04-004645MPI Maria Lourdes Burgos, M.D. vs. Agency For Health Care Administration Status: Closed Recommended Order on Friday, November 4, 2005.

Summary: Petitioner demonstrated that some of the recoupment amount sought by Respondent was excessive. Also, unpaid claims by Petitioner should be processed and applied to the calculation to arrive at a lower actual recoupment figure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA LOURDES BURGOS, M.D., )

)

Petitioner, )

)

vs. )

) Case No. 04 - 4645MPI

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDE D ORDER

In accordance with notice this cause came on for formal

proceeding and hearing before P. Michael Ruff, duly - designated

Administrative Law Judge of the Division of Administrative

Hearings in Tavares, Florida, on July 19, 2005. The appearances

wer e as follows:

APPEARANCES

For Petitioner: W. Cleveland Acree, II, Esquire

The Unger Law Group, P.L.

701 Peachtree Road

Orlando, Florida 32804

For Respondent: Jeffries H. Duval l, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Fort Knox Building III

Tallahassee, Florida 32308 - 5403

STATEMENT OF THE ISSUES

Th e issues to be resolved in this proceeding concern

whether the Respondent Agency must be reimbursed by the Petition

for purported overpayments regarding Medicaid claims, as

delineated in the Respondent's Final Agency Audit Report of

December 12, 2003, rela ted to the audit period of July 1, 2000

through July 31, 2002.

PRELIMINARY STATEMENT

This cause arose when the Respondent, the Agency for Health

Care Administration (Agency) issued a Provisional Agency Audit

report demanding that Dr. Maria Lourdes Burgos , M.D.,

(Petitioner) reimburse the Agency for some $51,410.93 in alleged

Medicaid overpayments for certain services that the doctor had

billed her patients seen between July 1, 2000 and July 31, 2002.

Sometime thereafter the Petitioner submitted additiona l

medical record documentation which, upon review by the Agency,

resulted in a lowered amount of overpayment being sought, to the

amount of $43,328.57. The Petitioner was notified of this by

final agency audit report dated December 12, 2003. It is this

a mount that the Agency in this proceeding claims as an

overpayment.

A Petition was filed whereby Dr. Burgos requested a formal

administrative proceeding and hearing to contest the results of

the final agency audit report. The matter was thereafter

referre d to the Division of Administrative Hearings for formal

proceeding.

The cause came before the undersigned, as noticed, for final

hearing on the above date. The parties exchanged copies of the

medical records which had been reviewed by the Agency fo r the

audit purpose and other exhibits prior to hearing and stipulated

to their admissibility. Additionally, official recognition is

taken of Chapter 409, Florida Statutes and Florida Administrative

Code Rules 59G - 4.230 and 59G - 1.010, which incorporated b y

reference, respectively, the Physicians Coverage and Limitations

Handbook and the American Medical Association publication Current

Procedural Terminology 2000 . The issues to be resolved is thus

whether medical records and testimony support the payment b y the

Florida Medicaid Agency of all or part of the amount of

$43,238.57 for medical services, the amount currently in

controversy between the parties.

Dr. Burgos presented her own testimony and did not call

additional witnesses on her behalf. The Agency presented two

witnesses, Dr. Larry Deeb, M.D., by deposition ( see Respondent's

Exhibit Nine in evidence) as a medical expert witness, and Teresa

Mock an Agency employee personally involved in the Medicaid audit

of the Petitioner.

Respondent's Exhibit Eig ht is a composite exhibit consisting

of medical records of Medicaid patients treated by Dr. Burgos and

worksheets prepared by the Agency on which are listed the

specific services provided by her and which are the subject of

this dispute. The worksheets ar e derived from Medicaid billing

and patients' medical records randomly selected for the audit and

are attached to the medical records provided by the Petitioner

pursuant to a request by the Agency. These are admitted into

evidence without objection. The Petitioner submitted Exhibits

One "A" and "B" through Six, all of which were admitted into

evidence without objection. The Petitioner also submitted into

evidence Exhibit Seven, certain health insurance claim forms,

pertaining to bills that were not appar ently processed by the

Medicaid agency for which reimbursement remains outstanding, with

no amounts as to their being yet paid to the Petitioner. The

Respondent object to Exhibit Seven on the basis that it believes

that the claims are now barred, since th ey were not submitted

within the 12 - month period required by the Medicaid Reimbursement

Handbook, adopted in the Agency rules referenced herein. Ruling

on the exhibit was deferred but the objection is now over - ruled

and Exhibit Seven is admitted for reaso ns delineated in the

Conclusions of Law below. Upon concluding the hearing the

parties requested a transcript thereof and an extended briefing

schedule for submission for proposed recommended orders.

Proposed Recommended Orders were timely submitted and have been

considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Agency is responsible for administering the Florida

Medicaid program. The Agency is thus charged with a duty to

recover overpayments to medical service provider s enrolled in

that program. The term "overpayment" means any amount not

authorized to be paid by the Medicaid program, whether paid as a

result of inaccurate reporting or improper reporting of costs,

improper claims, unacceptable practices, fraud, abuse, or by

mistake. See § 409.913.(1).(d), Fla. Stat.

2. The Petitioner, Maria Lourdes Burgos, M.D., is a

pediatrician duly licensed in the State of Florida, practicing as

an authorized Medicaid provider for purposes of the relevant

portions of Chapter 409, Florida Statutes, at times pertinent

hereto. During the period July 1, 2000 through July 31, 2002,

(the audit period) the Petitioner had a valid Medicaid provider

agreement with the Respondent Agency. During the period of the

audit the Petitioner provide d services to Medicaid recipients or

patients and submitted claims for those services and was

compensated for those services.

3. This case is a result of the Agency's attempt to recover

purported overpayments from Dr. Burgos. In choosing to become a

Med icaid provider, a physician such as Dr. Burgos must assume the

responsibilities enumerated in Section 409.913(7), Florida

Statutes (2004), which provided generally that such a provider

had an affirmative duty to supervise the provision of such

services and be responsible for the preparation and submission of

claims. The claims are required to be true and accurate, the

services are required to actually have been furnished to the

recipient by the provider submitting the claim; the services are

required to be medically necessary, of a comparable quality to

those furnished to the general public by the provider's peers;

and to have been provided in accordance with all applicable

provisions of Medicaid rules, regulations, handbooks, and

policies. They must be in accordance with federal, state, and

local law. Additionally, the provision of medical services are

required to be documented by records made contemporaneously with

the provision of the services, demonstrating the medical

necessity for them and the medica l basis and specific need for

them must be properly documented in the recipient's medical

record.

4. The "audit period" involved in this proceeding is

July 1, 2000 through July 31, 2002. The Medicaid program

reimbursed Dr. Burgos in excess of $43,238.57 in payments

pursuant to the Medicaid program during that audit period. The

Final Agency Audit Report is in evidence as Respondent's Exhibit

One and the calculations pertaining to the overpayment amount are

included in that report as part of Respondent's Exhibit One in

evidence. The Agency contends that $43,238.57 is an overpayment

and subject to recoupment because of Medicaid policy, as alleged

in the Final Agency Audit Report (FAAR). Medical records reveal

that some services billed, and for which payme nt was received,

were not documented and that documentation provided supported a

lower level of office visits than the one for which the Medicaid

program was billed and for which payment was received by the

Petitioner; and, because payments can be made onl y for those

services listed in the provider handbook, that the Petitioner

billed and received payments for services not covered by Medicaid

as overpayments.

5. The Agency furnishes all authorized Medicaid providers a

manual entitled The Physician Coverag e and Limitations Handbook

(Handbook). The Handbook contains the requirements demanded of

Medicaid providers and it and the procedure code manual (CPT)

manual that was in effect during the audit period is in evidence

in this proceeding. The handbook has been incorporated by

reference in Florida Administrative Code Rule 59G - 4.230. This

handbook sets forth Florida Administrative Code Rule 59G - 4.230

and sets forth pertinent applicable Medicaid policies and claims

processing requirements applicable to this p roceeding.

6. Upon convening of the audit procedure, the Agency

requested certain records from the Petitioner and the Petitioner

fully complied with the relevant requirements of Chapter 409,

Florida Statutes, submitting copies of all records dealing with

the recipients who where the subject of the audit. See Exhibit

Eight in evidence.

7. The Petitioner, in effect, does not dispute the

statistical methodology employed by the agency, but does dispute

the manner in which it was applied to certain procedur e codes

(CPT codes) and the result of the overpayment calculations.

Additionally, for every office visit that the Petitioner had with

Medicaid patients, she personally made an individual judgment

about the level of service that she provided and accordingl y

billed for that level of care and treatment provided. She was

consistent in this in her billing practices as to both Medicaid

and non - Medicaid patients.

8. In some instances, regarding the audited Medicaid

patient/recipient records, it was demonstrate d by the Petitioner

that the patient presented with somewhat more complexity as to

medical condition that the CPT code, postulated by the Agency as

applicable, represented that thus she billed for the higher code

(as for instance a "99215" instead of a "99 213) or "99214").

Some of these medical judgment calls made by the Petitioner were

shown to be appropriate and justified and some where shown by the

Respondent's evidence, chiefly the testimony of Dr. Larry Deeb,

the Respondent's expert, to be not really appropriate and that

they should have been coded and therefore billed at a lower

level. In any event, based upon the testimony of Dr. Larry Deeb,

as well as the Petitioner's testimony, the submission of both a

"well child" checkup billing and a "sick offi ce visit" billing

was appropriate and consistent with good medical practice under

the circumstances demonstrated by the Petitioner's testimony and

her records. Thus it was inappropriate for the Agency to

automatically claim an overpayment due for those bi llings, based

upon only its policy interpretation.

9. Additionally, based upon Ms. Mocks testimony, it is

apparently an Agency policy or practice in conducting audits, and

in recouping overpayments, that when errors are discovered in the

audit or in the billing records which happen to be in favor of

the practitioner (the Petitioner) that the Agency does not

provide a credit applied to any alleged overpayment. It would

seem that fundamental fairness dictates that both credits and

overpayments be weighed a gainst each other in calculating the

ultimate amount of any overpayment, if one exists.

10. In any event, based upon Dr. Deeb's testimony and the

Petitioner's testimony, with regard to the random sample of

patients and their medical records submitted, re viewed and

involved in this dispute, the evidence demonstrates that the

Petitioner was not overpaid as to the following amounts and

patients/recipients:

Recipient Date of CPT Disallowed/

Number Service Billed and Paid Adju sted Amount

1 12/05/00 99215 $37.59

09/05/01 99215 $60.95

2 03/05/01 99214 $15.11

3 09/19/00 99215 $13.01

4 04/04/01 99215 $60.95

5 09/15/00 99214 $15 .11

05/10/01 W9881 $22.70

6 01/14/02 99215 $14.52

8 11/08/01 99214 $15.11

9 05/03/01 99205 $87.24

10 05/03/01 99205 $87.24 1/

11 04/04/02 90669 $ 0.00 2/

04/04/01 W9881 $37.81

04/04/01 99214 $46.42

12 10/18/01 99214 $15.11

01/18/02 99215 $29.63

01/30/02 99215 $14.52

05/20/02 99214 $15.11

13 08/14/00 99215 $13.01

14 01/31/01 99214 $15.11

08/27/01 99214 $15.11

05/13/02 99214 $24.58

15 10/17/00 99356 $50.94

Recipient Date of CPT Disallowed/

Number Service Billed and Paid Adjusted Amount

10/19/00 99233 $12.53

16 10/13/00 99215 $57.14

17 05/10/01 99215 $60.95

12/11/01 W9881 $37.81

12/11/01 99214 $46.42

20 12/22/00 99205 $17.02

22 11/19/01 99223 $42.04

11/20/00 99239 $11.53

23 03/27/02 W1998 $ 0.00 3/

04/03/02 99356 $49.72

04/22/02 99215 $ 0.00 4/

04/29/02 99214 $13.86

05/10/02 99215 $ 0.00 5/

24 08/12/01 99356 $ 0.00 6/

08/15/01 99239 $12.06

25 09/30/01 99223 $22.71

10/01/01 99233 $12.66

26 12/03/01 99356 $49.25 7/

12/06/01 99239 $12.06

12/14/01 99205 $18.12

01/16/02 99215 $29.63

01/23/02 99215 $29.63 8/

28 10/13/01 99431 $ 0.00 9/

Recipie nt Date of CPT Disallowed/

Number Service Billed and Paid Adjusted Amount

10/14/02 99233 $12.66

10/15/01 99239 $12.06

29 02/28/02 99356 $ 5.42 10/

03/01/02 99233 $13.80

03/02/02 99239 $13.66

03/06/02 99205 $18.67

29 03/13/02 99215 $14.52

11. The Petitioner in its Proposed Recommended Order has

agreed that other than the above (Proposed Recommen ded Order

paragraph 10 patients and amounts) that the Petitioner agrees

with the Agency's review and the overpayment calculations on a

per office visit basis.

12. Additionally, however, as referenced above, there were

additional health insurance claim fo rms which were, or should

have been, submitted to the Agency, representing claims for

payment for dates of service that clearly fall within the

relevant audit period, that were never compensated by the

Agency's contracted agent. The alternative is that th e claim

forms for some reason were not actually submitted.

Unfortunately, neither the Petitioner's records and testimony nor

the Agency records can clearly show whether the claim forms were

actually submitted or not. It is apparently not possible to

retr ieve that information from the Agency's claim filling and

payment - related computer programming system, for reasons not

understood by either party or the judge. There is thus no clear

explanation of record concerning why these claims were not paid

earlier, even though they fall within the audited period.

13. It is clear, however, that the additional claims

referenced in the Petitioner's Exhibit Seven, admitted as a late

exhibit herein, do relate to that audit period and represent

medical services provided by the Petitioner within that audit

period. Since that audit period and the claims referenced in

evidence are the subject of a "proceeding" and are pending a

"court or hearing decision . . ." or, alternatively and

admittedly somewhat speculatively, could be subject of a "system

error on claim that was originally filed within (12) months from

date of service," it appears patently apparent that fundamental

fairness dictates that these health insurance claim forms related

to the same audit period should be c onsidered and a determination

made as to whether and how much of those claims should be

reimbursed to the Petitioner for the medical services they

represent. Thus, especially as to exception (2) to the twelve -

month filing requirement listed in the above - reference handbook,

Exhibit Seven has been admitted into evidence and the claim forms

represented therein should be considered and the amounts payable

to the Petitioner should be credited against the resultant

overpayment amounts calculated as a result of these Findings of

Fact.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

15. The burden of proof to establish an al leged Medicaid

overpayment by a preponderance of the evidence is that of the

Agency. South Medical Services v. Agency for Health Care

Administration , 633 So. 2d 440, 441 (Fla. 3rd DCA 1995); South

Point Pharmacy v. Department of Health and Rehabilitative

Services , 596 So. 2d 106, 109 (Fla. 1st DCA 1992).

16. Although the Agency bears the ultimate burden of

persuasion and must present a prima facie case as to each

essential element of the dispute, Section 409.913(21), Florida

Statutes, provides that:

[T]h e audit report, supported by agency work

papers, showing an overpayment to the

provider constitutes evidence of the

overpayment.

Once the Agency produces into evidence the audit report

supported by the Agency's work papers, the burden to rebut that

report and the calculations it represents shifts to the

Petitioner. See Maz Pharmaceuticals Incorporated v. Agency for

Health Care Administration , DOAH Case No. 97 - 3791.

17. The Petitioner has contended that she is entitled to

bill certain CPT codes which ref lect a more severe or complex

medical service or procedure that the Agency was felt was

proper. In some of the cases she actually satisfied fewer of

the required criteria that are set forth in the evaluation and

management services guidelines in evidence. For example the

doctor billed a "215" level of service code in a number of

instances. The criteria for this level of billing is set forth

in the CPT manual in evidence and clearly requires medical

decision - making of high complexity to justify these bill ing

levels. See Respondent's Exhibit Four in evidence. Decision -

making of high complexity is defined as decisions which arise in

situations in which there is a "risk of complication and/or

morbidity or mortality." This level of severity was not present

in many of the cases presented for consideration.

18. In fact, however, contrary to the Respondent's

position, the Petitioner and the testimony of Dr. Deeb shows

that the double - billing alleged for a well - child checkup and a

sick - child visit on the same date of service for two recipients

was clearly appropriate under the circumstances proven, as the

Petitioner's testimony and Dr. Deeb's testimony demonstrate.

Further, with regard to the amounts and patient/recipients

numbered and depicted in the above pa ragraph 10 in the Findings

of Fact, the Petitioner demonstrated through her testimony, as

well as to some extent through that of Dr. Deeb, that those

reported amounts of overpayment were really not overpayments.

Thus their sum total should be deducted fro m the overpayment

amount referenced above being sought by the Agency. Therefore,

the Agency did not prove by a preponderance of the evidence that

the Petitioner received an overpayment for the specific Medicaid

claims addressed in paragraph 10 above analy zed during the

audit.

19. In this connection, although Dr. Larry Deeb performed

a peer review of the sampled patient files of the Petitioner,

Dr. Burgos also testified based upon her independent

recollection and knowledge of those patients and a review o f her

medical records concerning the underlying facts and

circumstances surrounding the care and treatment she provided to

each of those patients on those dates of service. The

Petitioner thus demonstrated by a preponderance of evidence that

the alleged o verpayments referenced as to the patients or

recipients depicted in paragraph 10 above were adequately

rebutted and those amounts depicted were not overpayments.

Those amounts should be reduced from the total overpayment

recoupment amount sought by the Ag ency.

20. Further, concerning the Medicaid provider

reimbursement handbook HCFA - 1500, for reasons which are not

clear there has been a delay in processing the health insurance

claim forms or else they were never actually submitted as to

those claim forms depicted in the Petitioner's Exhibit Seven.

That exhibit has been admitted into evidence and whether or not

claims were originally submitted when the 12 - month claims

submission time limit provided in the above - referenced handbook,

it is appropriate that they be considered since they directly

relate and involve patient visits, services, and care provided

during the relevant audit period, which audit period is directly

the subject of this proceeding and pending "court" decision. It

is thus concluded that t he re - submission of those claim forms,

if re - submission is necessary, comes within the above - referenced

exception to the handbook prohibition on submitting claims

beyond the 12 - month time limit. Consequently, the amount of

payments due the Petitioner with regard to the claim forms

contained in Petitioner's Exhibit Seven should be credited

against any overpayment determined to be due from the Petitioner

to the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of

Law, the eviden ce of record, the candor and demeanor of the

witnesses, and the pleadings and arguments of the parties, it

is, therefore,

RECOMMENDED that the Respondent, Agency for Health Care

Administration, re - calculate the amount of overpayment in a

manner consistent with the above Findings of Fact and

Conclusions of Law, excluding from the amount of overpayment

those amounts determined above to have not constituted

overpayments. It is further

RECOMMENDED that the Respondent calculate the amount of

reimbursement not p rovided pursuant to the recently submitted or

re - submitted (but never paid) Exhibit Seven health insurance

claim forms, and as for the reasons indicted in the above

Findings of Fact and Conclusions of Law, and credit that

additional amount of reimbursement against the overpayment

calculation amount in arriving at the new overpayment due from

the Petitioner to the Respondent. The Petitioner shall repay

the Respondent the re - calculated monetary amount of overpayment

within a reasonable period of time and by reasonable installment

payments, agreed to by both parties, but shall not be obligated

to pay other costs or fees related to this matter.

D ONE AND ENTERED this 4th day of November, 2005, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

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 4th day of November, 2005.

ENDNOTES

1/ Although the DOS was documented to be 05/08/01, it was

corrected to 05/03/01.

2/ Reimbursement for pneumococcal vaccine was not credited, and

thus a credit of $10.00 is appropriate.

3/ Although immunizations and the well - care visit were submitted,

the well - care visit was never paid and no explanation was ever

given, thus a credit of $68.74 is required.

4/ The level of care warrants 99214 as opposed to the 99213 than

was allowed which must be recalculated for credit.

5/ Pursuant to meeting with Dr. Burgos and Dr. Deeb, he agreed to

allow her one hour of critical care credit which should be

applied at a CPT code of 99295.

6/ Pursuant to meeting with Dr. Burgos and Dr. Deeb, he agreed to

allow her one hour of critical care credit which should be

applied at a CPT code of 99295.

7/ The billing entry was misdated and should have reflected a DOS

of 12/04/01 for which a medical record exists, the appa rent

reason for denial.

8/ Petitioner is granted an upcharge to a 99214 and for the

Agency must calculate the credit amount.

9/ Pursuant to Dr. Deeb's revisions, the allowable CPT code was a

99223 which should be reimbursed at $85.50, thus showing a credit

of $49.12.

10/ To be consistent with Dr. Deeb's analysis of Recipient Number

26, DOS 12/03/01, reimbursement of $84.42 should have been

allowed as opposed to what was submitted and then reduced.

COPIES FURNISHED:

Jeffries H. Duvall, Esquire

Ag ency for Health Care Administration

Fort Knox Building III, Mail Station No. 3

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308

W. Cleveland Acree, II, Esquire

The Under Law Group, P.L.

701 Peachtree Road

Orlando, Florida 32804

Richard Shoop, Ag ency 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 3230 8

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 O rder in this case.