00-002285 C. Dwight Groves vs. Agency For Health Care Administration Status: Closed Recommended Order on Thursday, December 21, 2000.

Summary: Provider was liable for overpayment of Medicaid claims. Provider required to repay overpayments after recalculation of amount. No fine imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

C. DWIGHT GROVES , )

)

Petitioner, )

)

vs. ) Case No. 00-2285

)

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A hear ing was held pursuant to notice, on October 3, 2000,

in Lake City, Florida, by Barbara J. Staros, assigned

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Gerald D. Mills, MBA, JD

Healthcare Consultants of America, Inc.

Post Office Box 52979

Atlanta, Georgia 30355

For Respondent: L. William Porter, II, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUE

Whether Petitioner is liable for overpayment of Medicaid

claims for the period of January 1, 1997, through December 31,

1998, as stated in Respondent's Final Agency Audit dated

March 10, 2000.

PRELIMINARY STATEMENT

By Final Agency Audit Report dated March 10, 2000, the

Agency for Health Care Administration (Respondent) notified

C. Dwight Groves, M.D. (Petitioner) that he was liable for

overpayment of Medicaid claims in the amount of $55,829.04, for

the period from January 1, 1997, through December 31, 1998.

Petitioner disputed being liable for reimbursement to Respondent

for overpayment of the Medicaid claims and requested a hearing.

On May 30, 2000, this matter was referred to the Division of

Administrative Hearings.

At hearing, Gerald D. Mills, MBA, JD, was authorized to

appear on behalf of Petitioner as a Qualified Representative

pursuant to Rule 28-106.106, Florida Administrative Code.

The parties announced at the beginning of the hearing that

they had resolved all but one issue raised in the agency's audit

and that the resulting amount of overpayment in dispute was

approximately $51,000. The parties stipulated that the remaining

issue to be litigated was whether the services billed by an

advanced registered nurse practitioner (ARNP) should be subject

to reimbursement by Petitioner to Respondent.

Petitioner was not present at the hearing. Petitioner

presented no witness testimony and entered three exhibits

numbered 1, 3, and 5 into evidence and offered four exhibits

which were rejected. Respondent presented the testimony of two

witnesses and entered 6 exhibits (Respondent's exhibits numbered

1-24 (composite), 27, 36, 37, 38 and 39.) 1

At the request of the parties, the time for filing post-

hearing submissions was set for more than ten days following the

filing of the transcript. The parties, therefore, waived the

provisions of Rule 28-106.216, Florida Administrative Code. The

transcript, consisting of one volume, was filed on October 26,

2000. The parties timely filed post-hearing submissions which

have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all times material hereto, the Agency for Health Care

Administration (Respondent) was the state agency charged with

administration of the Medicaid program in the State of Florida

pursuant to Section 409.907, Florida Statutes (1997).

2. At all times material hereto, C. Dwight Groves, M.D.

(Petitioner) was a licensed medical doctor in the State of

Florida and was providing medical services to Medicaid

recipients. Petitioner provided the medical services pursuant to

a contract with Respondent. When first accepted as a Medicaid

provider in June of 1995, Petitioner was assigned provider number

3777278-00 and was approved for providing and billing for

physician services. The letter notifying Respondent that he was

accepted as a Medicaid provider referenced an enclosed handbook

which explained how the Medicaid program operates and how to bill

Medicaid. At that time Petitioner practiced in Key West,

Florida.

3. In October of 1997, Petitioner notified Respondent of a

change of address to Southern Group for Women in Lake City,

Florida. According to the answers provided to a Medicaid

Provider Questionnaire, Petitioner became affiliated with

Southern Group for Women on October 16, 1997. Petitioner's

medical practice was and is in the area of obstetrics and

gynecology.

4. Respondent's witness, Toni Steele, is employed by

Respondent in its Medicaid program integrity division. During

the audit period in question, she was a senior human services

program specialist. Her job responsibility was to ensure that

Medicaid providers in Florida adhered to Medicaid policy and

rules.

5. Medicaid program integrity uses several detection

devices to audit Medicaid provider billing. One such device is

what is referred to as a "one and a half report." This type of

report will indicate when a provider "spikes" one and a half

times his or her normal billings. During December of 1998,

Ms. Steele noticed a "spike" in Petitioner's billings. Because

of this spike, Medicaid program integrity, ordered an ad hoc

sampling of his billings within a two-year billing period,

January 1, 1997, through December 31, 1998. She reviewed the

sample and, using the Medicaid Management Information System, was

able to look at the actual dates of service and view the

procedure code that was billed and paid by Medicaid.

6. Ms. Steele then conducted an on-site visit to

Petitioner's office. As is her usual practice, she took a tour

of Petitioner's office looking at what types of lab equipment

were there, the State of Florida license, and the number of

medical personnel employed.

7. During the on-site visit, Ms. Steele presented the

office manager with a computer-generated list of patients and

requested that the office manager provide the medical records of

those patients on the list. The requested 31 files were provided

to her within the requested time frame.

8. Ms. Steele reviewed the patients' files received from

Petitioner's office for the purpose of determining policy

violations according to the Medicaid Physician Coverage and

Limitations Handbook (Nov. 1997), the Advanced Registered Nurse

Practitioner Coverage and Limitations Handbook (Nov. 1997), and

the Medicaid Provider Reimbursement Handbook (Nov. 1996).

9. The Medicaid Provider Reimbursement Handbook (Nov. 1996)

provides in pertinent part:

Introduction:

Every facility, individual and group practice

must submit an application and sign an

agreement in order to provide Medicaid

services.

Note : See the Coverage and Limitations

Handbook for specific enrollment

requirements.

Group Enrollment:

When two or more Medicaid providers form a

group practice, a group enrollment

application must be filed with the Medicaid

fiscal agent.

* * *

Renewal:

A provider agreement is valid for the time

period stated in the agreement and must be

renewed by the provider by completing a new

provider agreement and submitting it to the

Medicaid fiscal agent 30 days prior to the

expiration date of the existing agreement.

10. The Physician Coverage and Limitations Handbook

(Nov. 1997) provides in pertinent part:

Other Licensed Health Care Practitioners:

If a physician provider employs or contracts

with a non-physician health care practitioner

who can enroll as a Medicaid provider and

that health care provider is treating

Medicaid recipients, he or she must enroll as

a Medicaid provider.

Examples of non-physician health care

practitioners who can enroll as Medicaid

providers include but are not limited to:

physician assistants, advanced registered

nurse practitioners, registered nurse first

assistants, physician therapists, etc.

If the services rendered by a non-physician

health care practitioner are billed with that

practitioner as the treating provider, the

services must be provided in accordance with

the policies and limitations contained in

that practitioner's program-specific Coverage

and Limitations Handbook.

* * *

Physician Supervision:

Delivery of all services must be done by or

under the personal supervision of the

physician.

Personal supervision means the physician:

. is in the building when the services are

rendered, and

. reviews, signs and dates the medical

record within 24 hours of providing the

service.

11. The Advanced Registered Nurse Practitioner Coverage and

Limitations Handbook (November 1997) provides in pertinent part:

ARNP in a Physician Group:

If an ARNP is employed by or contracts with a

physician who can enroll as a Medicaid

provider, the physician must enroll as a

group provider and the ARNP must enroll as a

treating provider within the group.

If the services rendered by the ARNP are

billed with the ARNP as the treating

provider, the services must be provided in

accordance with the policies and limitations

contained in this handbook.

12. According to answers provided on a Medicaid Provider

Questionnaire completed in February of 1999, Anna Hall Kelley,

ARNP, became affiliated with Southern Group for Women on

October 16, 1997. The answers provided on the Questionnaire

indicated that Petitioner and Nurse Kelley formed a partnership

and practiced together at Southern Group for Women. Nurse Kelley

did not testify at the hearing.

13. In reviewing the requested medical records, Ms. Steele

noted that some of the medical records were signed by Nurse

Kelley, ARNP, indicating that Nurse Kelley, not Petitioner,

performed the services. They were not countersigned by

Petitioner.

14. Nurse Kelly was not an enrolled Medicaid provider at

the time the services were rendered as her provider number

expired on May 31, 1997. Nurse Kelley signed a new enrollment

application to be a Medicaid provider in October of 1999. Thus,

she was not an enrolled provider from June 1, 1997, through the

remainder of the audit period.

15. Nurse Kelley saw patients and billed for those services

under Petitioner's individual provider number. Neither Nurse

Kelley nor Petitioner applied for a group Medicaid provider

number during the audit period.

16. Respondent sent a Preliminary Agency Audit Report to

Petitioner on September 21, 1999, notifying him of a preliminary

determination of a Medicaid overpayment in the amount of

$71,261.92.

17. Respondent sent a Final Agency Audit Report to

Petitioner on March 10, 2000, notifying him that the Agency made

a determination of a Medicaid overpayment in the amount of

$55,829.04. Because of recalculations made by Respondent, the

amount of reimbursement sought was reduced to $55,647.92. As a

result of a stipulation of the parties prior to the hearing, the

amount of reimbursement was further reduced to approximately

$51,000.

18. As to the statistical aspect of Respondent's audit,

Respondent presented testimony of a statistical expert,

Dr. Robert Peirce, who is employed by Respondent as an

administrator in the Bureau of Program Integrity. Dr. Peirce's

testimony is considered credible.

19. Dr. Peirce developed the statistical methodology used

in the statistical sampling of Dr. Groves' medical files.

Dr. Peirce studied the methodology used by Respondent in this

case, and concluded that the statistical procedures used in the

audit of Petitioner were in accordance with customary statistical

methodology.

20. The statistical analysis of a Medicaid provider's

billing begins with the selection of an audit period, which in

Petitioner's case was calendar years 1997 and 1998. During that

audit period, Petitioner submitted 3912 claims for Medicaid

reimbursement.

21. A random sample of recipients, 31 out of a possible

315, was selected by a computerized random sample generator from

the claims submitted by Petitioner during the audit period. All

of the claims in the sample were reviewed by an analyst, who

determined whether any overpayment existed with respect to those

claims. An overpayment totaling $5,130.99 was determined for the

302 claims of the 31 recipients in the sample.

22. The amount of overpayment from the sample was extended

to the population of the claims through a widely accepted

statistical sampling formula. In extending the results of the

302 claims to the 3,912 claims, the total amount of overpayments

was calculated as $55,647.92. The determination of that amount

was made at the 95 percent confidence level, meaning that

Respondent is confident that the overpayment is the amount that

was calculated or more. There is a five percent probability that

it might be less and a 95 percent chance that it would be more

then the $55,647.92 that was calculated.

23. The process used by Respondent is in accordance with

customary statistical methodology. However, the result does not

take into account the fact that the audit period began January 1,

1997, whereas Nurse Kelley did not begin to practice at Southern

Women's Group until October 16, 1997, and, therefore, worked

there only 14 and one-half months (or approximately 60%) of the

audit period.

24. Despite the stipulation of the parties that all issues

other than the ARNP services had been resolved and that the

amount in dispute was now approximately $51,000, no evidence was

presented to indicate the exact amount remaining in dispute.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

26. The burden of proof is on Respondent to establish by a

preponderance of the evidence that its Final Agency Audit Report

should be sustained. South Medical Services, Inc. v. Agency for

Health Care Administration , 653 So. 2d 440 (Fla. 3d DCA 1995.)

27. The statutes, rules and Medicaid Provider handbooks

which were in effect during the period for which the services

were provided govern the outcome of the dispute.

28. Section 409.907, Florida statutes (1997), reads in

pertinent part as follows:

409.907 Medicaid provider agreements.--

The agency may make payments for medical

assistance and related services rendered to

Medicaid recipients only to an individual or

entity who has a provider agreement in effect

with the agency, who is performing services

or supplying goods in accordance with

federal, state, and local law, and who agrees

that no person shall, on the grounds of

handicap, race, color, or national origin, or

for any other reason, be subjected to

discrimination under any program or activity

for which the provider receives payment from

the agency.

(1) Each provider agreement shall require

the provider to comply fully with all state

and federal laws pertaining to the Medicaid

program, as well as all federal, state, and

local laws pertaining to licensure, if

required, and the practice of any of the

healing arts, and shall require the provider

to provide services or goods of not less than

the scope and quality it provides to the

general public.

(2) Each provider agreement shall be a

voluntary contract between the agency and the

provider, in which the provider agrees to

comply with all laws and rules pertaining to

the Medicaid program when furnishing a

service or goods to a Medicaid recipient and

the agency agrees to pay a sum, determined by

fee schedule, payment methodology, or other

manner, for the service or goods provided to

the Medicaid recipient. Each provider

agreement shall be effective for a stipulated

period of time, shall be terminable by either

party after reasonable notice, and shall be

renewable by mutual agreement.

29. Section 409.913, Florida Statutes (1997), reads in

pertinent part as follows:

409.913 Oversight of the Integrity of the

Medicaid program.--

The agency shall operate a program to oversee

the activities of Florida Medicaid

recipients, and providers and their

representatives, to ensure that fraudulent

and abusive behavior and neglect of

recipients occur to the minimum extent

possible, and to recover overpayments and

impose sanctions as appropriate.

(1) For the purposes of this section, the

term:

* * *

(d) "Overpayment" includes any amount that

is not authorized to be paid by the Medicaid

program whether paid as a result of

inaccurate or improper cost reporting,

improper claiming, unacceptable practices,

fraud, abuse, or mistake.

* * *

(14) The agency may seek any remedy provided

by law, including, but not limited to, the

remedies provided in subsections (12) and

(15) and s. 812.035, if:

* * *

(e) The provider is not in compliance with

provisions of Medicaid provider publications

that have been adopted by reference as rules

in the Florida Administrative Code; with

provisions of state or federal laws, rules,

or regulations; with provisions of the

provider agreement between the agency and the

provider; or with certifications found on

claim forms or on transmittal forms for

electronically submitted claims that are

submitted by the provider or authorized

representative, as such provisions apply to

the Medicaid program;

* * *

(19) In making a determination of

overpayment to a provider, the agency must

use accepted and valid auditing, accounting,

analytical, statistical, or peer-review

methods, or combinations thereof.

Appropriate statistical methods may include,

but are not limited to, sampling and

extension to the population, parametric and

nonparametric statistics, tests of

hypotheses, and other generally accepted

statistical methods. Appropriate analytical

methods may include, but are not limited to,

reviews to determine variances between the

quantities of products that a provider had on

hand and available to be purveyed to Medicaid

recipients during the review period and the

quantities of the same products paid for by

the Medicaid program for the same period,

taking into appropriate consideration sales

of the same products to non-Medicaid

customers during the same period. In meeting

its burden of proof in any administrative or

court proceeding, the agency may introduce

the results of such methods as evidence of

overpayment.

(20) When making a determination that an

overpayment has occurred, the agency shall

prepare and issue an audit report to the

provider showing the calculation of

overpayments.

(21) The audit report, supported by agency

work papers, showing an overpayment to a

provider constitutes evidence of the

overpayment. A provider may not present or

elicit testimony, either on direct

examination or cross-examination in any court

or administrative proceeding, regarding the

purchase or acquisition by any means of

drugs, goods, or supplies; sales or

divestment by any means of drugs, goods, or

supplies; or inventory of drugs, goods, or

supplies, unless such acquisition, sales,

divestment, or inventory is documented by

written invoices, written inventory records,

or other competent written documentary

evidence maintained in the normal course of

the provider's business.

30. The amount of overpayment in dispute was reduced by

stipulation of the parties from $55,647.92 to approximately

$51,000, although the exact figure remaining in dispute was not

evident from the evidence presented.

31. Respondent proved that it used accepted auditing,

analytical, and statistical methods in the determination of the

overpayment to Petitioner.

32. The Respondent has established that the claims

submitted by Petitioner for ARNP services were not in compliance

with provisions of the Medicaid provider publications for the

portion of the audit period that Nurse Kelley was practicing with

Petitioner because she was not an approved Medicaid provider for

the time period of October 1997 through December 1998.

33. Given that Petitioner's noncompliance was based on

Nurse Kelley's not being an enrolled Medicaid provider,

Respondent has not proven that it is entitled to the full amount

of reimbursement of $51,000. The amount of reimbursement to

which Respondent is entitled is approximately 60% of $51,000,

corresponding to the percentage of time of the audit period that

Nurse Kelley was providing services.

34. Fines up to $5,000 for each violation are expressly

permitted sanctions in the event overpayments are determined.

Section 409.913(15)(c), Florida Statutes (1997). Moreover, the

Agency is entitled to recover up to $15,000 in investigative,

legal, and expert witness costs if it prevails at hearing.

Section 409.913(22)(a), Florida Statutes (1997). The Agency has

declined to seek fines or recoup costs from Petitioner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED:

That the Agency for Health Care Administration enter a final

order sustaining the Final Agency Audit Report in part,

recalculating the amount of overpayment as indicated and

consistent with this Recommended Order, and requiring Petitioner

to repay overpayments in the amount determined by the

recalculation.

DONE AND ENTERED this 21st day of December, 2000, in

Tallahassee, Leon County, Florida.

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of December, 2000.

ENDNOTE

1/ Patient records of claims of 24 of the 31 patients from the

sample were introduced into evidence as Respondent's composite

Exhibit 1-24. The records of the other seven patients of the

sample were not introduced because they did not contain any policy

violations.

COPIES FURNISHED:

Gerald D. Mills, MBA, JD

Healthcare Consultants of America, Inc.

Post Office Box 52979

Atlanta, Georgia 30355

L. William Porter, II, Esquire

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Julie Gallagher, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308-5403

Sam Power, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building Three, Suite 3231

Tallahassee, Florida 32308-5403

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.