07-001487MPI Agency For Health Care Administration vs. Womesh C. Sahadeo, M.D., P.A. Status: Closed Recommended Order on Tuesday, November 20, 2007.

Summary: Respondent violated Medicaid`s record-keeping requirements, and he must repay Petitioner for amount that Medicaid paid him for psychiatric services to patients who, at the time of treatment, were residents of custodial care facilities.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) )

ADMINISTRATION, )

)

Petitioner, )

) Case No. 07-1487MPI

vs. )

)

WOMESH C. SAHADEO, M.D., )

)

Respondent. )

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

June 29, 2007, at sites in Tallahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioner: L. William Porter, II, Esquire

Agency for Health Care Administration

Fort Knox Executive Center III

2727 Mahan Drive, Building 3, Mail Stop 3

Tallahassee, Florida 32308-5403

For Respondent: Womesh C. Sahadeo, M.D.

1115 45th Street, Suite 1

West Palm Beach, Florida 33407

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent is liable

to Petitioner for the principal sum of $2,284.13, which equals

the amount that the Florida Medicaid Program paid Respondent for

psychiatric services provided between January 2, 2002, and

June 30, 2006, to patients who, at the time of treatment, were

residents of custodial care facilities.

PRELIMINARY STATEMENT

Petitioner Agency for Health Care Administration is the

agency responsible for administering the Florida Medicaid

Program. Respondent Womesh C. Sahadeo, M.D., is a psychiatrist

who has furnished goods or services to Medicaid beneficiaries.

In the course of performing a generalized analysis of a

category of Medicaid claims involving psychiatric services,

Petitioner requested that Dr. Sahadeo produce copies of records

showing that his Medicaid eligible patients who resided in

custodial care facilities had been seen in the doctor's office

or a hospital. Dr. Sahadeo failed to provide the documents that

Petitioner demanded to review. Consequently, on February 20,

2007, Petitioner issued a Final Agency Audit Report, wherein it

alleged that this physician had been overpaid $2,284.13 for

Medicaid claims arising from Respondent's provision of

psychiatric services to eligible beneficiaries at ineligible

settings (e.g. a nursing home or group home). Petitioner

further alleged that Dr. Sahadeo had violated Medicaid's record

keeping requirements, and for that it intended to impose a $500

administrative fine, in addition to recovering the alleged

overpayment.

By letter dated February 26, 2007, Dr. Sahadeo's office

manager requested a hearing to dispute the overpayment

assessment. The matter was referred to the Division of

Administrative Hearings on March 30, 2007.

At the final hearing, which took place as scheduled on

June 29, 2007, Petitioner called as witnesses its employees

Terri Dean, an investigator; and Gregory Riley, a registered

nurse. In addition, Petitioner's Exhibits lettered A through J

were admitted into evidence without objection.

Dr. Sahadeo testified on his own behalf and presented one

other witness, his office manager Sonya Robinson. Dr. Sahadeo

did not offer any exhibits.

The final hearing transcript was filed on September 26,

2007. Petitioner filed a proposed recommended order ahead of

the established deadline, which was October 26, 2007. This was

carefully considered in the preparation of the Recommended

Order. Dr. Sahadeo did not present any proposed findings or

conclusions.

FINDINGS OF FACT

1. Petitioner Agency for Health Care Administration

("AHCA" or the "Agency") is the state agency responsible for

administering the Florida Medicaid Program ("Medicaid").

2. Respondent Womesh C. Sahadeo, M.D. ("Sahadeo") is a

psychiatrist. At all relevant times, Dr. Sahadeo was a Medicaid

provider authorized to receive reimbursement for covered

services rendered to Medicaid beneficiaries.

3. Exercising its statutory authority to oversee the

integrity of Medicaid, the Agency in 2006 performed a

"generalized analysis" of claims involving psychiatric services

rendered to patients who, at the time of treatment, had been

residing in nursing homes, assisted living facilities, or other

custodial care facilities. In a generalized analysis, claims

within a category of services are reviewed to determine whether

each claim meets a particular condition of coverage or falls

within a specific exclusion. The conditions and limitations of

interest to AHCA in this instance were (a) the requirement that,

to be compensable, psychiatric services must be provided in a

hospital or physician's office and (b) the corresponding

exclusion from coverage of claims for psychiatric services

rendered in any other place, e.g. nursing homes or other

custodial care facilities.

4. During the period from January 2, 2002 to June 30, 2006

(the "Audit Period"), Dr. Sahadeo had submitted a number of

claims seeking reimbursement for psychiatric services provided

to seventeen patients who were residents of group homes or other

custodial care facilities. Medicaid had paid these claims, and,

as a result, Dr. Sahadeo had received payments totaling

$2,284.13. Being within the scope of the generalized analysis

under way in 2006, these claims came to AHCA's attention.

5. By letter dated November 9, 2006, the Agency informed

Dr. Sahadeo that the aforementioned claims would not have been

compensable if the patients in question had been seen in their

respective residential facilities (as opposed to the doctor's

office or a hospital). AHCA demanded that Dr. Sahadeo submit

records showing that the psychiatric services at issue had been

rendered in an eligible setting, to confirm that the subject

claims were within Medicaid coverage. The deadline for

compliance with this demand was 15 days after receipt of the

letter.

6. Dr. Sahadeo did not respond to the letter of

November 9, 2006. Consequently, on December 20, 2006, the

Agency issued a Preliminary Audit Report, which notified

Dr. Sahadeo that, because he had failed to produce records

documenting the place(s) of service as requested, each of the

claims under review was now deemed to have resulted in an

overpayment. Dr. Sahadeo was given the choice of either

remitting payment of $2,284.13 or submitting documentation

demonstrating that some or all of the claims were properly paid.

The deadline for furnishing additional documentation was 15 days

after receipt of the report.

7. Dr. Sahadeo did not respond to the Preliminary Audit

Report. Consequently, on February 20, 2007, the Agency issued a

Final Audit Report. The Final Audit Report echoed the

Preliminary Audit Report in regard to the place-of-service

issue. This time, however, the Agency added allegations

accusing Dr. Sahadeo of violating Medicaid's record keeping

requirements, and it gave notice of its intent to impose a $500

fine for his failure to furnish Medicaid related records on

demand. According to AHCA, the total amount due from

Dr. Sahadeo was now $2,784.13.

8. Dr. Sahadeo timely requested an administrative hearing,

giving rise to this case. Before the final hearing, Dr. Sahadeo

produced some medical records underlying some of the claims in

question. None of these medical records, however, clearly and

unambiguously documents the place of service, the critical fact

which at all times during this audit has been the focus of

AHCA's interest and concern.

9. At hearing, Dr. Sahadeo presented persuasive evidence

(his testimony and that of his office manager, Sonya Robinson)

that the psychiatric services behind the claims at issue were,

in fact, rendered in his office, and not at the respective

residences of the patients. The undersigned finds this to be

the case.

10. But the evidence also established——and the undersigned

finds——that, in addition to medical records, certain

professional or business records were created in connection with

each of the subject claims, records which, if retained, would

have shown that the patients had come to Dr. Sahadeo's office

for treatment.

11. One set of such documents comprised the "sign in

sheets" that patients signed upon arrival at the doctor's

office. Located at the receptionist's desk, the sign in sheet

was a paper on which each patient would write his name, time of

arrival, and appointment time. Although a sign in sheet was (or

should have been) inscribed by every patient each time he was

seen in the doctor's office, Dr. Sahadeo either did not keep

copies of these documents or was unable, for other reasons, to

make them available for inspection by AHCA.

12. The other set of documents which would have shown that

the patients of interest had come to Dr. Sahadeo's office for

treatment consisted of the "receipts" that the doctor would sign

to confirm that a caretaker had transported the patient from the

group home or other custodial facility to the doctor's office

for his appointment. During the Audit Period, it was

Dr. Sahadeo's practice to sign the receipt and return the paper

to the caretaker or driver without keeping a copy for his own

records. Consequently, Dr. Sahadeo was unable to make these

documents available for inspection by AHCA.

13. Dr. Sahadeo did not satisfy his continuing obligation

to retain all of the records relating to the services that he

had provided to the patients whose claims AHCA is disputing.

Yet, when AHCA paid the Medicaid claims at issue, it did so

believing——and in reliance upon the assumption——that Dr. Sahadeo

was fulfilling his affirmative duty to provide the underlying

services in accordance with all the applicable policies, rules,

and laws, including the requirement that records relating to a

Medicaid claim be kept for five years. AHCA was mistaken in

this regard.

14. As a result of the Agency's mistaken assumption that

Dr. Sahadeo was complying with the record keeping requirements,

Dr. Sahadeo received from Medicaid a total of $2,284.13 in

payments that were not authorized to be paid. This grand total

of $2,284.13 constitutes an overpayment that Dr. Sahadeo must

return to the Agency.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

Sections 120.569 and 120.57(1), Florida Statutes (2007).

16. The Agency is empowered to "recover overpayments and

impose sanctions as appropriate." § 409.913, Fla. Stat. (2006). i

An "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." §

409.913(1)(e), Fla. Stat.

17. One method of recovering overpayments is through

"recoupment," which is "the process by which the department

[i.e. AHCA] recovers an overpayment or inappropriate payment

from a Medicaid provider." Fla. Admin. Code R. 59G-1.010(245).

18. The burden of establishing an alleged Medicaid

overpayment by a preponderance of the evidence falls on the

Agency. South Medical Services, Inc. v. Agency for Health Care

Admin. , 653 So. 2d 440, 441 (Fla. 3d DCA 1995); Southpointe

Pharmacy v. Department of Health and Rehabilitative Services ,

596 So. 2d 106, 109 (Fla. 1st DCA 1992). ii

19. Section 409.907, Florida Statutes, provides as

follows:

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.

(Emphasis added.)

20. Section 409.913(7), Florida Statutes, provides in

pertinent part as follows:

When presenting a claim for payment under

the Medicaid program, a provider has an

affirmative duty to supervise the provision

of, and be responsible for, goods and

services claimed to have been provided, to

supervise and be responsible for preparation

and submission of the claim, and to present

a claim that is true and accurate and that

is for goods and services that:

* * *

(e) Are provided in accord with applicable

provisions of all Medicaid rules,

regulations, handbooks, and policies and in

accordance with federal, state, and local

law.

(f) Are documented by records made at the

time the goods or services were provided,

demonstrating the medical necessity for the

goods or services rendered. Medicaid goods

or services are excessive or not medically

necessary unless both the medical basis and

the specific need for them are fully and

properly documented in the recipient's

medical record.

21. All Medicaid providers must, among other things:

(b) Maintain in a systematic and orderly

manner all medical and Medicaid-related

records that the agency requires and

determines are relevant to the services or

goods being provided.

(c) Retain all medical and Medicaid-related

records for a period of 5 years to satisfy

all necessary inquiries by the agency.

§ 409.907(3), Fla. Stat.

22. The foregoing record keeping requirements are restated

for emphasis, and amplified, in Section 409.913(9), which

provides as follows:

A Medicaid provider shall retain medical,

professional, financial, and business

records pertaining to services and goods

furnished to a Medicaid recipient and billed

to Medicaid for a period of 5 years after

the date of furnishing such services or

goods. The agency may investigate, review,

or analyze such records, which must be made

available during normal business hours.

However, 24-hour notice must be provided if

patient treatment would be disrupted. The

provider is responsible for furnishing to

the agency, and keeping the agency informed

of the location of, the provider's Medicaid-

related records. The authority of the

agency to obtain Medicaid-related records

from a provider is neither curtailed nor

limited during a period of litigation

between the agency and the provider.

23. AHCA is authorized to pay a Medicaid claim only if the

provider furnished goods or services in accordance with all

applicable laws. Therefore, if the provider fails to keep

Medicaid related records for the five-year period as required,

which means that he has not furnished the goods or services in

accordance with state law, then AHCA cannot lawfully pay the

Medicaid claim for such goods or services. Of course, AHCA does

not wait five years to pay a claim, to make certain the provider

complies with the record keeping requirements. Rather, AHCA

pays the claim upon submission, on the assumption that the

provider will comply.

24. The requirement to keep all records pertaining to the

goods and services provided to a Medicaid recipient for five

years after the furishing thereof is best understood, then, as a

condition subsequent to the compensability of the claim. If, as

here, the condition subsequent is not met, then AHCA's up-front

payment of the claim——on the assumption of the provider's future

compliance——is proven a mistake.

25. The amounts that Dr. Sahadeo received in payment of

the claims at issue were not authorized to be paid owing to his

failure to comply with the record keeping requirements; he

received these sums as a result AHCA's mistaken assumption that

Dr. Sahadeo would fulfill his obligations concerning the

retention of records.

26. The undersigned accordingly finds and concludes that

the total amount Dr. Sahadeo received for the subject claims——

$2,284.13——is an overpayment, which the Agency is entitled to

recover from the provider.

27. There is one final matter to discuss. The Agency

seeks to impose a fine of $500 against Dr. Sahadeo. The

authority to impose such a fine is given in Section 409.913(16),

Florida Statutes, which provides in pertinent part as follows:

The agency shall impose any of the following

sanctions or disincentives on a provider or

a person for any of the acts described in

subsection (15):

* * *

(c) Imposition of a fine of up to $5,000

for each violation.

28. Among the acts described in subsection (15) are the

following:

(c) The provider has not furnished or has

failed to make available such Medicaid-

related records as the agency has found

necessary to determine whether Medicaid

payments are or were due and the amounts

thereof[.]

* * *

(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[.]

§ 409.913(15)(c), Fla. Stat.; see also Fla. Admin. Code R. 59G-

9.070(7)(b)-(c).

29. Dr. Sahadeo failed to keep records for five years as

required by law, and he was, consequently, unable to satisfy the

Agency's demand for documentation when questions subsequently

arose regarding the compensability of certain claims.

Therefore, Dr. Sahadeo committed violations, for each of which

AHCA may impose a fine of up to $5,000. The fine of $500 that

AHCA wants to impose is well within its statutory authority.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency enter a final order

requiring Dr. Sahadeo to repay the Agency the principal amount

of $2,284.13, together with an administrative fine of $500.

DONE AND ENTERED this 20th day of November, 2007, in

Tallahassee, Leon County, Florida.

JOHN G. VAN LANINGHAM

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 20th day of November, 2007.

ENDNOTES

i / The substantive Medicaid law that governs this case remained

the same throughout the Audit Period——and is not disputed.

Thus, rather than burden this Recommended Order with citations

to all of the historical statutes, the 2006 Florida Statutes are

cited exclusively hereinafter unless otherwise indicated, and

each such citation is meant to encompass all of the applicable

statute-years for the referenced provision, which might have

been renumbered from time to time.

ii / Although the Agency bears the ultimate burden of persuasion

and thus must present a prima facie case through the

introduction of competent substantial evidence before the

provider is required to respond, Section 409.913(22), Florida

Statutes, provides that "[t]he audit report, supported by agency

work papers, showing an overpayment to the provider constitutes

evidence of the overpayment." Thus, the Agency can make a prima

facie case merely by proffering a properly supported audit

report, which must be received in evidence. See Maz

Pharmaceuticals, Inc. v. Agency for Health Care Administration ,

DOAH Case No. 97-3791, 1998 Fla. Div. Adm. Hear. LEXIS 6245, *6-

*7 (Mar. 20, 1998); see also Full Health Care, Inc. v. Agency

for Health Care Administration , DOAH Case No. 00-4441, 2001 WL

729127, *8-9 (Fla.Div.Admin.Hrgs. June 25, 2001)(adopted in

toto, Sept. 28, 2001, AHCA Rendition No. 01-262-FOF-MDO).

COPIES FURNISHED :

L. William Porter, II, Esquire

Agency for Health Care Administration

Fort Knox Executive Center III

2727 Mahan Drive, Building 3, Mail Stop 3

Tallahassee, Florida 32308-5403

Womesh C. Sahadeo, M.D.

1115 45th Street, Suite 1

West Palm Beach, Florida 33407

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

Tallahassee, Florida 32308

Andrew C. Agwunobi, M.D., Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

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.