06-004148MPI Agency For Health Care Administration vs. Rodolfo Dumenigo, M.D. Status: Closed Recommended Order on Wednesday, February 21, 2007.

Summary: Respondent may not bill Medicaid for services rendered by another physician unless a second doctor listed with the group performs the services.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH )

CARE ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 06 - 4 148 MPI

)

RODOLFO DUMENIGO, M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was cond ucted in this case on

January 19, 200 7 , in Tallahassee , Florida , before J. D. Parrish,

a designated Adm inistrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Willis F. Melvin, Jr., Esquire

Agency for Health Care Administration

2727 Mahan Drive, Building 3

Talla hassee, Florida 32308

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether the Petitioner , Agency for Health Care

Administration (Petitioner or Agency), is entitled to a Medicaid

reimbursement and, if so, in what amount.

PRELIMINARY ST ATEMENT

The Agency administers the Florida Medicaid program. On or

about September 28, 2006, the Agency issued a Final Audit Report

that identified the Respondent, Rodolfo Dumenigo, M.D., P.A.

(Respondent), as a provider of Medicaid services. Based upon

the results of an audit of the Respondent’s records, the

Petitioner alleged that the Respondent was overpaid $32,935.96.

With the addition of an administrative fine, the Agency seeks a

total of $33,935.96 from the Respondent .

The Respondent disputed the accuracy of the Final Audit

Report and through his attorney, Craig A. Brand, requested a

formal administrative hearing in this matter. The case was

forwarded to the Division of Administrative Hearings for formal

proceedings on October 25, 2006. Thereafte r, the case was

scheduled and conducted within ninety days following the

assignment of an administrative law judge. See § 409.913(31),

Fla. Stat. (2006). Notice of the hearing date and time was

furnished to the Respondent through his attorney of record.

At the hearing, the Agency presented testimony from

Jennifer Ellingsen, Gregory Riley, and Robi Olmstead. The

Petitioner’s Exhibit 1 was admitted into evidence. The

Respondent did not appear and no evidence was offered on his

behalf.

The transcript of the proceeding was filed with the

Division of Administrative Hearings on January 29, 2007. The

parties were entitled to ten days from that date within which to

file a p roposed r ecommended o rder. The Petitioner timely filed

a P roposed Recommended O rder t hat has been considered in the

drafting of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the

authority and responsibility of administering the Florida

Medicaid Program. As part of this authority, the Petiti oner is

required to recover Medicaid overpayments when appropriate. See

§ 409.913, Fla. Stat. (2006).

2. At all times material to the allegations of this case,

the Respondent was a licensed physician and a Medicaid provider

subject to the provisions of C hapter 409.

3 . As a Medicaid provider, the Respondent was authorized

to provide services to eligible patients but was obligated to

comply with the Medicaid Provider Agreement in doing so.

4. The Medicaid P rogram contemplates that authorized

providers w ill provide services to eligible patients, bill the

program and be paid according to the Medicaid standards. All

Medicaid providers must practice within the guidelines of the

Physicians Coverage and Limitations Handbook and applicable law.

Providers ma y be audited so that it can be verified the process

was appropriately followed.

5. In this case, the Respondent was audited. According to

the audit findings, the Respondent received payment for services

that he did not perform. Dr. Eiber (a physician not part of the

Respondent’s practice group) reviewed and signed off on x - ray

studies and reports for which the Respondent billed and was paid

by Medicaid.

6. Dr. Eiber is a Medicaid provider but he is not

affiliated with the Respondent or the Responden t’s group .

7. In order for the Respondent to bill and receive payment

for Dr. Eiber’s work, the latter physician would have to be

listed and identified within the group in which the Respondent

practiced.

8. The Respondent was responsible for all billings for

which he received payments. In connection with billing, the

Respondent was required to maintain and retain all Medicaid -

related invoices or claims for the audit period. In this

regard, the Physician Coverage and Limitations Handbook

specifies that w hen a radiological study is performed in an

office setting, either the physician billing the maximum fee

must have performed or indirectly supervised the performance and

interpreted the study; or if a group practice, a member of the

group must perform al l components of the services. That

procedure was not followed .

9. When the Agency disallows a paid Medicaid claim, it

must seek to recover the overpayment from the Medicaid provider

who received payment on the claim. This is the basis of the

“pay and ch ase” methodology used in the Medicaid program. The

claims are paid, subject to audit, and recovery is sought when

the claim is disallowed.

10. Based on the audit findings in this cause, the Agency

seeks $32,935.96 as an overpayment of Medicaid claims pai d to

the Respondent. The Petitioner also seeks an administrative

fine in the amount of $1000.00. The Respondent was given the

results of the audit and afforded an opportunity to respond and

provide additional information to the Agency to show that the

am ounts billed were correct. The Respondent has presented no

supplemental information to corroborate the correctness of the

claims at issue.

CONCLUSIONS OF LAW

11 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the par ties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2006) .

12 . As the party seeking reimbursement of the alleged

Medicaid overpayment, the Petitioner bears the burden of proof

in this cause to establish the overpayment. This burde n must be

met by a preponderance of the evidence. See Florida Department

of Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778

(Fla. 1st DCA 1981), and Balino v. Department of Health &

Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA 1977) .

13 . A “preponderance” of the evidence means the greater

weight of the evidence. See Fireman's Fund Indemnity Co. v.

Perry , 5 So. 2d 862 (Fla. 1942). “Competent” evidence must be

relevant, material and otherwise fit for the purpose for which

it is offered. See Gainesville Bonded Warehouse v. Carter , 123

So. 2d 336 (Fla. 1960), and Duval Utility Co. v. FPSC , 380 So.

2d 1028 (Fla. 1980). By a preponderance of the competent

evidence the Agency has met its burden in this cause.

14 . Section 409.913, Florida Statutes (2006) , provides, in

pertinent part:

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 occ ur to the minimum extent

possible, and to recover overpayments and

impose sanctions as appropriate. ...

(1) For the purposes of this section, the

term:

* * *

(e) "Overpayment" includes any amount that

is not authorized to be paid by the Medicaid

pr ogram 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 dut y 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 accurate

and that is for goods a nd services that:

(a) Have actually been furnished to the

recipient by the provider prior to

submitting the claim.

* * *

(e) Are provided in accord with applicable

provisions of all Medicaid rules,

regulations, handbooks, and policies and in

accor dance 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 excessive or not medical ly

necessary unless both the medical basis and

the specific need for them are fully and

properly documented in the recipient's

medical record.

The agency may deny payment or require

repayment for goods or services that are not

presented as required in th is subsection.

* * *

(9) A Medicaid provider shall 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 furni shing such services

or goods. The agency may investigate,

review, or analyze such records, which must

be made available during normal business

hours.

* * *

(21) 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.

(22) The audit report, supported by agency

work papers, showing an overpayment to a

provider constitutes evidence of the

overpayment.

15. In this case , the Final Audit Repo rt and worksheets

support the overpayment sought by the Agency. The Respondent

presented no information to rebut the audit results. As the

amount of the claims, $32,935.96, resulted from inappropriately

billed for X - ray services not allowed by the guidel ines, the

Respondent cannot retain the Medicaid payments based upon those

claims. If Dr. Eiger had been a member of the Respondent’s

group, the payment may have been appropriate. As it stands,

since all the claims were for services rendered by Dr. Eiger,

the overpayment set forth in the audit is sustained.

Accordingly, the Petitioner has met its burden of proof in this

cause. Furthermore, an administrative fine is allowable when an

overpayment is established. See Fla. Admin. Code Rule 59G -

9.070.

RECOM MENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that the Agency for Health Care

Administration enter a Final Order sustaining the Final Audit

Report and finding an overpayment against the Respondent in the

amount of $32,9935.96. The Final Order should also impose an

administrative fine in the amount of $1,000.00.

DONE AND ENTERED this 2 1st day of February , 2007, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Ad ministrative 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 2 1st day of February , 2007 .

COPIES FURNISHED :

Craig A. Brand, Esquire

Law Offices of Craig A. Brand, P.A.

Grove Forest Plaza

2937 Southwest 27th Avenue, Suite 101

Miami, Florida 33133

Willis Melvin, Esquire

Agency for Hea lth Care Administration

2727 Mahan Drive, Suite 3431

Fort Knox Building III, Mail Stop 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Craig H . Smith, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive, Mail Station 3

Tallahassee, Florida 32308

Dr. Andrew C. Agwunobi, Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 31 16

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be file d with the agency that

will issue the Final Order in this case.