00-002285
C. Dwight Groves vs.
Agency For Health Care Administration
Status: Closed
Recommended Order on Thursday, December 21, 2000.
Recommended Order on Thursday, December 21, 2000.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8C. DWIGHT GROVES , )
12)
13Petitioner, )
15)
16vs. ) Case No. 00-2285
21)
22AGENCY FOR HEALTH )
26CARE ADMINISTRATION, )
29)
30Respondent. )
32________________________________)
33RECOMMENDED ORDER
35A hear ing was held pursuant to notice, on October 3, 2000,
47in Lake City, Florida, by Barbara J. Staros, assigned
56Administrative Law Judge of the Division of Administrative
64Hearings.
65APPEARANCES
66For Petitioner: Gerald D. Mills, MBA, JD
73Healthcare Consultants of America, Inc.
78Post Office Box 52979
82Atlanta, Georgia 30355
85For Respondent: L. William Porter, II, Esquire
92Agency for Health Care Administration
972727 Mahan Drive
100Tallahassee, Florida 32308-5403
103STATEMENT OF THE ISSUE
107Whether Petitioner is liable for overpayment of Medicaid
115claims for the period of January 1, 1997, through December 31,
1261998, as stated in Respondent's Final Agency Audit dated
135March 10, 2000.
138PRELIMINARY STATEMENT
140By Final Agency Audit Report dated March 10, 2000, the
150Agency for Health Care Administration (Respondent) notified
157C. Dwight Groves, M.D. (Petitioner) that he was liable for
167overpayment of Medicaid claims in the amount of $55,829.04, for
178the period from January 1, 1997, through December 31, 1998.
188Petitioner disputed being liable for reimbursement to Respondent
196for overpayment of the Medicaid claims and requested a hearing.
206On May 30, 2000, this matter was referred to the Division of
218Administrative Hearings.
220At hearing, Gerald D. Mills, MBA, JD, was authorized to
230appear on behalf of Petitioner as a Qualified Representative
239pursuant to Rule 28-106.106, Florida Administrative Code.
246The parties announced at the beginning of the hearing that
256they had resolved all but one issue raised in the agency's audit
268and that the resulting amount of overpayment in dispute was
278approximately $51,000. The parties stipulated that the remaining
287issue to be litigated was whether the services billed by an
298advanced registered nurse practitioner (ARNP) should be subject
306to reimbursement by Petitioner to Respondent.
312Petitioner was not present at the hearing. Petitioner
320presented no witness testimony and entered three exhibits
328numbered 1, 3, and 5 into evidence and offered four exhibits
339which were rejected. Respondent presented the testimony of two
348witnesses and entered 6 exhibits (Respondent's exhibits numbered
3561-24 (composite), 27, 36, 37, 38 and 39.) 1
365At the request of the parties, the time for filing post-
376hearing submissions was set for more than ten days following the
387filing of the transcript. The parties, therefore, waived the
396provisions of Rule 28-106.216, Florida Administrative Code. The
404transcript, consisting of one volume, was filed on October 26,
4142000. The parties timely filed post-hearing submissions which
422have been considered in the preparation of this Recommended
431Order.
432FINDINGS OF FACT
4351. At all times material hereto, the Agency for Health Care
446Administration (Respondent) was the state agency charged with
454administration of the Medicaid program in the State of Florida
464pursuant to Section 409.907, Florida Statutes (1997).
4712. At all times material hereto, C. Dwight Groves, M.D.
481(Petitioner) was a licensed medical doctor in the State of
491Florida and was providing medical services to Medicaid
499recipients. Petitioner provided the medical services pursuant to
507a contract with Respondent. When first accepted as a Medicaid
517provider in June of 1995, Petitioner was assigned provider number
5273777278-00 and was approved for providing and billing for
536physician services. The letter notifying Respondent that he was
545accepted as a Medicaid provider referenced an enclosed handbook
554which explained how the Medicaid program operates and how to bill
565Medicaid. At that time Petitioner practiced in Key West,
574Florida.
5753. In October of 1997, Petitioner notified Respondent of a
585change of address to Southern Group for Women in Lake City,
596Florida. According to the answers provided to a Medicaid
605Provider Questionnaire, Petitioner became affiliated with
611Southern Group for Women on October 16, 1997. Petitioner's
620medical practice was and is in the area of obstetrics and
631gynecology.
6324. Respondent's witness, Toni Steele, is employed by
640Respondent in its Medicaid program integrity division. During
648the audit period in question, she was a senior human services
659program specialist. Her job responsibility was to ensure that
668Medicaid providers in Florida adhered to Medicaid policy and
677rules.
6785. Medicaid program integrity uses several detection
685devices to audit Medicaid provider billing. One such device is
695what is referred to as a "one and a half report." This type of
709report will indicate when a provider "spikes" one and a half
720times his or her normal billings. During December of 1998,
730Ms. Steele noticed a "spike" in Petitioner's billings. Because
739of this spike, Medicaid program integrity, ordered an ad hoc
749sampling of his billings within a two-year billing period,
758January 1, 1997, through December 31, 1998. She reviewed the
768sample and, using the Medicaid Management Information System, was
777able to look at the actual dates of service and view the
789procedure code that was billed and paid by Medicaid.
7986. Ms. Steele then conducted an on-site visit to
807Petitioner's office. As is her usual practice, she took a tour
818of Petitioner's office looking at what types of lab equipment
828were there, the State of Florida license, and the number of
839medical personnel employed.
8427. During the on-site visit, Ms. Steele presented the
851office manager with a computer-generated list of patients and
860requested that the office manager provide the medical records of
870those patients on the list. The requested 31 files were provided
881to her within the requested time frame.
8888. Ms. Steele reviewed the patients' files received from
897Petitioner's office for the purpose of determining policy
905violations according to the Medicaid Physician Coverage and
913Limitations Handbook (Nov. 1997), the Advanced Registered Nurse
921Practitioner Coverage and Limitations Handbook (Nov. 1997), and
929the Medicaid Provider Reimbursement Handbook (Nov. 1996).
9369. The Medicaid Provider Reimbursement Handbook (Nov. 1996)
944provides in pertinent part:
948Introduction:
949Every facility, individual and group practice
955must submit an application and sign an
962agreement in order to provide Medicaid
968services.
969Note : See the Coverage and Limitations
976Handbook for specific enrollment
980requirements.
981Group Enrollment:
983When two or more Medicaid providers form a
991group practice, a group enrollment
996application must be filed with the Medicaid
1003fiscal agent.
1005* * *
1008Renewal:
1009A provider agreement is valid for the time
1017period stated in the agreement and must be
1025renewed by the provider by completing a new
1033provider agreement and submitting it to the
1040Medicaid fiscal agent 30 days prior to the
1048expiration date of the existing agreement.
105410. The Physician Coverage and Limitations Handbook
1061(Nov. 1997) provides in pertinent part:
1067Other Licensed Health Care Practitioners:
1072If a physician provider employs or contracts
1079with a non-physician health care practitioner
1085who can enroll as a Medicaid provider and
1093that health care provider is treating
1099Medicaid recipients, he or she must enroll as
1107a Medicaid provider.
1110Examples of non-physician health care
1115practitioners who can enroll as Medicaid
1121providers include but are not limited to:
1128physician assistants, advanced registered
1132nurse practitioners, registered nurse first
1137assistants, physician therapists, etc.
1141If the services rendered by a non-physician
1148health care practitioner are billed with that
1155practitioner as the treating provider, the
1161services must be provided in accordance with
1168the policies and limitations contained in
1174that practitioner's program-specific Coverage
1178and Limitations Handbook.
1181* * *
1184Physician Supervision:
1186Delivery of all services must be done by or
1195under the personal supervision of the
1201physician.
1202Personal supervision means the physician:
1207. is in the building when the services are
1216rendered, and
1218. reviews, signs and dates the medical
1225record within 24 hours of providing the
1232service.
123311. The Advanced Registered Nurse Practitioner Coverage and
1241Limitations Handbook (November 1997) provides in pertinent part:
1249ARNP in a Physician Group:
1254If an ARNP is employed by or contracts with a
1264physician who can enroll as a Medicaid
1271provider, the physician must enroll as a
1278group provider and the ARNP must enroll as a
1287treating provider within the group.
1292If the services rendered by the ARNP are
1300billed with the ARNP as the treating
1307provider, the services must be provided in
1314accordance with the policies and limitations
1320contained in this handbook.
132412. According to answers provided on a Medicaid Provider
1333Questionnaire completed in February of 1999, Anna Hall Kelley,
1342ARNP, became affiliated with Southern Group for Women on
1351October 16, 1997. The answers provided on the Questionnaire
1360indicated that Petitioner and Nurse Kelley formed a partnership
1369and practiced together at Southern Group for Women. Nurse Kelley
1379did not testify at the hearing.
138513. In reviewing the requested medical records, Ms. Steele
1394noted that some of the medical records were signed by Nurse
1405Kelley, ARNP, indicating that Nurse Kelley, not Petitioner,
1413performed the services. They were not countersigned by
1421Petitioner.
142214. Nurse Kelly was not an enrolled Medicaid provider at
1432the time the services were rendered as her provider number
1442expired on May 31, 1997. Nurse Kelley signed a new enrollment
1453application to be a Medicaid provider in October of 1999. Thus,
1464she was not an enrolled provider from June 1, 1997, through the
1476remainder of the audit period.
148115. Nurse Kelley saw patients and billed for those services
1491under Petitioner's individual provider number. Neither Nurse
1498Kelley nor Petitioner applied for a group Medicaid provider
1507number during the audit period.
151216. Respondent sent a Preliminary Agency Audit Report to
1521Petitioner on September 21, 1999, notifying him of a preliminary
1531determination of a Medicaid overpayment in the amount of
1540$71,261.92.
154217. Respondent sent a Final Agency Audit Report to
1551Petitioner on March 10, 2000, notifying him that the Agency made
1562a determination of a Medicaid overpayment in the amount of
1572$55,829.04. Because of recalculations made by Respondent, the
1581amount of reimbursement sought was reduced to $55,647.92. As a
1592result of a stipulation of the parties prior to the hearing, the
1604amount of reimbursement was further reduced to approximately
1612$51,000.
161418. As to the statistical aspect of Respondent's audit,
1623Respondent presented testimony of a statistical expert,
1630Dr. Robert Peirce, who is employed by Respondent as an
1640administrator in the Bureau of Program Integrity. Dr. Peirce's
1649testimony is considered credible.
165319. Dr. Peirce developed the statistical methodology used
1661in the statistical sampling of Dr. Groves' medical files.
1670Dr. Peirce studied the methodology used by Respondent in this
1680case, and concluded that the statistical procedures used in the
1690audit of Petitioner were in accordance with customary statistical
1699methodology.
170020. The statistical analysis of a Medicaid provider's
1708billing begins with the selection of an audit period, which in
1719Petitioner's case was calendar years 1997 and 1998. During that
1729audit period, Petitioner submitted 3912 claims for Medicaid
1737reimbursement.
173821. A random sample of recipients, 31 out of a possible
1749315, was selected by a computerized random sample generator from
1759the claims submitted by Petitioner during the audit period. All
1769of the claims in the sample were reviewed by an analyst, who
1781determined whether any overpayment existed with respect to those
1790claims. An overpayment totaling $5,130.99 was determined for the
1800302 claims of the 31 recipients in the sample.
180922. The amount of overpayment from the sample was extended
1819to the population of the claims through a widely accepted
1829statistical sampling formula. In extending the results of the
1838302 claims to the 3,912 claims, the total amount of overpayments
1850was calculated as $55,647.92. The determination of that amount
1860was made at the 95 percent confidence level, meaning that
1870Respondent is confident that the overpayment is the amount that
1880was calculated or more. There is a five percent probability that
1891it might be less and a 95 percent chance that it would be more
1905then the $55,647.92 that was calculated.
191223. The process used by Respondent is in accordance with
1922customary statistical methodology. However, the result does not
1930take into account the fact that the audit period began January 1,
19421997, whereas Nurse Kelley did not begin to practice at Southern
1953Women's Group until October 16, 1997, and, therefore, worked
1962there only 14 and one-half months (or approximately 60%) of the
1973audit period.
197524. Despite the stipulation of the parties that all issues
1985other than the ARNP services had been resolved and that the
1996amount in dispute was now approximately $51,000, no evidence was
2007presented to indicate the exact amount remaining in dispute.
2016CONCLUSIONS OF LAW
201925. The Division of Administrative Hearings has
2026jurisdiction over the parties and subject matter in this case
2036pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
204426. The burden of proof is on Respondent to establish by a
2056preponderance of the evidence that its Final Agency Audit Report
2066should be sustained. South Medical Services, Inc. v. Agency for
2076Health Care Administration , 653 So. 2d 440 (Fla. 3d DCA 1995.)
208727. The statutes, rules and Medicaid Provider handbooks
2095which were in effect during the period for which the services
2106were provided govern the outcome of the dispute.
211428. Section 409.907, Florida statutes (1997), reads in
2122pertinent part as follows:
2126409.907 Medicaid provider agreements.--
2130The agency may make payments for medical
2137assistance and related services rendered to
2143Medicaid recipients only to an individual or
2150entity who has a provider agreement in effect
2158with the agency, who is performing services
2165or supplying goods in accordance with
2171federal, state, and local law, and who agrees
2179that no person shall, on the grounds of
2187handicap, race, color, or national origin, or
2194for any other reason, be subjected to
2201discrimination under any program or activity
2207for which the provider receives payment from
2214the agency.
2216(1) Each provider agreement shall require
2222the provider to comply fully with all state
2230and federal laws pertaining to the Medicaid
2237program, as well as all federal, state, and
2245local laws pertaining to licensure, if
2251required, and the practice of any of the
2259healing arts, and shall require the provider
2266to provide services or goods of not less than
2275the scope and quality it provides to the
2283general public.
2285(2) Each provider agreement shall be a
2292voluntary contract between the agency and the
2299provider, in which the provider agrees to
2306comply with all laws and rules pertaining to
2314the Medicaid program when furnishing a
2320service or goods to a Medicaid recipient and
2328the agency agrees to pay a sum, determined by
2337fee schedule, payment methodology, or other
2343manner, for the service or goods provided to
2351the Medicaid recipient. Each provider
2356agreement shall be effective for a stipulated
2363period of time, shall be terminable by either
2371party after reasonable notice, and shall be
2378renewable by mutual agreement.
238229. Section 409.913, Florida Statutes (1997), reads in
2390pertinent part as follows:
2394409.913 Oversight of the Integrity of the
2401Medicaid program.--
2403The agency shall operate a program to oversee
2411the activities of Florida Medicaid
2416recipients, and providers and their
2421representatives, to ensure that fraudulent
2426and abusive behavior and neglect of
2432recipients occur to the minimum extent
2438possible, and to recover overpayments and
2444impose sanctions as appropriate.
2448(1) For the purposes of this section, the
2456term:
2457* * *
2460(d) "Overpayment" includes any amount that
2466is not authorized to be paid by the Medicaid
2475program whether paid as a result of
2482inaccurate or improper cost reporting,
2487improper claiming, unacceptable practices,
2491fraud, abuse, or mistake.
2495* * *
2498(14) The agency may seek any remedy provided
2506by law, including, but not limited to, the
2514remedies provided in subsections (12) and
2520(15) and s. 812.035, if:
2525* * *
2528(e) The provider is not in compliance with
2536provisions of Medicaid provider publications
2541that have been adopted by reference as rules
2549in the Florida Administrative Code; with
2555provisions of state or federal laws, rules,
2562or regulations; with provisions of the
2568provider agreement between the agency and the
2575provider; or with certifications found on
2581claim forms or on transmittal forms for
2588electronically submitted claims that are
2593submitted by the provider or authorized
2599representative, as such provisions apply to
2605the Medicaid program;
2608* * *
2611(19) In making a determination of
2617overpayment to a provider, the agency must
2624use accepted and valid auditing, accounting,
2630analytical, statistical, or peer-review
2634methods, or combinations thereof.
2638Appropriate statistical methods may include,
2643but are not limited to, sampling and
2650extension to the population, parametric and
2656nonparametric statistics, tests of
2660hypotheses, and other generally accepted
2665statistical methods. Appropriate analytical
2669methods may include, but are not limited to,
2677reviews to determine variances between the
2683quantities of products that a provider had on
2691hand and available to be purveyed to Medicaid
2699recipients during the review period and the
2706quantities of the same products paid for by
2714the Medicaid program for the same period,
2721taking into appropriate consideration sales
2726of the same products to non-Medicaid
2732customers during the same period. In meeting
2739its burden of proof in any administrative or
2747court proceeding, the agency may introduce
2753the results of such methods as evidence of
2761overpayment.
2762(20) When making a determination that an
2769overpayment has occurred, the agency shall
2775prepare and issue an audit report to the
2783provider showing the calculation of
2788overpayments.
2789(21) The audit report, supported by agency
2796work papers, showing an overpayment to a
2803provider constitutes evidence of the
2808overpayment. A provider may not present or
2815elicit testimony, either on direct
2820examination or cross-examination in any court
2826or administrative proceeding, regarding the
2831purchase or acquisition by any means of
2838drugs, goods, or supplies; sales or
2844divestment by any means of drugs, goods, or
2852supplies; or inventory of drugs, goods, or
2859supplies, unless such acquisition, sales,
2864divestment, or inventory is documented by
2870written invoices, written inventory records,
2875or other competent written documentary
2880evidence maintained in the normal course of
2887the provider's business.
289030. The amount of overpayment in dispute was reduced by
2900stipulation of the parties from $55,647.92 to approximately
2909$51,000, although the exact figure remaining in dispute was not
2920evident from the evidence presented.
292531. Respondent proved that it used accepted auditing,
2933analytical, and statistical methods in the determination of the
2942overpayment to Petitioner.
294532. The Respondent has established that the claims
2953submitted by Petitioner for ARNP services were not in compliance
2963with provisions of the Medicaid provider publications for the
2972portion of the audit period that Nurse Kelley was practicing with
2983Petitioner because she was not an approved Medicaid provider for
2993the time period of October 1997 through December 1998.
300233. Given that Petitioner's noncompliance was based on
3010Nurse Kelley's not being an enrolled Medicaid provider,
3018Respondent has not proven that it is entitled to the full amount
3030of reimbursement of $51,000. The amount of reimbursement to
3040which Respondent is entitled is approximately 60% of $51,000,
3050corresponding to the percentage of time of the audit period that
3061Nurse Kelley was providing services.
306634. Fines up to $5,000 for each violation are expressly
3077permitted sanctions in the event overpayments are determined.
3085Section 409.913(15)(c), Florida Statutes (1997). Moreover, the
3092Agency is entitled to recover up to $15,000 in investigative,
3103legal, and expert witness costs if it prevails at hearing.
3113Section 409.913(22)(a), Florida Statutes (1997). The Agency has
3121declined to seek fines or recoup costs from Petitioner.
3130RECOMMENDATION
3131Based upon the foregoing Findings of Fact and Conclusions of
3141Law set forth herein, it is
3147RECOMMENDED:
3148That the Agency for Health Care Administration enter a final
3158order sustaining the Final Agency Audit Report in part,
3167recalculating the amount of overpayment as indicated and
3175consistent with this Recommended Order, and requiring Petitioner
3183to repay overpayments in the amount determined by the
3192recalculation.
3193DONE AND ENTERED this 21st day of December, 2000, in
3203Tallahassee, Leon County, Florida.
3207BARBARA J. STAROS
3210Administrative Law Judge
3213Division of Administrative Hearings
3217The DeSoto Building
32201230 Apalachee Parkway
3223Tallahassee, Florida 32399-3060
3226(850) 488-9675 SUNCOM 278-9675
3230Fax Filing (850) 921-6847
3234www.doah.state.fl.us
3235Filed with the Clerk of the
3241Division of Administrative Hearings
3245this 21st day of December, 2000.
3251ENDNOTE
32521/ Patient records of claims of 24 of the 31 patients from the
3265sample were introduced into evidence as Respondent's composite
3273Exhibit 1-24. The records of the other seven patients of the
3284sample were not introduced because they did not contain any policy
3295violations.
3296COPIES FURNISHED:
3298Gerald D. Mills, MBA, JD
3303Healthcare Consultants of America, Inc.
3308Post Office Box 52979
3312Atlanta, Georgia 30355
3315L. William Porter, II, Esquire
3320Agency for Health Care Administration
33252727 Mahan Drive
3328Tallahassee, Florida 32308-5403
3331Julie Gallagher, General Counsel
3335Agency for Health Care Administration
33402727 Mahan Drive
3343Tallahassee, Florida 32308-5403
3346Sam Power, Agency Clerk
3350Agency for Health Care Administration
33552727 Mahan Drive
3358Fort Knox Building Three, Suite 3231
3364Tallahassee, Florida 32308-5403
3367NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
3373All parties have the right to submit written exceptions within
338315 days from the date of this recommended order. Any exceptions to
3395this recommended order should be filed with the agency that will
3406issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 01/05/2001
- Proceedings: Agency`s Unopposed Motion for Extension of Time to File Exceptions filed.
- PDF:
- Date: 12/21/2000
- Proceedings: Recommended Order issued (hearing held October 3, 2000) CASE CLOSED.
- PDF:
- Date: 11/28/2000
- Proceedings: Petitioner`s Proposed Recommended Order with Supporting Comments filed.
- PDF:
- Date: 11/22/2000
- Proceedings: Petitioner`s Proposed Recommended Order with Supporting Comments filed.
- Date: 10/26/2000
- Proceedings: Transcript (Volume 1) filed.
- Date: 10/03/2000
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- Date: 09/18/2000
- Proceedings: Motion to Compel Responses (filed by W. Porter, Jr. via facsimile).
- Date: 06/29/2000
- Proceedings: Notice of Hearing sent out. (hearing set for October 3, 2000; 10:00 a.m.; Lake City, FL)
- Date: 06/16/2000
- Proceedings: Response to Initial Order (filed by Respondent via facsimile) filed.
- Date: 06/07/2000
- Proceedings: Initial Order issued.
- Date: 05/30/2000
- Proceedings: Agency Action filed.
- Date: 05/30/2000
- Proceedings: Request for Administrative Hearing filed.
- Date: 05/30/2000
- Proceedings: Notice filed.