04-004625MPI Orthopaedic Medical Group Of Tampa Bay/Stuart A. Goldsmith, P.A. vs. Agency For Health Care Administration Status: Closed Recommended Order on Friday, December 30, 2005.

Summary: Respondent`s Final Agency Audit Report claimed a proposed overpayment of $81,682.06 for Medicaid claims for 2001 and 2002; Petitioner`s evidence rebutted, in part, Respondent`s calculations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORTHOPAEDIC MEDICAL GROUP OF )

TAMPA BAY/STUART A. GOLDSMITH, )

P.A., )

)

Petitioner, )

)

vs. ) Case No. 04-4625MPI

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held before Daniel M. Kilbride,

Administrative Law Judge of the Division of Administrative

Hearings, pursuant to notice on September 28, 2005, in

Tallahassee, Florida.

APPEARANCES

For Petitioner: William M. Furlow, III, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

For Respondent: Grant P. Dearborn, Esquire

Agency for Health Care Administration

Fort Knox Building III, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUE

Whether Petitioner is liable for overpayment of Medicaid claims for the period of January 1, 2001, through January 1,

2003, as stated in Respondent's Final Agency Audit Report dated

October 26, 2004, in violation of Sections 409.907 and/or

409.913, Florida Statutes (2002), and, if so, in what amount.

PRELIMINARY STATEMENT

By Final Agency Audit Report dated October 26, 2004 ("Audit

Report"), the Agency for Health Care Administration

("Respondent") notified Orthopaedic Medical Group of Tampa

Bay/Stuart A. Goldsmith, P.A. ("Petitioner"), that he was liable

for overpayment of Medicaid claims in the amount of $82,223.86,

for the period from January 1, 2001, through January 1, 2003

("Audit Period"). Petitioner disputed being liable for

reimbursement to Respondent for overpayment of the Medicaid

claims and requested a formal administrative hearing. On

December 21, 2004, this matter was referred to the Division of

Administrative Hearings. Upon being assigned to the undersigned

Administrative Law Judge, discovery ensued. Prior to the final

hearing, Petitioner submitted additional documentation to

Respondent. Respondent reviewed the additional documents and

reduced the proposed overpayment to $81,682.06.

At the hearing, Respondent presented the live testimony of

Blanca Notman, registered nurse (R.N.); and the deposition

testimony of Philip F. Averbuch, M.D., accepted as an expert

witness. Petitioner presented the live testimony of Jeffrey

Howard, consultant for Petitioner, as an expert witness. There

were 30 joint exhibits introduced into evidence, and Respondent

offered 13 composite exhibits which were also admitted.

Official recognition was taken of the 2000 through 2002

versions of Sections 409.907 and 409.913, Florida Statutes

(2002); Florida Administrative Code Rules 59G-5.010, 59G-5.020,

59G-5.110, and 59G-4.230; and Current Procedural Terminology ,

Fourth Edition (CPT), American Medical Association (1999).

In addition, official recognition was taken of the Physician

Coverage and Limitations Handbook , January 2001 edition,

pp. 2-76, 2-80, and 3-1; January 2002 edition, pp 2-84, 2-88,

and 3-1, and Update Log; Medicaid Provider Reimbursement

Handbook, HCFA-1500 and Child Health Check-Up 221 (Medicaid

Provider Reimbursement Handbook), Update Log, July 1999 edition,

pp. 2-19 through 2-21, and May 2001, pp. 2-45 through 2-47; and

Documentation Guidelines for Evaluation and Management Service ,

May 1997 edition, American Medical Association and Health Care

Financing Association ("HCFA").

The parties each timely submitted Proposed Recommended

Orders which have been carefully considered in the preparation

of this Recommended Order.

FINDINGS OF FACT

Based upon the stipulations of the parties and the evidence

presented at the hearing, the following relevant Findings of

Fact are made:

1. Respondent is the state agency charged with the

regulation of the Medicaid program in the State of Florida and

has the authority to perform Medicaid audits and collect

overpayments, pursuant to Section 409.913, Florida Statutes

(2002).

2. Petitioner is a Florida-licensed physician and an

authorized Medicaid provider. He was paid by Medicaid for

providing services to Medicaid patients during the Audit Period

of calendar years 2001 and 2002.

3. Blanca Notman, R.N., Medicaid health care analyst in

Respondent's Medicaid Program Integrity Unit, conducted the

audit of Petitioner's Medicaid billing during the Audit Period.

Respondent's audit involved a review of services Petitioner

provided during the Audit Period of 30 randomly chosen Medicaid

patients. Upon completion of the audit, Respondent alleged that

during the Audit Period, Petitioner violated Medicaid policy and

law in that: (1) some services for which Petitioner billed and

received payment were not documented; (2) the

documentation/medical records Petitioner provided to Respondent

support a lower level of office or hospital visit than the one

for which Petitioner billed and received payment; (3) Petitioner

billed for radiology services when a radiologist outside of the

office/group previously billed the reading and interpretation;

and (4) Petitioner's records indicate instances of double-

billing Medicaid for services by using two CPT codes when one of

these codes incorporates the elements of the other.

4. With respect to each of the services reviewed,

Respondent relied upon the opinion of its expert, Dr. Averbuch,

as to whether or not Petitioner billed Medicaid correctly.

Dr. Averbuch based his opinion on a review of documents

regarding each service which were provided to him by Respondent.

5. Respondent did not establish that the records provided

to Dr. Averbuch were complete, and in several instances, the

records reviewed by Dr. Averbuch were incomplete. The most

common difference of opinion between what was billed by

Petitioner for each service and what Dr. Averbuch felt should

have been billed, involved the "level of service."

6. Billing codes are five-digit numbers, the last digit

denoting the degree of difficulty of the service. Generally,

there are five "levels of service," with "1" being the least

difficult and "5" being the most difficult.

7. There are general guidelines for establishing the

"level of service" (or degree of difficulty) which are set forth

in documents such as Documentation Guidelines for Evaluation and

Management Services , published by the American Medical

Association. However, the correct coding can only be

established through expert testimony, which is based upon

established and identified criteria.

8. With respect to each of the 30 patients being reviewed,

Respondent prepared a worksheet listing each service provided by

Petitioner for that patient during the two-year Audit Period,

the code and amount billed for each of those services, and

Dr. Averbuch's opinion of the code which he felt should have

been billed. Dr. Averbuch testified that in his opinion,

Petitioner's claims contained an inordinate number of level

"4" and "5" claims and that his records did not support the

level of coding billed to Respondent. Someone on Respondent's

staff then filled in the purported dollar value for each

adjusted code. That amount was subtracted from the amount

originally billed by Petitioner, and an average error (dollar

amount) for each sample claim was calculated. Respondent then

applied the average error in the sample claims to all the claims

during the Audit Period. A further statistical calculation was

performed to arrive at a 95 percent confidence level which

Respondent alleged to be the amount of overpayment it was

seeking from Respondent. That amount was shown as $81,682.06. 1/

9. Dr. Averbuch is a knowledgeable medical practitioner,

who specializes in orthopedic surgery. Respondent did not

establish what records he reviewed, where they came from, or

that they were complete. Additionally, Dr. Averbuch's

deposition testimony did not set forth much information

regarding the reason he felt as he did when his opinion differed

from that of Petitioner. Also, Respondent did not establish

what criteria Dr. Averbuch relied upon in arriving at his

opinion.

10. Jeffrey Howard, a consultant for Petitioner, although

not a physician or other health care provider, is an experienced

CPT code reviewer. He testified at length about each billing

code in which he disagreed with Dr. Averbuch. In his testimony,

he included details about each patient and each billed service.

He also testified that he relied upon the 1995 Documentation

Guidelines for Evaluation and Management Services , which has

been adopted by HCFA, to base his opinions. Howard did not

support all of Petitioner's billings.

11. There are 40 instances in which Petitioner challenges

the billing codes urged by Respondent. This is a substantial

proportion of the billing codes which were in dispute.

12. There are eight billing codes, the values of which

need to be established to calculate the overpayment in this

case. Those codes are: 99204, 99213, 99214, 99243, 99244,

99245, 29876, and 76140.

13. In carefully reviewing each of the joint exhibits

admitted in this case, the dollar amount for code 99204 was

established by the worksheet on Patients 10 and 30, to be

$68.74.

14. The dollar amount for code 99213 is a variable amount.

In January 2001 through April 3, 2001, it is $26.29 (Patients 2,

24, and 4). The amount goes up to $31.31 (Patient 21) in June

and July 2001, then returns to $26.29 in August and September

for Patients 13 and 7. Once again, the amount goes up to $31.31

in October 2001 (Patient 29), before backing down to $26.47,

where it remains until March 5, 2002, when it once again goes to

$31.31 (Patients 2, 14, and 6). On April 23, 2002, the dollar

value for code 99213 returns to $26.47, where it stays for the

rest of the Audit Period, except for June 21, 2002, when it

changes to $31.31 for Patient 21.

15. The dollar amount for code 99214 seems to fluctuate

even more than code 99213. It is valued at anywhere from $39.03

(Patients 24, 13, and 7) to $48.27 (Patients 16, 17, 9, and 11)

and at least four values in between. It changes 13 times, both

up and down, during the two-year Audit Period.

16. The dollar amount for code 99243 fluctuates between

$62.11 and $64.28, with the majority approved at $64.28.

17. The dollar amount of code 99244 is not reflected

anywhere in the record.

18. The dollar amount for code 99245 fluctuates in an

apparently random fashion between $112.18 and $122.84, with

three values in between.

19. The dollar amount for code 29876 is $121.00, according

to the worksheet for Patient 2.

20. The dollar amount for code 76140 is not reflected

anywhere in the record.

21. Because of the seemingly random variation in the

dollar amounts for codes 99213, 99214, 99243, and 99245, which

were not explained and could be the result of clerical error, it

is found that Petitioner shall be given credit for the highest

dollar amount for each of those three codes that are reflected

in the record, that is: 99213 $31.31; 99214 $48.27; 99243

$64.28; and 99245 $122.84, unless those amounts are greater

than that originally billed by Petitioner, in which case he

shall be given credit for the amount billed.

22. Since there is nothing in the record to establish the

value of code 99244, it is found that Petitioner shall be given

credit for the value of the next higher level of service (code

99245), which is valued at $122.84 or any lesser amount which

was originally billed.

23. Since there is nothing in the record to establish the

value of code 76140, it is found that Petitioner shall be given

credit for the value of the service as he originally billed it

at $42.81 [Patient 24, Date of Service [DOS] January 7, 2002,

code 72148].

24. Patient 1 was a 64-year-old woman that was referred to

Petitioner and presented with numbness and pain in the right

hand and wrist. The patient had a stroke in 1994 on her left

side and had numbness and tingling in the right upper extremity.

The patient had been referred by a neurologist, Dr. Jeronimo,

who had performed an electromyography and nerve conduction

studies. The symptoms indicated carpal tunnel syndrome. The

patient had not received treatment for this condition and was,

at the time of the visit, on nine different medications. The

fact of a prior cerebral vascular accident and the multitude of

medications added complexity to this case. Petitioner

recommended surgery, but the patient requested alternatives.

The patient was placed in a splint and instructed on home

therapies.

25. The greater weight of evidence demonstrates that the

correct code should be 99244, and Petitioner shall receive

credit for $116.12 for DOS October 15, 2002, thus reducing the

total amount disallowed to $13.04.

26. Patient 2 was a 24-year-old woman who saw Petitioner

for the first time in 2001. The patient had injured her knee in

1998 and was not treated by an orthopedist. The patient had

pain in the right knee, and it popped and moved in a funny way.

She had difficulty ambulating. Petitioner reviewed the

patient's history, examined the patient, and X-rays were taken.

Petitioner's impression was a torn medial meniscus, which had

been left untreated for three years. Petitioner counseled the

patient about further diagnostic work, but the patient opted for

surgery. Petitioner performed and billed two separate

procedures, arthroscopy knee surgical synovectomy (code 29876)

and arthroscopy knee surgical meniscusectomy (code 29880).

27. Dr. Averbuch testified that this was "unbundling," but

Howard explained how it was not according to the National

Correct Coding Edits. The greater weight of evidence

demonstrates that Petitioner should receive credit for $115.18

for DOS January 4, 2001, code 99244; and $121.00 for DOS

January 19, 2001, code 29876, thus reducing the total amount

disallowed to $61.50.

28. Patient 3 was a 37-year-old female with chronic back

pain for several years. She had been previously treated with

various treatments without relief. The patient was on Social

Security disability because of her condition. The patient was

upset and crying during her visit to Petitioner on July 3, 2001,

because of her back pain. Recently, the patient reported the

pain had been getting worse. The patient did not bring any

previous medical records with her. Petitioner observed that she

was limited in her motion. Petitioner based his diagnosis

solely upon his physical examination and discussion with the

patient. Because of the nature of her injury, this was a highly

complex patient.

29. The greater weight of evidence demonstrates that the

correct code should be 99244, and Petitioner should receive

credit for $113.18 for DOS July 3, 2001, thus reducing the total

amount disallowed to zero.

30. Patient 4 was seen by Petitioner five years prior to

the visit of April 3, 2001. The patient presented with swelling

and pain in the right elbow. She had recently experienced

soreness and redness in the area of the right elbow. She had

been seen at a diagnostic center where she had been X-rayed, but

was not treated other than she was advised to take Ibuprofen.

The patient had not improved. The patient had also experienced

a severe sprain of her knee in the past, but was allergic to

codeine. Petitioner reviewed her past medical history and gave

her an examination. The bursitis appeared to be resolving. The

patient was counseled to come back if she had any more swelling

and that she might need an aspiration. This patient was complex

due to insufficient history and past treatment. Since the

patient had not been seen in over three years, she was

considered a "new patient" per the CPT guidelines.

31. The greater weight of evidence demonstrates that the

correct code should be 99204 for DOS April 3, 2001, and

Petitioner should receive credit for $68.74 (the value of code

99204 as established by Patients 10 and 30), thus reducing the

total amount disallowed to $15.48.

32. Patient 5 was a new patient, who was referred by

Dr. Cosic. She was a 13-year-old female who had been having

pain in her right knee for two years. She had not seen any

other physician for this problem. In 1995, the patient had been

struck by a vehicle and sustained some damage. Petitioner

reviewed the patient's history and examined the patient. He

took an X-ray, which showed a possible tumor. This is a complex

case. Dr. Averbuch recognized in his deposition that this

patient had been referred by another physician, yet he opined

that the proper coding should not be for a referral.

33. The greater weight of evidence demonstrated that

Petitioner should receive credit for $115.18 for DOS June 19,

2001, because the correct code is 99245, thus reducing the total

amount disallowed to zero.

34. Patient 6 was a 17-year-old male who injured his hand

when he struck a telephone pole. The majority of the pain was

on the fifth metacarpal. Petitioner reviewed the patient's

history and examined the patient. Tenderness was found on the

border of the hand, which localized the ulna aspect, and X-rays

were taken. The patient was given a short-arm cast and aluminum

splint for his little finger. The age of this patient

contributed to the complexity of this case.

35. The greater weight of evidence shows that the correct

code should be 99244, and Petitioner should receive credit for

$118.12 for DOS February 12, 2002, thus reducing the total

amount disallowed to $15.11.

36. Patient 7 was a 59-year-old female with pain in her

right shoulder for four months. The patient was seen by another

physician, Dr. Lynch, who referred her to Petitioner. The

patient had difficulty raising her arms and sleeping. She had

pain all over the subacromial clavicle region of the shoulder.

She denied any trauma. Unexplained pain increases the

complexity of a case.

37. The greater weight of evidence demonstrates that the

correct code should be 99244, and Petitioner should receive

credit for $113.18 for DOS August 20, 2001, thus reducing the

total amount disallowed to $12.74.

38. Patient 8 had a chief complaint of pain in the right

knee. She was a 73-year-old female from Sulfur Springs (over an

hour's drive away from Petitioner's office), who had been having

problems for three months with her right knee. It resulted from

an injury when she slipped and fell at home. The pain was on

the medial side of the knee. She had seen a physician in

Sebring and received an MRI. The MRI revealed a tear in the

posterior medial meniscus. She was referred to Petitioner, who

reviewed the history and performed an examination. His

impression was a torn medial meniscus, and the plan was for

arthroscopic surgery. Although Petitioner initially agreed with

the lower code, the need for surgery added to the complexity of

this case.

39. The greater weight of evidence demonstrates that the

correct code should be 99244, and Petitioner should receive

credit for $116.12 for DOS July 1, 2002, thus reducing the total

amount disallowed to $15.97.

40. Patient 9 was a 13-year-old male with pain in his

right hand, who saw Petitioner on February 15, 2001. He had

fallen off his bicycle and had abrasions on this right hand.

The patient had been seen at another facility where he was

X-rayed and received a splint. Due to pain, the patient had

removed the splint. Petitioner reviewed the patient's history

and examined the patient. He took X-rays, which demonstrated a

fracture of the second metacarpal of the distal limb. The

patient was treated with an aluminum splint. Although

Petitioner initially agreed with the lower code, due to the

previous treatment which did not work, this was a relatively

complex case.

41. On the May 28, 2002, visit, Patient 9 had an injured

left ankle, again from a bicycle accident, five days prior. The

patient had difficulty walking. He had received a splint at

another facility. There was tenderness over the anterior

lateral aspect of the ankle, and X-rays were taken. The

complexity of this patient was influenced by the patient's

Tourette's Syndrome and his Attention Deficit Disorder. The

patient was changed from a splint to a hand-walker.

42. The greater weight of evidence demonstrates that the

correct code for DOS February 15, 2001, should be 99244, and

Petitioner should receive credit for $115.18. For DOS May 28,

2002, the correct code should be 99214, and Petitioner should be

given credit for $8.27, thus reducing the total amount

disallowed to $36.90.

43. Patient 10 was a referral from Dr. Madedes of Suncoast

Community Center, Inc. The patient was diagnosed as a "classic

gamekeepers thumb." The correct code should be 99243.

Therefore, Petitioner should not be given any credit for DOS

December 5, 2002.

44. Patient 11 was a referral from the Nativity Clinic.

He was a 13-year-old male who had fallen off his bicycle

approximately 31 days previously. He was diagnosed with a

fracture and was treated without a reduction. He had been

placed in a cast. Petitioner reviewed the medical history and

performed an examination. Petitioner checked the patient's

range of motion and took X-rays. Petitioner diagnosed a

fracture of the left distal radius. He told the patient to

return in two weeks for removal of the cast. A complicating

factor in this case is that the patient also had back pain.

45. The greater weight of evidence demonstrates that the

correct code should be 99244, and Petitioner should receive

credit for $122.84 for DOS July 21, 2002, thus reducing the

total amount disallowed to $21.80.

46. Patient 12 was a 37-year-old female from Avon Park who

was referred to Petitioner by another physician. She had been

in an auto accident three years prior, and her shoulder was

hurting and getting worse. She had seen other physicians and

had MRIs. At the November 12, 2002, visit, she did not bring

any medical records with her. The patient was a poor historian.

At the time of her visit, she said that the pain was going into

her back as well. Petitioner reviewed the history and performed

an examination, which included palpation of the shoulder, which

did not reveal tenderness or swelling. Petitioner also

performed range of motion tests. X-rays did not show any

abnormalities. Petitioner's clinical impression was "shoulder

pain, etiology undetermined." The patient was sent for an MRI.

An old injury, which although being treated, continues to get

worse, increases the complexity of this case. With respect to

the visit of November 26, 2002, the patient did not show signs

of improvement, and a decision was made for surgery. This

decision was not complex.

47. The greater weight of evidence demonstrates that the

correct code for DOS November 12, 2002, should be 99244, and

Petitioner should receive credit for $115.12. The correct code

for DOS November 26, 2002, should be 99213, thus reducing the

total amount disallowed to $39.51.

48. Patient 13 was a referral from Dr. Haiger and was seen

by Petitioner on June 5, 2001. The patient was a 65-year-old

deaf female, who presented experiencing severe pain in her left

knee for almost ten years. Eight years prior she had undergone

arthroscopic surgery on the knee, but it had not gotten better.

The patient was in physical therapy and using canes. Petitioner

reviewed the history and performed an examination.

Communication between Petitioner and the patient was by writing.

This was a complex patient, both because of the difficulty in

communication and the fact that this was an old injury which had

received much treatment, including surgery, and had not

improved. On her return visit on August 7, 2001, the patient

had not improved using the ordered medication. After

consultation, a decision for surgery was made.

49. With respect to the visit of June 4, 2002, the

patient's complaint was pain in her left shoulder for a month.

The patient continues to regress, in spite of Petitioner's

treatment. This is a complex patient, and her medical record is

voluminous. However, the visit of August 13, 2002, was merely

routine.

50. The greater weight of evidence demonstrates that

Petitioner should be given credit for $113.18 for DOS June 5,

2001, since the correct code is 99244; the correct code for DOS

August 7, 2001, is 99213; the correct code for DOS June 4, 2002,

is 99214; and the correct code for DOS August 13, 2002, is

99213, thus reducing the total amount disallowed to $89.21.

51. Patient 14 was a referral from Dr. Bagloo, who

presented to Petitioner on January 15, 2002, with pain in her

left foot. She had twisted her ankle at home a week previously

and actually heard bones cracking. She was initially seen at

the hospital. A computed tomography scan did not reveal a

fracture. A week later on January 15, 2002, she came to see

Petitioner. Her examination revealed tenderness of the dorsal

aspect of the left foot. An X-ray revealed a fracture of the

second-base metatarsal. The patient received a short-leg cast.

The patient was seen again on February 12, 2002, and examination

indicated that the patient was "healed."

52. On July 9, 2002, the patient again saw Petitioner with

pain in her left foot. She had experienced a seizure a week and

a half prior. The seizure and the prior injury added to the

complexity of this case.

53. The greater weight of evidence demonstrates that the

correct code for DOS January 15, 2002, is 99244, and Petitioner

should be given credit for $118.12. The correct code for DOS

February 12, 2002, is 99213, and Petitioner should receive no

credit; the correct code for DOS July 9, 2002, is 99214, and

Petitioner should be given credit for $48.27, thus reducing the

total amount disallowed to $32.33.

54. Patient 15 was a 15-year-old male from Avon Park, with

scoliosis. He had hurt himself when he fell off his boogie

board and hit his chest. After reviewing the history,

performing an examination, and taking X-rays, the patient was

referred to a pediatric orthopedist. The age of the patient and

the pre-existing condition affected the complexity of this case,

although the scoliosis was previously diagnosed.

55. The greater weight of evidence supports a finding that

the correct code for DOS June 11, 2002, is 99243, and Petitioner

should not be given credit. Therefore, there is no reduction of

the total amount disallowed.

56. Patient 16 was a referral from Dr. Libbrato. However,

the patient was previously diagnosed, Petitioner billed at code

99245, and Respondent's expert opined that the code should be

99203. The billing code should account for this being a

referral.

57. The greater weight of evidence supports a finding that

the correct code for DOS March 25, 2002, is 99243, and

Petitioner should be given credit for $64.28, thus reducing the

total amount disallowed to $75.64.

58. Patient 17 was a referral from a Medicaid clinic. The

patient was a 10-year-old male who had hurt his left elbow

playing football a week prior. Petitioner reviewed the history

and examined the patient, who was in a long-arm splint.

Petitioner replaced the splint with a long-arm cast. The age of

the patient and the prior inappropriate treatment added to the

complexity of this case.

59. The greater weight of evidence demonstrates that for

DOS May 14, 2002, the correct code is 99244, and Petitioner

should be given credit for $122.84. The correct code DOS

June 6, 2002, is 99213, and Petitioner should be given credit

for $31.31, thus reducing the total amount disallowed to $38.76.

60. Patient 18 was a 63-year-old male who had been

referred by another physician for pain in his right-hand ring

finger of six months' duration. The patient claimed no trauma.

The age of the patient and the unexplained injury added to the

complexity of this case.

61. The greater weight of evidence demonstrates that the

correct code for DOS June 18, 2002, should be 99244, and

Petitioner should be given credit for $116.12, thus reducing the

total amount disallowed to zero.

62. Patient 19 presented with a fracture that appeared to

be healing, but it was difficult to tell if the patient's

problem was from the fracture or from osteoporosis. The patient

was not responding to treatment.

63. The greater weight of evidence demonstrates that the

correct code for DOS August 12, 2002, is 99214, and Petitioner

should be given credit for $41.51, thus reducing the total

amount disallowed to $15.04.

64. Patient 20 was an eight-year-old male who had pain in

his left heel from jumping off a truck and falling. He was

referred from his primary care physician. The complexity of

this case was increased due to the age of the patient and the

fact that prior treatment had not been effective.

65. The greater weight of evidence demonstrates that the

correct code for DOS October 17, 2002, is 99244, and Petitioner

should be given credit for $122.84, thus reducing the total

amount disallowed to zero.

66. Patient 21 was a 10-year-old male from Plant City, who

injured his right arm and shoulder in a fall from monkey bars.

Petitioner's diagnosis was a fractured right humerus. The young

age of this patient, plus the fact that he was a referral, added

to the complexity of this case.

67. The greater weight of evidence demonstrates that the

correct code for DOS May 24, 2001, is 99244, and Petitioner

should be given credit for $115.18, thus reducing the total

amount disallowed to $45.33.

68. Patient 22 was a nine-year-old male referred by

Dr. Narvez for right leg pain. He was injured when another

child fell on him. Also, the patient had broken the same leg

about a year prior. A re-injury and young age added to the

complexity of this case.

69. The greater weight of evidence demonstrates that the

correct code for DOS January 8, 2002, is 99244, and Petitioner

should be given credit for $118.12, thus reducing the total

amount disallowed to zero.

70. Patient 23 was a 37-year-old male from Lake Placid,

referred by Dr. Campbell. He presented with right shoulder

pain. Approximately two years prior he was shot in that

shoulder. The pain was in the acromioclavicular joint. The

pain was felt to be a result of the injury from the gunshot

wound, and surgery was recommended. The pre-existing condition

increased the complexity of this case.

71. The greater weight of evidence demonstrates that the

correct code for DOS January 29, 2002, is 99244, and Petitioner

should be given credit for $116.12, thus reducing the total

amount disallowed to $14.47.

72. Patient 24 was referred by Dr. Rivas for ongoing low

back pain. The patient presented on January 16, 2001, as a

53-year-old female and stated that the pain had been getting

worse in spite of treatment. It was localized in the left

groin, the left posterior iliac region, the left buttock, the

posterior aspect of the thigh, and the calf. The long-standing

nature of the pain, without improvement from treatment, added to

the complexity of this case, as well as the multiple therapies

employed. The MRI reading on February 1, 2001, should be

allowed. On the visit of March 1, 2001, the patient reports a

new problem with pain in her knee. The visit of June 5, 2001,

revealed that the patient is improved, but still in pain.

73. The greater weight of evidence demonstrates that

Petitioner should be given credit for $115.18 for DOS

January 16, 2001, code 99245; $42.81 for DOS February 11, 2001,

code 76140; $31.31 for DOS March 1, 2001, code 99213; $31.31 for

DOS June 5, 2001, code 99213, thus reducing the total amount

disallowed to $28.18.

74. Patient 25 was a seven-year-old female from Lake

Wales, referred by Dr. Powell for bilateral leg deformities and

fallen arches. The patient also had scoliosis.

75. The greater weight of evidence demonstrates that the

correct code for DOS January 27, 2001, is 99244, and Petitioner

should be given credit for $115.18, thus reducing the total

amount disallowed to $32.56.

76. Patient 26 was an 18-year-old male with scoliosis, who

had recently come to the United States from Cuba and was

referred to Petitioner for evaluation.

77. The greater weight of evidence demonstrates that the

correct code for DOS September 12, 2002, is 99243, and

Petitioner should not be given credit, thus the total amount

disallowed remains at $58.56.

78. Patient 27 was a 36-year-old female who was referred

by Dr. Korabathing for left hip pain. She had injured it two or

three weeks prior when she fell. She was initially seen in

the emergency room. The discoloration persisted and the knee

continued to "give out." The complexity of the case is

increased because of the patient's lack of improvement.

79. The greater weight of evidence demonstrates that the

correct code is 99244 for DOS April 11, 2002, and for April 23,

2002, the correct code is 99214, thus reducing the total amount

disallowed to $29.87.

80. There was no challenge to the adjusted coding of

Patient 28 to 99213.

81. Patient 29 was a referral from Dr. Katherinlin. He

was a 13-year-old male, who injured his left foot while playing

football two or three days prior. He was initially treated at

an outpatient facility. Petitioner changed the treatment plan.

82. The greater weight of evidence demonstrates that the

correct code for DOS October 2, 2001, is 99244, and although he

did not initially challenge the change in coding, Petitioner

should be given credit for $116.12, thus reducing the total

amount disallowed to $15.11.

83. Patient 30 was referred by Family Medical Center of

Lakeland, Florida. The patient was a 56-year-old male with pain

in the right hip and pelvis. He had been in a motorcycle

accident three years prior with numerous and substantial

injuries. Due to the number and substantiality of the injuries,

this was a complex case.

84. The greater weight of evidence demonstrates that the

correct code for DOS February 26, 2002, is 99244, and Petitioner

should be given credit for $118.12, thus reducing the total

amount disallowed to zero.

85. The adjustments in the preceding paragraphs drop the

total overpayments for the 30 sample patients as shown in

Respondent's Audit Report from $2,405.10 to $790.99. Dividing

that by the total number of sample claims reviewed (133), yields

a disallowance per claim of $5.94. Multiplying $5.94 by the

total number of claims for the Audit Period (5,399), yields a

"point estimate of overpayment" of $32,070.06. Calculating the

95 percent confidence level can be accomplished by Respondent.

CONCLUSIONS OF LAW

86. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2005).

87. The burden of proof is on Respondent to establish by a

preponderance of evidence that the Audit Report should be

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

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

Southpointe Pharmacy v. Department of Health and Rehabilitative

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

88. The statutes, rules, and Medicaid provider handbooks,

which were in effect during the period for which the services

were provided, govern the outcome of the dispute.

89. Section 409.913, Florida Statutes (2002), reads in

pertinent part as follows:

Oversight of the integrity of the Medicaid

program.-- The agency shall operate a

program to oversee the activities of Florida

Medicaid recipients, and providers and their

representatives, to ensure that fraudulent

and abusive behavior and neglect of

recipients occur to the minimum extent

possible, and to recover overpayments and

impose sanctions as appropriate. . . .

* * *

(1) For the purposes of this section, the

term:

* * *

(d) "Medical necessity" or "medically

necessary" means any goods or services

necessary to palliate the effects of a

terminal condition, or to prevent, diagnose,

correct, cure, alleviate, or preclude

deterioration of a condition that threatens

life, causes pain or suffering, or results

in illness or infirmity, which goods or

services are provided in accordance with

generally accepted standards of medical

practice. For purposes of determining

Medicaid reimbursement, the agency is the

final arbiter of medical necessity.

Determinations of medical necessity must be

made by a licensed physician employed by or

under contract with the agency and must be

based upon information available at the time

the goods or services are provided.

(e) "Overpayment" includes any amount

that is not authorized to be paid by the

Medicaid program whether paid as a result of

inaccurate or improper cost reporting,

improper claiming, unacceptable practices,

fraud, abuse, or mistake.

* * *

(7) When presenting a claim for payment

under the Medicaid program, a provider has

an affirmative duty to . . . present a claim

that is true and accurate and that is for

goods and services that:

* * *

(f) Are documented by records made at the

time the goods or services were provided,

demonstrating the medical necessity for the

goods or services rendered. Medicaid goods

or services are excessive or not medically

necessary unless both the medical basis and

the specific need for them are fully and

properly documented in the recipient's

medical record.

* * *

(20) When making a determination that an

overpayment has occurred, the agency shall

prepare and issue an audit report to the

provider showing the calculation of

overpayments.

(21) The audit report, supported by

agency work papers, showing an overpayment

to a provider constitutes evidence of the

overpayment. . . .

90. During the Audit Period, the applicable statutes,

laws, rules, and policy guidelines in effect required Petitioner

to maintain all "Medicaid-related records" and information that

supported any and all Medicaid invoices or claims made by

Petitioner during the Audit Period. Petitioner was required, at

Respondent's request, to provide Respondent with all Medicaid-

related records and other information that supported all the

Medicaid-related invoices or claims that Petitioner made during

the Audit Period.

91. Subsection 409.907(3)(c), Florida Statutes (2002),

required Petitioner to maintain "all medical and Medicaid-

related records for a period of 5 years." The stated purpose

behind the 5-year document-retention requirement is so that

Petitioner "can satisfy all necessary inquiries by the agency."

92. Subsection 409.907(3)(e), Florida Statutes (2002),

required Petitioner to allow Respondent access to "all Medicaid-

related information which may be in the form of records, logs,

documents, or computer files, and other information pertaining

to the services or goods billed to the Medicaid program,

including access to all patient records . . . ."

93. Subsection 409.913(7), Florida Statutes (2002),

imposed an affirmative duty on Petitioner to comply with all the

requirements as set forth in its subparagraphs (a) through (f).

94. Subsection 409.913(7)(f), Florida Statutes (2002),

imposed an affirmative duty on Petitioner to make sure that any

claim for goods and services are "documented by records made at

the time the goods and services were provided . . . ." This

subsection also imposed an affirmative duty on Petitioner to

make sure that any and all the records documenting Medicaid

goods and services demonstrate "the medical necessity for the

goods and services rendered." This subsection further

authorized Respondent to investigate, review, or analyze the

records, including Medicaid-related records, that Petitioner was

required to retain.

95. Section 409.913(1)(d), Florida Statutes (2002), makes

Respondent the "final arbiter of medical necessity." This

section states, in part, that "[d]eterminations of medical

necessity . . . must be based upon information available at the

time goods or services are provided.

96. This case arises out of Respondent's attempt to

recover purported overpayments made to Petitioner.

97. Subsection 409.913(7)(f), Florida Statutes (2002),

declares that Medicaid goods and services are "excessive or not

medically necessary unless both the medical basis and the

specific need for them are fully and properly documented in the

recipient's medical record."

98. Subsection 409.913(8), Florida Statutes (2002),

required Petitioner to "retain medical, professional, financial,

and business records pertaining to services and goods furnished

to a Medicaid recipient and billed to Medicaid for a period of

5 years after the date of furnishing such services or goods."

99. The Physician Coverage and Limitations Handbook

states:

Radiology Frequency

Only one interpretation per radiology

procedure is reimbursable.

* * *

Maximum fee

To be reimbursed the maximum fee for a

radiology service, the physician must

provide both the technical and professional

components.

When a radiological study is performed in an

office setting, either the physician billing

the maximum fee must have performed or

directly supervised the performance and

interpreted the study; or if a group

practice, members of the group must perform

all components of the services. . . .

Professional Component

A professional component service is the

physician's interpretation and reporting of

the radiological exam. . . .

100. Chapter 3 of the Physician Coverage and Limitations

Handbook states:

Introduction

This chapter describes the procedure codes

for services reimbursable by Medicaid that

must be used by physicians providing

services to eligible recipients.

Procedure and Diagnosis Code Origination

The procedure codes listed in this chapter

are Health Care Financing Administration

Common Procedure Coding System (HCPCS)

Levels 1, 2, and 3. These are based on the

Physicians Current Procedural Terminology

(CPT) book.

101. The Medicaid Provider Reimbursement Handbook , states:

Requirements for Medical Records

Medical records must state the necessity for

and the extent of services provided. The

following requirements may vary according to

the service rendered:

History; Physical assessment; Chief

complaint on each visit; Diagnostic tests

and results; Diagnosis; Treatment plan,

including prescriptions; Medications,

supplies, scheduling frequency for follow-up

or other services; Progress reports,

treatment rendered; The author of each

(medical record) entry must be identified

and must authenticate his or her entry by

signature, written initials or computer

entry; Dates of service; and Referrals to

other services.

Incomplete records

Providers who are not in compliance with the

Medicaid documentation and record retention

policies described in this chapter may be

subject to administrative sanctions and

recoupment of Medicaid payments. Medicaid

payments for services that lack required

documentation or appropriate signatures will

be recouped.

102. The Medicaid Provider Reimbursement Handbook requires

that "[t]he provider must retain all medical, fiscal,

professional, and business records on all services provided to a

Medicaid recipient."

103. The Physician Coverage and Limitations Handbook and

the Medicaid Provider Reimbursement Handbook is incorporated in

Florida Administrative Code Rules 59G-5.020 and 59G-4.230. The

handbooks are binding when incorporated by rule.

104. By introducing the Audit Report into evidence,

Respondent has presented a prima facie case as contemplated by

Subsection 409.913(21), Florida Statutes (2002). Full Health

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

No. 00-4441 (DOAH June 5, 2001) (Adopted in toto October 3,

2001). However, Petitioner has presented evidence which rebuts,

in part, the overpayment calculations made by Respondent.

105. The Audit Report is to be revised consistent with the

findings herein, to arrive at a "point estimate of overpayment"

of $32,070.06. Since Petitioner did not take issue with the

statistical method of calculating a 95 percent confidence level,

that step may be performed by Respondent and included in its

final order adopting this Recommended Order.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that Respondent, Agency for Health Care

Administration, enter a final order revising its Final Agency

Audit Report as directed herein.

DONE AND ENTERED this 30th day of December, 2005, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of December, 2005.

ENDNOTE

1/ After receipt of the Audit Report, but prior to the hearing,

Petitioner was given credit for a charge that had been

previously disallowed.

COPIES FURNISHED :

Grant P. Dearborn, Esquire

Agency for Health Care Administration

Fort Knox Building III, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

William M. Furlow, III, Esquire

Akerman Senterfitt

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

Richard Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Christa Calamas, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308-5403

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.