Findings Of Fact At all times material hereto, Respondent was licensed to practice dentistry in the State of Florida, having been issued license number DN-0000975. Respondent has been licensed to practice dentistry in this State since 1944, and there is no evidence in the record to indicate that he has previously been the subject of a complaint, investigation or license disciplinary action. Respondent was a participant in the Medicaid program, at all times material hereto. He executed a provider agreement with the Department of Health and Rehabilitative Services, under the terms of which Medicaid paid a total of $300 for a set of upper and lower dentures, and he was allowed to bill the patient for a 5% co-payment in addition to the amount paid by Medicaid. Participants in the program specifically agreed to accept the Medicaid-payment in lieu of their usual and customary charges, and not to bill or accept payments from patients, with the sole exception of the 5% co-payment for dentures. Billings to Medicaid could only be made after services were rendered. The Medicaid program reimbursed providers $8.00 for a single surface amalgam restoration, $16.00 for two surfaces, and $24.00 for three of more surfaces. The maximum allowable fee under the Medicaid program for a complete upper set of dentures was $150.00, and for a complete lower set, $150.00. Alveolectomies were reimbursed at $35.00 per quadrant. Between November 4, 1983 and December 15, 1983, Respondent rendered dental services to Geraldine Jones, for which he subsequently billed, and was paid by, Medicaid. The billings were for extracting fifteen teeth, performing three alveolectomies, and fitting the patient with complete upper and lower dentures. Respondent did not perform any of these services for Jones. Therefore, the $423 paid to him by Medicaid was an overpayment, and a payment for services not performed. Respondent billed and was subsequently paid by Medicaid for dental services rendered to Velma Mondy between May 11, 1983 and June 16, 1983. The billings were for restoration of a total of eighteen tooth surfaces. On or about June, 1985, an examination of Mondy's teeth by Dr. Charles Kekich, dental consultant with the Department of Health and Rehabilitative Services, who was accepted as an expert in dentistry, revealed that she had a total of only six surfaces restored. Therefore, Respondent billed and received an overpayment from Medicaid in the amount of $96.00 for services not rendered to this patient. Dental services which were allegedly rendered to Bridget Bryant by Respondent between September 12 and 26, 1983, were billed to Medicaid, and Respondent received payment for restoring twelve teeth, with a total of thirty surfaces. On or about June, 1985, an examination of Bryant by Dr. Kekich revealed that no more than fifteen restorations had been performed, resulting in an overpayment from Medicaid to Respondent of at least $120.00. Respondent billed and was subsequently paid by Medicaid for services rendered to Joyce Johnson between December 22, 1983 and January 1, 1984. These billings were for extracting three teeth and restoring ten, with a total of twenty surfaces. During June, 1985, Dr. Kekich examined Johnson and found that none of the work billed by Respondent had been performed. Therefore, an overpayment of $184.00 was made by Medicaid for services billed, but not rendered by the Respondent. Between January 25, 1984 and March 21, 1984, Respondent performed certain dental work on Ernest Macon, for which he billed and was paid by Medicaid for extracting two teeth and restoring nine teeth, with a total of twenty-three surfaces. Dr. Kekich's examination of Macon during June, 1985, revealed that only one tooth had been extracted and no more than four surfaces had been restored. Therefore, Respondent over billed and received payment from Medicaid for services not rendered to Macon in the amount of $159.00 Respondent billed and was subsequently paid by Medicaid for dental services rendered to Derrick Ealy between March 15 and 27, 1984. These billings were for restoring four teeth, with a total of eleven surfaces. An examination of Derrick Ealy by Dr. Kekich in June, 1985, revealed that only two surfaces had been restored, resulting in an overpayment by Medicaid of $72.00 for services billed, but not rendered. An examination of Kimberly Ealy in June, 1985, revealed that none of the dental services for which Respondent had billed and been paid by Medicaid had, in fact, been performed. Respondent had billed Medicaid for extracting one tooth and restoring a total of thirteen surfaces on five teeth between March 13 and 22, 1984. Therefore, an overpayment of $114 was made by Medicaid for services billed, but not rendered to Kimberly Ealy. Respondent performed dental services for Corey Oliver between March 27, 1984 and May 6, 1984, and in connection therewith, he billed Medicaid for extracting one tooth and restoring seven teeth with a total of seventeen surfaces. An examination of Oliver by Dr. Kekich in June, 1985, revealed that roots of the tooth supposedly extracted by Respondent remained, and that eleven of the surfaces for which bills had been submitted had not been restored. Therefore, an overpayment of at least $95.00 was made by Medicaid for services billed, but not rendered to this patient. From April 16, 1984 to August 7, 1984, Respondent extracted twenty- seven teeth from Lillian Corouthers, and fitted her for a full set of dentures. He billed Medicaid for a total of $1,215 for these services, and received payment from Medicaid of $620.35. In addition thereto, he billed and received from this patient a total of $269. This co-payment exceeds the allowable 5% co- payment under the Medicaid program by $236.35. There is no evidence that Respondent ever refunded any portion of this overpayment to Corouthers. Although Respondent billed and was paid by Medicaid for services performed on Shawn Smith between July 11 and 24, 1984, which allegedly consisted of restoring eight teeth with a total of twenty-one surfaces, an examination of this patient by Dr. Kekich in May, 1985, revealed that none of this work had been performed. Therefore, an overpayment of $168 was made by Medicaid for services not rendered by Respondent. Respondent billed and was subsequently paid by Medicaid for dental services rendered to Allan Smith between July 6 and 23, 1984. The billings were for extracting two teeth and restoring a total of seventeen surfaces. Dr. Kekich's examination in May, 1985, revealed that only one extraction had been performed, and no restorations. As a result, an overpayment of $146 was made by Medicaid for services not rendered to Allan Smith. Respondent pulled one tooth and provided a complete set of dentures to Mose Tobias in July, 1984. For these services Respondent billed Medicaid for a total of $490, and received payment from Medicaid in the amount of $321.10. He also billed and received payment from this patient in the amount of $119, which exceeds the co-payment allowable under the Medicaid program by $112.11. Between July 6 and August 14, 1984, Respondent performed dental services for Angela Pleas, and in connection therewith, he billed and was subsequently paid by Medicaid for two extractions and sixteen surface restorations. During a June, 1985, examination of Pleas, it was revealed that no more than one extraction and nine restorations had been performed, resulting in an overpayment by Medicaid of $82.00 for services billed but not rendered to Pleas by the Respondent. Callie Wilson was treated by the Respondent between August 2 and 23, 1984, and in connection therewith, he billed Medicaid a total of $470.00 for an examination, x-rays, and a complete set of dentures. Respondent received payment from Medicaid in the amount of $162.45 for these services. In addition thereto, Respondent billed and received from Wilson an amount that exceeds the allowable 5% co-payment under the Medicaid program. The exact amount of this overpayment, however, cannot be determined, but it appears to have been an overpayment of between $45.00 and $95.00. Respondent billed and was subsequently paid by Medicaid for extracting one tooth and restoring twenty-two surfaces for Maruise Woods between September 4 and 25, 1984. An examination of Woods by Dr. Kekich in May, 1985, revealed that no surface restorations had been performed. Therefore, an overpayment of $172 was made by Medicaid for services not rendered. Between September 21 and 27, 1984, Respondent claims to have performed dental services for Sharon Woods, for which he then billed and subsequently received payment from Medicaid for the restoration of four teeth, with a total of twelve surfaces. In May, 1985, Dr. Kekich examined Sharon Woods, and found that none of this work had been performed. Therefore, Respondent overbilled Medicaid $96 for services not rendered to this patient. Respondent billed and was subsequently paid by Medicaid for dental services rendered to John Aberdeen between September 27 and November 21, 1984. These billings were for extracting fifteen teeth, and providing a complete set of dentures. A June, 1985 examination of this patient by Dr. Kekich revealed that only one tooth had been extracted. Respondent received an overpayment from Medicaid in the amount of $389.85 for services not rendered to Aberdeen. Bills were submitted to Medicaid and payment received for services Respondent claims to have performed on Mercedia Lanier between October 1 and 19, 1984. These billings were for restoring seven teeth, with a total of eighteen surfaces. Dr. Kekich's examination of Lanier in May, 1985, revealed that none of the work billed by Respondent had been performed. Therefore, an overpayment of $144.00 was made by Medicaid for services not rendered to Lanier by Respondent. Respondent billed and was subsequently paid by Medicaid for dental services rendered to Patricia Hall between November 20 and December 7, 1984. These billings were for seven extractions, and the restoration of five teeth with twelve surfaces. In June, 1985, Dr. Kekich examined Hall and found that no more than four extractions, and five surface restorations had been done. Medicaid made an overpayment of $83.00 in connection with services billed, but not rendered to Hall. Claims were submitted to Medicaid by Respondent in connection with services allegedly performed on Eugenie Perry between January 17 and February 11, 1985. These billing were for the restoration of twenty-two surfaces, but Dr. Kekich found in May, 1985, that none of these restorations had been performed. As a result, Medicaid made an overpayment to Respondent of $176.00 for services not rendered. Tessie McRae was a patient of Respondent's in 1985, and claims were filed with Medicaid by Respondent for services between February 5 and March 28, 1985, consisting of ten extractions, four alveolectomies, and a complete set of dentures. When Albert Ravenna, special agent for Medicaid fraud with the Auditor General's Office interviewed McRae in June, 1985, she still had her own teeth and did not have dentures. Respondent did provide her with dentures subsequent to payment for these services by Medicaid. However, an overpayment of $401.55 was made by Medicaid since the services for which billings were submitted by the Respondent had not been performed prior to the filing of these claims. Respondent billed Medicaid for a total of $600 in connection with services he provided to Cora Griffin between February 3 and 11, 1985. Specifically, these bills were for an exam, x-rays and a complete set of dentures. Medicaid paid Respondent $311.60 for these services, and in addition thereto, he billed and collected from Griffin a total of $180. This amount paid by the patient exceeds the allowable co-payment under the Medicaid program. Respondent billed and subsequently received payment from Medicaid for services rendered to Kenneth Gainer between January 25 and March 22, 1985. The billings were for restoring ten teeth with a total of twenty-six surfaces. An examination of Gainer by Dr. Kekich in June, 1985, revealed that none of this work had been performed. Therefore, an overpayment of $208.00 was made by Medicaid for services not rendered. Billings were submitted to Medicaid by Respondent for services allegedly performed on Lawrence Harvey between March 14 and 19, 1985, and consisting of two extractions and eight surface restorations. Dr. Kekich found, upon examining the patient in June, 1985, that none of this work had been performed. Therefore, an overpayment of $84.00 was made by Medicaid for services not rendered. Respondent billed and was subsequently paid by Medicaid for services rendered to Brian Harvey between March 13 and 29, 1985. These billings were for restoring six teeth with a total of twelve surfaces. Respondent did not perform these services, and, therefore, the payment of $96.00 which he received for these services from Medicaid represents an overpayment for services not rendered. According to billings submitted by Respondent to Medicaid, he treated Felicia Harvey between March 21 and 29, 1985. These billings were for restoring four teeth, with a total of eight surfaces. An examination of this patient by Dr. Kekich in June, 1985, revealed that none of this work had been performed, and, therefore, an overpayment of $64.00 was made by Medicaid for services not rendered. On or about December 19, 1986, Respondent plead nolo contendere to seventeen counts of grand theft and five felony counts of public assistance fraud in violation of Sections 812.014 and 409.325, Florida Statutes, and was adjudicated guilty. The billings that Respondent signed and submitted to Medicaid, which are referenced in the above findings of fact, were prepared by his office receptionist, Ida Roundtree, who has been employed by him for twenty-two years, and who is responsible for the preparation and filing of all insurance claims based upon patient dental charts prepared by Respondent or his dental hygienist. Respondent testified that he does not consider it to be his responsibility to familiarize himself with the various requirements for insurance or Medicaid reimbursement. He relies entirely on Roundtree for this, and clearly does not consider the preparation of reimbursement or billing "paperwork" to be within the practice of dentistry. Roundtree admitted that she prepared Medicaid billings for work which was yet to be done in some cases. She would just fill in dates when the work supposedly had been done so that Medicaid would pay the claim. She testified she was unaware that Medicaid allowed a 5% co-payment only for dentures, and that no co-payment could be made for any other dental services under the program. Further, she admitted that she falsified billings by including services not performed so that Respondent would receive more money under the Medicaid program. The evidence does not establish that she was directed to falsify Medicaid billings by the Respondent or that she informed him of her practices, but it was established that he did not check, or in any way attempt to verify, the billings which she prepared before he signed them.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order suspending Respondent's license for a period of THREE months, and imposing an administrative fine against Respondent in the amount of $6,000.00. DONE AND ENTERED this 24th day of February, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989. APPENDIX (DOAH Case No. 88-2961) Rulings on the Petitioner's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-5. Rejected as unnecessary. 6-8 Adopted in Finding of Fact 2. 9-16. Rejected as unnecessary. Adopted in Findings of Fact 30 and 31. Rejected as unnecessary and as legal argument. 19-25. Adopted in Findings of Fact 30 and 31, but otherwise rejected as simply a summation of testimony. 26. Rejected as unnecessary. 27-30. Adopted in part in Finding of Fact 4. 31-34. Adopted in part in Finding of Fact 5. 35-39. Adopted in part in Finding of Fact 3. 40-42. Adopted in part in Finding of Fact 6. 43-45. Adopted in part in Finding of Fact 7. 46-48. Adopted in part in Finding of Fact 8. 49-51. Adopted in part in Finding of Fact 9. 52-55. Adopted in part in Finding of Fact 10. 56-62. Adopted in part in Finding of Fact 11. 63-65. Adopted in part in Finding of Fact 12. 66-68. Adopted in part in Finding of Fact 13. 69-72. Adopted in part in Finding of Fact 14. 73-76. Adopted in part in Finding of Fact 15. 77-82. Adopted in part in Finding of Fact 16. 83-86. Adopted in part in Finding of Fact 17. 87-90. Adopted in part in Finding of Fact 18. 91-93. Adopted in part in Finding of Fact 19. 94-97. Adopted in part in Finding of Fact 20 98-100. Adopted in part in Finding of Fact 21. 101-103. Adopted in part in Finding of Fact 22. 104-109. Adopted in part in Finding of Fact 23. 110-116. Adopted in part in Finding of Fact 24. 117-119. Adopted in part in Finding of Fact 25. 120-122. Adopted in part in Finding of Fact 26. 123-127. Adopted in part in Finding of Fact 27. 128-130. Adopted in part in Finding of Fact 28. Rejected as unnecessary and duplicative. Adopted in Finding of Fact 29. (Note: In addition to adopting, in part, proposed findings of fact 27-130, as shown above, these proposed findings are otherwise rejected as unnecessary or as not based on competent substantial evidence.) Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as irrelevant. Adopted in Finding of Fact 2. Rejected as irrelevant. 5-7. Adopted in Finding of Fact 30. 8. Rejected as irrelevant. 9-10. Adopted in Finding of Fact 30. 11-17. Adopted in Findings of Fact 30 and 31. 18-19. Rejected as not based on competent substantial evidence. Adopted in Finding of Fact 31. Rejected as not based on competent substantial evidence and otherwise as irrelevant. 22-23. Adopted in Finding of Fact 31. 24. Rejected as irrelevant. 25-28. Adopted in Finding of Fact 31. 29-30. Adopted in Finding of Fact 30 and 31. 31. Rejected as not based on competent substantial evidence and otherwise as irrelevant. 32-36. Rejected as irrelevant. 37. Adopted in Finding of Fact 29, but otherwise rejected as irrelevant. 38-47. Rejected as irrelevant. 48-49. Adopted in Finding of Fact 4, but otherwise rejected as irrelevant. 50-55. Rejected as irrelevant. 56-60. Adopted and Rejected in Finding of Fact 21, but otherwise rejected as irrelevant. Rejected as argument on the evidence, not a finding of fact. Rejected in Finding of Fact 3. Rejected in Finding of Fact 6. Rejected in Finding of Fact 9. Rejected in Finding of Fact 14. Rejected in Finding of Fact 16. COPIES FURNISHED: Bruce D. Lamb, Esquire 730 South Sterling Street, #313 Tampa, Florida 33609-4582 John A. Powell, Esquire Florida Federal Building One Fourth Street, North Suite 800 St. Petersburg, Florida 33701 William Buckhalt Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue in this case is whether Florida Administrative Code Rule 59G-4.070--including pages 2-2 and 3-3 and Appendices B and C of the Florida Medicaid Provider Handbook, Durable Medical Equipment/Medical Supply Services, which is incorporated in the rule by reference--is an invalid exercise of delegated legislative authority.
Findings Of Fact AHCA’S RULE ON MEDICAID COVERAGE FOR DME/MEDICAL SUPPLIES AND ITS IMPLEMENTATION Florida Administrative Code Rule 59G-4.070 "applies to all durable medical equipment and supply providers enrolled in the Medicaid program." It requires the providers to "comply with the Florida Medicaid Durable Medical Equipment and Supply Services Coverage and Limitations Handbook, April 1998, incorporated by reference, and the Florida Medicaid Provider Reimbursement Handbook, HCFA 1500 and EPSDT 221, incorporated by reference in 59G-5.020." (Joint Exhibit 1) The DME Handbook "explains covered services, their limits and who is eligible to receive them." The Billing Handbook "describes how to complete and file claims for reimbursement by Medicaid." (DME Handbook, p. i). DME is "medically necessary equipment that can withstand repeated use, serves a medical purpose, and is appropriate for use in the recipient’s home"; medical supplies are "medically necessary medical or surgical items that are consumable, expendable, disposable or non-durable and appropriate for use in the recipient’s home." (DME Handbook, pp. 1-2). The DME Handbook specifies that "[m]any DME services are available only to recipients under 21 years of age. To determine if a service is available to all recipients or just a specific range of recipients see the DME Fee Schedule in Chapter 3 of this handbook, Appendix B: For All Medicaid Recipients and Appendix C: For Recipients Under Age 21." (DME Handbook, p. 2-2). The DME fee schedule is a table of columns listing procedure codes, a description of the service or procedure associated with the procedure code, maximum reimbursement amounts and other information pertinent to each code. (DME Handbook, pp. 3-3 to 3-7). The DME Handbook states that "[t]he DME/medical supplies fee schedule is divided into 2 sections, Appendix B and C. Appendix B is a listing of covered DME/medical supplies for all Medicaid recipients, regardless of age. Appendix C is a listing of covered DME/medical supplies for Medicaid recipients under 21 years of age." (DME Handbook, p. 3-3). The DME fee schedule includes a column identified as "BR" (an abbreviation for "by report") and a column identified as "PA" (an abbreviation for "prior authorization"). (DME Handbook, p. 3-5). The DME Handbook states that the "BR" designation "identifies a 'non-classified' procedure code that requires a medical review to approve and price a procedure correctly." (DME Handbook, p. 3-5). "Non-classified" procedure codes "allow the provider to request reimbursement from Medicaid when a reimbursable item does not have an established fee identified." (DME Handbook, p. 3-5). The DME Handbook states that the "PA" designation "identifies the procedure codes that require prior authorization before the service is performed." (DME Handbook, p. 3-5). The DME Handbook specifies which DME/medical supply procedure codes listed in Appendices B and C of the DME Fee Schedule require prior authorization. (DME Handbook, p. 2-5, Appendices B and C). The Billing Handbook includes a Prior Authorization Request Form which providers must submit to the Medicaid office in order to obtain prior authorization for DME and medical supplies. The prior authorization form requires submission of a procedure code. (Billing Handbook, pp. 7-8 to 7-13; DME Handbook, p. 3-5). Neither the DME Handbook or the Billing Handbook includes any prior authorization procedure that providers can follow to obtain Medicaid coverage for DME or medical supplies that do not have a procedure code listed in Appendices B or C of the DME Handbook. In Appendix C of the DME Handbook, for Medicaid recipients under age 21, there is a miscellaneous code, "E1399", for durable medical equipment which requires prior authorization. No comparable code exists in Appendix B of the DME Handbook for Medicaid recipients age 21 and older. (DME Handbook, pp. 2-5 and C-14). A Medicaid recipient who needs durable medical equipment or medical supplies will present the request in the form of a prescription or certificate of medical necessity from a physician to a DME provider. The provider then uses the DME Handbook to determine if an item is covered by the Medicaid program. If an adult presents a doctor's prescription for an item of DME which is not listed in Appendix B of the DME Handbook, the provider will most likely decline to provide the services unless other arrangements are made to pay for the services. There is nothing in the DME Handbook which informs providers of any means by which adult Medicaid recipients can request coverage of items not listed in Appendix B. DME providers have not received any memo or directive from AHCA advising how DME providers could request coverage of items for adults not listed in Appendix B. ALTERNATIVES FOR RECIPIENTS NEEDING DME/MEDICAL SUPPLIES NOT LISTED IN THE DME HANDBOOK There are alternatives for Medicaid recipients to obtain DME/medical supplies which are not listed in the DME Handbook. They include the Medicaid Waiver Program, coverage through other Medicaid programs, an "exception authorization" process, and the fair hearing process. The Medicaid Waiver Program Section 1915(c) of the Social Security Act authorizes states to provide Medicaid home and community-based waiver programs. 42 U.S.C. Section 1396n(c). Under Medicaid waiver programs, states can provide services in addition to those authorized under their regular Medicaid program through the Medicaid state plan. Home and community-based waiver programs are targeted towards populations at risk of institutionalization. See 42 U.S.C. Section 1396n(c)(1). The federal Health Care Financing Administration (HCFA) has authorized Florida to administer a home and community-based waiver program for persons with developmental disabilities ("DS waiver program"). HCFA places a cap on the number of individuals who may participate in the waiver. The DS waiver program offers specialized medical equipment and supplies. However, before any service can be funded under the DS waiver program, it must be approved by the Developmental Services district office. Whether the services are approved or not is based, in part, on available funding. Both state and federal funding are capped under the DS waiver program. The DS Waiver program Services Directory states on pp. 3-4 that "the waiver endorses the supports already provided by family, friends and neighbors, and discourages the replacement of such natural and free supports with government-funded services[,]" and "[w]hen a service must be purchased, those available under the Medicaid State Plan must be accessed before purchasing services through the waiver." Coverage Through Other Medicaid Programs AHCA administers about 35 different programs within the regular Medicaid program. Some medical equipment is covered by programs other than the DME/Medical Supplies program. Hearing aides are covered by the hearing program; saline used with medical equipment is covered by the pharmacy program; and cochlear implants are covered under the physician services program. However, there was no evidence that any other Medicaid programs covered any of the medical equipment or supplies needed by Bell or Powell. Exception Authorization/Prior Authorization Process The "exception authorization" process is the same as the prior authorization process described in the DME Handbook and Billing Handbook. See Findings 7-12, supra. As found, AHCA’s form for requesting prior authorization requires submission of a procedure code; there is no general DME miscellaneous code listed in the rule for Medicaid recipients over age 21; and there are no instructions included in the DME or Billing Handbook which authorize providers to bill for DME on behalf of adult recipients under code E1399. (DME Handbook, Appendix B). Nonetheless, it is technically possible for AHCA administrators to override the Agency’s computer (by "forcing the age edit") to provide for payment of items for adults which are not listed in Appendix B of the DME Handbook. Although the Florida Legislature has declined AHCA's requests to appropriate funds for DME for adult Medicaid recipients for the past four legislative sessions, AHCA administrators have overridden the computer to get coverage of durable medical equipment and supplies that are not listed in the DME Handbook for three Medicaid recipients. However, this procedure is not described in Rule 59G-4.070. Fair Hearing Process Another alternative for Medicaid recipients who need coverage of DME/medical supplies not included in the DME Handbook is through the fair hearing process. Recipients are informed about their fair hearing rights when they are enrolled in the Medicaid program and also when a prior authorization request is denied. There are no form AHCA notices included in the DME Handbook or Billing Handbook advising recipients about their fair hearing rights when prior authorization for DME is denied. AHCA placed in evidence a form used by AHCA to advise recipients of their fair hearing rights when prior authorization for DME/medical supplies is denied. The form notice is out-of-date. It states that it is from the Department of Health and Rehabilitative Services (HRS) and refers to Consultec as the fiscal agent. It is the fiscal agent for AHCA, not HRS, which generates this notice; and Unisys, not Consultec, has been AHCA’s fiscal agent for about the past five years. The form notice states that if individuals want a fair hearing they should write to the Office of Public Assistance, Appeal Hearing, in Jacksonville, Florida. At least one other Appeal Hearing office is located in Tallahassee. If no prior authorization request is made because no procedure code is listed in the DME Handbook, there would be no notice of denial of a prior authorization request. HCFA LETTER HCFA sent a letter to State Medicaid Directors on September 4, 1998, setting out federal Medicaid requirements regarding DME coverage. The HCFA letter of interpretive guidance reminded state Medicaid directors that the mandatory home health services benefit under Medicaid includes medical supplies, equipment, and appliances suitable for use in the home and summarized the applicable federal law. It also stated: An [i.e., DME] ME policy that provides no reasonable and meaningful procedure for requesting items that do not appear on a State's pre-approved list, is inconsistent with the federal law discussed above. In evaluating a request for an item of [D]ME, a State may not use a "Medicaid population as a whole" test, which requires a beneficiary to demonstrate that, absent coverage of the item requested, the needs of "most" Medicaid recipients will not be met. This test, in the [D]ME context, establishes a standard that virtually no individual item of [D]ME can meet. Requiring a beneficiary to meet this test as a criterion for determining whether an item is covered, therefore, fails to provide a meaningful opportunity for seeking modifications of or exceptions to a State's pre-approved list. Finally, the process for seeking modifications or exceptions must be made available to all beneficiaries and may not be limited to sub- classes of the population (e.g., beneficiaries under the age of 21). In light of this interpretation of the applicable statute and regulations, a State will be in compliance with federal Medicaid requirements only if, with respect to an individual applicant’s request for an item of [D]ME, the following conditions are met: The process is timely and employs reasonable and specific criteria by which an individual item of DME will be judged for coverage under the State’s home health services benefit. These criteria must be sufficiently specific to permit a determination of whether an item of [D]ME that does not appear on a State’s pre-approved list has been arbitrarily excluded from coverage based solely on a diagnosis, type of illness, or condition. The State's process and criteria, as well as the State's list of pre- approved items are made available to beneficiaries and the public. Beneficiaries are informed of their right, under 42 C.F.R. part 431 Subpart E, to a fair hearing to determine whether an adverse decision is contrary to the law cited above. PETITIONER WILLARD BELL Willard Bell is a Medicaid recipient who is over age Since 1992, he has been in a Medicaid health maintenance organization (HMO). Bell is an insulin-dependent diabetic and has undergone numerous operations and hospitalizations as a result of his diabetes. In 1996, Mr. Bell's doctor prescribed an insulin pump and supplies. AHCA district personnel did not know how to obtain coverage for Mr. Bell's insulin pump, since it is not covered by the regular Medicaid program for adults. They needed technical guidance on how to do so. In February 1999, after over two years of requests and grievance proceedings, AHCA provided Bell an insulin pump under a settlement agreement with AHCA attorney Gordon Scott. In order to make payment for this insulin pump, AHCA used code E1399--the miscellaneous durable medical equipment code that is designated only for recipients under 21--and "forced the age edit" on the computer. Rule 59G-4.070 also does not provide Medicaid coverage for supplies necessary for the operation of an insulin pump (code E0781 applies to Medicaid recipients under 21 years of age). Bell's HMO now pays for the supplies for the insulin pump; but due to numerous problems with his HMO, Bell wants to switch from his HMO to the regular Medicaid program. Bell did not want to switch until he was assured that he will be able to get his insulin pump supplies through Medicaid. Shortly after obtaining the insulin pump through the Gordon Scott settlement agreement, Bell and his attorney, Robert Bencivenga, requested Medicaid coverage for supplies necessary for the operation of his insulin pump. Bencivenga made several calls to Stephanie Perry, an AHCA employee at the AHCA Jacksonville office; he also faxed Perry a letter on March 15, 1999, requesting confirmation that the Agency would pay for Bell’s pump supplies and indicating some urgency to this request. Bencivenga also left several messages with Gordon Scott. Bencivenga did not receive any response to his fax and never got to speak with Scott. After receiving no response from AHCA, Bencivenga contacted Miriam Harmatz of Florida Legal Services to see what could be done next. Harmatz then wrote to Scott stating that Bell wanted to switch from his HMO to the regular Medicaid program but that he first needed assurances from AHCA that the supplies necessary to continue utilization of the pump would be available from Medicaid. Moses Williams, another attorney for AHCA, wrote Harmatz a letter dated April 7, 1999, suggesting that Bell be patient with his HMO; the letter did not state whether or not AHCA would pay for the pump supplies should Bell leave his HMO. PETITIONER JUSTIN POWELL AND HIS MOTHER BARBARA POWELL Justin Powell is a 21 year-old Medicaid recipient. Justin has multiple severe disabilities, including mental retardation and cerebral palsy. He breathes through a tracheotomy and is tube-fed by means of a feeding pump. Justin’s doctors have prescribed a number of items of specialized medical equipment and supplies for him, including: a tracheotomy mask or collar; inner cannula; enteral feeding supply kit, both pump fed and gravity fed; compressor; and nebulizer. Justin will need this equipment and supplies for the rest of his life. Justin Powell has lived with his parents, Barbara and Phillip Powell, along with his brother, sister-in-law, and their children, for his entire life. Justin's mother is his primary caretaker. Justin is dependent on her for all of his activities of daily living, as well as for administering various health care treatments, including breathing treatments. Until Justin turned 21, Medicaid provided him coverage for the following equipment and supplies he needs in order to breathe and eat: a tracheotomy mask or collar (code A4621); tracheostomy inner cannula (code A4623); enteral feeding supply kit, either pump fed or gravity fed (code B 4035, B 4036); nebulizer (code E 0575); and a compressor (code E 0570) that powers the nebulizer. (DME Handbook, Appendix B). In order to obtain necessary equipment and supplies, Mrs. Powell simply had to contact Lincare, a DME provider. If any of the equipment Justin needed broke down, Medicaid provided for immediate replacement. When Justin turned 21, Lincare declined to provide further coverage for the DME and supplies because the Rule does not provide Medicaid coverage for Medicaid recipients 21 or older. In response to the information from Lincare, Barbara Powell made numerous calls to AHCA officials to request Medicaid coverage for the items. Eventually she was directed to the DS Waiver Program, which assigned Justin to DS Waiver Support Coordinator Rhonda Allen in July 1998. When Mrs. Powell asked Allen about obtaining durable medical equipment and supplies through the DS Waiver Program, she was told that Allen has to submit requests to Developmental Services, which refers it to a budget committee. Allen then waits for a decision from the budget committee as to whether the item requested will be funded or not. Just because the support coordinator requests an item does not necessarily mean it will get funded. The support coordinator does not make the decision as to whether or not a requested item is funded by the DS waiver. Therefore, Allen could not say whether or not additional items of durable medical equipment and supplies for Justin Powell would be approved for coverage under the DS Waiver program if she were to request them. The DS waiver provider has no role in determining what items get funded under the DS Waiver program. Allen and Barbara Powell discussed Justin Powell’s need for a G-tube, a trach, diapers, and the trach mask. Since the family was paying for a trach mask and a doctor was donating a G- tube, the DS waiver program would not cover these items. If there are resources in the community that will pay for items, the waiver program will not provide coverage. The only supplies funded through the DS waiver to date have been Justin's feeding bags. The only piece of equipment funded through the waiver to date is Justin's suction machine. Over the past year, Allen advised Barbara Powell that the DS waiver program could not cover all of the medical equipment and supplies Justin's needs because funds were low and the DS waiver program was waiting for additional funding. If some of Justin’s equipment ceases to operate, Barbara Powell will have to take Justin to the hospital while she waits for a decision from the DS Waiver program as to whether it will fund replacement equipment. Justin’s only income is $500 per month SSI. Barbara Powell now spends family money to purchase DME and supplies for Justin which are no longer covered by Medicaid. The Powells are re-using some equipment and supplies that should be replaced if money were no object. Due at least in part to the cost of providing Justin's equipment and supplies since he turned 21, the Powell family is under financial stress. Currently, the family is behind in its electricity bill. There was no evidence that AHCA gave the Powells specific written notice after Justin turned 21 that they could pursue a fair hearing to contest the termination of coverage of DME and medical supplies under the regular Medicaid program.
Findings Of Fact Upon consideration of the oral and documentary' evidence adduced at the hearing, the following relevant facts are found: DHRS administers the Program which is jointly funded by the state and federal government under Title XIX of the Social Security Act. The Program is voluntary and is subject to both state and federal laws, rules and regulations. The Program does not reimburse providers such as Dr. Clement for all services rendered. Only those services which are determined to be medically necessary or which the state has determined it wishes to provide are covered by the Program. The services to be rendered and the fees to be paid for those services are set forth in the policy manuals and fee schedules which are given the provider when he enrolls in the Program. Under the Program, the provider files claims in accordance with the policies set forth in the manual. Those claims are computer processed and it is assumed that the provider is submitting the claims in accordance with the policies. The computer system is not programmed to reject all erroneous claims. Therefore, the provider is automatically reimbursed based upon claims submitted. The Program operates on the honor system and must "pay and chase" providers who submit improper claims. Under the Program the state is required to protect the integrity of the Program by reviewing providers for possible fraud and abuse. The Program utilizes a Surveillance Utilization and Review System (SURS) which compares a provider's Medicaid practice with that of his peers. This system takes the provider's computer generated claims history and compares it both quantitatively and qualitatively with the average practice of his peers. When a potential problem is detected, the provider's practice is further reviewed to determine if fraud or abuse has occurred. On November 4, 1983, Dr. Clement signed a provider agreement with DHRS and operated under this provider agreement at all times material to this proceeding. In signing this provider agreement, Dr. Clement agreed to "submit requests for payment in accordance with program policies" and to, "abide by the provisions of the Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. In billing under the Program, Dr. Clement is expected to provide services in accordance with generally accepted practices of his profession of dentistry. Those services for which a provider may submit claims are set forth in the Children's Dental Services Manual (HRSM 230-22), a copy of which was provided to Dr. Clement when he entered the Program. In addition to the manual, Dr. Clement was provided with an EDS Billing Handbook which explained the mechanics of submitting a claim. HRSM 230-22 is merely a compilation of procedures for which the Program will reimburse the provider along with the reimbursement rate for each procedure. The manual utilizes procedures and codes utilized by the American Dental Association, is prepared with technical assistance of dental consultants, and is reviewed by various dental associations. The manual is designed for use by dental providers who are knowledgeable in the field of dentistry and are utilizing generally accepted principles of dentistry. In 1985 a SURS Level I Review report, comparing Dr. Clement with his peer group of general dentists providing services to children, indicated possible inappropriate billing of the Program. Because of the nature and extent of the billing problems, Dr. Clement's case was referred to the Medicaid Fraud Control Unit (MFCU) of the State of Florida's Auditor General's Office for possible criminal prosecution. DHRS took no further action pending the criminal investigation. Criminal charges were subsequently filed against Dr. Clement as a result of the MFCU investigation and Dr. Clement's case was referred back to the Medicaid Office of Program Integrity for review of nine possible areas of program policy violations which were not part of the criminal prosecution. The Program thereupon conducted its own investigation into possible abuse by Dr. Clement. Using the preliminary investigation done by an HRS dental consultant who reviewed Dr. Clement's practice for MFCU, and the original Level I Review report, a DHRS investigator reviewed ad hoc computer reports of claims submitted by Dr. Clement for specific dental procedures. Based upon the computer analysis of claims submitted, as well as the advice of the dental consultant, the Program identified nine areas of Dr. Clement's practice of Medicaid billing which were not in compliance with Medicaid billing procedures or generally accepted standards of dental practice. On sixty-six occasions, Dr. Clement submitted claims and was paid for procedures such as examinations, prophylaxis and fluoride treatment at intervals of less than six months. HRSM 230-22 recommends that such procedures be performed no more frequently than once every six months, and this recommendation is recognized under generally accepted standards of dentistry. This recommendation is applicable to both private pay patients and Medicaid patients who are generally indigent. Although such treatment may be necessary on occasions at shorter intervals, Dr. Clement offered no evidence to justify the frequency or the necessity of providing such procedures at intervals of less than the recommended six months. On two hundred and eighty six occasions, Dr. Clement improperly filed claims and received payment for consultations. HRSM 230-22 only allows claims for consultations by a dental specialist (oral surgeon, periodontist, endodontist, or prosthodontist). Dr. Clement is not a dental specialist and should not have submitted claims for such procedures. The manual's definition and interpretation of the appropriate billing procedure for consultation services is in accordance with the generally accepted practice of dentistry. On ninety four occasions, Dr. Clement submitted claims and received payment for behavior management and nitrous oxide on the same visit. HRSM 230- 22 only allows claims for behavior management where nitrous oxide is not used. There was no evidence to show that both behavior management and nitrous oxide on the same visit was necessary. On seven occasions, Dr. Clement submitted claims and received payment for extracting more than one first tooth in a given quadrant. HRSM 230-22 provides a fee of $10.00 for the extraction of the first tooth in a given quadrant which is billed on a claim as procedure D7110 whereas each additional tooth extracted in the same quadrant at the same time is reimbursed at the rate of $7.00 and billed on a claim as procedure D7120. The fee for the removal of the first tooth in a given quadrant is higher than the fee for each succeeding tooth in the same quadrant because anesthesia for the first tooth does not have be administered for each succeeding tooth in the same quadrant. Dr. Clement received payment for 117 alveolectomies (a reshaping of the bone) performed on 52 children which is an excessive number. Alveolectomies should only be performed in extreme cases where, without an alveolectomy, the insertion of dentures or partials would be impossible. It is standard dental practice to perform an alveolectomy only where a denture is supplied. Performing an alveolectomy on a child is not a common practice. There was no evidence that Dr. Clement performed the alveolectomies in preparation of insertion of partials or dentures. Dr. Clement filed an excessive number of claims for pulp caps. A pulp cap is a protective material utilized when the pulp of the tooth is exposed (direct pulp cap) or nearly exposed (indirect pulp cap). HRSM 230-22 differentiates a pulp cap from a medicated base. A pulp cap is reimbursable as a separate claim, the medicated base is not. Dr. Clement claimed and received payment for pulp caps 68.7 percent of the time in conjunction with a tooth restoration. There was credible evidence to show that in the generally accepted practice of dentistry, pulp caps are used no more than 5 percent of the time in a tooth restoration. Dr. Clement billed for pulp caps whenever he applied a medicated base, even though the pulp was not exposed or nearly exposed. On one hundred occasions Dr. Clement improperly filed claims and received payment for palliative (emergency) treatment at the same time that he filed a claim and was paid for regular dental treatment. Palliative treatment is used to relieve pain and discomfort on an emergency basis when time and circumstances contra-indicate a more definitive treatment and additional services. In the general accepted practice of dentistry, palliative treatment is used as a temporary measure to assist the patient until such time as regular treatment can be provided. Palliative treatment and any other treatment are mutually exclusive and normally would not be given on the same day. On those occasion where Dr. Clement filed claims and received payment for both palliative treatment and regular treatment on the same day, there is insufficient evidence to show that this treatment was within the generally accepted practice of dentistry. On sixteen occasions Dr. clement improperly filed claims and was paid for prophylaxis, periodontal scaling, and gingival curettage all on the same date of service. Prophylaxis is the standard cleaning of the teeth. Periodontal scaling is a more advanced procedure of cleaning wherein larger deposits of caclculus are removed by scraping. Gingival curretage is a more drastic procedures wherein pockets which have formed between the gum and the teeth are scraped out. While all three procedures are different, they overlap somewhat and it is not a generally accepted practice of dentistry to perform more than one of these procedures at any given time. There was no evidence presented to show that performing all three procedures on the same date was necessary or was within the generally accepted practice of dentistry. Dr. Clement filed an excessive number of claims for gingival curretage. Dr. Clement claimed and received payment for gingival curretage on 14 percent of his patients under the age of 17. In the generally accepted practice of dentistry, the use of gingival curretage on children will not normally exceed 1 percent to 3 percent for ages 10 and under or 3 percent to 6 percent over the age of 10. Although Dr. Clement urged that these claims for gingival curretage had been given prior approval, the evidence showed that the prior approval had been given based on information furnished by Dr. Clement and the dental consultant giving the prior approval did so on that information on a case by case basis and did not know of the excessive use of gingival curretage by Dr. Clement. Based on the nine areas cited for inappropriate billing, there is substantial competent evidence to show that Dr. Clement was not following generally accepted standards of dental practice.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Department of Health and Rehabilitative Services enter a Final Order finding that Dr. Clement has abused the Florida Medicaid Program and terminating Dr. Clement from participation in the Florida Medicaid Program. Respectfully submitted and entered this 7th day of May, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3023 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1. Adopted in Finding of Fact 1. 2. Adopted in Finding of Fact 2. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 4. 5. Adopted in Finding of Fact 5. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 7. 8. Adopted in Finding of Fact 8. 9. Adopted in Finding of Fact 9. 10. Adopted in Finding of Fact 10. 11. Adopted in Finding of Fact 11. 12. Adopted in Finding of Fact 12. 13. Adopted in Finding of Fact 13. 14. Adopted in Finding of Fact 14. 15. Adopted in Finding of Fact 15. 16. Adopted in Finding of Fact 16. 17. Adopted in Finding of Fact 17. 18. Adopted in Finding of Fact 18. 19. Adopted in Finding of Fact 19. 20. Adopted in Finding of Fact 20 as clarified. 21. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 17 but clarified. Rejected as immaterial and irrelevant. Rejected as not supported by substantial competent evidence in the record. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as not supported by substantial competent evidence in the record. Rejected as not supported by substantial competent evidence in the record. Rejected as immaterial and irrelevant. 9 The first sentence adopted in Finding of Fact 19. The balance is rejected as immaterial and irrelevant. COPIES FURNISHED: Theodore E. Mack, Esquire 1323 Winewood Boulevard Building 1, Room 407 Tallahassee, Florida 32399 Harold E. Regan, Esquire 308 East College Avenue Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
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.
The Issue Whether the Petitioner, Agency for Health Care Administration (Petitioner or Agency), is entitled to a Medicaid reimbursement and, if so, in what amount.
Findings Of Fact The Petitioner is the state agency charged with the authority and responsibility of administering the Florida Medicaid Program. As part of this authority, the Petitioner is required to recover Medicaid overpayments when appropriate. See § 409.913, Fla. Stat. (2006). At all times material to the allegations of this case, the Respondent was a licensed physician and a Medicaid provider subject to the provisions of Chapter 409. As a Medicaid provider, the Respondent was authorized to provide services to eligible patients but was obligated to comply with the Medicaid Provider Agreement in doing so. The Medicaid Program contemplates that authorized providers will provide services to eligible patients, bill the program and be paid according to the Medicaid standards. All Medicaid providers must practice within the guidelines of the Physicians Coverage and Limitations Handbook and applicable law. Providers may be audited so that it can be verified the process was appropriately followed. In this case, the Respondent was audited. According to the audit findings, the Respondent received payment for services that he did not perform. Dr. Eiber (a physician not part of the Respondent’s practice group) reviewed and signed off on x-ray studies and reports for which the Respondent billed and was paid by Medicaid. Dr. Eiber is a Medicaid provider but he is not affiliated with the Respondent or the Respondent’s group. In order for the Respondent to bill and receive payment for Dr. Eiber’s work, the latter physician would have to be listed and identified within the group in which the Respondent practiced. The Respondent was responsible for all billings for which he received payments. In connection with billing, the Respondent was required to maintain and retain all Medicaid- related invoices or claims for the audit period. In this regard, the Physician Coverage and Limitations Handbook specifies that when a radiological study is performed in an office setting, either the physician billing the maximum fee must have performed or indirectly supervised the performance and interpreted the study; or if a group practice, a member of the group must perform all components of the services. That procedure was not followed. When the Agency disallows a paid Medicaid claim, it must seek to recover the overpayment from the Medicaid provider who received payment on the claim. This is the basis of the “pay and chase” methodology used in the Medicaid program. The claims are paid, subject to audit, and recovery is sought when the claim is disallowed. Based on the audit findings in this cause, the Agency seeks $32,935.96 as an overpayment of Medicaid claims paid to the Respondent. The Petitioner also seeks an administrative fine in the amount of $1000.00. The Respondent was given the results of the audit and afforded an opportunity to respond and provide additional information to the Agency to show that the amounts billed were correct. The Respondent has presented no supplemental information to corroborate the correctness of the claims at issue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a Final Order sustaining the Final Audit Report and finding an overpayment against the Respondent in the amount of $32,9935.96. The Final Order should also impose an administrative fine in the amount of $1,000.00. S DONE AND ENTERED this 21st day of February, 2007, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2007. COPIES FURNISHED: Craig A. Brand, Esquire Law Offices of Craig A. Brand, P.A. Grove Forest Plaza 2937 Southwest 27th Avenue, Suite 101 Miami, Florida 33133 Willis Melvin, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III, Mail Stop 3 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Petitioner, Agency for Health Care Administration (AHCA or Petitioner), is entitled to a recoupment for a Medicaid overpayment to Respondent, Humane Minority, Inc. (Humane or Respondent), in the amount of $177,581.26.
Findings Of Fact Petitioner is the state agency responsible for administering the Florida Medicaid Program. As part of its duties, Petitioner attempts to recover Medicaid overpayments from Medicaid providers. At all times material to this case, Humane was licensed to provide various health care services to Medicaid recipients under a contract to AHCA as a Medicaid provider. As provider number 255724000, Humane participated in the Medicaid program from January 1, 2005, to February 8, 2006 (audit period). As a Medicaid provider, Respondent was subject to audit. This case arose when the Discovery Unit of Medicaid Program Integrity (MPI) identified that during the audit period Humane billed 1.5 times as much for one week as compared to ten other weeks, which is an indicator of billing irregularities. As a result, the Discovery Unit of MPI recommended a comprehensive audit of Humane. Gary Mosier, a Registered Nursing Consultant employed by AHCA in the bureau of MPI, initiated the audit of Humane after receiving the Discovery Unit’s File #47650 Recommendation memo dated May 19, 2006, referring Humane for a comprehensive audit. On or about June 13, 2006, MPI requested 30 random Medicaid patients' records from Humane’s entire Medicaid patient group for the audit period. Humane complied with the request and supplied records. The submitted medical records included a Certificate of Completeness of Records from Humane stating the documents supplied constituted all of the Medicaid-related records for the 30 patients during the Audit period. After Humane provided the requested medical records to Mosier, he forwarded the records to three physician consultants: Machado, a general practitioner; Edgar, a psychiatrist; and Reisman, an urologist. Each physician consultant reviewed Humane’s records relevant to his area of expertise and filled out agency worksheets detailing why claims should be disallowed. MPI reviewed Humane’s records provided and the worksheets filled out by the three physician consultants and determined that overpayments were made to Humane due to numerous services in whole or in part not being covered by Medicaid, which violated various Medicaid policy guidelines set forth in both the Florida Medicaid Provider General Handbook (General Handbook)1 and the Florida Medicaid Physician Services Coverage and Limitations Handbook (Physician Services Handbook).2 Humane violated policy by providing documentation that supported a lower level of office visit than the one for which Humane billed and received payment. Humane violated policy by billing and receiving payments for some services that were not documented. Humane violated policy by billing and receiving payment for services rendered by a practitioner who was not a member of Humane’s group. Humane violated policy by billing for procedure codes that have time requirements but not documenting the time spent providing the service. Humane violated policy by billing and receiving payment for services performed by another practitioner who was not enrolled in Medicaid at the time the services were rendered. Humane violated policy by billing and receiving payment for services for which the medical records, when reviewed by a Medicaid physician consultant, indicated that the services provided did not meet the Medicaid criteria for medical necessity. Humane violated policy by billing for radiology services when the reading and interpretation was done by a radiologist outside of the physician’s group. Humane violated policy and was paid for billing and received payment for portable x-ray services where Humane performed only the technical component and an independent interpreter performed the professional component. Humane violated policy and received payment when Humane did not bill according to the current procedural terminology guidelines in certain instances. On March 13, 2007, MPI issued its Preliminary Audit Report (PAR). The report detailed the Medicaid policy violations, overpayment amounts, and provided Humane the opportunity to submit an explanation or additional documentation demonstrating that some or all of the claims were properly paid. The report also notified Humane that a Final Audit Report (FAR) would be issued identifying the amount of overpayment due. Humane did not respond to the PAR. Consequently, on April 27, 2007, MPI issued a FAR, that included the amount of $177,581.26 that Humane received from Medicaid that was not authorized to be paid. This grand total of $177,581.26 constitutes an overpayment that Humane must return to the agency. A Final Audit Report-Corrected Copy was issued on May 22, 2007, correcting the total amount due.3 In addition to the overpayment amount, Petitioner also seeks a fine in the amount of $3,000.00. The fine is a calculated amount as authorized by rule.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Humane to repay the Agency for the principal amount of $177,581.26 together with an administrative fine of $3000.00. DONE AND ENTERED this 22nd day of June, 2009, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 22nd day of June, 2009.
The Issue Whether during the relevant audit period, Respondent, Mary Cecilia Crosby, D.D.S. ("Dr. Crosby"), an oral and maxillofacial surgeon, was overpaid for services that, in whole or in part, were not covered by Medicaid, were not medically necessary, were improperly coded, or were insufficiently documented; and, if so, in what amount and what is the appropriate penalty.
Findings Of Fact The Parties This case arises from an AHCA Medicaid audit of Dr. Crosby for services provided and paid for during the period July 1, 2011, through December 31, 2014. Dr. Crosby is an oral and maxillofacial surgeon, licensed to practice in Florida, who began her dental practice in 1987 after receiving her dental degree from Ohio State University College of Dentistry and a certificate for oral and maxillofacial surgery from Columbia University. Dr. Crosby maintains her practice in Royal Palm, Florida. AHCA does not contend that Dr. Crosby provided poor quality of care. It also does not claim that her billings were fraudulent. The Florida Legislature has designated AHCA as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act ("Medicaid program"). AHCA oversees and administers the Medicaid program for the State of Florida. § 409.913, Fla. Stat. AHCA investigates and audits Medicaid providers to identify and recoup overpayments for services rendered to Medicaid recipients. The Legislature also empowered AHCA to impose sanctions and fines against providers that received overpayments. § 409.913, Fla. Stat. In the Medicaid program, providers bill AHCA for services rendered and AHCA pays the bills, also called claims. Later AHCA audits the claims. This audit includes examination of whether the services were proper, whether the amounts billed were correct, and whether Medicaid covers the services provided. If AHCA determines that it overpaid a provider, AHCA seeks reimbursement of the funds. The Medicaid program follows a process of record collection, records analysis, provider input, and rebuttal from the provider before reaching its final determination of amounts overpaid. AHCA issues a FAR, sometimes amended, stating its determination and the reasons for it. If the provider disputes AHCA's final determination, it may request a formal administrative hearing. The Audit Process AHCA audited Dr. Crosby's claims and agency payments made during the period July 1, 2011, through December 31, 2014 (the "audit period"). During the audit period, Dr. Crosby was an enrolled Medicaid provider subject to the requirements of the Medicaid provider agreement. The Medicaid provider agreement is a contract between AHCA and the provider. It requires the Medicaid provider to comply with all state and federal laws establishing and regulating the Medicaid program. This includes Florida Medicaid Provider General Handbooks ("Provider General Handbooks") that are incorporated by reference into rules. The agreement required Dr. Crosby to maintain medical records and make those records available to AHCA in a systematic and orderly manner for review. The records must be accessible, legible, and comprehensive. AHCA uses a statistical sampling and extrapolation process for conducting Medicaid audits. Administrator Robi Olmstead provided the framework by which this audit was opened, investigated, reviewed, and reported. The process involves identifying and analyzing a randomly selected number of claims paid during the audit period. AHCA extrapolates the results of the analysis of the selected claims to the amount of claims paid during the audit period to determine the amount of overpayment, if any. The process of statistical sampling and the statistical methods used to establish the validity of the overpayment calculation in this case is an accepted and valid process that complies with section 409.913(20). AHCA's application of this process in this case is consistent with the requirements of all applicable versions of the Provider General Handbooks and Dental Services Coverage and Limitations Handbooks ("Dental Handbooks"), Current Dental Terminology ("CDT") manual definitions, Current Procedural Code ("CPC") definitions, Florida Statutes regulating dentistry, and dental standards of care to guide his evaluation. AHCA's application of the claims sample program resulted in the selection of the records of 35 of Dr. Crosby's patients. AHCA then asked Dr. Crosby to submit records and other documents to support her claims for the 35 patients. Dr. Crosby provided documents, including her medical records and billing records. Agency employees and a contracted expert, John H. Hardeman, D.D.S., M.D., reviewed the records. Dr. Hardeman is a Florida-licensed medical doctor and dentist, who is board- certified in oral and maxillofacial surgery. Dr. Crosby stipulated and agreed that Dr. Hardeman meets the requirements and qualifications of a "peer" as defined in section 409.9131. Dr. Hardeman's testimony is credible. The Audit Reports AHCA preliminarily concluded that it had overpaid Dr. Crosby $862,226.96. AHCA advised Dr. Crosby of its conclusion in a Preliminary Audit Report ("PAR"). This report and its attached worksheets explicated AHCA's rationale for its conclusions. AHCA provided Dr. Crosby an opportunity to provide additional records to support her claims, and to explain the questioned billings, but Dr. Crosby provided no further records. AHCA issued the FAR, seeking repayment from Dr. Crosby in the amount of $862,226.96 as a Medicaid overpayment for paid claims that, in whole or in part, are not covered by Medicaid. AHCA sought to impose a fine of $50,000.00 as a sanction for violations of rule 59G-9.070(7)(e). AHCA also claims that Respondent should pay investigative, legal, and expert witness costs, pursuant to section 409.913(23). Prior to the final hearing, AHCA performed further revisions and seeks $841,666.43 from Dr. Crosby as a Medicaid overpayment; seeks to impose upon Respondent a reduced fine of $49,000.00 for violation of rule 59G-9.070(7)(e); and also seeks payment of costs pursuant to section 409.913(23). The FAR identified four categories of shortcomings, resulting in reductions in payments for claims, under the heading "Findings" as follows: The 2008 and 2012 Florida Medicaid Provider General Handbooks, page 5-4, state that when presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to present a claim for goods and services that are medically necessary. A review of your medical records by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. revealed that the medical necessity for some claims submitted was not supported by the documentation. Payments made to you for these services are considered an overpayment. (NMN) The 2008 and 2012 Florida Medicaid Provider General Handbooks, page 5-4, require that when presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to present a claim that is true and accurate and is for goods and services that have actually been furnished to the recipient. A review of your medical records revealed that some services rendered were erroneously coded on the submitted claim. The appropriate dental code was applied. These dental services are not reimbursable by Medicaid. Payments made to you for these services are considered an overpayment. (ERROR IN CODING) The 2008 Florida Medicaid Provider General Handbook, pages 2-57 and 5-8 and the 2012 Florida Medicaid Provider General Handbook, pages 2-60 and 5-9, define incomplete records as records that lack documentation that all requirements or conditions for service provision have been met. A review of your medical records revealed that the documentation for some services for which you billed and received payment was incomplete or was not provided. Payments made to you for these services are considered an overpayment. (INSUFFICIENT/NO DOC) The 2007 Dental Services Coverage and Limitations Handbook, page 2-1 through 2-4, and pages 3-1 through 3-8, and the 2011 Dental Services Coverage and Limitations Handbook, page 2-1 through 2-5, state that only those services designated in the applicable provider handbook and fee schedule are reimbursed by Medicaid after the correct code was assigned. Payments made to you for these services are considered overpayments. (NOT A COVERED SERVICE). Bone Grafting--Coding Issues Most of the claims in dispute in this case involve whether procedures identified by Dr. Crosby as bone grafting, following the extraction of molars or wisdom teeth, were medically necessary or properly coded as procedures covered by Medicaid. The Florida Medicaid Dental Program, at the time of the audit, was limited in scope in the services and treatments available. The program does not cover preventive care. For the procedures in question, Dr. Crosby used CPC codes 21210 and 21215, which are codes for face bone and lower jaw bone grafts, respectively. Dr. Hardeman opined that the appropriate code for the procedures performed by Dr. Crosby is CDT Code D7953, which is not a Medicaid-covered procedure. CPC Code 21210 is for a graft in the upper jaw and described as "[g]raft, bone: nasal, maxillary or malar areas (includes obtaining graft)." CPC Code 21215 is for a graft in the lower jaw and described as "[m]andible (includes obtaining graft)." Significantly, the CPC manuals in effect during the years of the audit provide an introduction to the graft codes which states: Codes for obtaining autogenous bone, cartilage, tendon, fascia lata grafts, or other tissues through separate skin/fascial incisions should be reported separately unless the code descriptor references the harvesting of the graft or implant (eg., includes obtaining graft). (Emphasis added). CDT Code D7953 states as follows: bone replacement graft for ridge preservation--per site Osseous autograft, allograft or non-osseous graft is placed in an extraction site at the time of the extraction to preserve ridge integrity (e.g., clinically indicated in preparation for implant reconstruction or where alveolar contour is critical to planned prosthetic reconstruction). Membrane, if used should be reported separately. In laymen's terms, CPC codes 21210 and 21215 are for complex bone grafting involving a fairly extensive surgical procedure, including the harvesting of bone from the patient's body or that of a cadaver, and filling in or reconstructing a portion of the jaw. These codes apply when the bone grafting procedures are required because of traumatic or genetic defects and relate to large areas of reconstruction, not a single socket. None of the recipients who received bone grafts coded as CPC 21210 and 21215 had a traumatic injury. The Coding Guide for CPC codes 21210 and 21215, respectively, state that these grafts "may be held in place with wires, plates or screws" and the graft "shall be firmly positioned with wires, plates or screws". Dr. Crosby did not use plates, wires, or screws in any of the bone grafting procedures at issue. Dr. Crosby did not harvest any bone from any recipient but purchased the bone putty material from a manufacturer. Her belief, that taking putty out of a jar for a graft, constitutes "obtaining graft" is inconsistent with the CPC explanation of grafts for purposes of codes 21210 and 21215. These codes clearly require harvesting the bone material. Dr. Hardeman credibly testified that the procedures performed, with one exception, which was then allowed by AHCA post-FAR, were socket or ridge preservation grafts more appropriately coded as D7953. However, D7953 is a dental code that is not available for billing to Medicaid. That code is not present in the Dental General Fee Schedules or the Dental Oral/Maxillofacial Surgery Fee Schedules for any of the years of the audit period. Dr. Hardeman explained that it would take a competent oral surgeon from 15 to 20 minutes to remove impacted wisdom teeth and "just a few brief moments" to perform the bone grafting procedures Dr. Crosby billed to Medicaid and which are the subject of this audit. However, Dr. Crosby billed and received payment from Medicaid for bone grafting procedures at rates as high as $2,256.56. Agreements Reached During Final Hearing At final hearing, Dr. Crosby testified on her own behalf and presented the testimony of her expert witness, Dr. Robert Marx, D.D.S., who is also an oral and maxillofacial surgeon. Despite the claims in the Petition for Formal Administrative Hearing and the Amended Joint Prehearing Stipulation, at the final hearing, further agreement was reached on certain claims. Recipient 10, claims 5 through 12, were withdrawn because Dr. Crosby acknowledged the records/claims were actually for someone other than the recipient (they belonged to a sibling of the recipient). These claims were properly denied by AHCA. Also, in his final hearing testimony, Dr. Marx agreed with Dr. Hardeman's conclusions that AHCA properly denied the claims for the following: Recipient 4, claim 2; Recipient 5, claims 3, 13, 15, and 181/; c. Recipient 10, claim 2; d. Recipient 13, claim 2; e. Recipient 16, claim 7; f. Recipient 17, claim 4; g. Recipient 18, claim 4; h. Recipient 20, claim 2; i. Recipient 24, claim 5; j. Recipient 27, claim 7; k. Recipient 27, claim 13; l. Recipient 30, claim 3; m. Recipient 30, claim 4; n. Recipient 30, claim 5; o. Recipient 30, claim 7; p. Recipient 31, claim 4; q. Recipient 31, claim 6; r. Recipient 34, claim 4; and s. Recipient 34, claim 13. In addition, Dr. Crosby also conceded the following claims which had been disallowed by Dr. Hardeman, even though her expert, Dr. Marx disagreed: Recipient 27, claim 6; and Recipient 34, claim 3. To the extent that Dr. Marx agreed with Dr. Hardeman, the undersigned upholds their findings, even if disputed by Dr. Crosby. To the extent that Dr. Crosby conceded claims, the undersigned accepts that testimony, which is supported by that of Dr. Hardeman. Remaining Disputed Claims Eliminating the claims conceded at the final hearing leaves the following claims for determination: Recipient 5, claim 25 (code 41150--denied as error in coding and not a covered service). Recipient 10, claim 3 (code 21215--denied as error in coding, not medically necessary, and not a covered service). Recipient 10, claim 4 (code 21215--denied as error in coding, not medically necessary, and not a covered service). Recipient 11, claim 5 (code 21215--denied as error in coding, not medically necessary, and not a covered service). Recipient 15, claim 10 (code 21215--denied as error in coding, not medically necessary, and not a covered service). Recipient 15, claim 11 (code 21215--denied as error in coding, not medically necessary, and not a covered service). Recipient 16, claim 8 (code 21215--denied as error in coding, not medically necessary, and not a covered service). Recipient 20, claim 1 (denied for lack of documentation). Recipient 21, claim 1 (denied for lack of documentation). Recipient 21, claim 4 (error in coding--payment was reduced, but not denied). Recipient 23, claim 4 (code 21215--denied as error in coding and not a covered service). Recipient 23, claim 5 (code 21215--denied as error in coding and not a covered service). Recipient 24, claim 4 (code 21210--denied as error in coding and not a covered service). Recipient 24, claim 5 (code 21210--denied as error in coding and not a covered service). Recipient 27, claim 8 (code 21215--denied as error in coding, not medically necessary, and not a covered service). Recipient 27, claim 12 (code 21215--denied as error in coding, not medically necessary, and not a covered service). Recipient 29, claim 6 (code 41150--denied as error in coding and not a covered service). Recipient 34, claim 12 (code 21215--denied as error in coding, not medically necessary, and not a covered service). Specific Claims Recipient 5, Claim 25, and Recipient 29, Claim 6 Recipient 5, claim 25, and Recipient 29, claim 6, both concern claims billed for "Reconstruction of a Tongue Fold." AHCA denied these claims based on error in coding and the procedures not being covered by Medicaid. With regard to these claims, Dr. Hardeman testified that Dr. Crosby billed code D41520, which is very specific in its language and requires an incision and rearrangement of tissues. However, the procedure she actually performed was a maxillary frenectomy, which only involves cutting the muscle attachments. Because there was no documentation showing Dr. Crosby made an incision and rearranged the tissues in a Z-plasty formation, Dr. Hardeman opined that code 40806 was more appropriate. Dr. Marx testified that the code used was proper because Dr. Crosby had to place a stitch, even though that code calls for repositioning of tissue, which Dr. Crosby admittedly did not do. The testimony of Dr. Hardeman was more credible than that of Dr. Marx with regard to this issue. AHCA properly adjusted payment for these claims. Recipient 10, Claims 3 and 4 Dr. Crosby coded the procedures as CPC code 21215, grafts in the lower jaw of a 14-year-old patient. However, Dr. Crosby did not "obtain a graft" from this patient. Rather she opened a jar and removed putty to place in the socket after removal of impacted wisdom teeth. Dr. Hardeman testified that a bone graft was not warranted, even for the preservation of the ridge. Younger patients tend to heal better. The current standard of care is not to perform grafting in patients less than 26 years old. Dr. Hardeman relies on the position papers ("white papers") of the American Association of Oral and Maxillofacial Surgeons ("AAOMS"). Dr. Marx disagreed and opined that the 26-year-old cut-off has been disregarded in the last 15 years and that using grafting material leads to complete bone regeneration. According to Dr. Marx, younger patients will get complete healing without grafting material but they will not get complete bone regeneration. Dr. Marx offered no evidence in support of this theory. Dr. Hardeman's testimony regarding the medical necessity of grafting in younger patients is more credible and accepted.2/ Code D7953 is the appropriate code for these procedures, and AHCA properly adjusted payment for these claims. Recipient 11, Claim 5 This claim involves the extraction of tooth 17, an impacted third molar with an enlarged follicle. Both experts agree that grafting was appropriate to preserve tooth 18. However, Dr. Hardeman explained that this was a ridge preservation graft and should have been coded D7953 rather than 21215. Dr. Marx offered no contradictory testimony. AHCA properly adjusted payment for this claim. Recipient 15, Claims 10 and 11 Both claims involve the removal of wisdom teeth from the lower jaw of a 17-year-old. Both experts agree that grafting was appropriate. Again, the dispute centers on the appropriate coding. The experts disagreed regarding the extensiveness of the reconstruction needed. However, because Dr. Crosby did not harvest any graft material from the patient, these procedures were miscoded, and AHCA properly adjusted payment for these claims. Recipient 16, Claim 8 This procedure involved extraction of a molar in the lower jaw and a graft. Dr. Hardeman testified he would not have used a graft for this tooth, but did not explain why. Dr. Marx testified that "if Dr. Crosby had to remove bone to get out the roots and such, then it would be justifiable, but I would have her testify to that, not me." During her testimony, Dr. Crosby agreed with Dr. Marx that this claim should be allowed, but provided no explanation. Insufficient testimony and evidence was provided to decide whether this procedure was medically necessary. However, given the fact that Dr. Crosby did not harvest bone for any of the claims in dispute in this audit, code 21215 is not appropriate, and AHCA properly adjusted payment for this claim. Recipient 20, Claim 1; Recipient 21, Claim 1 AHCA denied claim 1 (limited oral evaluation; problem focused) on Recipients 20 and 21 based on insufficient medical documentation of the evaluation. Dr. Hardeman testified that the necessary components of an evaluation that need to be documented are the medical history, review of symptoms, a review of the data, and an assessment leading to a plan of action. For Recipient 20, claim 1, there was only a notation that the risks were mentioned to the mother. Missing were the chief complaint, a brief medical history of the patient, a review of systems, a review of data (such as X-rays or tests), and a treatment plan. Dr. Marx's explanation, that this amount of information is unnecessary for a limited oral exam, was not credible. For Recipient 21, claim 1, the notes and the treatment provided did not match. The notes reflect Dr. Crosby performed a limited exam for teeth 1, 16, and 32. However, on the treatment date, teeth 31 and 32 were removed. AHCA properly adjusted the payment for these claims. Recipient 21, Claim 4 AHCA reduced payment by $14.00 on claim 4 (tooth root removal) on Recipient 21 based on an error in coding. Dr. Hardeman testified that D7250 was inappropriate and D7210 was appropriate due to the initial status of the tooth. CDT Code 7250 is for the "surgical removal of residual tooth roots (cutting procedure) and "includes cutting of soft tissue and bone, removal of tooth structure, and closure." CDT Code 7210 is for "surgical removal of erupted tooth requiring removal of bone and/or sectioning of tooth, and including elevation of mucoperiosteal flap if indicated," and "includes related cutting of gingiva and bone, removal of tooth structure, minor smoothing of socket bone and closure." Which code applies depends on how much tooth, if any, is present at the beginning of the procedure. If tooth is present above the gum line, the appropriate code is D7210. If only roots remain, the code is D7250. Dr. Marx offered no testimony on this claim. Dr. Crosby explained that she used D7250 because the decay was so extensive that there was virtually no tooth left. However Dr. Hardeman credibly testified that the X-ray taken before the procedure for the tooth showed some tooth remaining. AHCA properly adjusted the payment for this procedure. Recipient 23, Claims 4 and 5 This claim involves the appropriate coding for the removal of two side-by-side molars (teeth 1 and 2) in the upper jaw of a 30-year-old. Dr. Crosby used CPC code 21215 for both procedures. Dr. Marx testified that this coding was appropriate for one tooth but not both. The removal of the two teeth created a jaw defect because the teeth occupied a "fair amount of bone," and was more than a socket defect. However, as with Recipients 10 and 15 discussed above, no harvesting of bone was done. CDT Code 7953 is the appropriate code for the kind of graft used here. AHCA properly adjusted the payment for these procedures. Recipient 24, Claims 4 and 5 These claims involve the removal of teeth 1 and 2 from the upper jaw of a 17-year-old. Both experts agreed that grafting was medically necessary. Dr. Crosby used CPC code 21210. Because there was no harvesting of bone, CDT Code 7953 is the appropriate code for the kind of graft used here. AHCA properly adjusted the payment for these procedures. Recipient 27, Claims 8 and 12 These claims involve the removal of upper and lower left wisdom teeth of a 16-year-old. Dr. Hardeman testified that these procedures were not medically necessary, but did not explain why. However, because there was no harvesting of bone, CDT Code 7953 is the appropriate code for the kind of graft used here, rather than CPC code 21210 and 21215 used by Dr. Crosby. AHCA properly adjusted the payment for these procedures. Recipient 34, Claim 12 This claim involves the lower jaw bone graft in a 12-year-old after removal of tooth 29. Grafting was not appropriate due to the age of the patient. Further, because there was no harvesting of bone, CDT Code 7953 is the appropriate code for the kind of graft used here, rather than CPC code 21215 used by Dr. Crosby. AHCA properly adjusted the payment for this procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: requiring Respondent to repay claims in the amount of $841,666.43; imposing a sanction of $49,000.00; and requiring Dr. Crosby to repay AHCA's investigative, legal and expert witness costs. If the parties do not stipulate to the amount of costs, the final order should permit Dr. Crosby to request a hearing to contest the amount of costs. DONE AND ENTERED this 18th day of April, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 18th day of April, 2019.
The Issue Whether Petitioner was overpaid by the Florida Medicaid Program and, if so, the amount of the overpayment.
Findings Of Fact At all times material to this proceeding, Respondent has been the state agency charged with responsibility for overseeing the Florida Medicaid Program, including the recovery of overpayments to Medicaid providers pursuant to Section 409.913, Florida Statutes. At all times material to this proceeding, Petitioner was an authorized Medicaid provider, having been issued provider number 377290000. Petitioner had valid Medicaid Provider Agreements with the Agency for Health Care Administration (AHCA) during the Audit Period, which began on January 1, 1996, and ended on May 10, 1999. Petitioner graduated from the University of Puerto Rico School of Medicine in 1987, did an internship at Tulane University, did a residency in internal medicine at Eastern Virginia Graduate Medical School, and did a fellowship in hematology at Washington Hospital Center. He served as Chief of Hematology for Kessler Medical Center in Biloxi, Mississippi, while serving in the United States Air Force (with the rank of major). At the time of the final hearing, Petitioner was licensed to practice medicine in Florida, Virginia, Puerto Rico, and Washington, D.C. At the time of the final hearing, Petitioner was employed by the National Institutes of Health (NIH) as a Medical Officer, Health Scientist Administrator. Petitioner served as an advisor to the director of the NIH on issues related to HIV (human immunodeficiency virus) and AIDS (acquired immunodeficiency syndrome). Petitioner’s specialty is internal medicine with a sub- specialty in hematology. Petitioner has extensive experience treating persons suffering with HIV and AIDS dating back to 1987. Pursuant to his Medicaid Provider Agreements, Petitioner agreed to: (1) retain for five years complete and accurate medical records that fully justify and disclose the extent of the services rendered and billings made under the Medicaid program; (2) bill Medicaid only for services or goods that are medically necessary; and (3) abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. Respondent audited Petitioner’s Medicaid claims during the Audit Period and conducted a peer review of Petitioner’s billings and medical records of 25 of Petitioner’s patients as part of that audit.2 Joseph W. Shands, M.D., conducted the peer review of the documentation provided by Petitioner for purposes of the audit conducted by AHCA. Dr. Shands first reviewed documentation provided by Petitioner in 1999. He had no further participation in the audit until he reviewed information in preparation for his deposition in this proceeding. Dr. Shands graduated from medical school in 1956, trained in internal medicine, and worked as a microbiologist for approximately 15 years. He served as Chief of Infectious Diseases at the University of Florida for 23 years and also treated patients through the Alachua County Public Health Department and Shands Hospital at the University of Florida. Dr. Shands' practice was devoted almost entirely to the treatment of patients diagnosed with HIV/AIDS. Dr. Shands retired from the practice of medicine in May 2002. For three years prior to his retirement, Dr. Shands practiced medicine part-time. Petitioner was sent a Preliminary Agency Audit Report (PAAR) dated May 25, 1999, that found an overpayment in the amount of $862,576.72. In response to that PAAR, Petitioner had the attorney representing him at that time respond to AHCA in writing. The letter from the attorney, dated June 2, 1999, requested a copy of AHCA’s supporting materials and clarification of certain matters. AHCA did not respond. AHCA issued its FAAR on January 22, 2004, asserting that Petitioner was overpaid by the Florida Medicaid Program in the total amount of $261,336.14 for services that in whole or in part were not covered by Medicaid. There was no plausible explanation why the FAAR was not issued until 2004, whereas the audit period ended in 1999. The difference between the amount of the alleged overpayment reflected by the PAAR and the amount of the alleged overpayment reflected by the FAAR is attributable to the use of different methodologies in calculating the amounts overpaid. The FAAR used the correct methodology that was not challenged by Petitioner. The FAAR sets forth five categories of alleged overpayments. Each category accurately describes an overpayment based on applicable Medicaid billing criteria. The five categories are as follows: Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some service for which you billed and received payment were not documented. Medicaid requires documentation of the services and considers payments made for services not appropriately documented an overpayment. (For ease of reference, this will be referred to as Category I.) Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office visits. The documentation you provided supports a lower level of office visit than the one for which you billed and received payment. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. (For ease of reference, this will be referred to as Category II.) Medicaid policy addresses the type of pathology services covered by Medicaid. You billed and received payment for laboratory tests that were performed outside your facility by an independent laboratory. Payments made to you in these instances are considered overpayments. (For ease of reference, this will be referred to as Category III.) Medicaid policy requires the Medicaid services be provided by or under the personal supervision of a physician. Personal supervision is defined as the physician being in the building when the services are rendered and signing and dating the medical records within twenty-four hours of service delivery. You billed and received payment for services which your medical records reflect you neither personally provided nor supervised. Payment made to you for all or a part of those services is considered an overpayment. (For ease of reference, this will be referred to as Category IV.) Medicaid policy requires services performed be medically necessary for the diagnosis and treatment of an illness. You billed and received payments for services for which the medical records, when reviewed by a Medicaid physician consultant, indicated that the services provided did not meet the Medicaid criteria for medical necessity. The claims which were considered medically unnecessary were disallowed and the money you were paid for these procedures is considered an overpayment. (For ease of reference, this will be referred to as Category V.) CATEGORY I CLAIMS The disputed Category I claims can be separated into two subcategories: services performed while an employee of a corporate employer and services performed while a recipient was hospitalized. As to both subcategories Petitioner argues that he has been prejudiced by Respondent’s delay in issuing the FAAR because Medicaid requires providers to retain medical records only for five years from the date of service.3 Although Respondent was dilatory in prosecuting this matter, Petitioner’s argument that Respondent should be barred (presumably on equitable grounds such as the doctrine of laches) should be rejected. Petitioner has cited no case law in support of his contention, and it is clear that any equitable relief to which Petitioner may be entitled should come from a court of competent jurisdiction, not from this forum or from an administrative agency. All billings for which there are no medical records justifying the services rendered should be denied. CATEGORY II CLAIMS The following findings as to the Category II claims are based on the testimony of the witnesses and on the information contained in the exhibits.4 Although nothing in the record prior to the final hearing reflects that position, Petitioner did not dispute most of the down-codings at the final hearing. Office visits, whether supported by a doctor’s note or a nurse’s note, for the sole purpose of administering IVIG treatment, will be discussed in the section of this Recommended Order dealing with Category V claims. The office visits, which were for the purpose of intravenous immunoglobulin (IVIG) treatment and for other reimbursable medical services, are set forth as part of the Category II disputes. The following findings resolve the Category II disputes. The date listed is the date the service was rendered. The billing code following the date is the billing code that is supported by the greater weight of the evidence. Recipient 1:5 01-20-98 99213 Recipient 2 09-27-96 99214 10-10-96 99213 11-13-96 99214 12-23-96 99212 02-24-97 99214 04-21-97 99213 04-28-97 99214 05-21-97 99213 06-02-97 99213 07-09-97 99213 07-23-97 99212 08-06-97 99213 08-11-97 99212 10-01-97 99213 10-10-97 99213 10-15-97 99214 10-21-97 99214 11-10-97 99213 12-08-97 99213 12-17-97 99213 12-29-97 99213 01-21-98 99213 Recipient 3 10-21-97 99213 11-04-97 99213 11-25-97 99213 12-16-97 99213 01-27-98 99214 02-26-98 99214 Recipient 4 01-03-98 99254 01-04-98 99261 01-05-98 99261 Recipient 5 09-29-97 99204 Recipient 6 11-11-97 99204 11-18-97 99213 Recipient 7 01-26-98 99204 02-23-98 99213 Recipient 8 09-26-96 99214 09-30-96 99213 10-03-96 99213 10-10-96 99212 10-25-96 99214 11-29-96 99213 12-04-96 99213 12-30-96 99213 01-22-97 99214 01-31-97 99211 02-14-97 99212 03-17-97 99214 04-04-97 99213 04-25-97 99212 05-30-97 99211 07-11-97 99213 08-08-97 99213 08-22-97 99213 09-05-97 99212 09-19-97 99214 10-31-97 99214 11-24-97 99214 12-03-97 99213 12-29-97 99213 01-09-98 99214 01-16-98 99213 01-30-98 99214 02-13-98 99214 Recipient 9 11-24-97 99203 Recipient 10 10-14-96 99205 11-04-96 99213 11-11-96 99213 11-25-96 99214 12-30-96 99213 01-27-97 99214 02-24-97 99214 03-10-97 99213 03-24-97 99212 04-07-97 99213 04-21-97 99214 05-05-97 99212 05-19-97 99213 05-21-97 Deny 06-09-97 99213 07-07-97 99212 08-04-97 99213 08-18-97 99213 09-24-97 992136 10-06-97 99213 10-10-97 99214 10-27-97 99213 11-10-97 99213 11-19-97 99214 11-24-97 99213 12-08-97 99213 02-02-98 99213 Recipient 11 06-30-97 99204 11-06-97 Recipient 12 Deny due to lack of documentation. 10-14-97 99213 11-06-97 99204 11-20-97 99213 12-16-97 99213 01-06-98 99213 Recipient 13 There are no Category II billings at issue for this Recipient. Recipient 14 There are no Category II billings at issue for this Recipient. Recipient 15 09-16-97 992157 Recipient 16 02-19-98 99212 Recipient 17 There are no Category II billings at issue for this Recipient. Recipient 18 There are no Category II billings at issue for this Recipient. Recipient 19 09-27-96 99212 10-01-96 99213 10-10-96 99213 10-23-96 99213 11-06-96 99213 11-20-96 99213 12-18-96 99211 12-30-96 Deny due to lack of 01-09-97 documentation. Deny due to lack of 01-22-97 documentation. 99211 02-05-97 99214 03-05-97 99214 03-19-97 99211 03-24-97 99214 03-26-97 04-02-97 Deny due to lack documentation. 99213 of 04-21-97 99213 05-05-97 99212 05-19-97 99213 06-02-97 99212 06-30-97 99213 07-07-97 99213 07-14-97 99213 07-28-97 99212 08-18-97 99213 08-25-97 99213 09-08-97 99213 09-15-97 99214 09-22-97 99213 10-28-97 99214 11-04-97 11-07-97 Deny due to lack documentation. 99213 of 11-24-97 99213 12-29-97 99213 01-12-98 99213 01-26-98 99213 02-19-98 99214 02-23-98 99213 Recipient 20 12-04-96 99204 12-13-96 99213 01-03-97 99213 01-17-97 99213 01-27-97 99213 02-07-97 99214 02-21-97 99213 03-07-97 99214 03-21-97 99212 04-04-97 99214 04-21-97 99212 05-06-97 99213 06-04-97 99213 06-13-97 99213 06-30-97 99213 07-14-97 99213 08-04-97 99213 01-19-98 99213 Recipient 21 04-29-97 99204 05-13-97 99214 05-16-97 99213 05-23-97 99212 06-09-97 99212 06-23-97 99212 07-11-97 99211 07-25-97 99213 08-11-97 99213 09-10-97 99213 11-05-97 99214 11-19-97 99213 12-22-97 99213 01-07-98 99214 01-21-98 99213 02-04-98 99213 Recipient 22 02-16-98 99205 02-20-98 99213 02-23-98 99213 Recipient 23 06-23-97 99215 10-02-97 992138 Recipient 24 There are no Category II billings at issue for this Recipient. Recipient 25 01-24-97 99213 02-07-97 99213 02-24-97 99212 03-10-97 99213 03-24-97 99212 05-05-97 99212 05-19-97 99212 06-02-97 99212 06-16-97 99212 07-14-97 99213 07-23-97 99212 07-28-97 99213 08-18-97 99213 08-25-97 99213 09-15-97 99213 10-01-97 99213 10-13-97 99213 10-27-97 99214 12-08-97 99213 12-22-97 99213 12-29-97 99213 01-13-98 99212 01-19-98 99214 02-02-98 99212 CATEGORY III As set forth in the Physician Coverage and Limitation Handbook (Respondent’s Exhibit 6), Petitioner is not entitled to billings for laboratory tests that were performed outside his facility by an independent laboratory. The only billing arguably in Category III is the billing for Recipient 1 on February 19, 1998. That billing should have been approved because it was for a urinalysis by dip stick or tablet that was administered and analyzed by Petitioner. It was not analyzed by an independent laboratory. CATEGORY IV All Category IV billings pertained to Petitioner’s supervision of his staff while patients were receiving treatments of IVIG. Those billings will be subsumed in the Category V billings discussion. CATEGORY V The alleged Category V overpayments relate to Petitioner’s IVIG treatment of Patients 2, 8, 10, 19, 20, 21, and 25, each of whom was an adult diagnosed with AIDS. In many of these cases a nurse administered the IVIG treatment. A dispute as to whether Petitioner properly supervised the nurse while he or she administered the IVIG treatment is moot because of the findings pertaining to the IVIG treatments set forth in Paragraphs 20 and 21. The Physician Coverage and Limitations Handbook requires that rendered services be medically necessary, as follows: Medicaid reimburses for services that are determined medically necessary and do not duplicate another provider’s service. In addition, the services must meet the following criteria: the services must be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient’s needs; the services cannot be experimental or investigational; the services must reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; and the services must be furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider. The use of IVIG in adult AIDS patients is not approved by the Federal Drug Administration (FDA). The use of a drug for a purpose other than the uses approved by the FDA is referred to as an “off-label” use. The off-label use of IVIG in adult AIDS patients is not effective either from a medical standpoint or from an economic standpoint. There was a conflict in the evidence as to whether any of the Recipients at issue in this proceeding had a medical condition or conditions other than AIDS that would justify the IVIG treatment administered by Petitioner. The following finding resolves that conflict. Utilizing applicable Medicaid billing criteria, the medical records produced by Petitioner fail to document that any of the Recipients at issue in this proceeding had a medical condition or conditions that warranted treatment with IVIG.9 All of Petitioner’s billings for IVIG treatments for Recipients 2, 8, 10, 19, 20, 21, and 25 were properly denied under the rationale of the FAAR’s Category V. Included in the billings that were properly denied were billings for office visits (whether documented by a doctor’s note or a nurse’s note) when the sole purpose of the office visit was the administration of an IVIG treatment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order adopting the Findings of Fact and Conclusions of Law set forth in this Recommended Order. It is further RECOMMENDED that the Final Order require that Petitioner repay the sum of the overpayment as determined by Respondent’s staff based on the Findings of Fact set forth in this Recommended Order. DONE AND ENTERED this 20th day of January, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2005.
