The Issue The issues are whether attorney’s fees and costs should be awarded to the Petitioner (Petitioner or Dr. Aranda) under section 57.105, Florida Statutes (2016),1/ and, if so, the amount of the fees and costs.
Findings Of Fact In 2010, DOH received a sworn complaint from the Collier County Health Department (CCHD) alleging essentially: that Dr. Aranda was misrepresenting the nature of dental work she was providing to Medicaid patients to make it appear that she was prescribing and delivering non-orthodontic, “passive” appliances, which was covered by Medicaid, when she actually was prescribing and delivering orthodontic, “active” appliances, which was not covered by Medicaid, after being warned by her supervisor not to do so; and that she was delegating irremediable tasks, such as permanently cementing dental appliances and hand-scaling, to unqualified dental assistants. DOH investigated, and a panel of the Board of Dentistry found probable cause based on the investigative report. In May 2015, DOH filed an Amended Administrative Complaint charging Dr. Aranda as follows: in Count I, with making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry in violation of section 466.028(1)(l), Florida Statutes (2009)2/; and, in Count II, with delegating irremediable tasks (hand-scaling and permanently cementing dental appliances) to a dental assistant not qualified to perform those tasks, in violation of sections 466.028(1)(z) and 466.024(1), and Florida Administrative Code Chapter 64B5-16.3/ Dr. Aranda disputed the allegations and asked for a disputed-fact hearing under section 120.57(1), Florida Statutes (2015)4/. The case was referred to DOAH, designated case 15-6268PL, and scheduled for a final hearing on March 2, 2016. On February 11, 2016, Dr. Aranda served (but did not file) a motion for sanctions pursuant to section 57.105, Florida Statutes (2015). The motion asserted that DOH knew or should have known that several paragraphs in the Amended Administrative Complaint referred to the billing of Medicaid for “passive” space maintainers and other similar appliances and related dental services, and that those allegations were not supported by the material facts necessary to establish them. The motion for sanctions served by Dr. Aranda in DOAH case 15-6268PL was based on discovery she had obtained through a deposition of the CCHD’s records custodian. The deposition revealed that the documents DOH had been calling Medicaid billing records actually were “dental treatment plans.” There were other documents called “bill service lists” that were the actual bills sent to Medicaid for payment. The “bill service lists” reflected flat fee bills to Medicaid for “Medicaid billing encounters.” The “dental treatment plans” consisted of patient demographics, personal information, insurance and billing information, and services provided. The “dental treatment plans” contained references to space maintainers and similar non-orthodontic appliances that were covered by Medicaid, and there were references to events labeled “bill initiated.” Both the “bill service lists” and the “dental treatment plans” were generated by the CCHD’s so-called HMS computer system. The motion for sanctions served by Dr. Aranda in DOAH case 15-6268PL concluded with a warning that it would be filed if DOH did not withdraw the allegations in the Amended Administrative Complaint referring to the billing of Medicaid for “passive” space maintainers and other similar appliances and related dental services. DOH did not withdraw the allegations. At the final hearing in DOAH case 15-6268PL, there was considerable confusion about the billing process and the various documents. Eventually, the “dental treatment plans” were received in evidence with the understanding that they were not the actual bills sent to Medicaid for payment. The “bill service lists” were not moved in evidence by either party. The billing information in the HMS system was entered by the CCHD’s clerical staff from “super bills” that were created by dental practitioners, including Dr. Aranda, based on their care and treatment of patients. Besides submitting her “super bills,” Dr. Aranda played no part in the generation of HMS billing information or the actual billing of Medicaid by the CCHD. The “super bills” were not available to be used in the final hearing because they were discarded shortly after the entry of the information they contained into the HMS system. No member of the CCHD’s clerical staff testified, and there was no evidence about the Respondent’s actual entries on her super bills.5/ Meanwhile, some of the patient records and appliance prescriptions written by Dr. Aranda for her Medicaid patients accurately reflected the kinds of orthodontic-type “active” appliances she was using for her Medicaid patients. Dr. Aranda testified that she was openly using orthodontic-type appliances for non-orthodontic purposes for these Medicaid patients. The Recommended Order in DOAH case 15-6268PL was entered on May 24, 2016. It found that DOH did not prove, by clear and convincing evidence, the charge in the Amended Administrative Complaint that Dr. Aranda was making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry in violation of section 466.028(1)(l), Florida Statutes (2009). It recommended dismissal of the charges. The Final Order was entered on September 23, 2016; it adopted the Recommended Order, despite exceptions filed by DOH. On November 21, 2016, the Petitioner filed a petition for attorney’s fees and costs under both section 57.111 and section 57.105. The petition was designated DOAH case 16-6924F. It was amended to drop the claim under section 57.111. It was clear, and DOH knew or should have known within 21 days of service of Dr. Aranda’s section 57.105 motion for sanctions in case 15-6268PL, that the HMS “dental treatment plans” were not the actual bills sent to Medicaid for payment. The HMS “bill service lists” were the actual bills sent to Medicaid. However, the services billed to Medicaid via the HMS “bill service lists” were the same services described in the HMS “dental treatment plans” (even if the “bill service lists” themselves did not specify the services). Dr. Aranda did not prove by a preponderance of the evidence that DOH knew or should have known that the charge in the Amended Administrative Complaint, that Dr. Aranda was making deceptive, untrue, or fraudulent representations in or related to the practice of dentistry in violation of section 466.028(1)(l), Florida Statutes (2009), was not supported by the material facts necessary to establish it.
The Issue The issues in this case are whether Respondent, Edgar Zamora, M.D., committed a violation of Chapter 458, Florida Statutes (2005), as alleged in an Amended Administrative Complaint issued by Petitioner, the Department of Health and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2006). Respondent, Edgar Zamora, M.D., is, and was at all times material to this matter, a physician licensed to practice medicine in Florida pursuant to Chapter 458, Florida Statutes, having been issued license number ME 68598. The Indictment and Conviction. On or about January 27, 2004, Dr. Zamora was indicted in the United States District Court, Southern District of Florida, Case No. 06-20059CR-JORDAN, United States of America v. Heldy Artiles, et al., on one count of Conspiracy to commit offenses against the United States, in violation of Section 18 U.S.C. § 731 (Count 1), and one count of Health Care Fraud, in violation of Section 18 U.S.C. § 1367 (Count 7)(hereinafter referred to as the "Indictment"). The Indictment provides the following identification of Dr. Zamora: Defendant EDGAR ZAMORA was a medical doctor licensed to practice medicine in the State of Florida. He was employed by Miami Health as the clinic's doctor from in or around March 2000 through in or around June 2000. In Count 1 of Indictment, it is alleged that Dr. Zamora and the other named defendants committed Health Care Fraud Conspiracy against "Medicare and Private Insurance Companies, in connection with the delivery of and payment for health care benefits, items, and services” in order to "enrich themselves" in the following manner: submitting false and fraudulent claims to health care benefit programs; (b) paying kickbacks and bribes to Medicare beneficiaries and PIP-insured individuals so that they would serve as fictitious patients, thereby furthering the billing fraud scheme; (c) concealing the submission of fraudulent claims to health care benefit programs, the receipt and transfer of fraud proceeds, and the payment of kickbacks; and (d) diverting fraud proceeds for the defendants' personal use and benefit. Page 11 of the Indictment. The Indictment alleges the following facts concerning the Medicare Program: The Medicare Program ("Medicare") was a federal program that provided free or below-cost health care benefits to certain individuals, primarily the elderly, blind and disabled. The benefits available under Medicare are prescribed by statute and by federal regulations under auspices of the United States Department of Health and Human Services, through its agency, the Centers for Medicare and Medicaid Services ("CMS"). Individuals who receive benefits are referred to as beneficiaries. Medicare was a "health care benefit program," as defined by Title 18, United States Code, Section 24(b). Part B of the Medicare Program was a medical insurance program that covered, among other things, certain physician services, medical testing, medications, and durable medical equipment. Durable medical equipment, or "DME," is equipment that is designed for repeated use and for a medical purpose, such as a knee or back brace, nebulizer, or oxygen concentrator. The Medicare Part B Program was administered in the State of Florida by two entities, Palmetto Government Benefits Administrators ("PGBA") and Blue Cross/Blue Shield of Florida ("BC/BS"), both of which were private health insurance carriers that contracted with HCFA to receive, adjudicate, and pay Medicare Part B claims. PGBA processed and paid claims for DME and related supplies, including the associated medications. BC/BS processed and paid claims for physician and medical clinic services and diagnostic tests. Pages 5 and 6 of the Indictment. In part, the Indictment describes the following Medicare billing procedures: Qualified DME or pharmaceutical companies who supplied medical equipment or medications in connection with the Medicare program applied for and were given a "supplier number." The supplier number allowed DME suppliers and pharmaceutical companies to seek reimbursement for medical equipment and medications that they had supplied to Medicare beneficiaries. Medical clinics or doctors who provided services in connection with the Medicare program applied for and were given a "provider number," which allowed them to seek reimbursement for medical services that they had provided to Medicare beneficiaries. In order to receive payment from Medicare, a participating DME or pharmaceutical supplier was required to submit a health insurance claim form, known as a Form HCFA-1500 ("HCFA 1500"), and/or an Electronic Media Claim ("EMC"), which set forth, among other things, the beneficiary's name and unique Medicare identification number, the name and identification number of the doctor who ordered the item or medication, the item or medication that was supplied, the date of service, and the charge for the item or medication. Likewise, in order for participating medical clinics and doctors to receive payment form Medicare, the providers were required to submit a HCFA 1500, and/or EMC, which set forth, among other things, the beneficiary's name and unique Medicare identification number, the date of service, a description of the medical procedures and services provided to the patient, the physician who performed or ordered the procedures or services, and the amount charged for each procedure and service. Medicare, through BC/BS and PGBA, would generally pay 80% of the allowed cost for medical services, DME, and medications that were medically; necessary and ordered by licensed doctors or other qualified health care providers. Payments under the Medicare program were often made directly to the doctor or other provider or supplier of the medical goods or services rather than to the patient/beneficiary. For this to occur, the beneficiary was required to assign the right of payment to the provider or supplier. Thereafter, the provider or supplier assumed responsibility for submitting its bill directly to Medicare and obtaining payment. From January 1997 through March 2000, Miami Health Billed Medicare electronically by EMC under its assigned Medicare provider number, 40779. In or around March 2000, Miami Health was suspended by the Medicare Program, after which Miami Health billed Medicare by EMC using the Medicare provider number assigned to the doctor that was working at the clinic at the time. From in or around March 2000 through in or around June 2000, Miami Health billed Medicare under the provider number assigned to EDGAR ZAMORA, 27247. . . . . . . . . Pages 6 through 8 of the Indictment. With regard to Dr. Zamora, the Indictment alleges the "manner and means of the conspiracy" consisted of the following: 12. GUILLERMO GARCIA, EDGAR ZAMORA, and JOSE GARRIDO signed the altered, typed doctor notes and prescriptions, knowing that the notes and prescriptions had been changed and called for medically unnecessary tests, therapy, medications, and DME, and, in some cases, knowing that the altered notes reflected office visits that had not occurred. Page 13 of the Indictment. Finally, as to Count 1, Dr. Zamora is alleged to have committed the following "overt acts" with regard to "Car Accident Patient N.R.": 27. On or about June 19, 2000, EDGAR ZAMORA signed a typed final examination medical report concerning staged accident patient N.R., knowing that the typed note included false patient diagnoses and also a disability rating of 4% that had been fabricated by HELDY ARTILES. Page 18 of the Indictment. As to Count 7 of the Indictment, it was charged that Dr. Zamora and the other named defendants "in connection with the delivery of and payment for health care benefits, items, and services," committed Health Care Fraud against Medicare by: submitting or causing to submit false and fraudulent claims to Medicare and the Private Insurance Companies for the costs of medical tests, medical equipment, therapy, and medications; (b) paying kickbacks to Medicare beneficiaries and PIP-insured patients so that they would serve as patients, thereby furthering the fraudulent billing scheme; (c) concealing the submission of false and fraudulent claims to Medicare and the Private Insurance Companies; and (d) diverting fraud proceeds for the defendants' personal use and benefit. Page 25 of the Indictment. In particular, Dr. Zamora was alleged to have committed Health Care Fraud against Medicare by using his Medicare health care provider number when he submitted claims related to Car Accident Patient N.R. for an "[o]ffice visit, x- rays, tests, and physical therapy . . . ." Page 26 of the Indictment. On March 26, 2005, Dr. Zamora was found guilty by jury verdict of both counts against him of the Indictment. On December 5, 2005, United States District Judge Adalberto Jordan adjudicated Dr. Zamora guilty of the criminal offense charged against him in the Indictment. Judge Jordan sentenced Dr. Zamora to 27 months’ incarceration on both counts, to run concurrently; two years of supervised release; and restitution of $221,726.96. The Relationship of Dr. Zamora's Conviction to the Practice of Medicine. In light of the jury conviction on both counts of the Indictment relating to him, it is concluded that Dr. Zamora engaged in the activities alleged in the Indictment. All of those activities related to the practice of medicine. But for Dr. Zamora's license to practice medicine in Florida, Dr. Zamora would not have been able to commit the crimes for which he was convicted. It was his license to practice medicine that facilitated his ability to work at Miami Health, to obtain a Medicare provider number, and to fully participate in the Medicare program. All of the activities he engaged in, such as signing necessary Medicare documents and medical records backup, were carried out in his capacity as a licensed Florida physician. The crimes for which Dr. Zamora were convicted were crimes "which directly relates to the practice of medicine." Prior Disciplinary Action. Dr. Zamora has not previously been disciplined by the Board of Medicine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Edgar Zamora, M.D., has violated Section 458.331(1)(c), Florida Statutes (2005), as described in this Recommended Order; requiring that he pay an administrative fine of $5,000.00; and revoking his license to practice medicine in the State of Florida. DONE AND ENTERED this 20th day of July, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2007. COPIES FURNISHED: Diane K. Kiesling Assistant General Counsel Office of the General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Benedict P. Kuehne, Esquire Sale & Kuehne, P.A. BankAmerica Tower, Suite 3550 100 Southeast Second Street Miami, Florida 33331-2156 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-3265 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact The Agency for Health Care Administration (Agency) is the successor to the Department of Health and Rehabilitative Services as the single state agency responsible for the administration of the Medicaid program in the State of Florida. The Agency is required to operate a program to oversee the activities of Medicaid providers and is authorized to seek recovery of Medicaid overpayments to providers pursuant to Section 409.913, Florida Statutes. The division of the Agency responsible for the oversight of Medicaid providers is referred to as Medicaid Program Integrity. On October 10, 1985, the Petitioner, Billy Beeks, M.D., (Provider) executed a Medicaid Provider Agreement which provided, in pertinent part, as follows: The provider agrees to keep complete and accurate medical and fiscal records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program . . . . The provider agrees to submit Medicaid claims in accordance with program policies and that payment by the program for services rendered will be based on the payment methodology in the applicable Florida Administrative Rule. . 8. The provider and the Department agree to abide by the provisions of the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. Among the "manuals of the Florida Medicaid Program" referenced in paragraph 8 of the provider agreement was the Medicaid Physician Provider Handbook (hereinafter referred to as the "MPP Handbook"). Chapter 10 of the MPP Handbook addressed the subject of "provider participation." At the times pertinent to this proceeding Section 9 of Chapter 10 included the following: RECORD KEEPING You must retain physician records on services provided to each Medicaid recipient. You must also keep financial records. Keep the records for five (5) years from the date of service. Examples of the types of Medicaid records that must be retained are: Medicaid claim forms and any documents that are attached, treatment plans, prior authorization information, any third party claim information, x-rays, fiscal records, and copies of sterilization and hysterectomy consents. Medical records must contain the extent of services provided. The following is a list of minimum requirements: history, physical examination, chief complaint on each visit, diagnostic tests and results, diagnosis, a dated, signed physician order for each service rendered, treatment plan, including prescriptions for medications, supplies, scheduling frequency for follow-up or other services, signature of physician on each visit, date of service, anesthesia records, surgery records, copies of hospital and/or emergency records that fully disclose services, and referrals to other services. If time is a part of the procedure code prescription being billed, then duration of visit shown by begin time and end time must be included in the record. . Medicaid payments are based on billing codes and levels of services provided. In setting the appropriate billing to Medicaid, the level of service is determined pursuant to the MPP Handbook. At all times pertinent to this proceeding Section 1 of Chapter 11 of the MPP Handbook included the following pertaining to "covered services and limitations": HCPCS CODES and ICD-9-CM CODES Procedure codes listed in Chapter 12 are HCPCS (Health Care Financing Administration Common Procedure Coding System) codes. These are based on the Physician's Current Procedural Terminology, Fourth Edition. Determine which procedure describes the service rendered and enter that code and description on your claim form. HCPCS codes described as "unlisted" are used when there is no procedure among those listed that describes the service rendered. Physician's Current Procedural Terminology, Fourth Edition, Copyright . . . by the American Medical Association (CPT-4) is a listing of descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures performed by physicians. The Health Care Financing Administration Common Procedure Coding System (HCPCS) includes CPT-4 descriptive terms and numeric identifying codes and modifiers for reporting medical services and procedures and other materials contained in CPT-4 which are copyrighted by the American Medical Association. The Diagnosis Codes to be used are found in the International Classification of Diseases, 9th edition, Clinical Modifications (ICD-9- CM). A diagnosis code is required on all physician claims. Use the most specific code available. Fourth and fifth digits are required when available. All billings pertinent to this proceedings are for patient office visits. Prior to amendments effective January 1, 1992, the MPP also provided in Section 1, Chapter 11, for six levels of service associated with the office visit procedure code. These levels of service, in ascending order of complexity, are "Minimal, "Brief", "Limited", "Intermediate", "Extended", and "Comprehensive". The least amount paid by Medicaid to a provider was for a "Minimal" level office visit. The level of payment immediately above the "Minimal" level were the "Brief" and "Limited" levels, which entitled a provider to the same payment. Immediately above the "Brief" and "Limited" levels, in ascending order of payment, were "Intermediate", "Extended", and "Comprehensive". Section 1, Chapter 11 of the MPP contained the following discussion of the six levels of service: There are six levels of service associated with the visit procedure codes. They require varying skills, effort, responsibility, and medical knowledge to complete the examination, evaluation, diagnosis, treatment and conference with the recipient about his illness or promotion of optimal health. These levels are: Minimal is a level of service supervised by a physician. Brief is a level of service pertaining to the evaluation and treatment of a condition requiring only an abbreviated history and exam. Limited is a level of service used to evaluate a circumscribed acute illness or to periodically reevaluate a problem including a history and examination, review of effectiveness of past medical management, the ordering and evaluation of appropriate diagnostic tests, the adjustments of therapeutic management as indicated and discussion of findings. Intermediate level of service pertains to the evaluation of a new or existing condition complicated with a new diagnostic or management problem, not necessarily related to the primary diagnosis, that necessitates the obtaining of pertinent history and physical or mental status findings, diagnostic tests and procedures, and ordering appropriate therapeutic management; or a formal patient, family or a hospital staff conference regarding the patient's medical management and progress. Extended level of service requires an unusual amount of effort or judgment including a detailed history, review of medical records, examination, and a formal conference with the patient, family, or staff; or a comparable medical diagnostic and/or therapeutic service. Comprehensive level of service provides for an in-depth evaluation of a patient with a new or existing problem requiring the development or complete reevaluation of medical data. This service includes the recording of a chief complaint, present illness, family history, past medical history, personal review, system review, complete physical examination, and ordering appropriate tests and procedures. Chapter 11 of the MPP was amended, effective January 1, 1992. Instead of the six levels of service for office visits, five levels of service, referred to as "evaluation and management" (E/M) service codes were adopted. The E/M levels of service levels ranged from Level 1 to Level 5 in ascending order of complexity and payment. 1/ Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion as to the development of the E/M service codes: The American Medical Association, in cooperation with many other groups, replaced the old "visit" codes with the new "evaluation and management" (E/M) service codes in the 1992 CPT. This is a result of the Physician Payment Reform which requires the standardization of policies and billing practices nationwide to ensure equitable payment for all services. The new E/M codes are a totally new concept for identifying services in comparison to the old visit codes. They are more detailed and specific to the amount of work involved. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides that the level of E/M codes are defined by the following seven components: Extent of History, Extent of Examination, and Complexity of Medical Decision- Making, Counseling, Coordination of Care, Nature of Presenting Problem, and time. 2/ After determining whether the office visit is for a new or established patient, Section 1, Chapter 11 of the MPP, as amended January 1, 1992, instructs the provider to determine the level of E/M services by taking into consideration the following three key components: Extent of History, Extent of Examination, and Complexity of Medical Decision-making. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion under the subheading "Extent of History": There are four types of history which are recognized: Problem Focused - chief complaint; brief history of present illness or problem. Expanded Problem Focused - chief complaint; brief history of present illness; problem pertinent system review. Detailed - chief complaint; extended history of present illness; extended system review; pertinent past, family and/or social history. Comprehensive - chief complaint; extended history of present illness; complete system review; complete past, family and social history. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion under the subheading "Extent of Examination": There are four types of examinations which are recognized: Problem Focused - an examination that is limited to the affected body area or organ system. Expanded Problem Focused - an examination of the affected body area or organ system and other symptomatic or related organ systems. Detailed - an extended examination of the affected body area(s) and other symptomatic or related organ system(s) Comprehensive - a complete single system speciality examination or a complete multisystem examination. Section 1, Chapter 11 of the MPP, as amended January 1, 1992, provides the following discussion under the subheading "Complexity of Medical Decision- Making": Medical decision-making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by the following factors: The number of possible diagnoses and/or the number of management options that must be considered. The amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed and analyzed. The risk of significant complications morbidity and/or mortality, as well as co- morbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options. There are four types of medical decision- making which are recognized: straightforward, low complexity, moderate complexity, and high complexity. 3/ Rule 10C-7.047, Florida Administrative Code, 4/ pertains to the Early and Periodic Screening, Diagnosis and Treatment Program (EPSDT), and provides, in pertinent part, as follows: Purpose. EPSDT is a comprehensive, preventive health care program for Medicaid- eligible children under age 21 that is designed to identify and correct medical conditions before the conditions become serious and disabling. Medicaid provides payment for EPSDT which allows entry into a health care system, access to a medical home (sic) and preventive/well child care on a regular basis. This periodic medical screening includes a health and developmental history, an unclothed physical examination, nutritional assessment, developmental assessment, laboratory tests, immunizations, health education, dental, vision and hearing screens, and an automatic dental referral for children age 3 and over. A billing for an EPSDT screening is compensated by Medicaid at a rate that is higher than the rate for a Limited or Level 2 office visit. A provider must document all components of the EPSDT screening in order to be entitled to payment for the screening. If all components of the EPSDT screening are not documented by a provider's records, Medicaid compensates the provider for a Limited or Level 2 office visit since the provider would have made sufficient contact with the recipient to justify that billing level. When conducting an audit of a provider's billings to the Medicaid program, employees of Medicaid Program Integrity review the provider's medical records to determine whether the level of services billed are justified by the medical records. Medical records must contain sufficient documentation to substantiate that the recipient received necessary medical services at the level billed by the provider. A routine urinalysis performed during the course of an office visit should be billed as part of the office visit and not billed as a separate service. Vicki Divens, a registered nurse, is a consultant employed by the Agency and was administratively responsible for the audit of the Provider's medical records. She conducted this audit pursuant to the Agency's rules and policies. Ms. Divens obtained a report from Consultec, the Agency's fiscal agent, that provides identifying information as to all services that were billed to Medicaid by the Provider for the audit period of June 1, 1991, through May 30, 1993. This computer report reflects the date that each service was billed to Medicaid by the Provider, the name and Medicaid number of each recipient of the service, the codes which are used to describe the procedure of the service billed, the level of the service, the amount paid to the Provider, and the date of payment. For the audit period, there were a total of 1,712 Medicaid recipients who received services from the Provider, there were 9,054 separate billings for services to recipients, and there was a total of $259,305.01 paid by Medicaid to the Provider. The Agency is authorized 5/ to employ a statistical methodology to calculate the amount of overpayment due from a provider where there has been overstated billings. The methodology used by the Agency is a form of cluster sampling that is widely accepted and produces a result that is recognized as being statistically accurate. For the audit that is the subject of this proceeding, the Agency determined that 23 patient files would be the number of files necessary for the statistical analysis. The Agency established that sampling was adequate to perform the statistical analysis. The 23 recipients whose medical records would be analyzed were thereafter selected on a completely random basis. Ms. Divens obtained from the Provider the medical records for the 23 patients that had been randomly selected for analysis. A total of 141 separate billings had been made for these 23 recipients during the audit period and each of those billings had been paid to the Provider by the Medicaid program. The medical records for the 23 recipients were thereafter reviewed by Dr. John Sullenberger, the Florida Medicaid Program's Chief Medical Consultant, who made the determination as to whether the medical records in the sampling justified the level at which Medicaid had been billed for each of the services. Based on the overbillings found in the sampling, the Agency calculated an estimate of the overpayment for all Medicaid billings during the audit period by using a formula that is recognized as producing a statistically accurate result. When Dr. Sullenberger initially reviewed the Provider's medical records, several of the medical files for recipients in the sampling had not been located. Without these records to substantiate the billings for these patients, no credit was given for those services. The amount of the alleged overpayment for all recipients during the audit period was initially calculated to be $60,753.25, which is the amount claimed in the Agency's final audit report letter dated December 13, 1993. Thereafter additional records were furnished to the Agency by the Provider and the alleged overpayment was recalculated to be $50,852.86, which is the amount the Agency asserted as being the amount of the overpayment at the beginning of the formal hearing. 5/ The following findings are made as to the billings that were in dispute at the formal hearing. The date of birth is given for each recipient to help identify the recipient. For office visits before January 1, 1992, the level of services are described as being "Minimal," "Brief," "Limited," "Intermediate," "Extended," or "Comprehensive." For office visits after January 1, 1992, the level of services are described as being Level 1, Level 2, Level 3, Level 4, or Level 5. Patient 1 was born January 22, 1989. There were four billings for this patient at issue in this proceeding. On November 19, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 29, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 7, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 21, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 2 was born September 29, 1985. There were five billings for this patient at issue in this proceeding. On August 31, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On September 3, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 25, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 7, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 26, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 3 was born May 9, 1985. There were two billings for this patient at issue in this proceeding. On May 22, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On January 20, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 4 was born March 20, 1968. There was one billing for this patient at issue in this proceeding. A. On July 25, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 5 was born April 28, 1988. There were three billings for this patient at issue in this proceeding. On August 30, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 14, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate level. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 3, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 6 was born February 7, 1987. There was one billing for this patient at issue in this proceeding. A. On August 30, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 7 was born February 25, 1987. There were two billings for this patient at issue in this proceeding. On August 30, 1991, the Provider billed Medicaid for an EPSDT for this patient and he also billed for a urinalysis. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level and that the billing for the urinalysis should be included as part of the Limited level office visit. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 8 was born July 11, 1988. There were three billings for this patient at issue in this proceeding. On September 10, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level and he billed separately for an urinalysis for this patient during this visit. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate and that the urinalysis should be included in this billing. The Provider received an overpayment from the Medicaid program as a result of this billing. On March 23, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 9 was born January 9, 1989. There were four billings for this patient at issue in this proceeding. On August 23, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 15, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 20, 1992, the Provider billed Medicaid for services rendered to this patient at Level Four. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level Two. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 21, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level Two. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 10 was born August 30, 1988. There were three billings for this patient at issue in this proceeding. On September 4, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited Level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 14, 1991, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited Level. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 21, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level Two. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 11 was born September 17, 1989. There were fifteen billings for this patient at issue in this proceeding. On June 3, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On June 14, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 6, 1991, the Provider billed Medicaid for services rendered to this patient at the Intermediate level. Dr. Leterman was of the opinion that the medical records justified the Intermediate level billing (Leterman deposition, page 30), but Dr. Sullenberger testified the billing should be at the Limited level (Transcript, page 171). This conflict is resolved by finding that the medical records justify this billing at the Intermediate level so that no adjustment is necessary. On July 15, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 20, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 5, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 20, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 30, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On November 25, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate level. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 27, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. (See, Leterman deposition, page 34) On January 28, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 25, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 7, 1992, the Provider billed Medicaid for services rendered to this patient at Level 3. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 9, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On May 3, 1993, the Provider billed Medicaid for services rendered to this patient at Level 3. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 12 was born July 12, 1970. There were four billings for this patient at issue in this proceeding. On January 3, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On January 13, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 3, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On March 10, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 13 was born August 22, 1990. There was one billing for this patient that was initially at issue in this proceeding. On August 22, 1990, the Provider billed Medicaid for an EPSDT for this patient. When Dr. Sullenberger, the Agency's expert, initially reviewed the Provider's medical records pertaining to this billing, he thought that the billing should be reduced to a Limited level office visit. The amount of overpayment claimed by the Agency at the beginning of the formal hearing was based on this billing being at a Limited level. At the formal hearing, Dr. Sullenberger testified that on further consideration, he believed that the medical records justified this billing as an EPSDT, so that no adjustment was necessary. Based on his testimony, it is found the medical records maintained by the Provider justify this billing and no adjustment is necessary. Patient 14 was born October 23, 1990. There were nine billings for this patient at issue in this proceeding. On September 27, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Intermediate level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 11, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 21, 1991, the Provider billed Medicaid for services rendered to this patient at the Intermediate level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 17, 1991, the Provider billed Medicaid for services rendered to this patient at the Extended level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. On January 31, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On May 19, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On June 4, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On July 7, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On May 7, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 15 was born November 9, 1990. There was one billing for this patient at issue in this proceeding. A. On September 24, 1991, the Provider billed Medicaid for services rendered to this patient at the Comprehensive level. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Limited level. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 16 was born September 14, 1991. There were two billings for this patient at issue in this proceeding. On March 13, 1992, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On March 1, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 17 was born February 9, 1992. There were two billings for this patient at issue in this proceeding. On November 7, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On November 25, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. When Dr. Sullenberger, the Agency's expert, initially reviewed the Provider's medical records pertaining to this billing, he thought that the billing should be reduced to a Level 2 office visit. The amount of overpayment claimed by the Agency at the beginning of the formal hearing was based on this billing being at Level 2. At the formal hearing, Dr. Sullenberger testified that on further consideration, he believed that the medical records justified this billing at Level 3. Based on that testimony, it is found that this billing should have been at the Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 18 was born July 6, 1992. There were six billings for this patient at issue in this proceeding. On August 12, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On August 17, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and than this billing should have been at Level 4. 6/ The Provider received an overpayment from the Medicaid program as a result of this billing. On September 18, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On October 9, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and than this billing should have been at Level 3. 7/ The Provider received an overpayment from the Medicaid program as a result of this billing. On November 5, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On December 18, 1992, the Provider billed Medicaid for services rendered to this patient at the Level 5. When Dr. Sullenberger, the Agency's expert, initially reviewed the Provider's medical records pertaining to this billing, he thought that the billing should be reduced to a Level 2 office visit. The amount of overpayment claimed by the Agency at the beginning of the formal hearing was based on this billing being at Level 2. At the formal hearing, Dr. Sullenberger testified that on further consideration, he believed that the medical records justified this billing at Level 3. Based on the testimony of Dr. Sullenberger and that of Dr. Leterman, it is found that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 19 was born June 12, 1989. There was one billing for this patient at issue in this proceeding. A. On February 9, 1993, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 20 was born May 18, 1987. There was one billing for this patient at issue in this proceeding. A. On July 27, 1992, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 21 was born April 27, 1988. There were four billings for this patient at issue in this proceeding. On January 12, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 17, 1993, the Provider billed Medicaid for an EPSDT for this patient. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. March 8, 1993, the Provider billed Medicaid for services rendered to this patient at the Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On April 16, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 22 was born August 10, 1992. There were three billings for this patient at issue in this proceeding. On December 28, 1992, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 9, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at the Level 3. The Provider received an overpayment from the Medicaid program as a result of this billing. On February 22, 1993, the Provider billed Medicaid for services rendered to this patient at Level 4. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 2. The Provider received an overpayment from the Medicaid program as a result of this billing. Patient 23 was born May 23, 1993. There was one billing for this patient at issue in this proceeding. A. On May 26, 1993, the Provider billed Medicaid for services rendered to this patient at Level 5. Based on the evidence presented, it is found that the medical records maintained by the Provider do not justify this billing and that this billing should have been at Level 3 The Provider received an overpayment from the Medicaid program as a result of this billing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order that adopts the findings of fact and conclusions of law contained herein and that the Agency recalculate the total amount of the overpayment during the audit period based on the findings of fact contained herein. DONE AND ENTERED this 23rd day of August, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1995.
The Issue Whether or not the Respondent's license to practice pharmacy should be suspended or revoked pursuant to Section 465.101(1)(e) and 893.13(3)(a) 1 , Florida Statutes. The Hearing Officer explained to the Respondent the nature of the hearing and his rights under the Administrative Procedure Act, including the right to be represented by counsel at his own expense, if he so desires. It was also explained to the Respondent that he could testify in his own behalf, but that he was not required to do so and that if he did so testify, he could be cross- examined by counsel for Petitioner. Respondent acknowledged understanding of these rights and elected not to testify in his own behalf during the course of the hearing; however, he did participate in the cross-examination of Petitioner's witnesses and made a closing statement in which he denied the allegations against him.
Findings Of Fact During the period in question, i.e., April, 1975, Mr. Stanley Margolis was the manager of Gray Drug Store, No. 365, located at 12852 Biscayne Boulevard, North Miami, Florida. He and the Respondent are the only licensed pharmacists employed at that store (testimony of Mr. Margolis). "Eskatrol" is a trade name for a drug which is bottled and sold in capsules called "spansules". It contains dextro- amphetaminesulfate and acts as a stimulant on the central nervous system. It is used primarily as an appetite suppressant, although it also is sometimes prescribed in an emergency situation for narcolepsy to keep a person awake. It is a Schedule II drug under the Florida Comprehensive Drug Abuse and Prevention Act, Chapter 893, F.S. because it is an amphetamine (Testimony of Mr. Bell, Dr. Danoff). The procedure employed by Gray Drug Store to order Schedule 11 drugs was for Mr. Margolis to write a narcotic order form which he sent to a wholesaler who would then fill the order and send back an invoice with the narcotics in a box that was signed for by one of the pharmacists. At that time, the drugs would be counted, checked off and written down. Either Margolis or Respondent was on duty at the drug store at all times when it was open for business and Respondent could sign for such deliveries if Margolis was not then present. On approximately April 10 or 11, the store had run out of narcotics order forms and had exhausted its supply of several drugs, including ones with the trade name of Eskatrol. However, on Saturday, April 12, a prior order for ten bottles of Eskatrol, each bottle containing 50 capsules or "spansules" as they were termed, were received at the store. Respondent was on duty at this time and signed for the shipment. It was his responsibility to check the numbers of bottles received, enter the amount in a narcotics journal and place the drugs in a locked cabinet. On Monday, April 14, Margolis came on duty, reviewed the receipt of Eskatrol and determined that the shipment was correct based upon his examination of the invoice. He did not check the drug cabinet at this time. About 6:00 or 7:00 p.m. he received a prescription for 50 sparsules of Eskatrol. At this time, he noticed that there were only eight bottles in the cabinet when there should have been ten. He thereupon checked his prescription files for narcotic and other drugs and found no prescription to cover the two missing bottles of Eskatrol ewhich would have contained a total of 100 spansules. The store maintained a daily prescription log which indicated the prescriptions filled and a "waiting" file which was used to hold prescriptions for emergency drugs which had been issued pursuant to a telephonic request of a physician while waiting for the written prescription from the physician to arrive at the store. Mr. Margolis, on the morning of April 16, asked Respondent about the discrepancy. The Respondent told him that the wholesaler had been" short two bottles." Margolis was disturbed about this alleged shortage and therefore called the district manager of Gray Drugs, a Mr. Krake. On the morning of April 17, Margolis found a telephoned prescription form for 50, spansules of Estatrol in the "waiting" file (Petitioner's Exhibit 1). The Respondent told him that it had been called in and that he was waiting for the prescription. He said that he had written the prescription. Margolis identified the handwriting as being that of the Respondent. The prescription was in the name of Ron Richards and showed an address of "2405 Northeast 135". It did not bear a street, avenue, or city designation. There was no date entered in the "Date" space on the form, but the figures "4/14" appeared on the "RX" portion of the form. This portion also bore the handwritten number 221030, and showed the figures "825". The doctor's name was Danoff and shown with address of 4100 South Hospital at Plantation. The number 5870448 also appeared on the prescription form and the words "will mail". Mr. Margolis then reviewed what had been entered on Sunday in the prescription log book and discovered that prescription number 221030 showed a patient named Kasen and a price of $1.95 for the prescription (Petitioner's Exhibit 2) . The practice of the pharmacy had been to use a numbering machine which would stamp the prescription and the patient's receipt with the prescription number. Although 99 percent of the prescriptions are marked with the numbered stamp, occasionally there can be some mistake if the machine jumps, and the same number can only be stamped two times by the machine. On April 14, while Mr. Margolis was checking the non-narcotic prescription files, he had seen a prescription numbered 221030 for 15 Actifed tablets, prescribed by a Dr. Wrench for a patient named Kasen. The retail price of 15 Actifed tablets is $1.95. His log book also reflected that the next number in sequence, prescription no. 221031, was also prescribed by Dr. Wrench for patient Kasen for Keflex (Petitioner's Exhibit 3). Both of these prescriptions were entered on the log for April 13th. Margolis does not know what happened to the other prescription bearing the number 221030; he saw it last on the night of April 15 (testimony of Mr. Margolis; Petitioner's Exhibits 1-3). Dr. Sherwood Danoff, a licensed physician who practices at Plantation, Florida, specializes in dermatology. He is not familiar with the name of Ron Richards and did not call the Gray Drug Store of North Miami, Florida, on April 13, 1975, to order Eskatrol for that individual. He had never written a prescription for Eskatrol, which is a combination of an amphetamine and a barbituate used in diet control as an appetite suppressant. He did not receive a phone call on April 13 from the Gray Drug Store and has never spoken on the phone to anyone representing himself to be the Respondent Mark Gorsky. The normal dosage of Eskatrol is one or two capsules a day and, although he has prescribed Schedule II drugs on an emergency basis over the phone, he would never issue a prescription for a dosage that would cover more than a 10-day period. An emergency prescription by telephone is usually given only for the period until the patient can get in to see the doctor. This is known as an oral prescription and the doctor must follow this up with a written prescription within 72 hours. Although Petitioner's Exhibit 1 reflects Dr. Danoff's phone number, he did not phone in the prescription (testimony of Dr. Danoff). On April 17, Mr. William W. Smith, the regional manager of Professional Services for Gray Drug Stores, Mr. Anthony Difulio, the Director of Loss Prevention for the drug Store chain for Florida, and Mr. Vernon K. Bell, an agent for the Florida Board of Pharmacy, met at the Gray Drug Store in North Miami to look into the discrepancy reported by Mr. Margolis. Mr. Smith made an inspection of the books and records of the store and discovered that certain narcotic drugs were missing, including two bottles of Eskatrol. He checked with Dr. Danoff's nurse and Gulf Company, the wholesaler of Eskatrol. He tried to find the address of Ron Richards, as shown on the prescription in an incomplete form, but any projection of the address by avenues or streets would place it in Biscayne Bay or the ocean. Mr. Smith, together with Mr. Difulio, Mr. Bell, and Mr. Krake, went into a back room of the drug store to discuss the situation and later asked the Respondent to join them. Neither Mr. Difulio nor Mr. Bell arc law enforcement officers and do not have the power to take a person into custody other than that effected under an ordinary citizen's powers. During this period, not all of the above-mentioned individuals remained in the room during the entire period of approximately an hour or an hour and a half. Mr. Gorsky left the room on two occasions. Prior to questioning the Respondent, Mr. Bell advised him that he did not have to answer any questions, that he had a right to remain silent and a right to counsel. He did not threaten him or offer him any inducements to answer questions. After this warning, Respondent decided not to take the polygraph or make a written statement, but he did make oral statements. At no time was Respondent told he was under arrest. Mr. Bell asked Respondent if he could explain or know anything about the shortage of Eskatrol. The Respondent stated that he had received a call from Dr. Danoff on Sunday, April 13, concerning the prescription and that he called the doctor back to make sure that it was authentic; that he had placed the `number at the right bottom of the prescription and in his mind it was legitimate. When asked about the existence of Ron Richards, Respondent told Bell that Richards had been in the store several times. Respondent admitted to Bell that he had written the prescription (Petitioner's Exhibit l) and that it was his handwriting. There is a certain conflict in what Respondent stated at this meeting in view of the fact that Mr. Difulio testified that Respondent had said a customer had come into the store on April 13 and said that a doctor wanted him to have Eskatrol; that he had called the doctor and verified the prescription. Difulio did not recall if Respondent had stated that he had first had a call from the doctor, although he testified that Respondent said that he had prepared the prescription and filled it for Richards. When shown by Difulio that the cash register tapes for April 13 did not reflect an entry of $8.25, and Respondent was asked for an explanation, he stated that he had probably "got taken" by believing the telephone number he called was that of the doctor. In addition, Respondent told Difulio that after filling the prescription, he became scared and put a number on it from another patient and, when asked by Difulio what had happened to it, Respondent stated that he had torn it up and destroyed it. Difulio did not recall Respondent telling Mr. Bell about Dr. Danoff calling Respondent concerning the prescription. However, Respondent made several different statements during the course of his interrogation while various of the parties to the meeting went in and out of the room (testimony of Mr. Smith, Mr. Difulio, Mr. Bell).
The Issue The Board filed a ten count complaint in this matter. The central issue is whether Dr. Horstmann billed Medicaid for office visits for children who he did not see and who, in fact, did not exist. The Board of Medicine contends that Dr. Horstmann's conduct violated Section 458.331(1)(i), Florida Statutes, by making or filing a report the licensee knew to be false, violated Sections 817.234 and 458.331(1)(h), Florida Statutes, by failing to perform a legal obligation placed upon a licensed physician, and that his conduct violated Section 458.331(1)(1), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when that trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community. The Board also contends that by pleading no contest to a criminal charge of Medicaid fraud, Dr. Horstmann is subject to discipline.
Findings Of Fact Dr. Horstmann is a 63 year old Cuban-born medical doctor. He had been licensed to practice medicine and had been doing so in Cuba for 35 years. He was permitted to leave Cuba in 1979. He was licensed to practice medicine in the State of Florida on February 14, 1983. At the time of the investigation which gave rise to these charges he had been licensed to practice medicine in Florida for 4 months. In early 1983, the Auditor General's Office of the State of Florida, Medicaid Fraud Unit, investigated certain pharmacists which computer audits showed to have excessive Medicaid charges. Dr. Horstmann was not a target of this investigation, which was headed by Detective John Nulty. The Mariano Gonzalez pharmacy was targeted. Dr. Horstmann knew Mariano Gonzalez since childhood. He had given Gonzalez business cards, asking Gonzalez to refer patients to him with allergy- related problems who did not have a doctor, as Dr. Horstmann wished to concentrate on allergy-related health problems. Those business cards were available at the pharmacy. During the investigation of the Mariano Gonzalez pharmacy, agent Vivian Perez entered the pharmacy and acted as a Medicaid recipient using the name Vivian Toledo. At the Mariano Gonzalez pharmacy on June 5, 1983, she was advised to see Dr. Horstmann and was given a Horstmann business card with the pharmacy stamp on the back of it. Apparently, the Mariano Gonzalez pharmacy was engaged in a scheme to defraud Medicaid. It allowed Medicaid recipients to present scripts for prescriptions which were to be paid by Medicaid, and to purchase merchandise rather than prescription drugs or medicine for an amount equal to what would have been charged for the medication. In the course of her investigation, agent Perez went to Dr. Horstmann's office on June 7, 1983. She presented Dr. Horstmann's secretary with a Medicaid card issued to her as part of the investigation bearing the name Vivian Toledo, and the names of the three fictitious children, Julio, Roger and Rafael Toledo. Dr. Horstmann did not examine agent Perez or any of the fictitious children, but as a result of the visit he gave agent Perez prescriptions for her and the three children. Agent Perez took these prescriptions to the Mariano Gonzalez pharmacy and used them to purchase non-pharmaceutical items. These prescriptions were not signed by Dr. Horstmann, but by Dr. Rodriguez-Cuellar, with whom Dr. Horstmann worked. Dr. Horstmann did not sign the prescriptions because, although he was a licensed physician, he had not yet received a Medicaid provider number of his own. Agent Perez again visited Dr. Horstmann on July 12, 1983. He did not examine her or the fictitious children but gave agent Perez additional prescriptions for herself and the children, which he signed. They were used to purchase non- pharmaceutical items at the Mariano Gonzalez pharmacy. Agent Perez visited Dr. Horstmann on a second occasion in July and in August 1983. Each time she received prescriptions for herself and the fictitious children which were used to purchase non-pharmaceutical items at the Mariano Gonzalez pharmacy. Dr. Horstmann prepared medical charts for each of the fictitious children, which were introduced into evidence, indicating that these children had been examined by him. Dr. Horstmann signed the Medicaid health insurance claim forms for the children dated July 9, 12, 20 and 27; and August 17 and 23. Medicaid was billed a total of $100.00 for Julio Toledo, $70.00 for Roger Toledo and $90.00 Rafael Toledo based on these forms. Dr. Horstmann understood when he wrote on the chart that he had seen the children that a bill would be prepared and sent to Medicaid. He signed all of the reimbursement forms. He received payment from Medicaid on the claims he submitted. Dr. Horstmann was charged with Medicaid fraud and entered a plea of no contest. A certified copy of the order placing him on probation was offered for identification but not received in evidence. After the certified copy of the probation order was obtained, an order was entered by the Circuit Court for the 11th Judicial Circuit sealing the records of Dr. Horstmann's conviction.
Recommendation Based upon the violations of the Medical Practice Act which Dr. Horstmann committed, including filing false Medicaid reports and billing Medicaid for treating fictitious children, as well as making deceptive, untrue and fraudulent representations in the practice of medicine, it is RECOMMENDED: That Dr. Horstmann's license be suspended for a period of six (6) months. DONE AND ORDERED this 5th day of February, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1753 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985), on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner (Treating the paragraphs of the findings of fact as if they had been serially numbered.) Covered in Findings of Fact 2 and 4. Covered in Finding of Fact 8. Covered in Finding of Fact 9. Covered in Finding of Fact 10. Covered in Findings of Fact 11 and 12. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 2. Sentence 1 covered in Finding of Fact 3. Sentence 2 covered in Finding of Fact 2. Sentence 1 covered in Finding of Fact 5. Sentence 2 rejected as unnecessary. Sentence 1 covered in Finding of Fact 5. Sentences 2 and 3 rejected as unnecessary. Covered in Finding of Fact 6. Rejected as unnecessary Covered in Finding of Fact 1. Covered in Finding of Fact 4. Generally rejected as a recitation of testimony rather than findings of fact. Rejected because whether Dr. Horstmann was familiar with Medicaid procedures is not relevant. It is clear that he understood that he submitted bills for visits which never occurred. Rejected because Dr. Horstmann's beliefs as to agent Perez' financial condition in no way justifies submitting fraudulent medicaid reimbursement requests. Covered in Finding of Fact 11. Rejected because I accepted the testimony of agent Perez that she did not provide the symptoms to Dr. Horstmann that are found in the charts for the fictitious children. Accepted in the Conclusions of Law because there was no evidence concerning bills submitted by Dr. Rodriguez- Cuellar being reimbursed by Medicaid. Covered in Finding of Fact 9. Covered in Finding of Fact 11. Covered in Finding of Fact 12. The amount received was greater than $45.00. To the extent necessary, covered in Finding of Fact 10. Covered in Findings of Fact 10 and 11. Rejected because I find that Dr. Horstmann knew that he was billing Medicare for visits which never occurred. This was not merely the result of an error by a receptionist. Rejected as irrelevant. Covered in Finding of Fact 12. Rejected as a recitation of testimony, not a finding of fact. COPIES FURNISHED: Joel S. Fass, Esquire COLODNY, FASS & TALENFELO, P.A. 626 N.W. 124th Street North Miami, Florida 33161 John W. Thornton, Jr., Esquire THORNTON & ROTHMAN, P.A. 2860 Southeast Financial Center Miami, Florida 33131 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in these consolidated cases are whether Respondent committed the violations charged in four Administrative Complaints and, if so, what is the appropriate discipline.
Findings Of Fact The Department has regulatory jurisdiction over licensed chiropractic physicians pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. In particular, the Department is authorized to file and prosecute an administrative complaint against a chiropractic physician after a probable cause panel (PCP) of the Board determines there is probable cause to suspect a licensee has committed a disciplinable offense, and provides direction to the Department on the filing of an administrative complaint. At all times material to the allegations in the Administrative Complaints, Dr. Aderholdt has been licensed to practice chiropractic medicine in Florida, having been issued license number CH 7814. He was first licensed on January 6, 2000. He practices in an office in Bradenton, Florida. Vax-D Therapy Three of the four Administrative Complaints involve patients of Dr. Aderholdt who received Vax-D therapy. The complaints are not directed to the provision of Vax-D therapy itself, or to any other treatments provided by Dr. Aderholdt. In all four cases, the patients generally spoke well of the chiropractic care they received from Dr. Aderholdt and the manner in which they were treated by him and his office staff. Vax-D therapy is a modality using the Vax-D model for decompression of the spinal discs and spinal structure. It is used to treat a range of issues associated with low back pain, including herniated, degenerated, and bulging discs. The Vax-D model is the originator of this technology; it was the first spinal decompression device. It is a large computerized moving table. It can be programmed to provide specific axial or distractive loading. The table moves in and out, pumping nutrients at the discs. Some research shows that it can actually pull discs away from where they are causing irritation on nerves and the spinal cord. The Vax-D model is FDA-cleared for use, and the literature supports its efficacy. The Vax-D model is an expensive piece of equipment. The price range for the initial purchase is between $100,000 and $150,000, with ongoing expense thereafter for maintenance and updates. Vax-D therapy is one of the most expensive forms of therapy, if not the most expensive, in the chiropractic profession. Other models coming out after Vax-D, as well as other tools, arguably can be used for similar purposes. However, as Petitioner’s expert readily acknowledged, Vax-D is the “Rolls Royce. It’s a really nice tool.” Vax-D spinal decompression is not covered by Medicare. In fact, when it comes to chiropractic care, Medicare has never covered anything besides spinal adjustments. Coverage for Vax-D treatment by private insurance companies is rare. In 2012, Dr. Salvatore LaRusso presented a study on spinal decompression to the profession, before the Federation of Chiropractic Licensing Boards, to inform state regulators of issues associated with Vax-D therapy. The one regulatory concern he reported was that some physicians were improperly billing Vax-D as a surgical decompression procedure, when it is plainly not surgery; it is an alternative to surgery, properly billed as a non-surgical decompressive tool or traction device. Dr. LaRusso’s study also made findings on the common methods of packaging and selling the service, and the range of charges observed. He found that most practitioners providing Vax-D therapy were selling the service as a cash item in their practice, with payment up front often required. The common model was to sell a package with a certain number of visits, with or without additional services included. Dr. LaRusso found that the per-visit charges ranged from $150 to $450, depending on the ancillary services added to the decompression. Dr. Shreeve does not have any issue with the use of or charges for Vax-D therapy. Dr. Aderholdt offers Vax-D therapy pursuant to a Vax-D Therapy Payment Plan agreement (Vax-D Agreement), which is comparable to the multi-visit packages that Dr. LaRusso’s study found to be common. After initial consultation, with intake forms, patient history, x-rays, evaluation, and examination, if a patient is determined to be appropriate for Vax-D therapy, Dr. Aderholdt will give his treatment recommendations and then turn the patient over to his office staff to address the financial aspects. If the patient wants to proceed with Vax-D therapy, the Vax-D Agreement will be reviewed and signed. Patients A.M., R.O., and P.D. each received Vax-D therapy, pursuant to signed Vax-D Agreements. The terms of the Vax-D Agreements for the three patients were the same. Patient B.O. wanted Vax-D therapy, but she was determined to not be an appropriate candidate for it. The Vax-D Agreements in evidence for Patients A.M., R.O., and P.D. provided that the named patient committed to 25 to 28 Vax-D therapy sessions, for $250.00 per session. The total amount that the named patient agreed to pay Dr. Aderholdt for 25 to 28 sessions was $5,500.00, which computes to an actual per-session cost of between $196.43 (for 28 sessions) and $220.00 (for 25 sessions). For the agreed price for 25 to 28 sessions, the Vax-D Agreement provided the following treatment package: at each session, the patient would receive 30 minutes of Vax-D therapy, 30 minutes of full range interferential electrical muscle stimulation (EMS), 15 minutes of hydro-massage therapy, and manipulation (adjustments) by the doctor if needed. The first set of x-rays was also included. Dr. Aderholdt requires an up-front payment for the Vax-D therapy package. For patients who want Vax-D therapy but need help coming up with the funds, Respondent’s office staff has put the patients in touch with Care Credit, which is a medical credit program. If a patient applies and is accepted, Care Credit will finance the cost without charging interest to the patient if the loan is repaid within one year. Care Credit apparently charges a fee to Respondent when credit is extended, similar to the fees charged to merchants by credit card companies for credit card purchases. No evidence was presented regarding Care Credit’s approval criteria or how widely this method is used. All that is known about Care Credit from the record evidence is that two patients who received Vax-D therapy applied for Care Credit and were approved. The other Vax-D patient charged half of the agreed price on a Visa credit card the first day of treatment, and charged the other half after 15 treatment sessions. Patient A.M. From the end of July 2013 to early February 2014, Dr. Aderholdt treated Patient A.M., then a 66-year-old female, for lower back pain and hip pain. Patient A.M. had tried other treatments and had seen chiropractors before, but reported that her pain kept getting worse. As shown by A.M.’s medical records, A.M. was first seen by Respondent on July 29, 2013. That day, A.M.’s intake form, patient history, and x-rays were taken and evaluated, and A.M. was examined by Respondent. Respondent then formulated A.M.’s initial treatment plan. Respondent recommended Vax-D therapy, along with chiropractic adjustments, EMS, and hydrotherapy. The initial treatment plan specified a two- session per day protocol for the first two to three weeks. On July 30, 2013, A.M.’s husband, J.M., signed the Vax-D Agreement (in the space for Patient Signature). J.M. did not remember signing the Vax-D Agreement, but both he and A.M. identified his signature on the Vax-D Agreement. A.M. was named in the agreement as the patient who committed to 25 to 28 Vax-D therapy sessions and agreed to pay $5,500.00 for those sessions. Respondent did not require full payment of the agreed price prior to treatment. Instead, he accepted payment of one- half ($2,750.00) of the Vax-D therapy package price, which was charged on A.M.’s or J.M.’s Visa credit card on July 30, 2013. In accordance with the initial treatment plan, Patient A.M. received two treatment sessions per day beginning July 30, 2013, in the morning and afternoon, for nearly three weeks. After 15 treatment sessions--more than half of the 25 to 28 sessions covered for $5,500.00--the balance of $2,750.00 was charged on A.M.’s or J.M’s Visa credit card. Between July 30, 2013, and February 3, 2014, Patient A.M. had more than 60 Vax-D therapy sessions--approximately 64 total sessions. A.M. initially testified with a fair degree of confidence that she thought she had about 30 treatment sessions, until she reviewed her prior statement made to Petitioner. A.M. testified that at every session, she received Vax-D decompression therapy, hydrotherapy, adjustments “up and down” her spine, and ice packs. She left every session feeling better, with relief from her pain. The relief was temporary, however; she said the pain would come back after a few hours. After 29 sessions, having received all of the treatment sessions covered by the Vax-D Agreement, A.M. started paying additional amounts for more Vax-D therapy and the other ancillary services that she continued to receive. For approximately 35 additional treatment sessions beyond those covered by the Vax-D Agreement, A.M. made seven additional payments in the total amount of $2,226.00. In all, A.M. paid $7,726.00 for approximately 64 Vax-D therapy sessions. Rounding down to an even 60 sessions, she paid an average of $128.77 per session. A.M. was covered by Medicare at the time of her treatment. She did not have any private “Medicare supplement” health insurance. At some point, the subject of Medicare coverage came up. The details of what was said, when, and to whom were not clearly established. The only fact clearly established was that Dr. Aderholdt did not bring up the subject. Patient A.M. testified that Dr. Aderholdt did not talk to her about payment when she first visited, but that she and J.M. asked him, “Does Medicare cover this,” and he said, “Yes.” J.M. said that Dr. Aderholdt did talk to them about payment, saying “we need to do so many treatments and we should pay so much money.” J.M. said that they asked, “Will Medicare take care of it?” Dr. Aderholdt answered, “Yes, we will bill Medicare.” J.M could not say whether he asked about billing Medicare before or after he signed the Vax-D Agreement, since J.M. did not remember signing the Vax-D Agreement. When Dr. Aderholdt was asked if he told A.M. her treatments would be covered by Medicare, he answered, “No, I don’t believe I did, no.” As an interesting contrast, Patient R.O. testified that Dr. Aderholdt told him Medicare would not cover treatment under the same Vax-D Agreement; Dr. Aderholdt does not believe he made that statement, either. In the middle of the spectrum, Patient P.D. testified that Respondent never said anything to her about insurance coverage or financial arrangements. He would only talk about treatment, turning P.D. over to the office manager or billing person to address the financial issues. This version is consistent with Respondent’s testimony that he does not address “the money thing” with patients. Instead, he said he assesses x-rays, takes patient histories, performs the evaluation and examination, and ultimately formulates the recommended treatment plans, whether Vax-D or something else. Then he turns the treatment plans over to his staff to address the financial issues with the patients. A.M. and J.M. did not demonstrate a clear and certain recollection of what they asked Dr. Aderholdt or exactly what he answered. Indeed, both J.M. and A.M. could not remember most every other detail about A.M.’s treatments, often confidently stating details that were shown to be wrong by more than a little, including how many treatment sessions, and how much was paid. For example, Patient A.M. initially reported that she had paid $13,179.00 to Dr. Aderholdt, when the total was $7,726.00. The undersigned cannot find--without hesitancy--that Dr. Aderholdt made any representation to J.M. and A.M. regarding Medicare coverage before J.M. signed the Vax-D Agreement by which A.M. committed to the Vax-D therapy package. Dr. Shreeve made the point well that it is difficult to resolve this kind of he said-she said conflict, although he made the point while confusing Patient A.M. (who claimed Respondent said there would be Medicare coverage) with Patient R.O. (who claimed Respondent said there would not be Medicare coverage), in the following exchange: Q: With Patient RO, what’s your understanding of what Dr. Aderholdt told him regarding Medicare reimbursements? A: Counselor, I’m going to tell you that the investigative record shows that the patient stated that Aderholdt told him that they would be paid, is what my recollection is. And, yet, that’s not something that weighs heavily on my mind because I wasn’t there. This becomes a “he said, she said.” He said he didn’t; he said he did. I can’t get into that fight. That’s not an issue for me. (Jt. Ex. 12 at 35). (emphasis added). Respondent (or his staff) may have told A.M. and J.M., when they asked about Medicare, that the office would complete and submit the Medicare claim forms. Respondent (or his staff) may have told A.M. and J.M., when they asked, that Medicare proceeds paid on the Vax-D therapy package would be refunded. But it would be unreasonable, on this record, to find that Respondent misrepresented that Medicare would provide full coverage, or that Respondent schemed to induce A.M. and J.M. to sign up for Vax-D by guaranteeing that Medicare would pay back everything, when Respondent did not even bring up the subject.8/ The Administrative Complaint alleges that on one or more occasions, Respondent did not submit Medicare claims for Patient A.M.’s treatment. Petitioner has apparently abandoned this allegation; its PRO has no proposed finding identifying any dates of service for which claims were not submitted. The Medicare claim forms for Patient A.M. were compiled by Petitioner’s counsel for use in taking Respondent’s deposition, and are attached as deposition exhibit 2. The evidence is difficult to cull through, as there are 84 separate pages of claims and they are not in chronological order; they start out in chronological order, but then jump forward two months, then continue jumping around on dates, back and forth and back again. As best can be determined, all service dates shown in Patient A.M.’s medical records appear to be accounted for by corresponding claim forms. It appears that one claim form may have a clerical mistake, identifying the date of service as August 3, 2013, when there was no treatment session that day; the actual service date may instead be September 4, 2013, which is the date the claim form was submitted. The Medicare claim forms in evidence demonstrate that claim forms for A.M.’s treatments were regularly submitted, either on or very shortly after the dates of service. The evidence is insufficient to prove that Respondent did not submit Medicare claims for Patient A.M.’s treatment.9/ The Administrative Complaint contains no allegations regarding the disposition of the Medicare claims, although it does allege that Patient A.M. received no reimbursement from Respondent for Medicare payments. Petitioner’s expert seemed to be under the impression that Respondent received Medicare payments, because he criticized Respondent for not providing reimbursement to Patient A.M. Respondent testified that he has received no payments from Medicare for A.M.’s treatments, and Petitioner acknowledges in its PRO that Medicare has not made payments to Respondent. Acknowledging that the Administrative Complaint allegation has not been established, Petitioner instead proposed a finding (not alleged in the Administrative Complaint) that all of A.M.’s Medicare claims submitted by Respondent were rejected and payment was denied. No evidence was offered to prove the actual disposition of the 84 pages of Medicare claims submitted for A.M.’s treatments. Instead, the only record evidence of Medicare adjudications on any claims for A.M. is a group of explanation of benefits forms (EOBs) attached to a March 6, 2014, letter from Patient A.M. to Petitioner’s investigator, which is a deposition exhibit. Patient A.M. identified the small handful of EOBs attached to the March 6, 2014, letter as EOBs she had at that time, reporting on the disposition of Medicare claims submitted by other providers during the same time period as her treatments with Respondent. The EOBs reported, as to each claim, whether the claim was covered in whole or in part; and, if covered, what amount was paid, or, if not, why not. There were no EOBs for claims submitted by Respondent’s office. Patient A.M. was not asked for, and did not offer, any additional EOBs at her deposition. If, in fact, all of the Medicare claims submitted by Respondent were rejected and payment denied, then there would be a stack of EOBs explaining why each claim was denied. On this record, the evidence is insufficient to make any finding as to the outcome of the Medicare claims submitted for Patient A.M.’s treatment. There is no evidence proving whether the claims were denied, approved, or simply never acted on by Medicare. A separate allegation in the Administrative Complaint is that Patient A.M. requested copies of the Medicare claim forms submitted by Respondent’s office for her treatment. Patient A.M. said that she made verbal requests to Respondent’s office staff for the Medicare claims on more than one occasion, and the parties stipulated that Patient A.M. made these requests. Respondent’s office should have responded by giving Patient A.M. copies of the Medicare claims. Dr. Aderholdt said that he was not aware that Patient A.M. had requested copies of her Medicare claim. But it is his responsibility to ensure that his staff promptly responds to requests by patients for insurance claim forms. In the course of Petitioner’s investigation, the Medicare claim forms for Patient A.M. were provided to Petitioner (according to the investigator’s report, on May 16, 2014). It is unknown whether a set of the claim forms was provided to A.M. at that time. She is entitled to a copy of the claim forms if she has not already been given a set. Respondent should have verified that Patient A.M. has received the claim forms she requested, or, if not, provided them to her. Finally, the Administrative Complaint alleges that on the Medicare claim forms for A.M.’s treatments on August 6, 2013, and December 11, 2013, Respondent utilized Current Procedural Terminology (CPT) code 98941, which is the code for adjustments to three or four regions of the spine. However, Respondent’s Subjective, Objective, Assessment and Plan notes (referred to as SOAP notes) for those dates identify spinal adjustments to L3, L4, and L5, which are in a single region--the lumbar region. Beyond the SOAP notes, however, Dr. Aderholdt’s notes for Patient A.M.’s morning session on August 6, 2013 (there were two sessions that day), show multiple adjustments, not only to the lumbar region, but also, to the sacrum and ilium. Dr. Aderholdt’s notes for December 11, 2013, show multiple adjustments to the thoracic, lumbar, and sacrum regions. At hearing, Dr. Shreeve identified the five spinal regions as follows: “a region would be considered cervical, thoracic, lumbar, sacrum, ilium.” (Tr. 106, lines 21-22). Based on his testimony, and considering all of Patient A.M.’s medical records, there were multiple adjustments to three spinal regions on both days identified in the Administrative Complaint.10/ The Administrative Complaint has no other factual allegations regarding CPT code issues in connection with Patient A.M.’s treatment. The complaint pointedly identified one specific CPT code that was used on two specific dates, but was allegedly not supported by SOAP notes for either date. At hearing, Dr. Shreeve attempted to expand the factual allegations regarding CPT coding issues by questioning other CPT codes shown on A.M.’s patient ledger. Dr. Shreeve’s criticism was improper, not only because he strayed beyond the allegations in the Administrative Complaint, but also, because the criticism was based on his misunderstanding of what Dr. Aderholdt’s patient ledgers portray. In particular, Dr. Shreeve was critical of CPT code 99212 entries (for focused patient examinations) on A.M.’s patient ledger, without use of modifier code -25. He said that these repeated entries of CPT code 99212 were inappropriate without use of modifier code –25, to indicate they should not be considered for payment, because they are redundant with other CPT treatment codes that include examination. Dr. Shreeve should have reviewed the actual Medicare claim forms to look for the modifier codes, because the CPT code 99212 entries do, in fact, add a modifier of -25. The modifier code conveys information to the third-party payor, as Dr. Shreeve acknowledged, regarding whether or how payment should be made. The modifier codes need to be used, when appropriate, on the Medicare claim forms, and they were used just as Dr. Shreeve said was appropriate. The modifier codes do not appear on Dr. Aderholdt’s patient ledgers because they are not claim forms sent to third- party payors, nor are they bills sent to patients. Instead, a patient ledger, as used in Respondent’s practice, is an internal practice management tool to account for and track everything associated with treating patients: how many examinations, how many adjustments, how many Vax-D treatments, how many ice packs, and so on. Dr. LaRusso explained that this is a perfectly reasonable use of patient ledgers, and is a common practice among physicians. The usage statistics are analyzed for practice management, for such purposes as making changes in the services or treatments and stocking supplies. Dr. Shreeve admitted that he assumed Respondent’s patient ledgers reflected the exact CPT coding used on insurance claims and bills sent to patients. The evidence refuted that assumption. Modifier codes were used on the Medicare claims. And Dr. Shreeve admitted he saw no evidence that Respondent’s patient ledger for A.M. was ever sent to her as a bill, or that any patient ledgers were ever sent to any patients as bills. Dr. Shreeve also admitted that there is no standard for patient ledgers, much less a regulation mandating the contents and use of patient ledgers. As he put it, he could go to 1,000 chiropractic offices and find 1,000 different variations in what is called a patient ledger. Dr. Shreeve would like to see a standard adopted for “patient ledgers,” but his aspiration simply underscores that there is no standard now; Respondent’s practices cannot be judged against or held to conform to a non-standard, non-regulation.11/ In somewhat stream-of-consciousness fashion, untethered from the Administrative Complaint, Dr. Shreeve interjected a number of other comments about Dr. Aderholdt’s practices related to Patient A.M., such as the adequacy and legibility of his medical records and the quality of x-rays. He raised questions about Dr. Aderholdt’s compliance with trust accounting requirements in connection with payments for A.M.’s Vax-D therapy, and Dr. Aderholdt’s compliance with obligations in connection with Petitioner’s investigation. None of these factual matters were alleged in the Administrative Complaint, and none of the corresponding statutory or rule provisions implicated by Dr. Shreeve’s open-ended commentary were charged in the Administrative Complaint. No findings can be made on matters not alleged, and violations not charged, in the Administrative Complaint. Moreover, there is no competent evidence fleshing out any of these matters, because they were not alleged, charged, or identified in the Joint Pre-hearing Stipulation as issues of fact or law to be litigated. Patient B.O. Between April and June 2013, Respondent treated B.O., then a 78-year-old female, for back and neck pain. B.O. is married to R.O. They both went to Respondent’s office on the same day for their initial consultation. B.O. completed intake forms, had x-rays and patient history taken, and was examined by Respondent, similar to R.O. Whereas R.O. was determined to be a candidate for Vax-D therapy, B.O. was not. Unlike for the Vax-D therapy plan, there was no protocol calling for a certain range of sessions needed and no set payment correlated to a planned number of sessions for B.O.’s recommended treatment plan that called for adjustments, hydrotherapy, and ice packs. At the time of her treatment, B.O. had Medicare coverage and a “Medicare supplement” insurance policy through Horizon Blue Cross and Blue Shield of New Jersey (Horizon). As was his practice, Respondent had B.O. address the financial aspects of the treatment he recommended with his office staff. Upon review of B.O.’s insurance coverage, B.O. was informed by Respondent’s staff that Horizon would probably cover the cost of her treatment that exceeded her copay. The staff determined that, although it was possible Horizon would apply its lower in-network copay of $15.00 per visit, there was no guarantee that Horizon would not consider Respondent out-of- network, with a copay of $25.00 per visit. Therefore, B.O. was charged $25.00 per visit. She paid that amount per visit, although sometimes she did not pay at all on one or more visits, and would catch up at a subsequent visit. B.O. received treatments on 23 occasions. B.O. experienced some relief from her pain as a result of those treatments.12/ For those 23 visits, B.O. paid a total of $575.00 in copays. After B.O. had stopped going to Dr. Aderholdt for treatment, Horizon determined that its lower in-network copay of $15.00 per visit applied. The total copay amount should have been $345.00 for 23 visits. The difference is $230.00. The Administrative Complaint alleges that Respondent “overcharged” B.O., misrepresenting that her copay was the out- of-network charge, to exploit her for financial gain. This allegation was not proven. Respondent made no representation. The representations of his staff, as described by B.O., were not shown to be the product of anything other than a good faith attempt to determine the undeterminable details of insurance coverage. There is no evidence to support the allegation that B.O. was intentionally charged more than she should have been charged, based on the information available at the time. On this point, the expert testimony was in lockstep: figuring out insurance coverage details is a “nightmare.” It is virtually impossible, according to both experts, to obtain sufficient information to make a correct determination for a new patient on such issues as in-network versus out-of-network, because, as they agreed, the insurance coverage details keep changing. “Now, you can be in network today and they can decide you’re out of network tomorrow. And then you can be out of network and then they decide you’re in network, and they don’t tell you.” That’s--that makes no sense.” (Dr. Shreeve, Tr. 131). In fact, when asked how he determines if a patient is out-of-network, Dr. Shreeve responded: “Counselor, I don’t. I leave that to the patient. I run a cash practice. I give them a bill. We’ll help them fill out a health insurance claim form, if they need it. But they pay us when they receive the service.” (Tr. 130). The Administrative Complaint also alleges that Respondent billed Horizon for medical visits by Patient B.O. that did not occur. There is no credible evidence of this allegation; the evidence is to the contrary. Petitioner contends in its PRO that Respondent billed B.O. for treatments received on June 3, 7, 11, and 14, 2013, when B.O.’s appointments were cancelled on those days. The record citations offered by Petitioner fail to support this proposed finding. Instead, B.O.’s bank records directly refute the proposed finding, and corroborate Dr. Aderholdt’s treatment notes and the SOAP notes that detail B.O.’s treatment on those four days.13/ In addition to B.O.’s bank records, B.O.’s patient records include the “merchant copy” receipt for a debit card payment on June 14, 2013. The receipt shows that a $50.00 payment was made at Dr. Aderholdt’s office on June 14, 2013, and it bears the clear signature of B.O. B.O.’s accusation that she did not go to Respondent’s office for treatment on these four days is belied by the documentation that she personally went there and paid the copay charges for her treatments on those four days ($50.00 check on June 7 for two copays; $50.00 debit card payment on June 14 for two copays). Petitioner’s own expert, Dr. Shreeve, conceded that this evidence refutes B.O.’s accusation that her insurer was billed for treatment on four days when she did not go to Respondent’s office for treatment. A separate problem proving this allegation (besides B.O.’s false accusation) is that there is no evidence to prove what was billed to Horizon for B.O.’s treatments. There is no evidence in the record of claims submitted by Respondent’s office to bill Horizon for B.O.’s treatment. In pre-hearing discovery proceedings, shortly before hearing, Petitioner sought to compel production of Medicare claim forms or Horizon claim forms submitted by Respondent’s office. However, Petitioner declined an Order compelling production that was offered along with additional time to pursue this evidence. Instead, Petitioner chose to go forward with the hearing on the basis that there were no such records (as Respondent represented). Another allegation in the Administrative Complaint is that B.O. was not given a copy of her medical records upon request. B.O. testified that she made several verbal requests to two staff persons at Respondent’s office, Lisa14/ and Amanda, for her medical records. She said she was given a copy of her patient ledger, but nothing more. B.O. and R.O. then mailed a letter addressed to Respondent that they jointly wrote on December 31, 2013, requesting their medical records and updated patient ledgers. Respondent said that he was never informed of any verbal requests for records, nor did he believe he ever saw the letter that was mailed to him. Indeed, B.O. handwrote on her file copy of the letter, provided to Petitioner’s investigator: “Letter to Dr. who probably didn’t see – no response to date.” The evidence is clear and convincing that Respondent has failed in his obligation to promptly respond to B.O.’s requests for medical records. However, there is no evidence that Respondent was aware of the requests before the investigation and intentionally refused to comply, or that he ever instructed his office staff to ignore such requests. But even though the evidence only establishes that Dr. Aderholdt’s staff failed to promptly respond to requests for medical records, the obligation to ensure these patient requests are promptly addressed remains Dr. Aderholt’s responsibility. It is clear that his office procedures require serious overhauling, as both Dr. Aderholdt and his expert acknowledged. It is unknown if B.O.’s medical records were provided to her when they were produced by Respondent’s counsel during the investigation.15/ In her deposition, when B.O. was asked if she had gotten the records from Respondent’s office yet, she said “not from them.” Among other remedial steps in the aftermath of this proceeding, if B.O. and R.O. do not already have copies of their medical records and updated patient ledgers as they requested long ago, Respondent must provide them. It is concerning that he did not come to this hearing with proof that he had provided B.O. and R.O. with the records they had requested or confirmed that they already had a copy. Lastly, the Administrative Complaint alleges that Respondent received payment from Horizon for B.O.’s treatment, but has not provided a refund. There is insufficient evidence to determine whether B.O. is entitled to a refund. The only information regarding the extent to which Horizon covered B.O.’s treatment is the information in the EOBs issued by Horizon after B.O.’s treatment ended, identifying amounts that would be covered and reporting payments to Respondent. For B.O.’s treatments, Horizon paid $1,770.00 to Respondent. What is unknown is whether B.O. owed more for her treatments than what Horizon paid. Dr. LaRusso reasonably opined that the receipt of an insurance payment would not generate an obligation for a patient refund if the payment is applied to a balance due by the patient. No evidence, methodology, or calculation was offered to prove that after Horizon’s payment was applied, a refund was owed to B.O. As noted previously, Respondent’s “patient ledger” is an internal practice management tool that does not function as an accounting of what a patient or insurance company owes. However, the patient ledger for B.O. reflects a total amount of $5,575.00 in services provided to B.O. Application of the Horizon payments of $1,770.00 and B.O.’s payments of $575.00 would reduce the patient ledger amount by less than half. Again, this is not to say that Patient B.O. owes the remaining patient ledger amount, but it is at least a point of reference suggesting the possibility that the Horizon payment did not cover all of B.O.’s treatment costs. Viewed another way, all B.O. paid for 23 treatment sessions was $25.00 per visit. B.O. was informed at the outset that she would not be charged for the full treatments she would be getting, because Horizon would “probably” cover her treatment except for the copay. Although she paid $230.00 more than the amount Horizon ultimately applied as copays, if B.O. owed $230.00 or more for treatment provided that was not covered by Horizon’s payment, then no refund would be due. Patient R.O. As noted previously, Patient R.O. is Patient B.O.’s husband. Like B.O., R.O. was treated by Respondent from April through June 2013. R.O., then a 64-year-old male, sought treatment for severe back pain. R.O. completed the intake form, had x-rays and patient history taken, provided detailed records of recent treatments and surgeries (including back surgery), and was evaluated and examined by Dr. Aderholdt. Dr. Aderholdt determined that R.O. was a candidate for Vax-D therapy. Respondent’s then-office manager, Lisa, took over to address the financial aspects of the recommended treatment. R.O. informed Respondent’s staff that he could not afford to pay $5,500.00 up front. R.O. was given contact information for Care Credit. He called Care Credit, then submitted an application. R.O.’s application was approved, and Care Credit agreed to finance the cost of Vax-D therapy without charging interest if the amount was paid off within one year. R.O. accepted the loan, and the result was that Care Credit paid Respondent $5,500.00 minus a fee absorbed by Respondent, similar to fees by credit card companies charged to merchants for sales using their credit cards. R.O. testified that he has paid off the Care Credit loan. R.O. signed the Vax-D Agreement, by which he committed to 25 to 28 Vax-D therapy sessions at $250.00 per session, for a total payment amount of $5,500.00. His Vax-D Agreement included the treatment package detailed in paragraph 13 above. R.O. testified that during the time of his treatment by Respondent, he had health insurance coverage with Medicare and Horizon (the private Medicare supplement insurance coverage that B.O. also had). He also had Tricare for Life, but said that that coverage would not have been applicable. R.O. recalled that Respondent told him that none of his insurance plans would cover the Vax-D therapy. As previously noted, Respondent does not believe he discussed insurance coverage with R.O., as that is not his standard practice. Regardless, R.O. had no expectation of insurance coverage. R.O. found the Vax-D therapy helpful in relieving his pain. He felt better after every treatment and wanted to continue. Rather than stopping after the 25 to 28 sessions included in the Vax-D Agreement, R.O. had a total of 40 treatment sessions. However, at some point, Respondent’s office manager informed R.O. that he needed to pay for additional sessions. R.O. said he could not afford to pay more, and discontinued treatment. After R.O. discontinued his treatments, he received an EOB from Horizon, stating that Horizon had paid a total of $5,465.84 in claims for both R.O. and B.O. According to the EOB summary, as noted above, $1,770.00 was paid to Respondent for treatments to B.O. The rest--$3,335.84--was paid to two providers for services to R.O. (A minor discrepancy is noted, in that Petitioner’s PRO stated that $3,335.00 was paid to Respondent for treatments to R.O.; however, the EOB reports that $10.84 was paid to a different provider (“Ga Emergency Phys”) for services provided to R.O. Thus, the actual total payment to Respondent for R.O.’s treatment was $3,325.00). The total amount paid to Dr. Aderholdt for R.O.’s 40 Vax-D therapy sessions, including Horizon’s payments, was $8,825.00, an average of $220.63 per session. R.O. believes the insurance payment should be paid to him as reimbursement for part of the $5,500.00 he paid. But that payment was for 25 to 28 sessions. The insurance payment was reasonably applied to the additional amounts due for R.O.’s sessions that were not covered by the $5,500.00 payment. No reason was offered as to why Dr. Aderholdt should not have applied the insurance payment to charges owed for the 12 sessions that were not covered by the Vax-D Agreement. Chiropractic physicians are not required to provide free care. Dr. Shreeve admitted that he does not provide chiropractic care to patients for free. As found above with respect to Patient B.O., R.O. joined B.O. in submitting a written request to Respondent for their medical records and updated patient ledgers by letter dated December 31, 2013, although Respondent said that he did not see the letter that was mailed to him. The findings above with respect to B.O., as one party to the joint written request, apply with equal force to R.O. as the other party to the joint written request. The Administrative Complaint also included an allegation that Respondent failed to practice chiropractic medicine at an acceptable level of skill, care, and treatment, charged as a violation under section 460.413(1)(r). This was the only charge in any of the Administrative Complaints that was based on the care provided by Dr. Aderholdt. The allegation was that adjustments indicated as having been performed on R.O. were physically impossible. However, at hearing, Petitioner’s expert retreated from the allegation, agreeing that the procedure in question was plausible. As a result of his concession, Petitioner’s PRO abandoned the charge, stating, “Petitioner is no longer pursuing discipline for the alleged violation of section 460.413(1)(r).” Pet. PRO at 4. Patient P.D. In March and April 2013, Respondent treated Patient P.D., then a 62-year-old female, for back pain. After completing intake forms and patient history, Patient P.D. was x-rayed, then examined and evaluated by Dr. Aderholdt, who determined that P.D. was a candidate for Vax-D therapy. Dr. Aderholdt turned P.D. over to his then-office manager, Lisa, to address the financial aspects of his recommended treatment plan. P.D. confirmed that Dr. Aderholdt never discussed financial issues or insurance with her. P.D. signed the Vax-D Agreement on March 8, 2013, the same day that she completed a Care Credit application that was approved for $5,500.00. P.D. paid off the Care Credit loan in 11 months, at $500.00 per month, so the loan was interest-free. At the time of the treatments, P.D. was not yet eligible for Medicare. She had insurance coverage through Blue Cross Blue Shield of Michigan (Blue Cross). P.D. said that Lisa, the office manager, told her that she would file claims with Blue Cross. Thereafter, P.D. had 33 Vax-D therapy sessions. P.D. was pleased with the Vax-D therapy. She found it effective in relieving her pain. P.D. learned at some point from Blue Cross that several months after her treatment ended, Blue Cross paid Respondent for a portion of P.D.’s treatment. No evidence was offered to prove the details of the Blue Cross coverage, such as EOBs explaining what was covered and what was not. P.D. said that she contacted Respondent’s office and spoke with staff multiple times before Respondent provided her reimbursement in the full amount of the Blue Cross payment. Respondent refunded $946.45 on April 8, 2015, and $1,046.45 on April 10, 2015, for a total of $1,992.90. P.D. acknowledged that she has been fully reimbursed and is owed nothing further. The Administrative Complaint includes an allegation that Respondent improperly utilized CPT “billing codes” 99204 and 99212 for P.D.’s first session on March 6, 2013. Dr. Aderholdt admitted that for March 6, 2013, P.D.’s patient ledger incorrectly lists both CPT code 99204 (for a comprehensive examination for a new patient), and CPT code 99212 (for a focused examination for an established patient). The first CPT code should have been the only one entered on this day. The second code was entered by mistake. Although Dr. Aderholdt admitted the error made in the patient ledger, there is no evidence that the erroneous CPT code was “utilized” for billing purposes. No evidence was presented that both CPT codes were submitted by Respondent in a claim for payment to Blue Cross (and Petitioner did not charge Respondent with having submitted a claim to P.D.’s insurer for a service or treatment not provided). No evidence was presented of the actual claims submitted to Blue Cross. No evidence was presented to show that P.D. was ever sent a bill utilizing the referenced CPT codes. The error recording an extra CPT code on P.D.’s patient ledger might throw off Respondent’s internal practice management statistics, but there is no evidence that the admitted CPT coding mistake on the patient ledger was repeated in any claim or bill submitted to anyone. Expert Opinions Considering All Four Cases Both Dr. Shreeve and Dr. LaRusso offered their overall opinions, taking the four cases as a whole. Dr. Shreeve’s Oinions Dr. Shreeve testified that, while he might be more understanding of issues he saw in each individual case, “I’ve got four cases that I reviewed together. I received them all at once. So my view on each individual case might be seen as a little more tolerant of something I saw. But when it becomes repeated, it becomes less understanding [sic].” (Tr. 109). In forming his opinions, Dr. Shreeve relied on allegations that have not been proven, his own extension of the Administrative Complaint allegations to add other concerns about use of CPT codes (which were also shown not to be valid concerns), and his observations about a litany of matters nowhere mentioned or charged in the Administrative Complaints. Dr. Shreeve made clear that he elevated his opinion from concerns about sloppy office practices to fraud, misrepresentation, and patient exploitation, because of matters that were either unproven, not alleged or charged, or both. For example, he injected the concern, shown to be based solely on patient ledgers, that CPT code 99212 appeared many times without the -25 modifier when used in conjunction with an adjustment CPT code. Starting with A.M.’s case, he complained of the repeated use of CPT code 99212 without a -25 modifier, when CPT code 98941 (adjustments) was used for the same office visit. He said, “If we were going to bill 99212, an E/M code with that, we would use a modifier of -25.” (Tr. 110). As previously found, however, Dr. Aderholdt did use the -25 modifier with every entry of CPT code 99212 in the Medicare claim forms. In explaining how his opinion was affected by his misimpression from the patient ledgers that CPT code 99212 was not used with the -25 modifier, he said: This is repeated over and over during the record. If it were one off, it occurred in one place in the ledger or on a form, you know, everybody is human. They can make a mistake. If it is the trend, that becomes not a mistake. That becomes, I’m doing the wrong thing. And if I’m doing it over and over again, and I’m then billing for one service two times, two different ways, and I’m – I hope to get paid for it. Then that’s where I start to see the trend of exploiting the patient for financial gain. (Tr. 111). Dr. Shreeve further elevated the significance of not seeing modifiers with the evaluation codes in the patient ledgers, when he spoke about R.O.’s case: If [Dr. Aderholdt] did both codes [for evaluation and adjustments] every visit, if he did, which is not normal, we would have to have a modifier, the -25, to tell us it’s a reduced service because it’s duplicative. A modifier was never present in any record I saw on this patient or any other patient of the records of Dr. Aderholdt. So misusing the codes. This is not standard of care that we expect, and this appears to me exercising influence on the patient to exploit them for financial gain. That’s what it looks like to me. By the time we’re through with the third case that’s what I see. (Tr. 148). Not only was this CPT coding issue not alleged in any of the four Administrative Complaints, but it is a false accusation. If Dr. Shreeve did not see a single use of CPT code 99212 with the -25 modifier in any record he saw, then he did not look at the records very carefully. As found above, the only evidence of actual claims submitted to any third-party payor--the Medicare claim forms for Patient A.M.--shows that CPT code 99212 was never used without the -25 modifier. But Dr. Shreeve only looked at the patient ledgers for modifiers. As also found above, the only two CPT coding issues that were alleged (improper use on two specified dates of CPT code 98941 for adjusting three or four spinal regions for Patient A.M.; and improper use on Patient P.D.’s first day of service of two patient examination CPT codes for billing purposes) were not proven. Dr. Shreeve also relied on the allegation that Patient B.O.’s insurance carrier was billed for treatment that was not provided. He pointed to “notes” written (by B.O.) on the patient ledger stating that the patient cancelled, but CPT codes were entered for treatments that day. He concluded: That’s blatant. I don’t have a way to explain that away. To me that absolutely says, I billed for something that I didn’t do. That’s fraud. Because that’s with intent. That’s not an accident. (Tr. 137). When Dr. Shreeve was shown the $50.00 debit card receipt signed by Patient B.O. on June 14, 2014, he quickly retreated: “That would indicate that they were there, even though they said they were not. So my apologies for that. It’s good to clear that up.” (Tr. 183). Later, he added that the June 14, 2013, payment of $50.00 was for that visit and the prior visit on June 11, 2013. He explained that this was consistent with Respondent’s daily notes, which identified treatments for each visit and also logged the copay charges by visit and B.O.’s periodic payments. Dr. Shreeve did not explain how he would alter his overall opinion after conceding that what he characterized as blatant fraud by Dr. Aderholdt was actually a false accusation by the patient. In formulating his overall opinion that what otherwise might be viewed as mistakes or sloppy office practice were elevated in his mind to fraud and exploitation, Dr. Shreeve also relied heavily on matters that were neither alleged nor charged in the Administrative Complaints, and, as a result, were not fleshed out with competent evidence in the record. Dr. Shreeve repeatedly alluded to issues regarding trust accounting requirements in statute and rule. The four Administrative Complaints that were issued as directed by the PCP on June 19, 2018 (as noted on the Administrative Complaints), contain no allegations related to trust accounting practices. The PCP-authorized Administrative Complaints do not charge Dr. Aderholdt under the trust accounting statute, section 460.413(1)(y), or the trust accounting rule, Board rule 64B2- 14.001. To the extent Dr. Shreeve’s perception of trust accounting issues contributed to his opinion that these four cases rise to the level of fraud and patient exploitation, that was error, and his opinion must be discounted accordingly. Likewise, Dr. Shreeve gratuitously offered critiques of Dr. Aderholdt’s medical records, including complaints about the handwriting, complaints about x-ray quality, questions about the adequacy of justifications for the course of treatment, and suggestions regarding how he would rewrite SOAP notes. Again, the Administrative Complaints are devoid of allegations directed to the quality or adequacy of Respondent’s medical records, and they are devoid of charges under the medical records provision in section 460.413(1)(m) and the corresponding medical records rule, Board rule 64B2-17.0065. To the extent these critiques contributed to Dr. Shreeve’s opinion that these four cases rise to the level of fraud and patient exploitation, that, too, was error, and his opinion must be discounted accordingly. Dr. Shreeve also relied on what he characterized as Respondent’s failure to respond, or failure to respond quickly enough, to investigative subpoenas. He made it clear that his opinion was greatly influenced by his perception that Respondent intentionally failed to meet his obligations in responding to the investigations: I think this is absolute fraud. The doctor is not wanting to do the right thing, has flagrant disregard for the law, and the statutes and the rules for the profession, for the Department of Health by not responding. (Tr. 153). Despite Dr. Shreeve’s view that he thinks it is “very clear” that Dr. Aderholdt did not respond timely during the investigation, the timeline and details of the investigation were not established by competent evidence; there is only hearsay evidence addressing bits and pieces of that history, with huge gaps and many questions about the reasons for those gaps (if the reasons why investigations were so protracted was relevant). But the details of the investigations are not laid out in the evidentiary record because the Administrative Complaints do not contain factual allegations related to Dr. Aderholdt’s actions or inactions during the investigation process, nor are there any charges predicated on what was or was not done during the investigation process. Either these matters were not presented to the PCP in June 2018 for inclusion in the Administrative Complaints, or they were presented and not included. Either way, Dr. Shreeve’s perception regarding whether Dr. Aderholdt met his legal obligations in responding to the investigations cannot be injected now. It was improper for Dr. Shreeve to consider, and give great weight to, circumstances that were neither alleged nor charged in the PCP-authorized Administrative Complaints. As found above, the proven allegations are that Respondent failed to provide Patient A.M. copies of the claims submitted to Medicare for her treatment (although she may have them now); and Respondent failed to provide copies of the medical records of Patients R.O. and B.O. upon their joint written request (although they may have them now). Only by considering allegations that were not proven and by injecting matters not alleged or charged was Dr. Shreeve able to characterize these four cases as involving the same problems again and again. In terms of the proven allegations, however, the only duplicative finding is with respect to the husband and wife team, in that Respondent did not meet his obligation to promptly respond to their joint request for medical records and updated patient ledgers. The matters considered by Dr. Shreeve beyond the allegations and charges in the Administrative Complaints were also improperly used by Dr. Shreeve to buttress his view that two disciplinary actions against Dr. Aderholdt based on facts arising in 2005 and 2006, raised “the same or similar” issues. Dr. Shreeve’s attempt to draw parallels between the prior actions and these four cases was unpersuasive. Dr. LaRusso disagreed with the characterization of the two prior actions as similar to the issues presented here. Dr. LaRusso’s opinion is credited. A comparison of the allegations, ultimately resolved by stipulated agreement in two 2008 Final Orders, confirms Dr. LaRusso’s view in this regard. The first disciplinary action was based on Respondent’s treatment of one patient in February 2005. An administrative complaint alleged that Respondent failed to complete intake forms, take the patient’s history, and conduct a sufficient examination to support the diagnosis. Respondent was charged with violating section 460.413(1)(m) by not having adequate medical records. The same facts gave rise to a second count of violating section 460.413(1)(ff) (violating any provision of chapters 456 or 460, or any rules adopted pursuant to those chapters), through a violation of rule 64B2-17.0065, which elaborates on the requirements for adequate medical records. There is no repetition of these statutory and rule violations charged in any of the four Administrative Complaints at issue here. The prior administrative complaint also alleged that Respondent billed the patient he saw in 2005 for neuromuscular reeducation and therapeutic exercises, when neither Respondent’s notes nor the SOAP notes reflected those services. In these cases, the only allegation regarding discrepancies between billing records and physician/SOAP notes is the allegation as to Patient A.M. that on two dates, Respondent used the CPT code for adjustments to three or four spinal regions, whereas the SOAP notes reflected adjustments to only one region. The prior disciplinary action supports the findings above that Respondent’s notes must also be considered, in addition to the SOAP notes, to determine what services A.M. received on those two days. A different kind of billing discrepancy allegation in Case No. 18-4485 is the claim that Respondent billed B.O.’s insurer for treatment on days on which services were allegedly never provided. This allegation was not proven, as found above. B.O.’s accusation that Respondent falsely charged for treatment on several days when no treatment was provided was itself proven to be a false charge. Perhaps Dr. Shreeve was thinking of this allegation, based on B.O.’s false charge, when he characterized the 2005 incident as involving the same or similar problems that he saw here. The allegation in the prior complaint was that the patient was actually billed for services not provided, and a refunded was ordered. At first, Dr. Shreeve believed the same was true in B.O.’s case. However, he later retreated and acknowledged that B.O. had not been truthful in her accusation. The only other allegation of a billing discrepancy in any of the four cases at issue was not a billing discrepancy at all, but rather, a CPT coding error on P.D.’s patient ledger that was not billed to anyone. As Dr. Shreeve noted, in the prior disciplinary action, Respondent agreed to be put on probation with a requirement that he practice with a monitor. Dr. Shreeve explained that the monitor would have worked with Respondent “to help this doctor not do the same behaviors that got them into trouble.” In his view, these four cases show that Dr. Aderholdt did not learn his lesson from the monitor “not to do the same problems again.” As he put it, “That really flips me rather quickly to think there’s a question of fraud.” (Tr. 152-153). To the contrary, whereas Respondent was faulted for not having intake records, patient histories, and appropriate examinations to support his diagnosis and recommended treatment plan in February 2005, no such issues were raised in these Administrative Complaints. Dr. Aderholdt did learn his lesson. The medical records for the four patients at issue include patient intake forms, patient histories, evaluations, and examinations that were not alleged to be inadequate. Nor was there any repetition of the problem with billing a patient for treatment or services that were not documented in the medical records taken as a whole, including Dr. Aderholt’s notes. The other disciplinary action resolved by settlement in a 2008 Final Order involved an advertising issue. The Department alleged that Respondent improperly advertised as a specialist in Vax-D disc therapy when the Board does not recognize any such specialty. The Department also found fault in the failure of the advertising to disclose the usual fee. The Department also critiqued an advertisement for identifying a different practice location than Respondent’s practice address of record. The charges were under section 460.413(1)(d), (cc), and (ff); rule 64B2-15.001(2)(e) and (i); and rule 64B2-10.0055. Quite plainly, this prior action bears no similarity to the four Administrative Complaints at issue here. No such allegations or charges were raised here. Dr. Shreeve did not contend that this prior action bears any similarity to the four cases here. Dr. Shreeve was never asked for his opinion as to the type or level of discipline he believes is warranted in these cases. However, his “flip” to “fraud,” due to the perceived repetitive nature of the issues in the four cases (whether charged or not)--which he characterized as the “same problems” in 2005 that resulted in discipline--was the basis for Petitioner proposing the most severe penalty available: license revocation, plus substantial fines and assessments of fees and costs. Dr. LaRusso’s Opinions Dr. LaRusso served as a Board member for multiple terms, and is a past-chair. After leaving the Board, he continued to serve on probable cause panels as recently as 2017. Having reviewed and been involved in thousands of disciplinary matters, he was of the strong opinion that nothing in the four Administrative Complaints warrant discipline at the level being sought here. Imposing a severe penalty in these four cases would be out of line with the Board’s prior practice in disciplinary matters. Dr. LaRusso’s studied review of all of the depositions and records in this case led him to opine that there is no evidence that Dr. Aderholdt deceived his patients, committed fraud, or engaged in double-billing or overbilling. Instead, Dr. LaRusso saw evidence of sloppy office practices, which he attributed to Dr. Aderholdt’s poor management skills. He has seen many doctors like Dr. Aderholdt over the years who just want to deal with taking care of patients. They do not want to have anything to do with administrative and clerical responsibilities. Instead, they leave everything besides patient care to their office manager and staff. In Dr. LaRusso’s view, Dr. Aderholdt’s office protocols and procedures require serious fine-tuning. He believes that Dr. Aderholdt would benefit from re-education in billing and collection practices, as well as laws and rules. He needs to ensure that procedures are in place, and followed, for prompt responses to patient requests for medical records or for claims sent to third-party payors. At the same time, however, Dr. LaRusso reasonably characterized the four cases as involving billing, clerical, communication, and correspondence issues. It bears emphasis that Dr. Aderholdt’s patient care is not in question. There are no issues of endangering the public, where a doctor is doing things that will hurt people, doing something dangerous or sexually inappropriate. Those are the cases where it is appropriate to go after someone’s livelihood, when the person does not belong in the profession. Dr. LaRusso observed that, rather than endangering the public, Dr. Aderholdt was helping his patients by relieving their pain, according to their own testimony. Dr. LaRusso agreed to become involved in this case because he found it so incongruous that the Department would be pursuing this action apparently to try to take Dr. Aderholdt’s license. Dr. LaRusso noted that the four investigations against Dr. Aderholdt were originally being spearheaded by a prior prosecutor for the Department (to whom Respondent’s counsel mailed CDs of patient records in 2014), and that the cases were assigned to Dr. Willis, who was a favored expert witness for the Department. Dr. LaRusso alluded to “inappropriate issues” with the prosecutor and expert that led to the Board having to pay a large award of attorneys’ fees and costs for pursuing discipline against Dr. Christian. According to Dr. LaRusso, those issues ultimately led to the prosecutor and expert being discharged from these cases. There is no evidence as to when or why Dr. Willis was replaced with Dr. Shreeve. Dr. Willis apparently was involved long enough to prepare an expert report. But then, according to Dr. LaRusso, the cases went dormant for a long period of time. The bits and pieces of hearsay evidence in the file comport with this understanding: there were four investigations that began upon complaints in 2014 by the four patients about billing and records issues; documents were collected from Respondent and from the patients; and Investigative Reports were issued, all before 2014 was over. It is unknown when Dr. Willis was involved, when he prepared his expert report, or when he was discharged from the cases. It is unknown when Dr. Shreeve was retained, but there was plainly some duplication of work, in that Dr. Shreeve prepared his own expert report. Neither expert report is in evidence. There is no evidence of any additional investigation or follow-up documentation from the patients or otherwise. There is no evidence of what was presented to the PCP--just that the panel met on June 19, 2018, and authorized the four Administrative Complaints issued on June 20, 2018. While this background is a bit of a curiosity, without impermissible speculation, the most that can be said about this history is that the protracted period of time from investigation to the PCP submission that resulted in issuance of the Administrative Complaints is apparently due, at least in large part, to the turnover in the prosecution-expert witness team assignments. Dr. LaRusso did not persuasively demonstrate grounds to cast nefarious aspersions on the Department for continuing forward with its investigation. One might reasonably question whether the Department dropped the ball, so to speak, in not updating its investigation, given the extended period of dormancy. For example, the Administrative Complaint in Case No. 18-4487 incorrectly alleged that P.D. was not reimbursed, when any cursory check with P.D. would have revealed the “news” that she had been repaid in April 2015, more than three years before the Administrative Complaint was authorized by the PCP. Dr. LaRusso may reasonably debate, as he did, whether the charges lodged against Respondent are inappropriate. And Dr. LaRusso may certainly question, as he did in convincing fashion, whether the discipline apparently being sought is unduly harsh, uncalled for, and way out of line with Board practice. But there is no basis in this record for attributing bad motives to the Department for prosecuting the Administrative Complaints. Dr. LaRusso’s opinions regarding the nature of the violations proven and the appropriate discipline in scale with those violations were more persuasive that Dr. Shreeve’s opinions. Dr. LaRusso’s opinions are credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Chiropractic Medicine: In Case No. 18-4484PL: Dismissing Counts I, II, and IV; and Finding that Respondent violated section 460.413(1)(aa), as charged in Count III; In Case No. 18-4485PL: Dismissing Counts I, III, and IV; and Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II; In Case No. 18-4486PL: Dismissing Counts II, III, and IV; and Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II; In Case No. 18-4487PL, dismissing Counts I and II; Placing Respondent on probation for a period of three years, with conditions deemed appropriate by the Board; Imposing a fine of $3,000.00; Requiring continuing education deemed appropriate by the Board; and Requiring payment of the costs of investigation and prosecution of the charges on which violations were found. DONE AND ENTERED this 15th day of February, 2018, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 15th day of February, 2018.
The Issue Whether Medicaid overpayments were made to Respondent and, if so, what is the total amount of those overpayments. Whether, as a "sanction," Respondent should be directed to submit to a "comprehensive follow-up review in six months."
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings s of fact are made to supplement and clarify the factual stipulations set forth in the parties' Joint Prehearing Stipulation and their January 26, 2007, pleading:4 Respondent and his Practice Respondent is a pediatric physician whose office is located in a poor neighborhood in Hialeah, Florida. He has a very busy practice, seeing approximately 50 to 60 patients each day the office is open. Respondent documents patient visits by making handwritten notations on printed "progress note" forms. Because of the fast-paced nature of his practice, he does not always "have time to write everything as [he] would like, because [there] is too much" for him to do. Respondent's Participation in the Medicaid Program During the Audit Period, Respondent was authorized to provide physician services to eligible Medicaid patients. Respondent provided such services pursuant to a valid Provider Agreement (Provider Agreement) with AHCA, which contained the following provisions, among others: The Provider agrees to participate in the Florida Medicaid program under the following terms and conditions: * * * Quality of Services. The provider agrees to provide medically necessary services or goods of not less than the scope and quality it provides to the general public. The provider agrees that services or goods billed to the Medicaid program must be medically necessary, of a quality comparable to those furnished by the provider's peers, and within the parameters permitted by the provider's license or certification. The provider further agrees to bill only for the services performed within the specialty or specialties designated in the provider application on file with the Agency. The services or goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim. Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they may be amended from time to time. Term and signatures. The parties agree that this is a voluntary agreement between the Agency and the provider, in which the provider agrees to furnish services or goods to Medicaid recipients. . . . Provider Responsibilities. The Medicaid provider shall: * * * (b) Keep and maintain in a systematic and orderly manner all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical, business, and fiscal records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid. The provider agrees that only records made at the time the goods and services were provided will be admissible in evidence in any proceeding relating to the Medicaid program. * * * (d) Except as otherwise provided by law, the provider agrees to provide immediate access to authorized persons (including but not limited to state and federal employees, auditors and investigators) to all Medicaid- related information, which may be in the form of records, logs, documents, or computer files, and all other information pertaining to services or goods billed to the Medicaid program. This shall include access to all patient records and other provider information if the provider cannot easily separate records for Medicaid patients from other records. * * * (f) Within 90 days of receipt, refund any moneys received in error or in excess of the amount to which the provider is entitled from the Medicaid program. * * * (i) . . . . The provider shall be liable for all overpayments for any reason and pay to the Agency any fine or overpayment imposed by the Agency or a court of competent jurisdiction. Provider agrees to pay interest at 12% per annum on any fine or repayment amount that remains unpaid 30 days from the date of any final order requiring payment to the Agency. * * * Respondent's Medicaid provider number (under which he billed the Medicaid program for providing these services) was (and remains) 370947700. Handbook Provisions The handbooks with which Petitioner was required to comply in order to receive Medicaid payment for services rendered during the Audit Period included the Medicaid Provider Reimbursement Handbook, HCFA-1500 (MPR Handbook); Physician Coverage and Limitations Handbook (PCL Handbook); the Early and Periodic Screening, Diagnosis and Treatment Coverage and Limitations Handbook (EPSDTCL Handbook); and the Child Health Check-up Coverage and Limitations Handbook (CHCUCL Handbook). Medical Necessity The PCL Handbook provided that the Medicaid program would reimburse physician providers for services "determined [to be] medically necessary" and not duplicative of another provider's service, and it went on to state as follows: 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 fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a covered services. Note See Appendix D, Glossary, in the Medicaid Provider Reimbursement Handbook, HCFA-1500 and EPSDT 224, for the definition of medically necessary.[5] The EPSDTCL and CHCUCL Handbooks had similar provisions. Documentation Requirements The MPR Handbook required the provider to keep "accessible, legible and comprehensible" medical records that "state[d] the necessity for and the extent of services" billed the Medicaid program and that were "signed and dated at the time of service." The handbook further required, among other things, that the provider retain such records for "at least five years from the date of service" and "send, at his or her expense, legible copies of all Medicaid-related information to the authorized state and federal agencies and their authorized representatives." The MPR Handbook warned that providers "not in compliance with the Medicaid documentation and record retention policies [described therein] may be subject to administrative sanctions and recoupment of Medicaid payments" and that "Medicaid payments for services that lack required documentation or appropriate signatures will be recouped." EPSDT Screening/Child Health Check-Up The EPSDTCL Handbook provided: To be reimbursed by Medicaid, the provider must address and document in the recipient's medical record all the required components of an EPSDT screening. The following required components are listed in the order that they appear on the optional EPSDT screening form: Health and developmental history Nutritional assessment Developmental assessment Physical examination Dental screening Vision screening Hearing screening Laboratory tests Immunization Health education Diagnosis and treatment The CHCUCL Handbook, which replaced the EPSDTCL Handbook in or around May 2000, similarly provided as follows: To be reimbursed by Medicaid, the provider must assess and document in the child's medical record all the required components of a Child Health Check-Up. The required components are as follows: Comprehensive Health and Developmental History, including assessment of past medical history, developmental history and behavioral health status; Nutritional assessment; Developmental assessment; Comprehensive Unclothed Physical Examination Dental screening including dental referral, where required; Vision screening including objective testing, where required; Hearing screening including objective testing, where required; Laboratory tests including blood lead testing, where required; Appropriate immunizations; Health education, anticipatory guidance; Diagnosis and treatment; and Referral and follow-up, as appropriate. Coding Chapter 3 of the PCL Handbook "describe[d] the procedure codes for the services reimbursable by Medicaid that [had to be] used by physicians providing services to eligible recipients." As explained on the first page of this chapter of the handbook: The procedure codes listed in this chapter [were] Health Care Financing Administration Common Procedure Coding System (HCPCS) Levels 1, 2 and 3. These [were] based on the Physician[]s['] Current Procedural Terminology (CPT) book. The Current Procedural Terminology (CPT) book referred to in Chapter 3 of the PCL Handbook was a publication of the American Medical Association. It contained a listing of procedures and services performed by physicians in different settings, each identified by a "procedure code" consisting of five digits or a letter followed by four digits. For instance, there were various "procedure codes" for office visits. These "procedure codes" included the following, among others: New Patient * * * 99204 Office or 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 problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. * * * Established Patient * * * 99213 Office or 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 focused history; an expanded problem focused examination; medical decision making of low complexity. Counseling and 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 problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. 99214 Office or 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; 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 problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. * * * Fee Schedules In Appendix J of the PCL Handbook, there was a "fee schedule," which established the amount physicians would be paid by the Medicaid program for each reimbursable procedure and service (identified by "procedure code"). For both "new patient" office visits (99201-99205 "procedure code" series) and "established patient" office visits (99211-99215 "procedure code" series), the higher numbered the "procedure code" in the series, the more a physician would be reimbursed under the "fee schedule." The Audit and Aftermath Commencing in or around August 2002, AHCA conducted an audit of Respondent's Medicaid claims for services rendered during the Audit Period (Audit Period Claims).6 Respondent had submitted 18,102 such Audit Period Claims, for which he had received payments totaling $596,623.15. These Audit Period Claims involved 1,372 different Medicaid patients. From this group, AHCA randomly selected a "cluster sample" of 40 patients. Of the 18,102 Audit Period Claims, 713 had been for services that, according to the claims, had been provided to the 40 patients in the "cluster sample" (Sample Claims). Respondent had received a total of $23,263.18 for these 713 Sample Claims. During an August 28, 2002, visit to Respondent's office, AHCA personnel "explain[ed] to [Respondent] what the audit was about [and] why [AHCA] was doing it" and requested Respondent to provide AHCA with copies of the medical records Respondent had on file for the 40 patients in the "cluster sample" documenting the services provided to them during the Audit Period. The originals of these records were not inspected by AHCA personnel or agents during, or any time after, this August 28, 2002, site visit. Sometime within approximately 30 to 45 days of the August 28, 2002, site visit, Respondent, through his office staff, made the requested copies (First Set of Copies) and provided them to AHCA. There is nothing on the face of these documents to suggest that they were not true, accurate, and complete copies of the originals in Respondent's possession, as they existed at the time of copying (Copied Originals). They do not appear, upon visual examination, to be the product of "bad photocopying." While the handwritten entries and writing are oftentimes difficult (at least for the undersigned) to decipher, this is because of the poor legibility of the handwriting, not because the copies are faint or otherwise of poor quality. Each of the Sample Claims was reviewed to determine whether it was supported by information contained in the First Set of Copies. An initial review was conducted by AHCA Program Analyst Theresa Mock and AHCA Registered Nurse Consultant Blanca Notman. AHCA then contracted with Larry Deeb, M.D., to conduct an independent "peer review" in accordance with the provisions of Section 409.9131, Florida Statutes. Since 1980, Dr. Deeb has been a Florida-licensed pediatric physician, certified by the American Board of Pediatrics, in active practice in Tallahassee. AHCA provided Dr. Deeb with the First Set of Copies, along with worksheets containing a "[l]isting of [a]ll claims in [the] sample" on which Ms. Notman had made handwritten notations indicating her preliminary determination as to each of the Sample Claims (Claims Worksheets). In conducting his "peer review," Dr. Deeb did not interview any of the 40 patients in the "cluster sample," nor did he take any other steps to supplement the information contained in the documents that he was provided. Dr. Deeb examined the First Set of Copies. He conveyed to AHCA his findings regarding the sufficiency of these documents to support the Sample Claims by making appropriate handwritten notations on the Claims Worksheets before returning them to AHCA. Based on Dr. Deeb's sufficiency findings, as well as Ms. Notman's "no documentation" determinations, AHCA "provisional[ly]" determined that Respondent had been overpaid a total $80,788.23 for the Audit Period Claims. By letter dated July 7, 2003 (Provisional Agency Audit Report), AHCA advised Petitioner of this "provisional" determination and invited Respondent to "submit further documentation in support of the claims identified as overpayment," adding that "[d]ocumentation that appear[ed] to be altered, or in any other way appear[ed] not to be authentic, [would] not serve to reduce the overpayment." Appended to the letter were "[t]he audit work papers [containing a] listing [of] the claims that [were] affected by this determination." In the Provisional Agency Audit Report, AHCA gave the following explanation as to how it arrived at its overpayment determination: REVIEW DETERMINATION(S) Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office visits. The documentation you provided supports a lower level of office visit than the one for which you billed and received payment. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some services for which you billed and received payment were not documented. Medicaid requires documentation of the services and considers payment made for services not appropriately documented an overpayment. Medicaid policy addresses specific billing requirements and procedures. You billed Medicaid for Child Health Check Up (CHCUP) services and office visits for the same child on the same day. Child Health Check- Up Providers may only bill for one visit, a Child Health Check-Up or a sick visit. The difference between the amount you were paid and the appropriate fee is considered an overpayment. The overpayment was calculated as follows: A random sample of 40 recipients respecting whom you submitted 713 claims was reviewed. For those claims in the sample which have dates of service from January 01, 2000 through December 31, 2001 an overpayment of $4,168.00 or $5.84667601 per claim was found, as indicated on the accompanying schedule. Since you were paid for a total (population) of 18,102 claims for that period, the point estimate of the total overpayment is 18,102 x $5.84667601= $105,836.33. There is a 50 percent probability that the overpayment to you is that amount or more. There was then an explanation of the "statistical formula for cluster sampling" that AHCA used and how it "calculated that the overpayment to [Respondent was] $80,788.23 with a ninety-five percent (95%) probability that it [was] that amount or more." After receiving the Provisional Agency Audit Report, Respondent requested to meet with Dr. Deeb to discuss Dr. Deeb's sufficiency findings. The meeting was held on September 25, 2003, approximately six months after Dr. Deeb had reviewed the First Set of Copies and a year after AHCA had received the First Set of Copies from Respondent. At the meeting, Respondent presented to Dr. Deeb what Respondent represented was a better set of copies of the Copied Originals than the First Set of Copies (on which Dr. Deeb had based the sufficiency findings AHCA relied on in making its "provisional" overpayment determination). According to Respondent, the First Set of Copies "had not been properly Xeroxed." He stated that his office staff "had not copied the back section of the documentation and that was one of the major factors in the documentation not supporting the [claimed] level of service." The copies that Respondent produced at this meeting (Second Set of Copies) had additional handwritten entries and writing (both on the backs and fronts of pages) not found in the First Set of Copies: the backs of "progress note" pages that were completely blank in the First Set of Copies contained handwritten narratives, and there were handwritten entries and writing in numerous places on the fronts of these pages where, on the fronts of the corresponding pages in the First Set of Copies, just blank, printed lines appeared (with no other discernible markings). The Second Set of Copies was not appreciably clearer than the First Set of Copies. In the two hours that he had set aside to meet with Respondent, Dr. Deeb only had time to conduct a "quick[]," partial review of the Second Set of Copies. Based on this review (which involved looking at documents concerning approximately half of the 40 patients in the "cluster sample"), Dr. Deeb preliminarily determined to "allow" many of the Sample Claims relating to these patients that he had previously determined (based on his review of the First Set of Copies) were not supported by sufficient documentation. Following this September 25, 2003, meeting, after comparing the Second Set of Copies with the First Set of Copies and noting the differences between the two, AHCA "made the decision that [it] would not accept the [S]econd [S]et [of Copies]" because these documents contained entries and writing that appeared to have been made, not contemporaneously with the provision of the goods or services they purported to document (as required), but rather after the post-Audit Period preparation of the First Set of Copies. Instead, AHCA, reasonably, based its finalized overpayment determination on the First Set of Copies. Thereafter, AHCA prepared and sent to Respondent a Final Agency Audit Report, which was in the form of a letter dated June 29, 2004, advising Respondent that AHCA had finalized the "provisional" determination announced in the Provisional Agency Audit that he had been overpaid $80,788.23 for the Audit Period Claims (a determination that the preponderance of the record evidence in this case establishes is a correct one).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Respondent received $80,788.23 in Medicaid overpayments for the Audit Period Claims, and requiring Respondent to repay this amount to AHCA. DONE AND ENTERED this 30th day of April, 2007, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2007.
