07-002450MPI Agency For Health Care Administration vs. Humane Minority, Inc. Status: Closed Recommended Order on Monday, June 22, 2009.

Summary: Petitioner demonstrated that Respondent is entitled to recoupment for a Medicaid overpayment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

) Case No. 07-2450MPI

vs. )

)

HUMANE MINORITY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case came before Administrative Law Judge June C.

McKinney of the Division of Administrative Hearings for final

hearing by video teleconference on February 11, 2009, at sites

in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: L. William Porter, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop No. 3

Tallahassee, Florida 32308

For Respondent: No appearance

STATEMENT OF 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.

PRELIMINARY STATEMENT

On or about May 22, 2007, Petitioner issued a Final Audit

Report-Corrected Copy that advised Respondent that an audit of

Humane’s Medicaid claims for the period January 1, 2005, through

February 28, 2006, had been completed. According to

Petitioner’s claim, Respondent was overpaid $177,581.26 for

services that in whole or in part are not covered by Medicaid.

Thereafter, Respondent filed a Petition for Formal Hearing

to dispute the factual allegations of the audit and to request a

formal hearing to address the allegations of the audit. The

case was then forwarded to the Division of Administrative

Hearings for formal proceedings on May 30, 2007. The case was

continued on August 16, 2007, and ultimately rescheduled to

February 10 and 11, 2009. The case was held as scheduled on

February 11, 2009.

At the hearing, Petitioner presented the testimony of Gary

Mosier and expert testimony of Ronald Machado, M.D.; Elliott

Reisman, M.D.; and James R. Edgar, M.D. Petitioner’s Exhibits

3, 4, 5, 6, 8, 11, 12, 13, 15, 16, 17, 18, 19, 20, 25, and 26

were admitted into evidence without objection. Respondent did

not appear for the hearing and no evidence was presented on its

behalf.

The final hearing Transcript of the proceeding was filed on

April 24, 2009. The parties were afforded 45 days within which

to file Proposed Recommended Orders. Petitioner timely filed a

proposal that has been considered in the preparation of this

Recommended Order. Respondent did not present any proposed

findings or conclusions.

Unless otherwise indicated, all statutory references are to

the codification in effect at the time of the alleged

overpayment.

FINDINGS OF FACT

1. 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.

2. 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).

3. 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.

4. 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.

5. On or about June 13, 2006, MPI requested 30 random

Medicaid patients' records from Humane’s entire Medicaid patient

group for the audit period.

6. 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.

7. 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.

8. Each physician consultant reviewed Humane’s records

relevant to his area of expertise and filled out agency

worksheets detailing why claims should be disallowed.

9. 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

10. Humane violated policy by providing documentation that

supported a lower level of office visit than the one for which

Humane billed and received payment.

11. Humane violated policy by billing and receiving

payments for some services that were not documented.

12. Humane violated policy by billing and receiving

payment for services rendered by a practitioner who was not a

member of Humane’s group.

13. Humane violated policy by billing for procedure codes

that have time requirements but not documenting the time spent

providing the service.

14. 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.

15. 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.

16. Humane violated policy by billing for radiology

services when the reading and interpretation was done by a

radiologist outside of the physician’s group.

17. 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.

18. Humane violated policy and received payment when

Humane did not bill according to the current procedural

terminology guidelines in certain instances.

19. 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.

20. 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.

21. A Final Audit Report-Corrected Copy was issued on

May 22, 2007, correcting the total amount due. 3

22. 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.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2008).

24. AHCA is empowered to “recover overpayments and impose

sanctions as appropriate.” § 409.913, Fla. Stat. 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.

25. As the party asserting the overpayment, AHCA bears the

burden of proof to establish the alleged overpayment by a

preponderance of the evidence. See Southpointe Pharmacy v.

Department of Health and Rehabilitative Services , 596 So. 2d 106

(Fla. 1st DCA 1992).

26. Section 409.913(7)(e), Florida Statutes, provides in

pertinent part as follows:

* * *

(7) 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.

27. Petitioner established a prima facie case of

overpayment with its audit report supported by the work papers

showing the overpayment to Humane. Such evidence demonstrates

an overpayment pursuant to Section 409.913(22), Florida

Statutes. The courts have also held that the agency can make a

prima facie case by merely proffering a properly supported audit

report, which must be received in evidence. See Maz

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

DOAH Care No. 97-3791, 1998 WL 870139 (Recommended Order

Mar. 20, 1998; Final Order issued June 26, 1998).

28. In addition, Petitioner met its burden of persuasion

and demonstrated that during the audit period, when Respondent

presented its claims for payments, Humane failed to comply with

the Medicaid statutes, rules, General Handbook, and Physician

Services Handbook.

29. Respondent failed to present any evidence and in doing

so failed in its duty to meet the Agency’s prima facie case with

any written proof to rebut, impeach or otherwise undermine

AHCA’s statutorily-authorized evidence.

30. Therefore, the audit report supports and constitutes

evidence of the overpayment claimed. In this case, it is

established that Respondent received an overpayment in the

amount of $177,581.26.

31. Florida Administrative Code Rule 59G-9.070 authorizes

the imposition of fines for Medicaid violations. Section

409.913(25)(c), Florida Statutes, provides that overpayments

owed to AHCA bear interest at the rate of 10 percent per annum

from the date of determination of the overpayment. The fine in

the amount of $3,000.00 is within the guidelines of the 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of June, 2009.

ENDNOTES

1 / The General Handbook is incorporated by reference into AHCA’s

regulations by Florida Administrative Code Rule 59G-5.020.

2 / The Physician Services Handbook is incorporated by reference

into AHCA’s Florida Administrative Code Rule 59G-4.230.

3 / AHCA's revised version of the FAR was issued to correct the

arithmetic mistake.

COPIES FURNISHED :

Humane Minority, Inc.

111 Southwest 67 Avenue

Miami, Florida 33144

L. William Porter, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop No. 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop No. 3

Tallahassee, Florida 32308

Holly Benson, Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Justin Senior, Acting General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

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.