08-005524MPI Agency For Health Care Administration vs. Grace Valente, M.D. Status: Closed Recommended Order on Monday, February 9, 2009.

Summary: Respondent failed to comply with Medicaid regulations and failed to supply medical records when requested.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 08-5524MPI

)

GRACE VALENTE, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on December 17, 2008, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: William Blocker, II, Esquire

Agency for Health Care Administration

Fort Knox Building 3, Mail Stop 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

For Respondent: Grace Valente, M.D., pro se

3474 Paddle Point

Spring Hill, Florida 34609

STATEMENT OF THE ISSUE

The issue is whether Respondent violated federal and state

laws addressing Medicaid payments, and, if so, what is an

appropriate remedy.

PRELIMINARY STATEMENT

Grace Valente (Dr. Valente) is a medical doctor, practicing

obstetrics, and is licensed to practice medicine in the State of

Florida. She was practicing medicine during the period

January 1, 2003, until sometime in 2005. Dr. Valente, prior to

this period, had signed a Medicaid Provider Agreement and had

been informed of the policies affecting payment for services

under Medicaid.

Petitioner Agency for Health Care Administration (AHCA)

conducted an audit of Dr. Valente's billing for Medicaid

patients covering the period January 1, 2003, until December 31,

2005. An analyst with the Office of Medicaid Program Integrity

determined that Dr. Valente had been overpaid on 38 occasions

for more than the allowed visits during a pregnancy, for

providing more than one Healthy Start Prenatal Screening per

pregnancy on nine occasions, and for conducting Healthy Start

Prenatal Screenings in the first trimester when the screenings

had taken place after the first trimester on 61 occasions.

Completing the audit was made difficult because Dr. Valente

refused to respond to the analyst's requests for her medical

records.

The foregoing was reported in a final audit report dated

March 21, 2008. This report asserted that overpayments to

Dr. Valente totaled $6,618.68 and suggested that a fine in the

amount of $500.00 should be imposed. The final audit report was

sent via certified mail to Dr. Valente. The report advised

Dr. Valente of her right to a hearing. A demand for a formal

hearing was contained in a letter received by AHCA on April 16,

2008.

Nevertheless, AHCA provided Dr. Valente with an informal

hearing. That hearing was terminated by Hearing Officer Brevin

Brown, on October 28, 2008, when Dr. Valente again disputed the

facts contained in the final audit report. Thereafter, a

request for a formal hearing was forwarded to the Division of

Administrative Hearings, where it was filed November 4, 2008.

The case was set for December 17, 2008, and tried as scheduled.

On December 15, 2008, AHCA filed Petitioner's Motion to

Restrict Use and Disclosure of Information Concerning Medicaid

Program Applicants and Beneficiaries. Dr. Valente did not

respond to the Motion. The Motion was granted, and the Clerk

was instructed by separate memorandum to ensure the

confidentiality of information concerning Medicaid Program

Applicants and Beneficiaries.

At the hearing, Petitioner presented the testimony of Terri

Dean, an analyst with the Office of Medicaid Program Integrity;

Dr. Valente; Sharon Dewey, R.N.; and Dr. Karl Franz, a medical

consultant for the Office of Medicaid Program Integrity.

Dr. Franz was accepted as an expert in the determination of

medical necessity. AHCA offered seven exhibits into evidence

and all seven were accepted. Dr. Valente offered one exhibit,

consisting of a volume of medical records, and it was accepted.

She also testified on her own behalf.

At the hearing, the parties were advised that they would be

allowed ten days subsequent to the filing of the transcript to

submit proposed recommended orders. The Transcript was filed on

January 6, 2009. After the hearing, Petitioner timely filed its

Closing Argument and Proposed Recommended Order on January 12,

2009. Subsequently, in a letter dated January 22, 2009,

Dr. Valente asserted that she would submit a response by

"January 24/25." Dr. Valente late-filed a response on

February 6, 2009, with the permission of Petitioner. Dr.

Valente's letter is considered in the preparation of this

Recommended Order.

References to statutes are to Florida Statutes (2003)

unless otherwise noted.

FINDINGS OF FACT

1. AHCA is the single state agency charged with the

administration of the Medicaid program in Florida pursuant to

Chapter 409, Florida Statutes, and federal law. One of AHCA's

duties is to recover overpayments. Overpayments are any amounts

paid to providers that were not authorized.

2. Dr. Valente, during all times pertinent, was a licensed

medical doctor in the State of Florida. She was an authorized

Medicaid Provider and held provider number 253493200. As such,

she was on notice of Medicaid billing policy and rules.

3. AHCA conducted a generalized analysis of obstetricians

in Florida who submitted Medicaid claims during the period

January 1, 2003, through December 31, 2005. AHCA investigated

over-billing in three different categories: (1) excessive

prenatal visits, (2) billing for Healthy Start Prenatal Risk

Screening (Screening) more than once during a pregnancy, and

(3) billing for the W1992 Screening during the second and third

trimesters. The W1992 Screening was and is only applicable to

the first trimester of pregnancy.

4. Dr. Valente was one of the obstetricians AHCA found to

have over-billed in the three categories.

5. With regard to Category 1, excessive prenatal visits,

the Physician Coverage and Limitations Handbook provides, at

page 2-53, that "Antepartum visits are limited to a maximum of

10 for low-medical risk recipients and 14 for high-medical risk

recipients. Payment for antepartum care is based on a total

amount for complete care. Antepartum care is prorated, based on

an average standard of 10 visits for a low-medical risk

recipient or 14 for a high-risk recipient. Reimbursement for

the 10 or 14 visits is the maximum reimbursement for the full

course of antepartum care. If additional visits are provided,

payment is considered to have already been made, and the

provider may not bill the additional visits to Medicaid or the

recipient."

6. For Category 1, the audit searched for instances when

Dr. Valente billed for excessive prenatal visits 38 times, as

follows:

Patient 1: This was a high-risk patient.

Dr. Valente billed for 16 visits, which was two more

than the 14 allowed. Dr. Valente did not contest this

finding. Therefore, Dr. Valente billed Medicaid

$102.00 more than allowed.

Patient 2: AHCA asserted this was a low-risk

patient. Dr. Valente billed for 11 visits, which was

one more than the 10 allowed. Therefore, according to

AHCA, Dr. Valente billed Medicaid $52.00 more than

allowed. However, Dr. Valente stated, and medical

records indicated, that Patient 2 was a high-risk

patient even though her claimed Physician Coverage and

Limitations Handbook diagnosis code, 642.43, a code

for high risk, did not appear on the billing

submission. Upon consideration of all of the

evidence, this charge was permissible.

Patient 3: AHCA asserted this was a low-risk

patient. Dr. Valente billed for 11 visits, which was

one more than the 10 allowed. Dr. Valente asserted

that the patient was a high-risk patient because of

high blood pressure. However, in the billing

submission there is no code indicating high risk.

Dr. Valente claimed at the hearing that it should have

been coded 645.13. That is not a high-risk code.

Therefore, Dr. Valente billed Medicaid $52.00 more

than allowed.

Patient 4: AHCA asserted this was a low-risk

patient. Dr. Valente billed for 11 visits, which was

one more than the 10 allowed. Dr. Valente claimed the

patient had an iron deficiency and should have been

coded 281.2. That is not a high-risk code.

Therefore, Dr. Valente billed Medicaid $52.00 more

than allowed.

Patient 5: AHCA asserted this was a low-risk

patient. Dr. Valente billed for 11 visits, which was

one more than the 10 allowed for patients who are not

high risk. The medical record revealed that Patient 5

was obese with poor sugar control, and Dr. Valente

asserted she should have been coded 642.43, which is

high risk. She did not use this code in the bill.

However, upon consideration of all of the evidence,

this charge was permissible.

Patient 6: AHCA asserted this was a low-risk

patient. Dr. Valente billed for 11 visits, which was

one more than the 10 allowed for patients who are not

high risk. Dr. Valente stated that this was a high-

risk patient because she was suffering from

oligohydramnious. Dr. Valente did not code this on

the bill. The code she claimed, 656.93, is not a

high-risk code. Therefore, Dr. Valente billed

Medicaid $52.00 more than allowed.

Patient 7: AHCA asserted this was a low-risk

patient. Dr. Valente billed for 11 visits, which was

one more than the 10 allowed for patients who are not

high risk. This patient had lung problems.

Dr. Valente asserted she should have been coded 496.0

and 491.2 instead of the V22.0 presented on the bill.

Codes 496.0 and 491.2 are not high-risk codes.

Therefore, Dr. Valente billed Medicaid $52.00 more

than allowed.

Patient 8: AHCA asserted this was a low-risk

patient. Dr. Valente billed for 11 visits, which was

one more than the 10 allowed for a patient that was

not high risk. Dr. Valente suspected a possible birth

defect and coded the patient 759.9 and 655.23. Code

655.23 is a high-risk code. Dr. Valente did not use

this code in the bill. However, upon consideration of

all of the evidence, this charge was permissible.

Patient 9: AHCA asserted this was a low-risk

patient. Dr. Valente billed for only five visits,

thus never reaching the ten visit threshold. The

assertion that Dr. Valente over-billed with regard to

Patient 9 was not proven.

Patient 10: AHCA asserted this was a low-risk

patient. Dr. Valente stated that the records revealed

decreased fetal movement, codes 655.73 and V28.4.

Code 655.73 is a high-risk code. Dr. Valente did not

put this code on the bill. However, upon

consideration of all of the evidence, this charge was

permissible.

Patient 11: AHCA asserted this was a low-risk

patient. Dr. Valente billed for 11 visits, which was

one more than the 10 allowed. Dr. Valente did not

dispute AHCA's finding. Therefore, Dr. Valente billed

Medicaid $52.00 more than allowed.

Patient 12: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not dispute

AHCA's finding. Therefore, Dr. Valente billed

Medicaid $50.00 more than allowed.

Patient 13: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not dispute

AHCA's finding. Therefore, Dr. Valente billed

Medicaid $52.00 more than allowed.

Patient 14: This was a low-risk patient.

Dr. Valente billed for 12 visits, which was two more

than the 10 allowed. Dr. Valente did not dispute

AHCA's finding. Therefore, Dr. Valente billed

Medicaid $100.00 more than allowed.

Patient 15: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not dispute

AHCA's finding. Therefore, Dr. Valente billed

Medicaid $52.00 more than allowed.

Patient 16: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not dispute

AHCA's finding. Therefore, Dr. Valente billed

Medicaid $52.00 more than allowed.

Patient 17: This was a low-risk patient.

Dr. Valente billed for 12 visits, which was two more

than the 10 allowed. Dr. Valente did not dispute

AHCA's finding. Therefore, Dr. Valente billed

Medicaid $104.00 more than allowed.

Patient 18: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not dispute

AHCA's finding. Therefore, Dr. Valente billed

Medicaid $52.00 more than allowed.

Patient 19: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not dispute

AHCA's finding. Therefore, Dr. Valente billed

Medicaid $52.00 more than allowed.

Patient 20: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not dispute

AHCA's finding. Therefore, Dr. Valente billed

Medicaid $52.00 more than allowed.

Patient 21: AHCA asserted this was a low-risk

patient. Dr. Valente billed for 11 visits, which was

one more than the 10 allowed. Dr. Valente said this

patient was at risk for cervical cancer and entered

diagnosis codes 795.0 and 795.09. These are not high-

risk codes. Therefore, Dr. Valente billed Medicaid

$52.00 more than allowed.

Patient 22: AHCA asserted this was a low-risk

patient. AHCA asserted Dr. Valente billed for 11

visits, which was one more than the 10 allowed.

Dr. Valente stated, and the records revealed, that the

patient had a psychiatric disorder and, therefore,

should have had a diagnosis code of 648.43, which is

high risk. Dr. Valente did not assert this code on

the bill. However, upon consideration of all of the

evidence, the amount billed was permissible.

Patient 23: AHCA asserted this was a low-risk

patient. AHCA asserted that Dr. Valente billed for 11

visits, which was one more than the 10 allowed. This

patient's baby had dilated kidneys. The patient was

coded 655.0, which is not a high-risk code.

Therefore, Dr. Valente billed Medicaid $52.00 more

than allowed.

Patient 24: AHCA asserted this was a low-risk

patient. AHCA asserted that Dr. Valente billed for 11

visits, which was one more than the 10 allowed.

Dr. Valente's records indicated that this patient had

impending pre-eclampsia, which she coded 642.03, as

hypertension. This is a high-risk code. Dr. Valente

failed to assert that code on the Medicaid bill.

However, upon consideration of all of the evidence,

Dr. Valente did not bill more than was permissible.

Patient 25: This was a high-risk patient.

Dr. Valente billed for 15 visits, which was one more

than the 14 allowed. Dr. Valente did not contest this

finding. Therefore, Dr. Valente billed Medicaid

$50.00 more than allowed.

Patient 26: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not contest this

finding. Therefore, Dr. Valente billed Medicaid

$52.00 more than allowed.

Patient 27: AHCA asserted this was a low-risk

patient. Dr. Valente billed for 11 visits, which was

one more than the 10 allowed for a low-risk patient.

Dr. Valente stated that the patient had a heart murmur

and was asthmatic requiring medicine, which is code

493.0. She billed for 493.0, a high-risk code, and,

therefore, was entitled to see the patient 14 times.

Dr. Valente only saw the patient 11 times. Therefore,

Dr. Valente did not bill more than allowed.

Patient 28: AHCA asserted this was a low-risk

patient. Dr. Valente billed for 11 visits that she

coded V22.0. She said the patient had a childhood

seizure disorder and should have been coded 345.0,

which is high risk. Therefore, Dr. Valente did not

bill more than allowed.

Patient 29: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente found this patient

to have high-risk viral cells and assigned diagnosis

code 622.1. According to the Physician Coverage and

Limitations Handbook, this is not a high-risk code.

Therefore, Dr. Valente billed Medicaid $52.00 more

than allowed.

Patient 30: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not contest this

finding. Therefore, Dr. Valente billed Medicaid

$52.00 more than allowed.

Patient 31: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not contest this

finding. Therefore, Dr. Valente billed Medicaid

$52.00 more than allowed.

Patient 32: AHCA asserted that this was a low-

risk patient. Dr. Valente billed for 11 visits, which

is one more than permitted. Dr. Valente stated that

this patient had a mild pregnancy-induced hypertension

and should have been assigned diagnosis code 642.43,

which is high risk. However, no such code was

assigned. The only code assigned on the Medicaid bill

was V22.0. This is not a high-risk code. Therefore,

Dr. Valente billed Medicaid $52.00 more than allowed.

Patient 33: AHCA asserted this was a low-risk

patient. Dr. Valente stated that the patient was an

alcohol abuser and that the patient developed

decreased fetal movement late in the pregnancy.

Dr. Valente assigned the code 655.43, which is a high-

risk code. The patient was entitled to 14 visits.

Dr. Valente billed for 11, which was within the

allowed limits.

Patient 34: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not contest this

finding. Therefore, Dr. Valente billed Medicaid

$52.00 more than allowed.

Patient 35: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not contest this

finding. Therefore, Dr. Valente billed Medicaid

$52.00 more than allowed.

Patient 36: AHCA asserted this was a low-risk

patient and that Dr. Valente billed for 11 visits,

which was one more than the 10 allowed. Dr. Valente

decided that the patient's baby was not reactive to a

stress test, and the patient had to be induced.

Dr. Valente coded this 658.03, which is not high risk.

AHCA's witness, Dr. Franz, agreed with this.

Therefore, Dr. Valente billed Medicaid $52.00 more

than allowed.

Patient 37: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not contest this

finding. Therefore, Dr. Valente billed Medicaid

$52.00 more than allowed.

Patient 38: This was a low-risk patient.

Dr. Valente billed for 11 visits, which was one more

than the 10 allowed. Dr. Valente did not contest this

finding. Therefore, Dr. Valente billed Medicaid

$52.00 more than allowed.

7. The total amount over-billed in Category 1 was

$1,602.00.

8. Category 2 addressed billing for the Screening more

than once during a pregnancy. The Physician Coverage and

Limitation Handbook provides for Florida's Healthy Start

Prenatal Risk Screening. It states, "The Healthy Start Prenatal

Risk Screening should be offered at the first antepartum visit.

The antepartum visit that includes completion of the Healthy

Start Prenatal Risk Screening is reimbursed once per pregnancy

by billing code W1991 antepartum visit plus Healthy Start

Prenatal Risk Screening, or W1992 antepartum visit plus Healthy

Start Prenatal Risk Screening performed during the first

trimester of pregnancy."

9. Therefore, for Category 2, the audit searched for

situations where there was more than one Healthy Start prenatal

visit per pregnancy. In other words, a W1991 might be billed or

a W1992 might be billed, but both could not be billed during a

single pregnancy. The audit asserts this occurred nine times as

follows:

Patient 1: Dr. Valente billed for the W1991,

which is an antepartum visit with the Screening after

the first trimester, and then billed for a W1992,

which is the Screening during the first trimester, for

the same recipient. This overpayment was in the

amount of $148.

Patient 2: Dr. Valente billed for the W1992,

which is the Screening during the first trimester, and

then billed for a W1991, which is an antepartum visit

with the Screening after the first trimester, for the

same recipient. This overpayment was in the amount of

$98.

Patient 3: Dr. Valente billed for the W1992,

which is the Screening during the first trimester, and

then billed for a W1991, which is an antepartum visit

with the Screening after the first trimester, for the

same recipient. This overpayment was in the amount of

$100.

Patient 4: Dr. Valente billed for the W1991,

which is an antepartum visit with the Screening after

the first trimester, and then billed for a H1001,

which is the Screening during the first trimester for

the same recipient. This overpayment was in the

amount of $104.

Patient 5: Dr. Valente billed for the W1992,

which is the Screening during the first trimester, and

then billed for a W1991, which is an antepartum visit

with the Screening after the first trimester, for the

same recipient. This overpayment was in the amount of

$100.

Patient 6: Dr. Valente billed for the W1992,

which is the Screening during the first trimester, and

then billed for a W1991, which is an antepartum visit

with the Screening after the first trimester, for the

same recipient. This overpayment was in the amount of

$100.

Patient 7: Dr. Valente billed for the W1992,

which is the Screening during the first trimester, and

then billed for a W1991, which is an antepartum visit

with the Screening after the first trimester, for the

same recipient. This overpayment was in the amount of

$100.

Patient 8: Dr. Valente billed for the W1992,

which is the Screening during the first trimester, and

then billed for a W1991, which is an antepartum visit

with the Screening after the first trimester, for the

same recipient. This overpayment was in the amount of

$100.

Patient 9: Dr. Valente billed for the W1991,

which is an antepartum visit with the Screening after

the first trimester, and then billed for a W1992,

which is the Screening during the first trimester for

the same recipient. This overpayment was in the

amount of $150.

10. The total amount overpaid in Category 2 was $1,000.

Dr. Valente pointed out that even though she over-billed in this

category, she should have received $50 on each occurrence for an

office visit. Although this may be true, it is beyond the

jurisdiction of this forum to make recommendations with regard

to that.

11. Category 3 included a search for billings for W1992,

which is the Screening during the first trimester, that were

made subsequent to the end of the first trimester. AHCA defines

the first trimester as the first 13 weeks of a pregnancy. The

Screening form says the first trimester is determined to be 13

weeks (or 91 days) from the date of the last menstrual cycle.

The audit asserted 61 instances of billing for the Screening,

subsequent to the first trimester.

12. In determining whether the Screening was accomplished

later than the first trimester, 181 days were subtracted from

the delivery date. This meant that a Screening provided less

than 181 days before delivery was, perforce, beyond the first

trimester. The auditors found 61 instances where this occurred.

13. Dr. Valente agreed that she screened subsequent to the

first trimester for patients number 2-8, 11-14, 16-18, 20-22,

25-31, 33-36, 38, 40, 43-46, 48-49, 51-54, and 56-61. This

amounted to 44 over-bills at $50 and two at $49.34, for a total

of $2,298.68.

14. When evaluating the audit at this point, it is helpful

to recall that the medical records of the patients were not

available when the final audit was issued, but they were

available at the time of the hearing.

15. The Medicaid bills for the Healthy Start Prenatal Risk

Screening Instruments are typically submitted before the baby is

born. Thus, the physician at the time of submission cannot know

the actual delivery date with mathematical precision.

Accordingly, the physician has to estimate the due date using

the date of the last menstrual period (LMP); by ultrasounds; and

by following the progress of the pregnancy. Moreover, babies

arrive before their predicted due date as well as after.

16. The disputed cases in Category 3 are discussed below.

Patient 1: The estimated delivery date (EDD) was

July 9, 2003. The actual delivery date was May 15,

2003. The EDD on December 3, 2002, was determined by

ultrasound to be nine weeks and by LMP to be ten

weeks. The Screening date was December 3, 2002. This

was well within the 13-week window for the Screening.

Dr. Valente did not improperly bill for this patient.

Patient 9: This patient did not agree to the

screening. If the patient does not agree to the

Screening, AHCA is not permitted to pay for the

Screening. Accordingly, Dr. Valente over-billed

$50.00.

Patient 10: This patient did not agree to the

screening. If the patient does not agree to the

Screening, AHCA is not permitted to pay for the

Screening. Accordingly, Dr. Valente over-billed

$50.00.

Patient 15: An ultrasound on this patient on

June 18, 2003, indicated the patient was nine weeks

pregnant. The Screening was accomplished on the same

day. Accordingly, Dr. Valente did not improperly bill

for this patient.

Patient 19: This patient did not agree to the

screening. If the patient does not agree to the

Screening, AHCA is not permitted to pay for the

Screening. Accordingly, Dr. Valente over-billed

$50.00.

Patient 23: The Screening for this patient is

dated February 26, 2003, according to the Screening

form signed by the patient. The delivery date

provided to AHCA is incorrect because due to an

absence of fetal heartbeat the patient experienced a

"Suction D&E followed by sharp D&C of the uterine

cavity." This occurred about the 13th week, on

March 28, 2003. In other words, there was no

delivery. However, the Screening was not signed at

the bottom and that is a reason for rejecting payment.

Accordingly, Dr. Valente over-billed $50.00 for this

patient.

Patient 24: The Screening form is completely

absent for this patient. Accordingly, Dr. Valente

over-billed $50.00 for this patient.

Patient 32: This patient declined screening, so

Dr. Valente over-billed $49.34.

Patient 37: The Screening form is completely

absent for this patient. Accordingly, Dr. Valente

over-billed $50.00 for this patient.

Patient 39: This patient declined screening, so

Dr. Valente over-billed $50.00.

Patient 41: The Screening date for this patient

was October 30, 2002. The first ultrasound on this

patient was provided on the same day and indicated the

baby was at 12.7 weeks with an EDD of May 9, 2003.

The baby was delivered April 19, 2003, which means it

came earlier than anticipated and that the Screening

was accomplished during the first trimester.

Accordingly, Dr. Valente did not improperly bill for

this patient.

Patient 42: The screening form is completely

absent for this patient. Accordingly, Dr. Valente

over-billed $50.00 for this patient.

Patient 47: The Screening for this patient

listed on the AHCA spreadsheet was May 8, 2003.

However, the form indicates it was signed by the

patient on March 27, 2003. The patient's LMP was

February 13, 2003, and the first ultrasound indicated

the patient was eight and one-half weeks pregnant on

April 10, 2003. Even if the Screening was

accomplished May 8, 2003, as alleged, it was

accomplished in the first trimester. Accordingly,

Dr. Valente did not improperly bill for this patient.

Patient 55: The alleged Screening was

accomplished August 7, 2003. The Screening date is

unreadable as to month, but the day is 31.

Dr. Valente's testimony is that it was in March and

that the patient was at 11 weeks and three days. This

appears more correct than AHCA's allegation.

Accordingly, Dr. Valente did not improperly bill for

this patient.

17. The over-payment alleged was a total of $3,048.68.

The evidence indicates that on five occasions Dr. Valente was

correct in her assertion that the Screening for five of the

patients, at $50.00 per patient, was actually within the first

trimester. Accordingly, it is found that Dr. Valente only owes

$2,748.02 for Category 3.

18. A request for records was sent to Dr. Valente via

certified mail to the address she maintained on file with AHCA,

on or about October 29, 2007. This provided Dr. Valente with

the preliminary audit findings and invited her to illuminate or

explain the findings so they could be adjusted if appropriate.

The letter was returned. AHCA found a more current address and

sent the same letter, and it was delivered to that address in

Jacksonville on December 6, 2007. The receipt was signed by

Dr. Valente's father.

19. Eventually, Dr. Valente received the materials and

called AHCA Investigator Terri Dean, who was listed as the

contact point in the letter sent to Dr. Valente. Dr. Valente

informed Investigator Dean that she could not get the records.

Accordingly, the audit became final as written on March 21,

2008, and was provided to Dr. Valente. The report stated that

Dr. Valente owed $6,118.68 for overpayments and should pay a

$500.00 fine for failure to provide records.

20. Dr. Valente provided the records about six months

later, in late September or early October of 2008. AHCA

reviewed the records and determined that there were overpayments

in the amount of $7,344.00. Because litigation was already

underway, AHCA did not attempt to extract the additional amount

from Dr. Valente.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

22. AHCA may recover overpayments from a Medicaid provider

through a process called "recoupment," as provided in Florida

Administrative Code Rule 59G-1.010(245).

23. Florida Administrative Code Rule 59G-5.020 provides,

in part, that: "(1) All Medicaid providers enrolled in the

Medicaid program and billing agents who submit claims to

Medicaid on behalf of an enrolled Medicaid provider must

comply with the provisions of the Florida Medicaid Provider

General Handbook, July 2008, which is incorporated by reference

and available from the fiscal agent's Web Portal at

http://mymedicaid-florida.com."

24. As provided by Florida Administrative Code

Rule 59G-4.230, a payment is authorized only when the Medicaid

provider has complied with the terms and conditions set forth in

the Physician Services Coverage and Limitations Handbook.

25. A provider participating in the Medicaid program has

an affirmative duty to supervise and be responsible for the

preparation and submission of accurate claims for payment from

the program. It is the provider's duty to ensure that all

claims "Are provided in accord with applicable provisions of all

Medicaid rules, regulations, handbooks, and policies and in

accordance with federal, state, and local law."

§ 409.913(7)(e), Fla. Stat.

26. The Florida Medicaid Provider General Handbook

requires that the provider retain all medical, fiscal,

professional, and business records on all services provided to a

Medicaid recipient.

27. The Florida Medicaid Provider General Handbook

requires that the aforementioned records must be retained by the

provider for a period of five years. It provides that the

provider must send, at his or her expense, legible copies of all

Medicaid-related information to the authorized state and federal

agencies upon the request of AHCA.

28. The Florida Medicaid Provider General Handbook

provides that the provider must notify Medicaid of any change of

address. The notification must include the new business and

mailing address, the physical location if different, the

providers' previous address, and the effective date. If first

class mail to a provider's physical address is returned,

Medicaid will suspend claim payments to the provider or the

provider's group by that provider. After 30 days, the suspended

claims will be denied if the provider has not taken corrective

action.

29. AHCA has the burden of establishing an alleged

Medicaid overpayment by a preponderance of the evidence. See

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

653 So. 2d 440 (Fla. 3d DCA 1995) and Southpointe Pharmacy v.

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

106, 109 (Fla. 1st DCA 1992).

30. Section 409.913, Florida Statutes, provides in part as

follows:

409.913 Oversight of the integrity of the

Medicaid program.--

* * *

(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:

* * *

(b) The provider has failed to make

available or has refused access to Medicaid-

related records to an auditor, investigator,

or other authorized employee or agent of the

agency, the Attorney General, a state

attorney, or the Federal Government;

* * *

(15) 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 (14):

* * *

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

for each violation. Each day that an

ongoing violation continues, such as

refusing to furnish Medicaid-related records

or refusing access to records, is

considered, for the purposes of this

section, to be a separate violation.

* * *

(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.

* * *

31. Section 409.913, Florida Statutes (2008), provides, in

part, as follows:

409.913 Oversight of the integrity of the

Medicaid program.--

* * *

(25)(c) Overpayments owed to the

agency bear interest at the rate of 10

percent per year from the date of

determination of the overpayment by the

agency, and payment arrangements must be

made at the conclusion of legal proceedings.

A provider who does not enter into or adhere

to an agreed-upon repayment schedule may be

terminated by the agency for nonpayment or

partial payment.

32. AHCA can make a prima facie case by proffering a

properly supported audit report, which must be received in

evidence. See Maz Pharmaceuticals, Inc., s/b/s/ Maz Pharmacy v.

Agency for Health Care Administration , Case No. 97-3791 (DOAH

March 20, 1998) and Full Health Care, Inc. v. Agency for Health

Care Administration , Case No. 00-4441 (June 25, 2001).

33. AHCA established that Dr. Valente over-billed as

follows:

Category 1 $1,602.00

Category 2 $1,000.00

Category 3 $2,748.02

Total $5,350.02

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that the Agency for Health Care Administration

enter a final order requiring Dr. Grace Valente, M.D.:

(1) to pay the sum of $5,350.02 for the purpose of

reimbursing improperly billed Medicaid services;

(2) to pay a fine of $1,500 for failing to provide medical

records in a timely fashion; and

(3) to pay interest at the rate of 10 percent per annum on

the sum of $5,350.02, from March 21, 2008, the date of the final

audit report; and interest at the rate of 10 percent per annum

on the sum of $1,500 from the date the final order is entered,

until the sums are paid completely.

DONE AND ENTERED this 9th day of February, 2009, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 9th day of February, 2009.

COPIES FURNISHED :

William Blocker, II, Esquire

Agency for Health Care Administration

Fort Knox Building 3, Mail Stop 3

2727 Mahan Drive, Suite 3431

Tallahassee, Florida 32308

Grace Valente, M.D.

3474 Paddle Point

Spring Hill, Florida 34609

Richard Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Justin Senior, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Holly Benson, 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.