07-000675MPI
Agency For Health Care Administration vs.
Constance Bence
Status: Closed
Recommended Order on Tuesday, March 2, 2010.
Recommended Order on Tuesday, March 2, 2010.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8AGENCY FOR HEALTH CARE )
13ADMINISTRATION, )
15)
16Petitioner, )
18)
19vs. ) Case No. 07-0675MPI
24)
25CONSTANCE BENCE, )
28)
29Respondent. )
31)
32RECOMMENDED ORDER
34A final hearing was held before Daniel M. Kilbride,
43Administrative Law Judge (ALJ) of the Division of Administrative
52Hearings (DOAH) on July 19, 2007, in Tampa, Florida.
61APPEARANCES
62For Petitioner: L. William Porter II, Esquire
69Agency for Health Care Administration
742727 Mahan Drive, Building 3
79Tallahassee, Florida 32308-5403
82For Respondent: Constance Bence, pro se
88734 137th Street, Northeast
92Bradenton, Florida 34212
95STATEMENT OF THE ISSUE
99Whether Respondent is liable for overpayment of Medicaid
107claims, for the period of January 1, 2004, through January 1,
1182006, as stated in Petitioners Final Audit Report (FAR), dated
128July 19, 2006, due to Respondents failure to properly document
138for services billed and collected, in violation of Section
147409.913, Florida Statutes (2006), 1 and, if so, in what amount.
158PRELIMINARY STATEMENT
160By FAR, dated July 19, 2006, the Agency for Health Care
171Administration (Petitioner) notified Constance Bence
176(Respondent) that she was liable for overpayment of Medicaid
185claims in the amount of $12,500.70 for the audit period.
196Petitioner was also seeking to impose a fine of $1,500.00.
207Respondent disputed being liable for reimbursement to Petitioner
215for overpayment and requested a formal administrative hearing.
223A Petition for Formal Administrative Hearing was filed on
232February 9, 2007. Following discovery, a final hearing in this
242matter was held on July 19, 2007.
249At the final hearing, the Petitioner offered two witnesses:
258James Edgar, M.D., and Gary Mosier, Registered Nurse Consultant,
267and Medical Healthcare Program Analyst for AHCA in the Bureau of
278Medicaid Program Integrity. Petitioner offered 26 exhibits,
285which were admitted into evidence. The exhibits included 2004
294through 2006 versions of Sections 409.905, 409.906, 409.907,
302409.908, 409.913, 409.9131 and 414.41, Florida Statutes; Florida
310Administrative Code Chapters 59G-4 and 59G-5; and Advanced
318Registered Nurse Practitioner Services Coverage and Limitations
325Handbook , January 2004 edition, p. 2-45; Physician Services
333Coverage and Limitations Handbook , January 2007 update,
340p. 2-106; Current Procedural Terminology (CPT), American Medical
348Association (2004) pps 332-335; CPT (2005), pps 347-349; CPT
357(2006), pps 364-366.
360Respondent testified in her own behalf and entered no
369exhibits into evidence. A Transcript of the hearing was
378prepared and filed on August 1, 2007.
385Following the closing of evidence and before the filing of
395proposed recommended orders were due, Respondent asked for this
404matter to be placed in abeyance, due to her personal medical
415issues. Petitioner did not object and the case was placed in
426abeyance. The case continued to remain in abeyance until early
4362009, when Respondent had recovered sufficiently to proceed.
444She then requested an extension of time to file her proposed
455findings of fact and conclusions of law. The request was
465granted. Both parties timely filed their proposed findings of
474fact and conclusions of law, which have been carefully
483considered in the preparation of this Recommended Order. In the
493preparation of this Recommended Order, the ALJ thoroughly
501reviewed the complete file, Transcript and exhibits in this
510matter.
511FINDINGS OF FACT
5141. Petitioner is the single state agency under federal
523law, charged with administration of the Medicaid Program in
532Florida, and is charged with recovering overpayments to
540providers.
5412. Petitioners Bureau of Medicaid Integrity (MPI) has the
550primary responsibility to audit medical service providers who
558participate in the Medicaid program. MPI is a Bureau under the
569AHCA Inspector General.
5723. MPI conducts audits to review providers compliance
580with applicable statutes, rules, and policies regarding billing
588Medicaid for services rendered.
5924. An MPI audit is separate and distinct from an annual or
604other licensure survey or inspection conducted by Petitioner.
612The MPI audit is a compliance audit not a licensure one.
6235. MPI is mandated to review for provider fraud and abuse
634to ensure that the recipients are receiving the service for
644which Medicaid is paying.
6486. Respondent is a Florida licensed Advanced Registered
656Nurse Practitioner (ARNP) and provided medical services,
663including psychological counseling to Medicaid recipients,
669pursuant to a contract with Petitioner under her Provider number
679302123800.
6807. Respondent participated in the Medicaid program at
688least from July 1, 2001, and continuously through December 31,
6982005 (end of the Audit Period). Petitioner was paid for the
709services rendered.
7118. The audit period for Respondent was determined to be
721from January 1, 2004, through December 31, 2005. Claims for
731services were reviewed for a standard two-year audit period, and
741were audited for coding, records and visits.
7489. Thirty recipients were picked as a sample of recipients
758to examine during the two-year audit period. The selection was
768random and computer generated.
77210. Respondent was notified that Petitioner was conducting
780an audit. Respondent provided the charts on the 30 recipients
790to be examined and each of their claims during the audit period,
802which comprised all of her medical records.
80911. Gary Mosier is a Registered Nurse (RN), and holds a
820masters degree in health care administration. Mosier is
828employed by the AHCA Inspector General, MPI, and is a nurse
839consultant and investigator. He was lead analyst and
847investigator in this matter.
85112. James Edgar, M.D., a psychiatrist with 35 years of
861experience, was retained by Petitioner as a peer review expert
871to review the charts and give a coding opinion.
88013. Billing codes are five-digit numbers. There are
888general guidelines for establishing the degree of difficulty
896which are set forth in documents such as Documentation
905Guidelines for Evaluation and Management Services , published by
913the American Medical Association. However, the correct coding
921can only be established through expert testimony, which is based
931upon established and identified criteria.
93614. With respect to each of the services reviewed,
945Petitioner relied upon the opinion of its expert, Dr. Edgar, as
956to whether or not Respondent billed Medicaid correctly.
964Dr. Edgar based his opinion on a review of documents regarding
975each service which were provided to him by Petitioner.
98415. In each instance where the Billing Code 90807,
993Individual Psychotherapy, Insight Orientation, appeared on
999Respondents charts for all 30 patients, Dr. Edgar down-coded the
1009charts to Code 90862, medical management. He did not disallow
1019payment, he adjusted each of them. His opinion was that,
1029without the time spent with the patient being delineated on the
1040medical chart, then the visit must be down-coded, or it could be
1052denied completely. Dr. Edgars testimony was credible and
1060persuasive.
106116. A Preliminary Audit Report (PAR) was sent to
1070Respondent on September 12, 2006. The PAR informed Respondent
1079of an alleged overpayment and explained her options prior to the
1090completion of a FAR. It also put Respondent on notice of
1101possible sanctions for lack of response to Petitioner.
110917. AHCA pays for mental health counseling when the face-
1119to-face time spent with the recipient is documented. The
1128medical records resulting from these services are required by
1137law to be maintained for five years following the dates of
1148service. These records must be made available when requested by
1158Petitioner.
115918. Respondent was requested to produce office appointment
1167sheets or calendars in order to document her face-to-face time
1177with patients.
117919. Respondent sent non-contemporaneous time listings,
1185rather than chart materials or office materials to verify and
1195document time spent. There existed no charted or office records
1205of the time spent with patients. Although Respondent testified
1214that these time listings were implied because of the code that
1225she submitted to Petitioner, this testimony is not persuasive in
1235proving a material fact in dispute.
124120. The FAR was sent to Respondent on November 7, 2006,
1252with the spreadsheet attachment. As with the PAR, it informed
1262Respondent of the issues involved with the audit and the
1272overpayment calculations and sought to levy a sanction, if one
1282applied.
128321. There was no documentation in the charts of the time
1294expended in the patient encounter, as required under the law.
1304Although Petitioner agreed that the use of the Code 90807
1314implied that there was one hour of face-to-face contact with a
1325patient, CPT policy requires both medication management and
1333therapy, not just medication management. There was no time of
1343service, time spent, and no start or stop times noted in the
1355medical records. These notations are specifically required
1362under Medicaid policy. A record must reflect the time spent
1372face-to-face with a patient.
137622. The final overpayment calculation and final audit
1384reports document that the overpayment to be recouped, and which
1394Petitioner seeks, is $12,500.70, with an added sanction of
1404$1,500.00.
140623. The preponderance of evidence has shown that
1414Respondent was overpaid in the amount of $12,500.70, and that
1425Petitioner is authorized to impose a penalty of $1,500.00.
1435CONCLUSIONS OF LAW
143824. DOAH has jurisdiction over the parties and the subject
1448matter of this proceeding pursuant to Section 120.569 and
1457Subsection 120.57(1), Florida Statutes. As such, this matter is
1466a de novo proceeding, and not merely a review of (proposed)
1477agency action. Florida Department of Transportation v. J.W.C.
1485Company , 396 So. 2d 778, 786-787 (Fla. 1st DCA 1981).
149525. Petitioner is charged with the administration of the
1504Medicaid program in Florida. § 409.902 Fla. Stat. As one of
1515its duties, Petitioner must recover overpayments . . . as
1525to mean any amount that is not authorized to be paid by the
1538Medicaid program whether paid as a result of inaccurate or
1548improper cost reporting, improper claiming, unacceptable
1554practices, fraud, abuse, or mistake. § 409.913(1)(e), Fla.
1562Stat.
156326. Since Petitioner is the party asserting the
1571affirmative, Petitioner has the burden of establishing an
1579alleged Medicaid overpayment by a preponderance of the evidence.
1588§ 120.57(1)(j), Fla. Stat. South Medical Services, Inc. v.
1597Agency for Health Care Administration , 653 So. 2d 440, 441 (Fla.
16083d DCA 1995); Southpointe Pharmacy v. Department of Health and
1618Rehabilitative Services , 596 So. 2d 106, 109 (Fla. 1st DCA
16281992); Fla. DOT v. J.W.C. Company , supra . See also Haines v.
1640Department of Children and Families , 983 So. 2d 602, 606-608,
1650(Fla. 5th DCA 2008).
165427. The statutes, rules, Florida Medicaid Physician
1661Services Coverage and Limitations Handbook, and Florida Medicaid
1669Provider General Handbook in effect during the period for which
1679the services were provided govern the outcome of the dispute.
1689See Toma v. Agency for Health Care Administration , Case
1698No. 95-2419 (DOAH 1996) (as incorporated in Toma v. Agency for
1709Health Care Administration , 18 FALR 4735 (DOAH 1996)).
171728. Section 409.913, Florida Statutes, reads in pertinent
1725part as follows:
1728Oversight of the integrity of the Medicaid
1735program. -- The agency shall operate a
1742program to oversee the activities of Florida
1749Medicaid recipients, and providers and their
1755representatives, to ensure that fraudulent
1760and abusive behavior and neglect of
1766recipients occur to the minimum extent
1772possible, and to recover overpayments and
1778impose sanctions as appropriate.
1782* * *
1785(1) For the purposes of this section, the
1793term:
1794* * *
1797(e) Overpayment includes any amount that
1803is not authorized to be paid by the Medicaid
1812program whether paid as a result of
1819inaccurate or improper cost reporting,
1824improper claiming, unacceptable practices,
1828fraud, abuse, or mistake.
1832* * *
1835(7) When presenting a claim for payment
1842under the Medicaid program, a provider has
1849an affirmative duty to . . . present a claim
1859that is true and accurate and that is for
1868goods and services that:
1872* * *
1875(f) Are documented by records made at the
1883time the goods or services were provided,
1890demonstrating the medical necessity for the
1896goods or services rendered. Medicaid goods
1902or services are excessive or not medically
1909necessary unless both the medical basis and
1916the specific need for them are fully and
1924properly documented in the recipients
1929medical record.
1931The agency may deny payment or require
1938repayment for goods or services that are not
1946presented as required in this subsection.
1952* * *
1955(21) When making a determination that an
1962overpayment has occurred, the agency shall
1968prepare and issue an audit report to the
1976provider showing the calculation of
1981overpayments.
1982(22) The audit report, supported by agency
1989work papers, showing an overpayment to a
1996provider constitutes evidence of the
2001overpayment. . . .
200529. During the Audit Period, the applicable statutes,
2013laws, rules, and policy guidelines in effect required Respondent
2022to maintain all Medicaid-related records and information that
2030supported any and all Medicaid invoices or claims made by
2040Respondent during the Audit Period. Respondent was required, at
2049Petitioners request, to provide Petitioner with all Medicaid-
2057related records and other information that supported all the
2066Medicaid-related invoices or claims that Respondent made during
2074the Audit Period.
207730. Subsection 409.907(3)(c), Florida Statutes, dealing
2083with Medicaid provider agreements, required Petitioner to
2090maintain all medical and Medicaid-related records for a period
2099of 5 years. The stated purpose behind the five-year document-
2109retention requirement is so that Respondent can satisfy all
2118necessary inquiries by Petitioner.
212231. Subsection 409.907(3)(e), Florida Statutes, required
2128Respondent to allow Petitioner access to all Medicaid-related
2136information which may be in the form of records, logs,
2146documents, or computer files, and other information pertaining
2154to the services or goods billed to the Medicaid program,
2164including access to all patient records. . . .
217332. Subsection 409.913(7), Florida Statutes, imposed an
2180affirmative duty on Respondent to comply with all the
2189requirements set forth in its subparagraphs (a) through (f).
219833. Subsection 409.913(7)(f), Florida Statutes, imposed an
2205affirmative duty on Respondent to made sure that any claim for
2216goods and services are documented by records made at the time
2227the goods and services were provided. . . . This subsection
2238also imposed an affirmative duty on Respondent to make sure that
2249any and all records documenting Medicaid goods and services
2258demonstrate the medical necessity for the goods and services
2267rendered. This subsection further authorized Petitioner to
2274investigate, review, or analyze the records, including Medicaid-
2282related records, that Respondent was required to retain.
229034. The audit process that led to the claim for
2300overpayment was properly initiated by Petitioner in accordance
2308with Subsections 409.913(2), (20) and (21), Florida Statutes.
231635. A provider participating in the Medicaid program has
2325an affirmative duty to supervise and be responsible for the
2335preparation and submission of accurate claims for payment from
2344the program. It is the providers duty to ensure that all
2355claims [a]re provided in accord with applicable provisions of
2364all Medicaid rules, regulations, handbooks, and policies.
2371§ 409.913(7)(e), Fla. Stat.
237536. The Florida Administrative Code, as promulgated and
2383amended over the times material to this audit, specifically made
2393it a matter of law that the Florida Medicaid Physician Services
2404Coverage and Limitations Handbook and Florida Medicaid Provider
2412General Handbook are part of the Code governing all medical
2422service providers. Fla. Admin. Code R. 59G-4.001.
242937. Petitioner alleges improper and insufficient record-
2436keeping by a Medicaid mental health counseling provider. Where
2445records are insufficient to document the treatment billed, the
2454claims cannot be paid. Proper documentation of mental health
2463counseling visits, by law, must include a record of the time
2474spent with the patient, face-to-face.
247938. To be reimbursed for psychiatric counseling services,
2487Respondent, an ARNP, must keep a full medical record that
2497includes the time spent with the patient, pursuant to the
2507Florida Physician Services Coverage Handbook, January 2001.
251439. Respondent did not keep her records according to
2523Medicaid policy. She did not keep time records of patient
2533interactions in the patient chart as required by law.
254240. Medicaid providers must comply with all laws and rules
2552that pertain to the Medicaid Program and retain all medical and
2563Medicaid-related records for five years. These provisions are a
2572matter of both law and contract. § 409.907, Fla. Stat.
258241. Respondent, during the audit period, submitted claims
2590and was paid for mental health counseling visits, where there
2600was no indication of time spent face-to-face with the patient.
261042. The requirement to have the medical record set forth
2620the time spent with the patient is set forth in the ARNP
2632Services & Coverage Handbook. This is also required by CPT
26422004, 2005 and 2006. Medicaid handbooks are incorporated by
2651reference in Florida Administrative Code Rule 59G-4.010.
265843. Respondent failed to conform to the requirements, as
2667her records did not contain time components. The case analyst,
2677Gary Mosier, asked her to submit any contemporaneous time
2686records she might have, such as office appointment calendars or
2696patient sign-in/out sheets. With such contemporaneous data,
2703Petitioner could have verified and extrapolated the time spent
2712with patients. Respondent did not have them or supply them from
2723archives. Records of time with patients, billed to Medicaid,
2732are Medicaid-related records. All the audited conduct was
2740within this time frame. Respondent did not have the records;
2750instead, Respondent submitted a recently handwritten, non-
2757contemporaneous listing of how long she spent with the patients,
2767which she authored, by her own admissions, after the audit was
2778underway. This was insufficient under the statues and rules.
278744. Dr. Edgar, the expert peer reviewer, testified that
2796these lists were not medical chart materials. They were not
2806patient encounter time records. They did not indicate the
2815amount of time spent with the patient in therapy, recorded at
2826the time of the encounter, in the medical chart. The medical
2837chart data was insufficient under the law, policies or common
2847practice in the community.
285145. The records upon which Respondent based her billings
2860to Medicaid are deficient under law. The laws governing the
2870Medicaid programs required a finding that Respondent was
2878overpaid and that recoupment is an available remedy.
2886RECOMMENDATION
2887Based upon the above Findings of Fact and Conclusions of
2897Law, it is
2900RECOMMENDED that the Agency for Health Care Administration
2908enter a final order instructing Respondent to repay the sum of
2919$12,500.70, and imposing a fine if appropriate.
2927DONE AND ENTERED this 2nd day of March, 2010, in
2937Tallahassee, Leon County, Florida.
2941S
2942DANIEL M. KILBRIDE
2945Administrative Law Judge
2948Division of Administrative Hearings
2952The DeSoto Building
29551230 Apalachee Parkway
2958Tallahassee, Florida 32399-3060
2961(850) 488-9675
2963Fax Filing (850) 921-6847
2967www.doah.state.fl.us
2968Filed with the Clerk of the
2974Division of Administrative Hearings
2978this 2nd day of March, 2010.
2984ENDNOTE
29851/ All references to Florida Statutes are to Florida Statutes
2995(2006), unless otherwise indicated.
2999COPIES FURNISHED :
3002Constance Bence
30042588 West Socrum Loop Road
3009Lakeland, Florida 32810
3012L. William Porter, Esquire
3016Agency for Health Care Administration
30212727 Mahan Drive, Mail Station 3
3027Tallahassee, Florida 32308
3030Thomas W. Arnold, Secretary
3034Agency for Health Care Administration
3039Fort Knox Building, Suite 3116
30442727 Mahan Drive
3047Tallahassee, Florida 32308-5403
3050Justin Senior, General Counsel
3054Agency for Health Care Administration
3059Fort Knox Building, Suite 3431
30642727 Mahan Drive, Mail Stop 3
3070Tallahassee, Florida 32308-5403
3073Richard J. Shoop, Agency Clerk
3078Agency for Health Care Administration
30832727 Mahan Drive, Mail Stop 3
3089Tallahassee, Florida 32308-5403
3092NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3098All parties have the right to submit written exceptions within
310815 days from the date of this Recommended Order. Any exceptions
3119to this Recommended Order should be filed with the agency that
3130will issue the Final Order in this case.
- Date
- Proceedings
- PDF:
- Date: 03/02/2010
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 07/01/2009
- Proceedings: Findings of Fact, Conclusions of Law, Proposed Recommendations filed.
- PDF:
- Date: 04/29/2009
- Proceedings: Order Granting Extension of Time (proposed recommended order to be filed by July 1, 2009).
- PDF:
- Date: 04/17/2009
- Proceedings: State of Florida, Agency for Health Care Administration`s Closing Argument and Proposed Recommended Order filed.
- PDF:
- Date: 02/23/2009
- Proceedings: Order Granting Extension of Time (proposed recommended orders to be filed by May 1, 2009).
- PDF:
- Date: 12/19/2008
- Proceedings: Order Continuing Case in Abeyance (parties to advise status by February 16, 2009).
- PDF:
- Date: 07/21/2008
- Proceedings: Order Continuing Case in Abeyance (parties to advise status by December 15, 2008).
- PDF:
- Date: 03/24/2008
- Proceedings: Order Continuing Case in Abeyance (parties to advise status by July 15, 2008).
- PDF:
- Date: 12/06/2007
- Proceedings: Order Continuing Case in Abeyance (parties to advise status by March 14, 2008).
- PDF:
- Date: 09/05/2007
- Proceedings: Order Placing Case in Abeyance (parties to advise status by December 3, 2007).
- Date: 08/01/2007
- Proceedings: Transcript of Proceedings filed.
- Date: 07/19/2007
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 07/17/2007
- Proceedings: Petitioner`s Motion to Have Expert Appear at Hearing Telephonically filed.
- PDF:
- Date: 07/09/2007
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for July 19, 2007; 9:00 a.m.; Tampa and Tallahassee, FL; amended as to type of hearing).
- PDF:
- Date: 06/06/2007
- Proceedings: Notice of Hearing (hearing set for July 19, 2007; 9:00 a.m.; Tallahassee, FL).
Case Information
- Judge:
- DANIEL M. KILBRIDE
- Date Filed:
- 02/09/2007
- Date Assignment:
- 02/12/2007
- Last Docket Entry:
- 10/16/2019
- Location:
- Tampa, Florida
- District:
- Middle
- Agency:
- Other
- Suffix:
- MPI
Counsels
-
Constance Bence
Address of Record -
L. William Porter, Esquire
Address of Record