02-000019MPI Jeanette E. Norris, M.D. And Sandcastle Pediatrics vs. Agency For Health Care Administration Status: Closed Recommended Order on Friday, February 28, 2003.

Summary: Parties limited issues before hearing. Pet. raised a procedural-factual issue on statistical formula used by Agency. Because formula not established by rule, challenge was heard. Pet. failed to prove the invalidity of formula. Motion for costs denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEANETTE E. NORRIS, M.D. AND )

SANDCASTLE PEDIATRICS, )

)

Petitioners, )

)

vs. ) Case No. 02 - 0019MPI

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Formal hearings in this case were held on April 1, 2002, in

Tallahassee, Florida, and on June 3, 2002, via telephone, before

the Division of Administrative Hearings by Administrative Law

Judge, Stephen F. Dean.

APPEARAN CES

For Petitioners: Jeanette E. Norris, M.D., pro se

Sandcastle Pediatrics, Inc.

834 Tarpon Drive

Fort Walton Beach, Florida 32548 - 6069

For Respondent: Susan C. Felker - Little, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Medicaid overpayments were made to Petitioners,

Jeanette E. Norris, M.D., and Sandcastle Pediatrics, and, if so,

what is the total amount of these overpayments.

PRELIMINARY STATEMENT

The final hearing commenced in this cause on April 1, 2002,

at which time the Agency for Health Care Administration

(Agency/AHCA) presented the live testimony of two witnesses,

agency analyst/auditor Lynne Edwards and agency registered

nursing c onsultant Blanca Notman, and the deposition testimony

of agency pediatrician peer review consultant, Larry C.

Deeb, M.D., in lieu of live trial testimony (the deposition

having been received into evidence as AHCA Exhibit 35). The

Agency also offered d ocumentary exhibits numbered 1 through 34,

which were received into evidence. Over the objection by the

Agency, Petitioner Norris was permitted to present the live

testimony of statistician Ibrahim Ahmad, Ph.D., by telephone.

Petitioner also presented th e live testimony of Petitioner

Norris.

The final hearing did not conclude on April 1, 2002, and

was recessed to permit the Agency to obtain rebuttal statistical

testimony.

Before the Agency obtained the testimony of Dr. Mark

Johnson, the Agency's counsel left employment with the Agency

and a new counsel for the Agency filed a notice of appearance.

The next session of the hearing was conducted via telephone

conference call on June 3, 2002. During the June 3, 2002,

hearing, the Agency offered a documentary exhibit, the CV/Résumé

of Dr. Johnson, which was admitted into evidence as the Agency's

Exhibit 1; and Judge's Exhibit 1, pages 116 and 117 of

Thompson's statistical text, was admitted into evidence. The

final hearing did not conclude on June 3, 2002, an d the record

was left open to permit Petitioner Norris to present surrebuttal

testimony of Dr. Ahmad.

On June 10, 2002, Petitioner Norris sought an extension of

time in which to present surrebuttal testimony by deposition.

The Agency opposed the motion for extension of time and asserted

the motion was untimely. By order dated September 6, 2002, it

was determined that Petitioner Norris had good cause for its

untimely motion for extension of time and Petitioner Norris

further was ordered to arrange a tele phone conference with the

Administrative Law Judge if Petitioner Norris sought to take the

deposition testimony after September 30, 2002. Petitioner

Norris did not present additional surrebuttal testimony on or

before September 30, 2002, and Petitioner No rris did not seek a

further extension of time prior to close of business on

September 30, 2002.

Pursuant to the order entered September 6, 2002, the

parties were given until October 21, 2002, in which to file

proposed recommended orders. On October 16, 2 002, Petitioner

Norris filed a Motion to Extend Time to File Proposed

Recommended Order, seeking an extension to October 31, 2002. On

October 17, 2002, the Agency filed a response to Petitioner

Norris' motion, indicating the Agency did not oppose the

exte nsion of time requested. The extension was verbally granted

on October 21, 2002. On October 29, 2002, Petitioner Norris

filed a motion to further extend the filing of proposed

recommended orders to November 19, 2002. On October 29, 2002,

the Agency file d a response to Petitioner Norris' motion,

indicating the Agency did not oppose the extension of time

requested. The extension was verbally granted. On November 6,

2002, Petitioner Norris filed a motion to further extend the

filing of proposed recommende d orders and an extension to

December 5, 2002, was verbally granted on November 15, 2002.

The Transcript of the April 1, 2002, hearing was filed with

the Division of Administrative Hearings on April 14, 2002; the

Transcript of the June 3, 2002, hearing wa s filed with Division

of Administrative Hearings on June 28, 2002. Petitioner Norris

did not offer any exhibits.

On December 4, 2002, the Agency filed a Proposed

Recommended Order containing findings of fact and conclusions of

law. On December 6, 2002, Petitioner Norris filed a Proposed

Recommended Order containing proposed findings of fact and

conclusions of law. The proposed recommended order of each

party was considered prior to the entry of the Recommended

Order. A letter was submitted by Dr. Norri s after the proposed

findings were filed which the Agency moved to strike. The

letter and motion were not considered because they were

untimely.

FINDINGS OF FACT

1. The Agency is the state agency charged with

administration of the Medi caid program in Florida under Section

409.907, Florida Statutes.

2. Petitioner Norris is a physician who, during the period

of January 1, 1997, through October 16, 1999, provided Medicaid

services to Medicaid beneficiaries pursuant to a valid Medicaid

pro vider agreement with the Agency under provider number

0543756 - 00. Petitioner Norris at all times relevant to this

matter, provided Medicaid services in an office owned by

Petitioner Norris, doing business as Sandcastle Pediatrics, but

all Medicaid claims were claimed by and paid to Petitioner.

3. The Agency performed an audit of paid Medicaid claims

for services claimed to have been performed by Petitioner Norris

during the period January 1, 1997, through October 16, 1999.

4. On March 12, 2201, the Agenc y issued a Final Agency

Audit Report ("Audit Report" or "FAAR"), requesting Petitioner

Norris to reimburse the Agency $39,534.32, alleged for

overpayments of Medicaid claims submitted by and paid to

Petitioner Norris.

5. The determination of overpayment w as based upon audit

findings that services provided by Petitioner Norris did not

meet Medicaid criteria. These criteria included: lack of

documentation of services rendered; lack of documentation to

support the higher level of service billed; failure to document

the required elements for early periodic screening for

diagnosis; failure to document performance of treatment

services; and billing for two codes when one code incorporated

the elements of the other code.

6. During the Audit period, the applicab le statutes, laws,

rules and policy guidelines (Medicaid rules) in effect required

Petitioner Norris to maintain all Medicaid - related records and

information that supported any and all Medicaid invoices or

claims made by Petitioner Norris during the Audit period.

7. During the Audit period, the Medicaid rules required

Petitioner Norris to provide the Agency or the Agency's

authorized representatives all the Medicaid - related records and

other information that supported all the Medicaid - related

invoices or c laims for which Petitioner Norris billed Medicaid

during the Audit period.

8. Petitioner Norris was required to maintain all medical

and Medicaid - related records for a period of five years to

satisfy all necessary inquiries by the Agency.

9. During all t imes relevant to this matter, Petitioner

Norris had an affirmative duty to assure that each claim

presented to the Agency was true and accurate, and that goods

and services were provided in accord with applicable provisions

of the Medicaid rules.

10. Medic aid goods and services are deemed excessive or

medically unnecessary unless both the medical basis and specific

need for them are fully and properly documented in the

recipient's medical record.

11. At the request of Ms. Lynne Edwards, the Agency's

auditor , the Agency generated a random list of 24 Medicaid

recipients (cluster sample) rendered services by Petitioner

Norris during the audit period. In addition, the Agency

generated work papers of: the total number of recipients to

whom Petitioner Norris ren dered services during the audit

period; the total number of claims by Petitioner Norris with

dates of service during the audit period; the total amount paid

to Petitioner Norris for all claims with dates of service during

the audit period; and worksheets r epresenting each recipient's

claims for the audit period.

12. Ms. Edwards obtained the work papers generated by the

Agency concerning the random cluster sample, provided 24 - hour

advance notice to Petitioner Norris of an on - site visit, and

performed an on - s ite visit at the office where Petitioner Norris

provided medical services and maintained patient records. After

the on - site visit, Ms. Edwards prepared an on - site investigative

summary.

13. When Ms. Edwards performed the on - site visit, she

spoke with Peti tioner Norris. Ms. Edwards presented Petitioner

Norris with a questionnaire and printout of the names of the 24

patients in the cluster sample, and asked Petitioner Norris to

fill out the questionnaire and mail back to Ms. Edwards the

completed questionna ire along with copies of the medical records

of the 24 patients in the cluster sample. Ms. Edwards also

asked to see medical records of a few of the patients in the

cluster sample while she was on - site. Petitioner Norris did not

mail a completed question naire to Ms. Edwards.

14. Subsequent to the on - site visit, Petitioner Norris

provided the Agency with medical records for five of the 24

recipients in the sample. The records were given to Ms. Blanca

Notman, the Agency's registered nurse consultant, for p olicy

compliance review. Thereafter, Petitioner Norris submitted

medical records for an additional five recipients in the sample.

Ms. Edwards forwarded the additional medical records to

Ms. Notman for review. After Ms. Notman reviewed the medical

record s and provided her comments on the claims worksheets,

Ms. Notman forwarded the records and worksheets to Dr. Larry

Deeb, a pediatrician physician consultant, for a review relating

to medical necessity and level of care issues. After review and

comments by Dr. Deeb, the records and worksheets were returned

to Ms. Notman, who calculated adjustments on the claims

worksheets based on the opinions of Dr. Deeb. Ms. Notman

returned the medical records and worksheets to Ms. Edwards,

along with a Professional Medi cal Review Report signed by

Ms. Notman and Dr. Deeb.

15. Ms. Edwards received the medical records, worksheets,

and the Professional Medical Review Report, totaled the

overpayments per patient/cluster in the sample, and arrived at a

figure of $3,298.45 as t he total overpayment for all cluster

sample claims. Ms. Edwards submitted the cluster sampling

information and the audit review results to another Agency

employee for the generation of the extrapolated overpayment

calculation, using the Agency's formula. The Agency employee

generated and provided to Ms. Edwards the overpayment

calculation that represented the findings of the audit of the

cluster sampling extrapolated to the total paid claims in the

audit period, which was $39,534.32.

16. The Agency prepar ed its February 6, 2001, Preliminary

Agency Audit Report (PAAR) based on the audit review of the

medical records provided by Petitioner Norris for the paid

claims in the cluster sample. Petitioner Norris provided no

documentation for 14 of the 24 patient s in the cluster sample,

and the audit took this into account. The PAAR was mailed to

Petitioner Norris. The PAAR identified all policy violations

and determinations found in the audit review.

17. Petitioner Norris closed her medical practice in March

20 01. Petitioner Norris joined the employees of a group that

provides physicians to hospitals on contract for limited periods

of time. This required Petitioner Norris to be away from home

and unavailable for large periods of time, which complicated all

asp ects of this case.

18. The PAAR informed Petitioner Norris that the findings

were preliminary and encouraged Petitioner Norris to submit any

additional documentation she felt would serve to reduce the

overpayment within 30 days. Petitioner Norris did not submit

additional documentation to the Agency. Pursuant to Section

409.9131, Florida Statutes (2000 Supp.), the Agency prepared and

mailed to Petitioner Norris its March 12, 2001, Final Agency

Audit Report (FAAR), asserting a total overpayment determinati on

of $39,534.32 and again identifying all policy violations and

determinations found in the audit review.

19. After receipt of the FAAR, Petitioner Norris requested

an informal hearing, which the Agency received on April 13,

2001. In her hearing request Petitioner Norris said the 30 days

given between the PAAR and FAAR for the submission of additional

documentation was not sufficient because she was in the process

of closing her medical office and relocating her files and

medical records. Petitioner Norr is requested an additional 60

days for the submission of additional information, and the

letter inferred there were disputed issues of material fact.

20. On April 26, 2001, the Agency's clerk submitted a

request to Petitioner Norris that she clarify her hearing

request, given what appeared to be disputed issues of material

fact. On September 12, 2001, Petitioner Norris sent the Agency

a letter that informed the Informal Hearing Officer of dates of

availability and acknowledged there were disputed issues of

material fact. The matter was subsequently referred to the

Division of Administrative Hearings.

21. On March 28, 2002, the Agency took the deposition of

Dr. Deeb in lieu of live trial testimony. Prior to the

commencement of the deposition, the determ ination of the Agency

as to the paid claims in the cluster sample was reviewed by the

parties and stipulations were entered into between the Agency

and Petitioner Norris. The stipulations were restated during

the deposition.

22. Based on the stipulations prior to and during the

deposition of Dr. Deeb, the Agency re - calculated the total

overpayment for the paid claims in the cluster sample,

extrapolated the sample findings to the population, and

determined the adjusted total overpayment of paid Medicaid

cla ims.

23. Prior to the commencement of the final hearing on

April 1, 2002, the parties agreed that the information set forth

in AHCA Exhibit 10A represented the Agency's final determination

as to the claims in the cluster sample determined to be

overpayment s by the Agency, with the exception of the "No

Documentation" overpayment for the date of service of March 3,

1997, which the parties agreed should not be listed on the

exhibit because the Agency represented that it would recalculate

the extrapolated total overpayment, based upon the final

determinations set forth in the Agency Exhibit 10A (subtracting

out the "No Documentation" March 3, 1997 listing), and the

parties were permitted to supplement AHCA Exhibit 30 with any

updated total overpayment determinat ion.

24. The Agency recalculated the extrapolated total

overpayment after April 1, 2002, which was determined to be

$4,000.48, and supplemented AHCA Exhibit 30 by filing AHCA

Exhibit 30A on June 7, 2002.

25. On April 1, 2002, when the final hearing commenc ed,

the parties agreed that the only Medicaid claims overpayment

determinations made by the Agency concerning the audit of the

claims in the cluster sample that were in dispute were the

following:

a. Blood count/fingerstick hemoglobin and

hemocrit tests p erformed as a part of a physician

office visits as follows:

Recipient/ Date of Procedure Reason for

Patient Service Billed Claim Denial Overpayment

13 3/25/97 Blood Count/HE Part of OV $ 2.00

14 2/24/97 Blood Count/HE Part of O V $ 2.00

14 3/10/97 Blood Count/HE Part of OV $ 2.00

16 4/4/98 Blood Count/HE Part of OV $ 2.00

16 5/12/98 Blood Count/HE Part of OV $ 2.00

16 6/18/98 Blood Count/HE Part of OV $ 2.00

b. Office visit (OV) cannot be billed the same

day that an EPSDT is billed, when patient only seen

once that day:

Recipient/ Date of Procedure Reason for

Patient Service Billed Claim Denial Overpayment

22 7/29/97 OV - 99202 OV billed same $31.35

same day as

EPSDT

26. On April 1, 2002, when the final hearing commenced,

the parties agreed that the following claims overpayment

determinations made by the Agency concerning the audit of the

claims in the cluster sample were not in dispute :

a. Claims were no medical rec ords existed to

indicate services were performed:

Recipient/ Date of Procedure Reason for

Patient Service Billed Claim Denial Overpayment

3 5/12/97 EPSDT No Med. Rec. $64.98

3 5/12/97 blood count No Med. Rec. $ 2.00

3 5/12/97 immunization No Med. Rec. $10.00

3 5/12/97 immunization No Med. Rec. $10.00

3 5/12/97 immunization No Med. Rec. $10.00

3 8/27/97 immunization No Med. Rec. $10.00

3 8/27/97 immunization No Med. Rec. $10.00

3 8/27/97 immunization N o Med. Rec. $10.00

3 8/27/97 immunization No Med. Rec. $10.00

7 7/30/97 OV - 99213 No Med. Rec. $25.00

22 7/14/98 EPSDT No Med. Rec. $65.33

b. Office visit (OV) claims, to include Early

and Periodic Screening, Diagnosis, and Treatment

Services c laims (EPSDTs), that lacked all EPSDT

components, adjusted to appropriate level of care OV

claims.

Recipient/ Date of Adjustment Reason for

Patient Service Made Adjustment Overpayment

3 8/27/97 EPSDT to 99214 OV Lacked components $27.72

3 8/27/98 99205 OV to 99204 OV Level of Service $38.18

9 10/17/97 99205 OV to 99204 OV Level of Service $17.04

10 4/3/97 99204 OV to 99203 OV Level of Service $21.36

14 3/24/97 99214 OV to 99213 OV Level of Service $12.26

14 4/28/97 99214 OV to 99213 OV Level of Service $12.26

16 1/20/97 99205 OV to 99204 OV Level of Service $17.04

16 3/5/97 99214 OV to 99213 OV Level of Service $12.26

19 3/11/97 99205 OV to 99204 OV Level of Service $17.04

20 4 /2/97 99214 OV to 99213 OV Level of Service $12.26

21 2/13/98 99205 OV to 99204 OV Level of Service $16.77

23 8/4/97 99204 OV to 99203 OV Level of Service $21.36

27. As to the disputed claims concerning the blood

count/fingerstick hemog lobin and hemocrit test performed as a

part of a physician office visit, Petitioner Norris testified

that she did not see the test as a routine part of an office

visit, she disagreed with the policy that the test could not be

billed separately, and she ind icated that usually her nurse

would perform the test, which she agreed involved a little prick

of blood run through something and took about five minutes. The

preponderance of the evidence established that the Agency's

determination as to these disputed c laims was correct -- the

Medicaid Handbooks in effect during the audit prohibited

Petitioner Norris from separately billing for these tests

because they were done during an office visit.

28. The one disputed claim concerning an EPSDT and office

visit billed on the same day when the patient was only seen once

was for the treatment of the patient's oral infection (thrush).

Petitioner Norris admitted that she received reimbursement for

office visit procedure Code 99202, in addition to being

reimbursed for an E PSDT, even though the patient was seen only

once on that day.

29. It was undisputed that prior to the issuance of the

Agency's audit report, a peer review was performed by

Dr. Larry C. Deeb, a pediatrician in active practice pursuant to

Section 409.9 131, Florida Statutes (2000 Supp.)

30. Based on the documentation that Petitioner Norris

provided to the Agency before the issuance of the Agency audit

report, the Agency audit report and related work papers, the

adjustment made because of stipulations bet ween the parties

after the Agency Audit Report was issued, a preponderance of the

evidence establishes there is a Medicaid claims overpayment of

$4,000.48 to Petitioner Norris for paid Medicaid claims for the

audit period.

31. On April 1, 2002, at the fin al hearing, Petitioner

Norris announced that she disputed the appropriateness of the

Agency's statistical formula regarding the extrapolation of the

Agency's audit findings concerning the paid claims in the

cluster sample to the universe/population of all paid claims

during the audit period. The Agency objected on numerous

grounds, all of which were overruled. The Agency was permitted

to present rebuttal testimony at the conclusion of the

presentation of evidence by Petitioner Norris, which the Agency

did on June 3, 2002.

32. The statistical formula utilized by the Agency when it

made findings based on the cluster sample audit and applied to

extrapolate those findings to the population of patient claims

paid during the audit period is found on page two of the agency

audit report.

33. It was undisputed that during the audit period,

Petitioner Norris saw 305 Medicaid patients and had a total of

3,035 Medicaid claims paid.

34. It also was undisputed that a random sample of 24

Medicaid patients who were provi ded services by Petitioner

Norris during the audit period was selected by the Agency for

this audit, and all Medicaid paid claims during the audit period

for each of the 24 randomly selected patients were reviewed in

this audit.

35. Petitioner Norris pres ented the expert testimony of

Dr. Ibrahim Ahmad, regarding the Agency's challenged formula. 1

36. The formula used by the Agency is the one used for

infinite populations. In this case, the audited cases were a

sample of a finite population. This builds an error into the

calculation which can only be corrected by testing the sample

against the population to determine if it is reflective of the

population.

37. Dr. Ahmad observed that this "proofing" had not been

done and in the absence of such a proof o f the sample he could

not deem the results accurate.

38. The Agency presented the expert testimony of Dr. Mark

Johnson on the statistics issue. 2 Dr. Johnson explained that

there is an adjustment term in the challenged formula -- "U" minus

"N" under the sq uare root -- that adjusts the challenged formula

for finite populations. 3

39. In addition to reviewing the Agency's final audit

report letter and Agency materials related to the generation of

the sample in this case, Dr. Johnson conducted his own analysis

o f the data, using an Excel spreadsheet program and a

statistical package. He was able to reproduce, independently,

the same numerical results as the Agency -- the estimated

overpayment, variance estimates, and the lower 95 percent

confidence interval limit. In this case, Dr. Johnson determined

the sample was representative of the population because, looking

at some of their summary values, they were consistent with the

population as a whole. Dr. Johnson indicated that by using the

Agency's formula, he arri ved at the same calculated values as

the Agency. He also investigated assumptions underlying the

procedures used in the analysis of this cluster sampling design.

40. Dr. Johnson reviewed the random distribution of the 24

clusters, compared the dollar per claim values in the sample

with the figures for the population, and compared the number of

claims per patient in the sample with the number of claims per

patient in the population. Dr. Johnson's investigation of these

properties of the random sample in c omparison to the properties

of the whole population led him to the conclusion that the

sample was representative of the population in this case.

41. The Agency's statistical formula adjusts the "best

guess" estimate the total Medicaid overpayment ($7,803. 10)

downward based on the lower end of the 95 percent confidence

interval, causing the overpayment being sought by the Agency to

be 4,000.48. The confidence interval is plus or minus the

estimate -- in this case, the 95 percent confidence interval is

$4,000 .48 to $11,605.62 ( i.e. , $7,803.10 plus or minus

$3,802.62). Statistically, there is 95 percent confidence that

the true overpayment lies within this interval, and the Agency,

by seeking the overpayment at the low end of the confidence

interval, is giving Petitioner Norris the entire benefit of all

of the uncertainty associated with the sampling process.

42. Prior to the commencement of the final hearing in this

cause, the Agency had filed its notice of intent to seek

investigative costs, expert witness c osts, and attorney's fees.

At the final hearing, it was determined, as a matter of record,

that jurisdiction would be retained for the determination of the

Agency's request for such costs and fees.

43. The procedural record of the case reveals that this

case was forwarded to DOAH precipitously and before the

Petitioner Norris would informally present information which

reduced the claim from almost $40,000 to $4,000. At the

commencement of the hearing, the parties stipulated to most of

the operative facts .

44. The statistical formula was a real issue, and in sum,

Petitioner Norris was right; the formula reported was

inappropriate. The Agency showed it did not use the reported

formula, but one that adjusted for a finite population.

Further, the testimony of Petitioner Norris' expert witness was

not that the amount of alleged overpayment was wrong, but that

the formula was not appropriate. The Agency's expert testified

that a factor not stated in the letter was used to adjust the

challenged formula for a finite population. Further, the

Agency's expert testified he normed the stratified sample

against the sampled population, and it did represent that

population. This was one of the approaches Dr. Ahmad had

suggested to validate the process when using the stated formula.

However, Dr. Johnson did this after the challenge, not before.

45. In sum, the burden was on the Agency to prove its

case, and by failing to adopt its formula by rule, the Agency

placed itself in the position of proving the formula's

appr opriateness at every hearing. It is so in this case.

46. The request for costs and fees is denied.

CONCLUSIONS OF LAW

47. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section s 120.569 and 120.57(1), Florida Statutes.

48. The Agency has the burden of proving by a

preponderance of the evidence that Petitioner Norris was

overpaid for services delivered to Medicaid recipients. See

South Medical Services, Inc. v. Agency for Healt h Care

Administration , 653 So. 2d 440 (Fla. 3d DCA 1995).

49. The statutes, rules, and handbooks in effect during

the audit period govern the outcome of the dispute. See Toma

vs. Agency for Health Care Administration , Case No. 95 - 2419

(Division of Admini strative Hearings 1996)[(as incorporated in

Toma v. Agency for Health Care Administration, 18 FALR 4735

(Division of Administrative Hearings 1996)].

50. Section 409.913, Florida Statutes, relates to the

Agency's oversight of the integrity of the Medicaid program and

provides that the Agency may recover overpayments from

providers.

51. "Overpayment" is defined as "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."

Section 409.913(1)(d), Florida Statutes.

52. Section 409.913(7), Florida Statutes, states as

follows in relevant part:

(7) When presenting a claim for payment

under the Medicaid program, a pr ovider 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 acc urate

and that is for goods and services that:

* * *

(b) Are Medicaid - covered goods or services

that are medically necessary.

* * *

(e) Are provided in accord with applicable

provisions of all Medicaid rules,

regulations, handbooks, and pol icies 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 excess ive 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.

53. The Agency has the authority to require a provider to

repay amounts received for goods a nd services that are

inappropriate, medically unnecessary, or excessive. Section

409.913(10), Florida Statutes.

54. Regarding the audit report and Agency work papers,

Section 409.913(21), Florida Statutes, states, in part, as

follows: "The audit report, supported by agency work papers,

showing an overpayment to a provider constitutes evidence of the

overpayment." The Agency presented its audit report, supported

by Agency work papers, and the Agency presented stipulated

revisions to the audit report. Th e audit process that led to

the Agency's assertion of overpayment was initiated by the

Agency in accordance with Section 409.913, Florida Statutes

(1999); and it was completed in accordance with Section 409.913,

Florida Statutes (2000), and Section 409.913 1, Florida Statutes

(2000).

55. As stated in Full Health Care, Inc. vs. Agency for

Health Care Administration , DOAH Case No. 00 - 4441 (Recommended

Order, June 25, 2001), "once the Agency has put on a prima facie

case of overpayment -- which may involve no mo re than moving a

properly supported audit report into evidence -- the provider is

obligated to come forward with written proof to rebut, impeach,

or otherwise undermine the Agency's statutorily - authorized

evidence; it cannot simply present witnesses to say t hat the

Agency lacks evidence or is mistaken."

56. Although Petitioner Norris testified that she

disagreed with the Agency's interpretations of Medicaid policies

and handbook provisions, she cited no authority to support her

contentions and presented no e vidence to rebut, impeach, or

otherwise undermine the Agency's evidence on these issues. When

Petitioner Norris chose to become a Medicaid provider, she

executed a provider agreement in accordance with Section

409.907, Florida Statutes, wherein Petitioner Norris agreed to

abide by the provisions of the Florida Administrative Code,

Florida Statutes, and the policies, procedures, and manuals of

the Florida Medicaid Program.

57. The Agency presented its original work papers pursuant

to Section 409.913, Flori da Statutes, and also its revised work

papers. Dr. Deeb was the physician who performed the peer

review, pursuant to Section 409.9131, Florida Statutes.

Dr. Deeb is a Florida - licensed physician, whose specialty is

pediatrics. Dr. Deeb has been in active practice as a

pediatrician since 1980. Dr. Deeb is an appropriate peer to

review the medical records for all claims in this audit pursuant

to Section 409.9131, Florida Statutes. It further presented:

a. Expert testimony from Dr. Larry Deeb regarding t he

medical necessity and levels of care that were appropriate for

the services rendered to the 24 Medicaid patients in the cluster

sample during the audit period.

b. Testimony from Ms. Lynne Edwards and Ms. Blanca Notman

concerning Medicaid policy issues.

c. Testimony from Ms. Lynne Edwards and Ms. Blanca Notman,

and credible expert testimony from Dr. Johnson that the Agency

used a generally accepted, appropriate sampling method in

selecting the cluster sample of 24 patients to be audited in

this case.

d. Dr. Johnson's credible expert testimony was that the

formula actually used by the Agency in this audit were

appropriate and valid; however, it was not the one reported and

challenged by Petitioner Norris. Further, Dr. Johnson's

testimony that he "nor med" the sample has been given great

weight, and the alleged overage was proven. The testimony of

Dr. Johnson established that the Agency used a valid sampling

and statistical method.

58. Based upon the stipulations of the parties, and the

policy determ inations as testified to by Ms. Edwards and

Ms. Notman, Dr. Deeb's peer review, and Dr. Johnson's testimony,

Petitioner Norris was overpaid a total of $4,000.48 for services

rendered to all 305 Medicaid patients of Petitioner Norris

during the audit period .

59. Petitioner Norris questions the appropriateness and

validity of the sampling and statistical methods used by the

Agency to arrive at the total amount of overpayments.

Petitioner Norris' expert witness, Dr. Ahmad successfully

attacked the Agency's s tated formula.

60. Dr. Johnson's expert testimony was that the formula

actually used by the Agency in this audit was appropriate and

valid; however, it was not the one reported and challenged by

Petitioner Norris. Further Dr. Johnson's testimony that h e

"normed" the sample has been given great weight, and the alleged

overage was proven up.

61. The testimony of Dr. Johnson established that the

Agency used a valid sampling and statistical method.

62. Based upon the stipulations of the parties, and t he

policy determinations as testified to by Ms. Edwards and

Ms. Notman, Dr. Deeb's peer review, and Dr. Johnson's testimony,

Petitioner Norris was overpaid a total of $4,000.48 for services

rendered to all 305 Medicaid patients of Petitioner Norris

during the audit period.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED:

That the Agency for Health Care Administration issue a

final order requiring Petitioner Norris to reimburse the Agency

for Medicaid ov erpayments in the total amount of $4,000.48, plus

such interest as may statutorily accrue. For the reasons found

above, the Agency's motion for investigative costs, expert

witness fees, and attorney's fees is denied.

DONE AND ENTERED this 28th day of Febr uary, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of February, 2003.

ENDNOTES

1/ Dr. Ibrahim Ahmad was qualified by his education and

experience as an expert i n statistics. His testimony was

credible and pertinent to the issue of the propriety of the

Agency's formula.

2/ Dr. Mark Johnson was qualified by his education and

experience as an expert in statistics. His testimony was

credible and pertinent on the issue of the propriety of the

Agency's formula.

3/ T he formula set forth in the Final Agency Audit letter dated

March 12, 2001.

COPIES FURNISHED :

Susan C. Felker - Little, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Talla hassee, Florida 32308

Jeanette E. Norris, M.D.

Sandcastle Pediatrics, Inc.

834 Tarpon Drive

Fort Walton Beach, Florida 32548 - 6069

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 3 2308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Fort Knox Building, Suite 3431

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written e xceptions 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.