coughs, colds, and ear infections. On each occasion Dr. Gross was able to quickly identify the problem and treated it appropriately. For approximately 22 months R.M. thrived and achieved age-appropriate growth and developmental levels. On August 8, 1994, between 9:00 a.m. and 9:30 a.m., R.M.'s mother called Dr. Gross at his office and told him that R.M. had a low-grade fever and had vomited through the night. She said he had not vomited, however, within the 4 to 5 hours. Dr. Gross told the parent to put R.M. on clear liquids, to call back if the vomiting persisted, and to check back the following day anyway because of the child's history. Although the mother was aware of Dr. Gross' practice of seeing patients the same day on request she did not make such a request at that time. Instead, R.M.'s father, a school principal, stayed home with him in the morning and brought him to school to the mother, a teacher, in the later morning. R.M.'s mother took him home and apparently called Dr. Gross' office for a same-day appointment because she appeared with R.M. at the pediatrician's office around 3:30-4:00 p.m. When Dr. Gross entered the examining room, R.M. was walking around the room. Dr. Gross placed him on the examining table and observed an "alert and active child." His mouth appeared slightly dry and with the exception of increased bowel sounds and a rectal temperature of 104.1?, all other signs were normal. Dr. Gross told the mother that he felt R.M. had gastroenteritis, a viral infection, and told her he didn't want the child to dehydrate. He administered a shot of antiemetic and R.M. howled, a thoroughly normal reaction. Dr. Gross also prescribed Phenergan suppositories and told the mother to keep him on clear liquids slowly and call back if necessary. The child walked out of the office with his mother. Approximately 45 minutes later at home R.M. stopped breathing and was taken to the hospital. Dr. Gross was called to the hospital where CPR, epinephrine and other emergency measures were employed to attempt to revive the child. He was pronounced dead at 6:25 p.m. The autopsy determined that the cause of death was "septicemia, due to complications of cyclic neutropenia." More specifically, bacteriology studies revealed three species of clostridium, including clostridium septicum identified in the blood culture. (Petitioner's Exhibit No. 4, p. 5/83) The Standard Of Care The foregoing facts are substantially uncontroverted. The parties' dispute is whether Dr. Gross' diagnosis of R.M. on August 8, 1994, constituted failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. On this issue, the experts are at odds. Petitioner's sole witness was Dr. Lucian DeNicola, a professor of pediatrics in pediatric critical care medicine at the University of Florida Health Science Center in Jacksonville, Florida. Dr. DeNicola's opinion formed the basis for the Administrative Complaint in this case. Dr. DeNicola is board-certified in pediatrics and in pediatric critical care. With outstanding education and experience Dr. DeNicola has, nonetheless, very limited experience in an active outpatient general pediatrics practice such as Dr. Gross' practice. That practice was for 6 years at an outpatient clinic operated by the University of Massachusetts and that experience ceased approximately 16 years ago. Dr. DeNicola is an intensivist, specializing in the care of critically ill children. Based on R.M.'s history and the elevated temperature, Dr. DeNicola's opinion is that Dr. Gross should have suspected something serious, should have taken or ordered a blood culture, and should have immediately administered a broad spectrum antibiotic. Clostridia infections are virulent and highly toxic, but they are killed with antibiotics, usually a penicillin. Dr. DeNicola's opinion was considered and weighed in this proceeding but has been rejected in favor of the more relevant and, under the circumstances of this case, more credible, opinions of Respondent's witnesses. Dr. Raymond Caron is board-certified in pediatrics and has practiced in Orlando, Florida, for approximately ten years. A sole-practitioner like Dr. Gross, he sees children from birth through adolescence, providing a mix of routine well-child care and acute care. Dr. Cody Meissner's training and experience is closely analogous to that of Dr. DeNicola. That is, he practices medicine in a teaching hospital setting, through the Tuft's University School of Medicine in Boston, Massachusetts. Dr. Meissner is head of the Pediatric Infectious Disease Division at the New England Medical Center. He teaches, directs research, consults with pediatricians throughout New England, and spends several hours a day with patients in the hospital or emergency room. Dr. Meissner is board-certified in pediatrics and in pediatric infectious diseases. There are viral infections and bacterial infections. Viral infections do not respond to antibiotics and administering antibiotics indiscriminately is contraindicated and can be very detrimental. The indiscriminate use of antibiotics can create drug-resistent strains of infections and the antibiotics may ruin an outcome of subsequent blood cultures which are supposed to identify the potential bacteria. Dr. Gross did not have an in-office capacity to perform a blood culture nor did most his colleagues in private pediatric practice have that capacity. The standard of care did not require that capacity. Even a culture taken in an emergency room setting would have meant a several-hour delay between the time R.M. was seen by Dr. Gross and the results of the culture. In the meantime, the injection of an antibiotic by Dr. Gross would likely have masked the result of the culture and would have produced a false negative. More significantly, and even with Dr. Gross' foreknowledge of R.M.'s propensity for infections, nothing specifically in the child's condition on the afternoon of August 8, 1994, clued the pediatrician to the fact that the child was already full of deadly toxins. Bacterial infections, in contrast with viral infections, are generally identified with a focus of the infection: lesions, draining, inflammation, tenderness or localized pain or swelling. Impending septicemia typically is manifested by lethargy, limpness, cyanosis (paleness), low blood pressure, an inability to make eye contact, and severe irritability. R.M. presented none of these signs to Dr. Gross. R.M.'s very normal reaction to the injection would not be typically found in a child as sick as he truly was. Young children with temperatures of 104? are not extraordinary. Pediatricians in an active practice like Dr. Gross' may see several such patients daily, or weekly, depending on the season. Dr. Gross' diagnosis of gastroenteritis was consistent with his observations, examination and knowledge of the child's history. According to Dr. DeNicola, R.M. could have had an interferring viral infection that caused the earlier vomiting that set up the bacteremia. (deposition, p. no. 66) In summary, the standard of care as more credibly described by Respondent's witnesses did not require that Dr. Gross perform or order a blood culture or administer an antibiotic to R.M. on the afternoon of August 8, 1994.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the Board of Medicine issue a Final Order dismissing the Administrative Complaint at issue. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Carol A. Lanfri, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Martin B. Unger, Esquire Unger, Swartwood, Latham & Indest, P.A. Post Office Box 4909 Orlando, Florida 32802-4909 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela Hall, Agency Clerk Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
