06-004290MPI Agency For Health Care Administration vs. Ricardo L. Llorente, M.D. Status: Closed Recommended Order on Monday, April 30, 2007.

Summary: Petitioner met the burden of proving that Respondent provider received $80,788.23 in Medicaid overpayments.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 06 - 4290MPI

)

RICARDO L. LLORENTE, )

)

Respondent. )

__ _______________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case

pursuant to Sections 120.569 and 120. 57(1), Florida Statutes, 1 on

January 29, 2007 , in Tallahassee, Florida, before Stuart M.

Lerner, a duly - designate d Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tracie L. Wilk s, Esquire

Jeffries H. Duvall, Esquire

Agency for Health Care Administration

2727 Ma han Drive, Mail Stop 3

Tallahassee, Florida 32308 - 5403

For Respondent: Patrick A. Scott, Esquire

2800 Miami Center

201 South Biscayne Boulevard

Miami, Florida 33131 - 4330

STATEME NT OF THE ISSUES

1. Whether Medicaid overpayments were made to Respondent

and, if so, what is the total amount of those overpayments.

2. Whether, as a "sanction," Respondent should be directed

to submit to a "comprehensive follow - up review in six month s."

PRELIMINARY STATEMENT

By letter dated June 29, 2004 (Final Agency Audit Report),

the Agency for Health Care Administration (AHCA) advised

Respondent , a physician participating in the Medicaid program,

that, following a "review of [ Respondent 's] Medica id claims for

the procedures specified [in the letter] for dates of service

during the period January 1, 2000, through December 31, 2001 "

(Audit Period), AHCA had determined that Respondent had been

"overpaid $ 80,788.23 for services that in whole or in par t

[were] not covered by Medicaid." The letter further provided,

in pertinent part , as follows :

Be advised that pursuant to Section

409.913(22)(a), F.S., the Agency is entitled

to recover all investigative, legal, and

expert witness costs. Additionally,

p ursuant to Section 409.913, Florida

Statutes ( F.S. ) , this letter shall serve as

n otice of the following sanction (s): The

provider is subject to a comprehensive

follow - up review in six months.

* * *

You have the right to reques t a formal or

informal hearing pursuant to section

120.569, F.S. . . . .

AHCA first referred the matter to the Division of

Administrative Hearings (DOAH) on December 20, 2004, requesting

the assignment of a DOAH Administrative Law Judge to conduct a

"form al a dministrative hearing." The case was docketed by

DOAH's Clerk as DOAH Case No. 05 - 0012MPI and assigned to the

undersigned .

The final hearing in DOAH Case No. 05 - 0012M PI was twice

continued. O n June 1, 2005, in response to Respondent's

unopposed reque st that the final hearing be continued a third

time ( to give the parties "extra time . . . for meaningful

discovery "), the undersigned issued an order closing the file in

DOAH Case No. 05 - 0012MPI and relinquishing jurisdiction to A HCA ,

" without prejudice t o the matter being returned to the Division

of Administrative Hearings, upon the request of either party. "

O n or about October 30, 2006, after receiving from

Respondent an "amended petition for a hearing involving disputed

issues of material fact," AHCA r eferred the matter ba ck to DOAH.

A new case number, DOAH Case No. 06 - 4290MPI, was assigned by

DOAH's Clerk.

On November 17, 2006, the undersigned issued a Notice of

Hearing, setting the hearing in the instant case for January 29

through 31, 2007, and Febr uary 1, 2007 . On December 28, 2006,

Respondent filed a motion requesting that the hearing be

continued to giv e his counsel of record (who had been

representing him since April 29, 2005 ) more time to "identify

and locate a witness" and otherwise "properly prepare" for

hearing. On December 29, 2006, AHCA filed a response to the

motion, opposing the requested continuance. On December 31,

2006, it filed an "addendum" to its response. On January 4,

2007, Respondent filed a motion to strike this "addendum." A

hearing on Respondent 's motion to strike and motion for a

continuance was held by telephone conference call on January 5,

2007. On January 8, 2007, the undersigned issued an order on

these motions, which provided as follows:

Upon consideration, it is he reby ORDERED:

1. Respondent 's motion to strike the

"addendum" to Petitioner's response is

denied. See Wal - Mart Stores, Inc. v.

Ballasso , 789 So. 2d 519 (Fla. 1st DCA

2001)(Section 90.408, Florida Statutes ,

"exclude[s] statements made in settlement

negot iations only where offered to prove

liability.").

2. Regardless of whether the contents of

the "addendum" are considered, Respondent

has failed to make the requisite showing of

good cause in support of his motion for a

continuance. Accordingly, the moti on is

denied. § 409.913 (31) , Fla. Stat. ("If a

provider requests an administrative hearing

pursuant to chapter 120, such hearing must

be conducted within 90 days following

assignment of an administrative law judge,

absent exceptionally good cause shown as

determined by the administrative law judge

or hearing officer. "); and United States v.

Robbins , 197 F.3d 829, 847 (7th Cir.

1999)("The possibility that an investigator

would find information to destroy the

credibility of Osborne, a key government

witness, is speculative and is an

insufficient basis on which to demand a

continuance.").

On January 22, 2007 , the parties filed a Joint Prehearing

Stipulation, which provided, in pertinent part, as follows:

A. STATEMENT OF THE NATURE OF THE CASE

The Responde nt, at all times material

hereto, was a health care provider in the

State of Florida, and was enrolled as a

Medicaid provider.

1. The Respondent was notified by the

Agency by a Provisional Agency Audit Report

dated July 7, 2003, of a determination of an

overpayment to the Respondent for services

provided to Medicaid recipients covering the

period January 1, 2000 through December 31,

2001 (the "Audit Period"). This letter

indicated that the Respondent had submitted

claims and had been overpaid in the amou nt

of $80, 788.23 for services that, in whole or

in part, were not covered by Medicaid.

Following receipt of the Provisional Agency

Audit Report, the Respondent was given the

opportunity to submit additional information

which could result in a reduction in the

provisional determination of overpayment.

2 . Respondent submitted additional

documentation in response to the Provisional

Agency Audit Report. However, the Agency

did not accept this second set of documents

provided, as the Agency determined that t he

records were not made contemporaneously with

the services provided as required by

§ 409.913(7), Florida Statutes.

3. On June 29, 2004, the Respondent was

notified by a Final Agency Audit Report

("FAAR") of a determination of overpayment

to Respondent for services provided to

Medicaid recipients covering the Audit

Period. This letter indicated that the

Respondent had submitted claims and had been

overpaid in the amount of $80,788.23 for

services that, in whole or in part, were not

covered by Medicaid.

4. The Respondent has appealed the agency

action of June 29, 2004, and sought an

administrative hearing pursuant to Section

120.569 and Subsection 120.57(1), Florida

Statutes.

B. BRIEF STATEMENT OF EACH PAR TY ' S POSITION

Petitioner's Position

The Age ncy's position is that the FAAR of

June 29, 2004, reflects a proper application

of the provisions of section 409.913; the

amount of $80,788.23 is a correct

computation of the overpayment to the

Respondent; and the Agency is entitled to

recoup the overpayme nt plus all

investigative, legal, and expert witness

costs.

Respondent's Position

The Respondent denies being overpaid in the

amount of $80,788.23. Dr. Llorente

submitted two sets of photocopies in

response to the Agency's request for

supporting documen tation for the dates of

service included in the cluster sample. The

first set of copies was submitted in or

about March 2003. The second set of

photocopies was submitted in or about

September 2003. The appearance of virtually

every photocopy in the seco nd set is

inconsistent with the correspon ding

photocopy in the first set . Specifically ,

more notations appear on the front of the

photocopies in the second set than in their

respective photocopy records in the first

set. Further, while there is no writin g on

the back sides of the pages in the first set

of photocopies, writing appear[s] on the

back sides of many corresponding photocopies

in the second set. Dr. Llorente contends

that the second set of photocopies more

accurately reflects his original recor ds.

The Agency contends that the inconsistency

between the two sets of photocopies results

from non - contemporaneous documentation added

to the second set of photocopies. Dr.

Llorente contends that the inconsistencies

were the result of bad photocopying.

* * *

D. STATEMENT OF ADMITTED FACTS .

1. Respondent has operated as an authorized

Medicaid provider , and has been issued the

Medicaid provider number 370947700 .

2. During the Audit P eriod, the Respondent

had a valid Medic ai d provider agreement with

the Agency .

3. For services provided during the Audit

Period, the Respondent received in excess of

$80,788.23 in payments for services to

Medicaid recipients.

4. The Respondent agrees that valid

mathematical and statistical co mputations

were utilized in the audit. However, it is

not agreed that the empirical data utilized

were correct.

F. STATEMENT OF AGREED ISSUES OF LAW .

1. The Division of Administrative Hearings

has jurisdiction over the parties and

subject matter of th is proceeding pursuant

to § 120.57(1), Florida Statutes.

2. Venue for this proceeding is in Leon

County, Florida, or such other place as

designated by the Administrative Law Jud ge.

3. The Agency for Health Care

Administration is an executive agency

cre ated by Sections 20.42 and 23.21, Florida

Statutes.

4. The Agency for Health Care

Administration has the responsibility for

overseeing and administering the Medicaid

Program for the State of Florida.

5. The Agency has the burden of proof in

this procee ding and must show by a

preponderance of the evidence that there

exists an overpayment to the [Respondent].

6. All pleadings were timely and

appropriately filed in this matter.

G . STATEMENT OF FACTS REMAINING TO BE

LITIGATED

1. Whether the Responden t was overpaid

$80,788.23 for certain claims fo r services

during the audit period of January 1, 2000,

through December 31, 2001, that in whole or

in part are not covered by Medicaid.

2. Whether the Agency has incurred

investigative , legal, and expert wit ness

costs, including, but not limited to,

employee salaries, employee benefits and

out - o f - pocket expenses, which the Agency is

entitled to recover pursuant to § 409.913,

Florida Statutes.

3. Whether Dr. Llorente has incurred

attorney's fees which he is entitled to

recover.

H . ISSUES OF LAW REMAINING TO BE

DETERMINED .

1. Whether applicable Florida Statutes,

rules of the Florida Administrative Code,

and the applicable Medicaid handbooks permit

the Agency to recoup the alleged Medicaid

overpayment.

2 . Whether any records not made at the time

goods and services were provided are

admissible in evidence.

* * *

After receiving the parties' Joint Prehearing Stipulation

the undersigned, on January 23, 2007, issued an Order Direc ting

Filing of Supplement to Joint Prehearing Stipulation, which

provided as follows:

The undersigned ['s] having issued a Notice

of Hearing (scheduling the instant matter

for hearing for January 29, 2007, through

February 1, 2007) and an Order of Pre -

Heari ng Instructions, and having received

the parties’ Joint Prehearing Stipulation,

it is hereby ORDERED, pursuant to Florida

Administrative Code Rule[] 28 - 106.211:

The Joint Prehearing Stipulation submitted

by the parties makes reference to a first

set and a second set of supporting

documentation that Respondent provided

Petitioner. The parties shall file, no

later than the commencement of the final

hearing in this case, a supplement to their

Prehearing Stipulation, in which they

identify, by patient and dat e of service,

those instances, if any, where these first

and second sets of supporting documentation,

with respect to a particular disputed

cluster sample claim, are identical. (In

other words, if that portion of the second

set of supporting documentation pertaining

to a particular claim in dispute merely

duplicates, and does not add to, what is in

the first set of supporting documentation,

that claim should be listed by the parties

in their supplement.)

On January 26, 2007, the parties filed a pleading

c ontaining the following additional stipulation :

The parties stipulate that the only

instances where the first and second sets of

supporting documentation, with respect to

the disputed sample claims, are identical

are the progress notes for recipient 21's

J anuary 8, 2001 and March 5, 2001 dates of

service.

As noted above, t he final hearing commenced and concluded

on January 29, 2007 . The live testimony of two witnesses, AHCA

Program A nalyst Theresa Mock (testifying on behalf of AHCA) and

Respondent (testi fying on his own behalf), was presented at the

hearing. In addition to this live testimony , 29 exhibits

(Petitioner's Exhibits 1 through 27, 2 and 31, and Respondent's

Exhibit 1) were offered and received into evidence .

At the close of the evidentiary port ion of the hearing on

January 29 , 2007, the undersigned set the deadline for the

filing of proposed recommended orders at 6 0 days from the date

of the filing of the hearing transcript with D OAH , as requested

by the parties . 3

The hearing T ranscript (cons isting of one volume) was filed

with DOAH on February 14 , 2007 . Accordingly, proposed

recommended orders were due on Monday, April 16, 2007 , in

accordance with Florida Administrative Code Rule 28 - 106.103.

AHCA and Respondent timely filed their Proposed R ecommended

Orders on April 13, 2007, and April 16, 2007, respectively.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record

as a whole, the following findings s of fact are made to

supplement and clarify the factual stipulations set forth in the

parties' Joint Prehearing Stipulation and their January 26,

2007 , pleading : 4

Respondent and h is Practice

1. Respondent is a pediatric physician whose office is

located in a poor neighborhood in Hialeah, Florida.

2. He has a very busy practic e, seeing approxima tely 50 to

60 patients each day the office is open.

3. Respondent documents patient visits by making

handwritten notations on printed "progress note" forms.

4. Because of the fast - paced nature of his practice, he

does not always " have time to writ e everything as [he] would

like, because [there] is too much " for him to do.

Respondent 's Participation in the Medicaid Program

5. During the Audit Period, Respondent was authorized to

provide physician services to eligible Medicaid patients .

6. Respondent provided suc h services pursuant to a valid

Provider A greement (Provider Agreement) with AHCA , which

contained the following provisions, among others:

The Provider agrees to participate in the

Florida Medicaid program under the following

te rms and conditions:

* * *

(2) Quality of Services . The provider

agrees to provide medically necessary

services or goods of not less than the scope

and quality it provides to the general

public. The provider agrees that servic es

or goods billed to the Medicaid program must

be medically necessary, of a quality

comparable to those furnished by the

provider's peers, and within the parameters

permitted by the provider's license or

certification. The provider further agrees

to bill only for the services performed

within the specialty or specialties

designated in the provider application on

file with the Agency. The services or goods

must have been actually provided to eligible

Medicaid recipients by the provider prior to

submitting the claim.

(3) Compliance . The provider agrees to

comply with all local, state and federal

laws, rules, regulations, licensure laws,

Medicaid bulletins, manuals, handbooks and

Statements of Policy as they m a y be amended

from time to time.

(4) Term a nd signatures . The parties agree

that this is a voluntary agreement between

the Agency and the provider, in which the

provider agrees to furnish services or goods

to Medicaid recipients. . . .

(5) Provider Responsibilities . The

Medicaid provider shall:

* * *

(b) Keep and maintain in a systematic and

orderly manner all medical and Medicaid

related records as the Agency may require

and as it determines necessary; make

available for state and federal audits for

five years, comp lete and accurate medical,

business, and fiscal records that fully

justify and disclose the extent of the goods

and services rendered and billings made

under the Medicaid. The provider agrees

that only records made at the time the goods

and services were provided will be

admissible in evidence in any proceeding

relating to the Medicaid program.

* * *

(d) Except as otherwise provided by law,

the provider agrees to provide immediate

access to authorized persons (including but

not limited to state and federal employees,

auditors and investigators) to all Medicaid -

related information, which may be in the

form of records, logs, documents, or

computer files, and all other information

pertaining to services or goods billed to

the Medic aid program. This shall include

access to all patient records and other

provider information if the provider cannot

easily separate records for Medicaid

patients from other records.

* * *

(f) Within 90 days of receipt, refund any

moneys received in error or in excess of the

amount to which the provider is entitled

from the Medicaid program.

* * *

(i) . . . . The provider shall be liable

for all overpayments for any reason and pay

to the Agency any fine or overpayment

imposed by the Agency or a court of

competent jurisdiction. Provider agrees to

pay interest at 12% per annum on any fine or

repayment amount that remains unpaid 30 days

from the date of any final order requiring

payment to the Agency.

* * *

7. Respondent's Medicaid provider number ( under which he

billed the Medicaid program for providing these services) was

(and remains) 370947700 .

Handbook Provisions

8. The handbooks with which Petitioner was required to

comply in order to receive Medicaid payment for services

rendered during the Audit Period included the Medicaid Provider

Reimbursement Han dbook, HCFA - 1500 (MPR Handbook); Physician

Coverage and Limitations Handbook (PCL Handbook) ; the Early and

Periodic Sc reening, Diagnosis and Treatment Coverage and

Limitations Handbook (EPSDT CL Handbook) ; and the Child Health

Check - up Coverage and Limitations Handbook (CHCUCL Handbook ).

Medical Necessity

9. T he PCL Handbook provided that the Medicaid program

would reimbu rse physician providers for services "determined [to

be] medically necessary" and not duplicative of another

provider's service, and it went on to state as follows:

In addition, the services must meet the

following criteria:

- the services must be indiv idualized,

specific, consistent with symptoms or

confirmed diagnosis of the illness or injury

under treatment, and not in excess of the

recipient's needs;

- the services cannot be experimental or

investigational;

- the services must reflect the level of

services that can be safely furnished and

for which no equally effective and more

conservative or less costly treatment is

available statewide; and

- the service s must be furnished in a

manner not primarily intended for the

convenience of the recipien t, the

recipient's caretaker, or the provider.

The fact that a provider has prescribed,

recommended, or approved medical or allied

care, goods, or services does not, in

itself, make such care, goods or services

medically necessary or a covered services.

Note See Appendix D, Glossary, in the

Medicaid Provider Reimbursement Handbook,

HCFA - 1500 and EPSDT 224, for the definition

of medically necessary. [ 5 ]

The EPSDTCL and CHCUCL Handbooks had similar provisions.

Documentation Requirements

10. The MPR Handbo ok required the provider to keep

"accessible, legible and comprehensible" medical records that

" state [d] the necessity for and the extent of services " billed

the Medicaid program and that were "signed a nd dated at the time

of service . " The handbook furthe r required , among other things,

that the provider retain such records for "at least five years

from the date of service" and "send, at his or her expense,

legible copies of all Medicaid - related information to the

authorized state and federal agencies and t heir authorized

representatives. "

11. The MPR Handbook warned that providers "not in

compliance with the Medicaid documentation and record retention

policies [described therein] may be subject to administrative

sanctions and recoupment of Medicaid paymen ts " and that

"Medicaid payments for services that lack required documentation

or appropriate signatures will be recouped."

EPSDT Screening/ Child Health Check - Up

12. The EPSDTCL Handbook provided:

To be reimbursed by Medicaid, the provider

must address an d document in the recipient's

medical record all the required components

of an EPSDT screening . The following

required components are listed in the order

that they appear on the optional EPSDT

screening form:

- Health and developmental history

- Nutrit ional assessment

- Developmental assessment

- Physical examination

- Dental screening

- Vision screening

- Hearing screening

- Laboratory tests

- Immunization

- Health education

- Diagnosis and treatment

13. The CHCUCL Handbook, which replaced the EPSDTCL

Handbook in or around May 200 0 , similarly provided as follows :

To be reimbursed by Medicaid, the provider

must assess and document in the child's

medical record all the required components

of a Child Health Check - Up . The required

components a re as follows:

- Comprehensive Health and Developmental

H istory , including assessment of past

medical history, developmental history and

behavioral health status;

- Nutritional assessment ;

- Developmental assessment ;

- Comprehensive Unclothed Physica l

E xamination

- Dental screening including dental

referral, where required;

- Vision screening including objective

testing, where required;

- Hearing screening including objective

testing, where required;

- Laboratory tests including blood lead

testing , where required;

- Appropriate i mmunization s;

- Health education , anticipatory guidance;

- Diagnosis and treatment ; and

- Referral and follow - up, as appropriate.

Coding

14. Chapter 3 of the PCL Handbook "describe[d] the

procedure codes for the servi ces reimbursable by Medicaid that

[had to be] used by physicians providing services to eligible

recipients."

15. As explained on the first page of this chapter of the

handbook:

The procedure codes listed in this chapter

[were] Health Care Financing Admini stration

Common Procedure Coding System (HCPCS)

Levels 1, 2 and 3. These [were] based on

the Physician[]s['] Current Procedural

Terminology (CPT) book.

16. The Current Procedural Terminology (CPT) book referred

to in Chapter 3 of the PCL Handbook was a publication of the

American Medical Association .

17. It contained a listing of procedures and services

performed by physicians in different settings, each identified

by a "procedure code " consisting of five digit s or a letter

followed b y four digits .

18 . For instance, there were various "procedure codes " for

office visits .

19. These "procedure codes " included the following , among

others :

New Patient

* * *

99204 Office or other outpatient visit for

the evaluation and managem ent of a new

patient which requires these three key

components:

- a comprehensive history;

- a comprehensive examination; and

- medical decision making of moderate

complexity.

Counseling and/or coordination of care with

other providers or agencie s are provided

consistent with the nature of the problem(s)

and the patient's and/or family's needs.

Usually, the presenting problem(s) are of

moderate to high severity. Physicians

typically spend 45 minutes face - to - face with

the patient and/or family.

* * *

Established Patient

* * *

99213 Office or other outpatient visit for

the evaluation and management of an

established patient, which requires at least

two of these three key components:

- an expanded problem focused history;

- an expanded problem focused examination;

- medical decision making of low

complexity.

Counseling and coordination of care with

other providers or agencies are provided

consistent with the nature of the problem (s)

and the patient's and/or family's needs.

Usually, the presenting problem(s) are of

low to moderate severity. Physicians

typically spend 15 minutes face - to - face with

the patient and/or family.

99214 Office or other outpatient visit for

the evaluatio n and management of an

established patient, which requires at least

two of these three key components:

- a detailed history;

- a detailed examination;

- medical decision making of moderate

complexity.

Counseling and/or coordination of care with

o ther providers or agencies are provided

consistent with the nature of the problem(s)

and the patient's and/or family's needs.

Usually, the presenting problem(s) are of

moderate to high severity. Physicians

typically spend 25 minutes face - to - face with

the patient and/or family.

* * *

Fee Schedules

20. In Appendix J of the PCL Handbook , there was a "fee

schedule , " which established the amount physicians would be paid

by the Medicaid program for each reimbursable procedure and

se rvice (identified by "procedure code") . For both " new

patient " office visit s (99201 - 99205 "procedure code" series ) and

"established patient" office visits (99211 - 99215 "procedure

code" series) , the higher numbered the "procedure code" in the

series, the m ore a physician would be reimbursed under the "fee

schedule. "

The Audit and Aftermath

21. Com mencing in or around August 2002 , AHCA conducted an

audit of Respondent's Medicaid claims for services render ed

during the Audit Period (Audit Period Claims) . 6

22. Respondent had submitted 18,102 such Audit Period

Claims , for which he had received payments totaling $ 596,623.15 .

23. These Audit Period Claims involved 1,372 different

Medicaid patients . From this group, AHCA randomly s elected a

"cluster sample" of 40 patients .

24. Of the 18,102 Audit Period Claims , 713 had been for

services that, according to the claims, had been provided to the

4 0 patients in the "cluster sample" (Sample Claims). Respondent

had received a total of $ 23,263.18 for these 713 Sa mple C laims .

25. D uring an August 28, 2002, visit to Respondent's

office, A HCA personnel "explain[ed] to [Respondent] what the

audit was about [and] why [AHCA] was doing it" and requested

Respondent to provide AHCA with copies of the medical records

Respo ndent had on file for the 40 patients in the "cluster

sample " documenting the services provided to them during the

Audit Period.

26. The originals of these records were not inspected by

AHCA personnel or agents during , or any time after, this

August 28, 2 002, site visit .

27. Sometime w ithin approximately 30 to 45 days of the

August 28, 2002 , site visit, Respondent , through his office

staf f, made the requested copies (First Set of Copies) and

provided them to AHCA. There i s nothing on the face of the se

d ocuments to suggest that they were not true, accurate, and

complete copies of the originals in Respondent's possession, as

they existed at the time of copying (Copied Originals) . They do

not appear , upon visual examination, to be the product of "bad

photo copying." While the handwritten entries and writing are

oftentimes difficult (at least for the undersigned) to decipher,

this is because of the poor legibility of the handwriting, not

because the copies are faint or otherwise of poor quality.

28. E ach o f the Sample Claims was reviewed to determine

whether it was supported by information contained in the First

Set of Copies .

29. An initial review was conducted by AHCA Program

A nalyst Theresa Mock and AHCA Registered Nurse Consultant Blanca

Notman.

30. AHCA then contracted with Larry Deeb, M.D., to conduct

a n independent "peer review" in accordance with the provision s

of Section 409.9131, Florida Statutes . Since 1980, Dr. Deeb has

been a Florida - licensed pediatric physician , certified by the

American B oard of Pediatrics , in active practice in Tallahassee .

31. AHCA provided Dr. Deeb with the First Set of Copies,

along with worksheet s containing a " [ l ] isting of [ a ] ll claims in

[ the ] sample" on which Ms. Notman had made handwritten notations

indicating h er preliminary determination as to each of the

Sample Claims (Claim s Worksheets) .

32. In conducting h is " peer review , " Dr. Deeb did not

interview any of the 40 patients in the "cluster sample," nor

did he take any other steps to supplement the inform ati on

contained in the documents that he was provided .

33. Dr. Deeb examined the First Set of Copies . He

conveyed to AHCA his findings regarding the sufficiency of these

documents to support the Sample Claims by making appropriate

handwritten notations on the Claims Worksheets before returning

them to AHCA .

34. Based on Dr. Deeb's sufficiency findings , as well as

Ms. Notman's "no documentation" determinations, AHCA

"provisional[ly]" determined that Respondent had been overpaid a

total $ 80,788.23 for the Audit Period Claims . By letter dated

July 7 , 2003 (Provisional Agency Audit Report) , AHCA advised

Petitioner of this "provisional" determination and invited

Respondent to "submit further documentation in support of the

claims identified as overpayment," a dding that "[d]ocumentation

that appear[ed] to be altered, or in any other way appear[ed]

not to be authentic , [would] not serve to reduce the

overpayment." Appended to the letter were "[t]he audit work

paper s [containing a] listing [of] the claims that [ were]

affected by this determination. "

35. In the Provisional Agency Audit Report , AHCA gave the

following explanation as to how it arrived at its overpayment

determination :

REVIEW DETERMINATION(S)

Medicaid policy defines the varying levels

of care and expertise required for the

evaluation and management procedure codes

for office visits. The documentation you

provided supports a lower level of office

visit than the one for which you billed and

received payment. The difference between

the amount you w ere paid and the correct

payment for the appropriate level of service

is considered an overpayment.

Medicaid policy specifies how medical

records must be maintained. A review of

your medical records revealed that some

services for which you billed and re ceived

payment were not documented. Medicaid

requires documentation of the services and

considers payment made for services not

appropriately documented an overpayment.

Medicaid policy addresses specific billing

requirements and procedures. You billed

M edicaid for Child Health Check Up (CHCUP)

services and office visits for the same

child on the same day. Child Health Check -

Up Providers may only bill for one visit, a

C hild Health Check - Up or a sick visit. The

difference between the amount you were paid

and the appropriate fee is considered an

overpayment.

The overpayment was calculated as follows:

A random sample of 40 recipients respecting

whom you submitted 713 claims was reviewed.

For those claims in the sample which have

dates of service from Jan uary 01, 2000

through December 31, 2001 an overpayment of

$ 4,168.00 or $ 5. 84667601 per claim was

found, as indicated on the accompanying

schedule. Since you were paid for a total

(population) of 18,102 claims for that

period, the point estimate of the tot al

overpayment is 18,102 x $5.84667601=

$105,836.33 . There is a 50 percent

probability that the overpayment to you is

that amount or more.

There was then an explanation of the "statistical formula for

cluster sampling" that AHCA used and how it "calculat ed that the

overpayment to [ Respondent was] $80,788.23 with a ninety - five

percent (95%) probability that it [was] that amount or more."

36. After receiving the Provisional Agency Audit Report,

Respondent requested to meet with Dr. Deeb to discuss Dr. De eb's

sufficiency findings.

37. The meeting was held on September 25 , 2003 ,

approximately six months after Dr. Deeb had reviewed the First

Set of Copies and a year after AHCA had received the First Set

of Copies from Respondent. At the meeting, Respondent presented

to Dr. Deeb what Respondent represented was a better set of

copies of the Copied Ori ginals than the First Set of Copies ( on

which Dr. Deeb had based the sufficiency findings AHCA relied on

in making its "provisional" overpayment determination ) .

According to Respondent, the First Set of Copies "had not been

properly Xeroxed." He stated that his office staff "had not

copied the back section of the documentation and that was one of

the major factors in the documentation not supporting the

[claimed ] level of service."

38. The copies that Respondent produced at this meeting

(Second Set of Copies) had additional h andwritten entries and

writing (both on the backs and fronts of pages) not found in the

First Set of Copies : t he backs of "progress note" pages that

were completely blank in the First Set of Copies contained

handwritten narratives , and there were handwritten entries and

writing i n numerous places on t he fronts of these pages where ,

on the fronts of the corresponding pages in the First Set of

Copies , just blank , printed lines appeared (with no other

discernible markings) .

39. The Second Set of Copies was not appreciably clearer

than the First Set of Copies.

40. In the two hours that he had set aside to meet with

Respondent, Dr. Deeb only had time to conduct a "quick[],"

partial review of the Second Set of Copies . Based on this

review (which involved looking at documents concerning

approximately half of the 40 patients in the "cluster sample" ),

Dr. Deeb preliminarily determined to "allow " many o f the Sample

Claims relating to these patients that he had previously

determined (based on his review of the First Set of Copies) were

not supported by sufficient documentation.

41. Following this September 25, 2003, me e ting, after

comparing the Se cond Set of Copies with the First Set of Copies

and noting the differences between the two, AHCA "made the

decision that [it] would not accep t the [S]econd [S]et [of

Copies] " bec ause these documents contained entries and writing

that appeared to have been made , not contemporaneously with the

provision of the goods or services they purport ed to document

(as required) , but rather after the post - Audit Period

preparation of the First Set of Copies . Instead, AHCA ,

reasonably, based its finalized overpayment det ermination on the

First Set of Copies.

42. Thereafter, AHCA prepared and sent to Respondent a

Final Agency Audit Report , which was in the form of a letter

dated June 29 , 2004, advising Respondent that AHCA had finalized

the "provisional" determination an nounced in the Provisional

Agency Audit that he had been overpaid $80,788.23 for the Audit

Period Claims (a determination that the preponderance of the

record evidence in this case establishes is a correct one) .

CONCLUSIONS OF LAW

43. AHCA is statutorily charged with the responsibility of

"operat[ing] 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 exte nt possible, and to recover

overpayments[ 7 ] and impose sanctions as appropriate."

§ 409.913(1), Fla. Stat.

44. "Overpayment," as that term is used in Section

409.913, Florida Statutes, "includes any amount that is not

authorized to be paid by the Medi caid program whether paid as a

result of inaccurate or improper cost reporting, improper

claiming, unacceptable practices, fraud, abuse, or mistake."

§ 409.913(1)(e), Fla. Stat. " [T]he plain meaning of the statute

dictates that it is within the AHCA's p ower to demand repayment"

of such monies, regardless of the circumstances that produced

the unauthorized payment, provided the overpayment is not

" attributable to error of [AHCA] in the determination of

eligibility of a recipient. " Colonnade Medical Cente r, Inc. v.

State, Agency for Health Care Administration , 847 So. 2d 540,

541 - 42 (Fla. 4th DCA 2003); § 409.907(5)(b), Fla. Stat. ; and

§ 409. 913(11), Fla. Stat.

45. Payments are " not authorized " to be made by the

Medicaid program where the provider has no t complied with the

provisions of Section 409.913 ( 7 ) , Florida Statutes , which , a t

all times material to the instant case , has provided as follows:

When presenting a claim for payment under

the Medicaid program, a provider has an

affirmative duty to supervi se 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 f or goods and services that:

(a) Have actually been furnished to the

recipient by the provider prior to

submitting the claim.

(b) Are Medicaid - covered goods or services

that a re medically necessary.

(c) Are of a quality comparable to those

furnished to the general publ ic b y the

provider's peers.

(d) Have not been billed in whole or in

part to a recipient or a recipient's

responsible party, except for such

copayments, coinsurance, or deductibles as

ar e authorized by the agency.

(e) Are provided in accord with applicable

provisions of all Medicaid rules,

regulations, handbooks, and policies and in

accordance with fed eral, 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

g oods 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 t he recipient's

medical record. [ 8 ]

The agency may deny paymen t or require

repayment for goods or services that are not

presented as required in this subsection.

46. To enable AHCA to ascertain whether paid - for good s and

services have been appropriately documented and otherwise meet

the requirements of Section 409. 913(7), Florida Statute s, the

Legislature has, pursuant to Section 409.907 (3) , Florida

Statutes, at all times material to the instant case , required

providers to , among other things, "[m]aintain in a systematic

and orderly manner all medical and Medicaid - r elated records that

the agency requires and determines are relevant to the services

or goods being provided"; "[r]etain all medical and Medicaid -

related records for a period of 5 years to satisfy all necessary

inquiries by the agency "; and permit AHCA "acc ess to all

Medicaid - related information, which may be in the form of

records, logs, documents, or computer files, and other

information pertaining to services or goods billed to the

Medicaid program, including access to all patient records and

other provid er information if the provider cannot easily

separate records for Medicaid patients from other records ."

47. In the instant case, AHCA is seeking to recover

$80,788.23 in Medicaid overpayments allegedly made to Respondent

for physician services Respondent claimed he rendered during the

Audit Period.

48. Section 409.913 (21) , Florida Statutes, requires that

AHCA, "[w]hen making a determination tha t an overpayment has

occurred, prepare and issue an audit report to the provider

showing the calculation of over payments." Before " formal

proceedings are initiated" on any such overpayment determination

involving " physician service claims , " AHCA must, pursuant to

Section 409.9131 (5)(b) , Florida Statutes, "[ r]efer all [such]

claims for peer review when [its] prelimi nary analysis indicates

that an evaluation of the medical necessity, appropriateness,

and quality of care needs to be undertaken to determine a

potential overpayment."

49. "Peer review," as that term is used in Section

409.9131(5), F lorida Statutes, is d efined in S ubsection (2)(d)

of the statute as " an evaluation of the professional practices

of a Medicaid physician provider by a peer or peers in order to

assess the medical necessity, appropriateness, and quality of

care provided, as such care is compared to that customarily

furnished by the physician's peers and to recognized health care

standards, and, in cases involving determination of medical

necessity, to determine whether the documentation in the

physician's records is adequate."

50. "Peer," as tha t term is used in Section 409.9131(5),

F lorida Statutes, is defined in S ubsection (2)(c) of the statute

as " a Florida licensed physician who is, to the maximum extent

possible, of the same specialty or subspecialty, licensed under

the same chapter, and in active practice."

51. "Active practice," as that term is used in Section

409.9131 (5), F lorida Statutes, is defined in S ubsection (2)(a)

of the statute to mean that " a physician must have regularly

provided medical care and treatment to patients within th e past

2 years."

52. Dr. Deeb is Respondent 's "peer," as that term is used

in Section 409.9131 (5), Florida Statutes.

53. A Medicaid provider who is the subject of an audit

report that reveals an overpayment is entitled to an

administrative hearing pursu ant to Chapter 120, Florida

Statutes, before AHCA takes final agency action ordering

repayment.

54. At any such hearing, AHCA has the burden of

establishing, by a preponderance of the evidence, that Medicaid

overpayments in the amount it is seeking to rec oup were made to

the provider. See South Medical Services, Inc. v. Agency for

Health Care Administration , 653 So. 2d 440, 441 (Fla. 3d DCA

1995); Southpointe Pharmacy v. Department of Health and

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

1 992); Florida Department of Transportation v. J. W. C. Co.,

Inc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981); Florida

Department of Health and Rehabilitative Services, Division of

Health v. Career Service Commission , 289 So. 2d 412, 415 (Fla.

4th DCA 1974); a nd Full Health Care, Inc. v. Agency for Health

Care Administration , No. 00 - 4441, slip op . at 18 (Fla. DOAH

June 25, 2001)(Recommended Order) , adopt ed in toto , (AHCA

September 28 , 2001) .

55. At all material times to the instant case , Section

409.913 , Flori da Statutes, has provided that "[t] he audit

report, supported by agency work papers, showing an overpayment

to a provider constitutes evidence of the overpayment. " It has

been said that this language enables AHCA to "make a prima facie

case without doing any heavy lifting: it need only proffer a

properly - supported audit report, which must be received in

evidence." Full Health Care , slip op . at 19; see also Agency

for Health Care Administration v Orietta Medical Equipment,

Inc. , No. 05 - 0873MPI, 2006 Fla. Div. Adm. Hear. LEXIS 555 *11

(Fla. DOAH December 1, 2006)(Recommended Order) , adopted in

toto , (AHCA December 22, 2006 ) ("It is concluded that the

Legislature has determined that the audit reports in these

matters may be considered evidence of the overpaym ent. As such,

the Agency met its prima facie burden to establish the

overpayment and the amount claimed to be due. "); The Children's

Office, Inc. v. Agency for Health Care Administration , No. 05 -

0807MPI, 2006 Fla. Div. Adm. Hear. LEXIS 43 *32 (Fla. DOAH

February 3, 2006)(Recommended Order) , adopted in toto , (AHCA

December 22, 2006) ("[T]he Agency can make a prima facie case

merely by proffering a properly supported audit report, which

must be received in evidence.") ; Lee v. Agency for Health Care

Administr ation , No. 03 - 2251MPI, 2004 Fla. Div. Adm. Hear. LEXIS

2444 *77 (Fla. DOAH December 9, 2004) (Recommended

Order) ("[A]lthough it has the ultimate burden of persuasion by

the greater weight of the evidence, AHCA can make a prima facie

case of overpayment thro ugh the introduction into evidence of

the audit report; the provider is then required to respond by

producing evidence to support its Medicaid claims.") ; Choice s in

Support and Services, Inc. v. Agency for Health Care

Administration , No. 01 - 1977MPI, 2003 F la. Div. Adm. Hear. LEXIS

207 *19 (Fla. DOAH March 13, 2003) (Recommended Order) , adopted

in toto , (AHCA August 1, 2003 ) (" The evidence submitted by the

agency, with the benefit of the provisions of Section

409.913(21), Florida Statutes, [ 9 ] is sufficient to present a

prima facie case ."); Lifeline Pharmacy, Inc. v. Agency For

Health Care Administration , No. 01 - 2153MPI , 2002 Fla. Div. Adm.

Hear. LEXIS 156 *16 (Fla. DOAH March 8, 2002 ) (Recommended

Order) , adopted in toto , (AHCA April 11, 2002) ("[T]he Agency can

make a prima facie case by merely proffering a properly

supported audit report, which must be received in evidence.") ;

and Maz Pharmaceuticals, Inc., d/b/a Maz Pharmacy v. Agency For

Health Care Administration , No . 97 - 3791 , 1998 Fla. Div. Adm.

Hear. LEXIS 6245 *6 - 7 (Fla. DOAH March 20, 1998 ) (Recommended

Order) , adopted in toto , (AHCA June 26, 1998) ("Section

409.913(21), Florida Statutes, provides, in part, that: 'The

audit report, supported by agency work papers, showing an

overpayment to a provider const itutes evidence of the

overpayment.' Petitioner argues that this provision means the

documents relied on for all of the agency's testimony may be

admitted in evidence but then must be ignored. Such a

construction would render meaningless the language con tained in

Section 409.913(21) and would be contrary to the normal rules of

statutory construction. Since the Legislature determined that

the audit report and work papers constitute evidence which must

be considered, the Agency presented a prima facie case , which

Petitioner chose not to rebut. "). 10 Consistent with the

provision s of Section 409.913, Florida Statutes, Section

409.9131(5)(a), Florida Statutes, at all material times to the

instant case , has provided that, "[i]n meeting its burden of

proof in an y administrative or court proceeding [involving

physician service claims] , [AHCA] may introduce the results of

[the] statistical methods [described in the statute] and its

other audit findings as evidence of overpayment.").

56. "[O] nce [AHCA] has put on a prima facie case of

overpayment ---- which may involve no more 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 [AHCA's] statutorily - authori zed evidence;

it cannot simply present witnesses to say that [AHCA] lacks

evidence or is mistaken." 11 Full Health Care , slip op. at 19 - 20.

57. In the instant case, a t the administrative hearing

that Respondent requested and was granted , AHCA met its burd en

of proving, by a preponderance of the evidence, that Respondent

received $80,788.23 in Medicaid overpayments .

58. While it presented other evidence (most notably, the

unrebutted , credible deposition testimony of Dr. Deeb, the "peer

reviewer," concerni ng the sufficiency of the First Set of Copies

to support the Sample Claims), t he Final Agency Audit Report and

supporting audit work papers 12 alone , pursuant to Section

409.913 , Florida Statutes , established a prima facie case of

overpayment in the amount o f $80,788.23 , 13 which Respondent,

through the presentation of his evidence, failed to overcome.

59. In his evidentiary presentation, Respondent made no

effort to establish that the First Set of Copies supported the

Sample Claims AHCA found not to have been appropriately

documented . Rather, he attempted to show that the First Set of

Copies (which his office had copied and sent AHCA) was a product

of "bad photocopying" and that AHCA should have based its audit

findings, not on the First Set of Copies, but in stead on the

Second Set of Copies, which, according to Respondent, unlike the

First Set of Copies , contained true, accurate, and complete

copies of the Copied Originals.

60. In his attempt to make such a showing, Respondent

offered only his own testimony, plus a single exhibit , a receipt

from Professional Office Systems, Inc., reflecting that he had a

photocopier serviced on September 15, 2003 . 14

61. Respondent's testimony was at times equivocal ,

unclear, and confusing , even seemingly self - contradictory .

Overall, it was unpersuasive.

62. In his testimony (as the undersigned understands it) ,

Respondent told the following story about the copying of the

Copied Originals : AHCA personnel visited his office and told

him about the audit; the First Set of Co pies was subsequently

made , while he was on a two - week vacation, by his office

manager , using a seven - year old photocopier (Old Photocopier )

which , at the time, as he was aware, was producing "poor

copies" ; because a "bad photocopier" was used, the First S et of

Copies did not "contain everything that was on the [front pages

of the Copied Originals ] " ; and to remedy the situation, after

having the Old Photocopier serviced thre e or four times and

ultimately purchasing a new photocopier, he had the Second Set

o f Copies made. 15 Why Respondent would allow his office manager

to use a "bad photocopier" that he knew produced "poor copies"

to copy the Copied Originals and why he would wait as long as he

did to let AHCA know of the "flaws" in the First Set of Copies

an d to provide AHCA with the Second Set of Copies 16 are questions

that Respondent's testimony leaves unanswered.

63. To corroborate his testimony, Respondent did not

produce his office manager, the person or persons who serviced

the Old Photocopier, a photoc opying expert, or any other

witness ; nor did he offer the originals of any of his medical

records . His lone effort at corroboration was o ffering the

aforementioned Professional Office Systems receipt . This

receipt, however, was for a service visit on Sep tember 15, 2003,

which was approximately a year after the First Set of Copies was

made. It is also worthy of note that the receipt indicates that

the "c ustomer['s]" complaint was, " copies are bad and

unreadable , " and i t makes no mention of any copies "mis sing

parts" of the original, which, according to Respondent's

testimony, was the problem plaguing the First Set of Copies.

64. In short, Respondent has failed to convince the

undersigned that the First Set of Copies is anything other than

what Responde nt's office initially represented it to be: a

true, accurate, and complete set of copies of the Copied

Originals. The Second Set of Copies does contain handwritten

entries and writing not found in the First Set of Copies

(Additional Documentation) . How ever, based on the undersigned's

consideration and evaluation of the record evidence, including,

most significantly, his observations upon making a visual

comparison between those portions of the Second Set of Copies

where the Additional Documentation appe ars and those

corresponding portions of the First Set of Copies , he finds it

more likely than not that the Additional Documentation was not

included in the Copied Originals , but rather was created

sometime after the First Set of Copies was made . Because t his

Additional D ocumentation has not been shown to have been " made

at the time the goods or services [to which it refers] were

provided ," it cannot be relied on to support any of the Sample

Claims. To hold otherwise would render meaningless the clear

and unambiguous statutory language imposing this contemporaneous

documentation requirement upon reimbursement - seeking Medicaid

providers like Respondent . See State v. Goode , 830 So. 2d 817,

824 (Fla. 2002) (" [A] basic rule of statutory construction

provides th at the Legislature does not intend to enact useless

provisions, and courts should avoid readings that would render

part of a statute meaningless."); and Florida Department of

Education v. Cooper , 858 So. 2d 394, 396 (Fla. 1st DCA

2003)("[C]ourts should not construe a statute so as to render

any term meaningless.").

65. Respondent's not having overcome AHCA's prima facie

showing of overpayment, AHCA should enter a final order finding

that Respondent was overpaid a total of $80,788.23 for the Audit

Period Cl aims . 17 Were AHCA to do otherwise it would be acting in

derogation of its statutory responsibility, under Section

409.913, Florida Statutes, to exercise oversight of the

integrity of Florida's Medicaid program.

66. Upon enteri ng such a final order, AHCA will be

entitled to recover " investigative, legal, and expert witness

costs" pursuant to Section 40 9.913(23), Florida Statutes. 18

Should there arise a dispute of a factual nature regarding the

amount of costs that can be recovered, Respondent may timely

r equest an administrative hearing on the matter. Should AHCA

determine that the petition requesting the hearing is sufficient

and raises disputed issues of material fact, AHCA may then refer

the matter to DOAH for the assignment of an administrative law

ju dge to conduct the requested hearing and issue a recommended

order. See Agency for Health Care Administration v. Brown

Pharmacy , No. 05 - 3366MPI, 2006 Fla. Div. Adm. Hear. LEXIS 515

*59 (Fla. DOAH November 3, 2006)(Recommended Order) , adopted in

pertinent part, (AHCA December 22, 2006) ("[A]ny claim for costs

may be raised once it is determined that the Petitioner has

prevailed in this case, whereupon, if it should attempt to

assess them against the Respondent, the Respondent would have

the opportunity, by s eparate proceeding, to contest the matter

before the Division of Administrative Hearings."); Lepley v.

Agency for Health Care Administration , No. 04 - 3025MPI, 2004 Fla.

Div. Adm. Hear. LEXIS 2528 *30 (Fla. DOAH December 14,

2004)(Recommended Order) , adopted in toto , (AHCA June 10,

2005) ("Respondent, once it has 'ultimately prevailed' in this

case, may then determine the amount of its costs and assess them

against Petitioner. Should Petitioner dispute Respondent's

determination and raise disputed issues of m aterial fact, the

matter may then be referred by Respondent to the Division of

Administrative Hearings."); and Meji, Inc. v. Agency for Health

Care Administration , No. 03 - 1195MPI, slip op. at 10 (Fla. DOAH

July 15, 2003)(Recommended Order) , adopted in toto , (AHCA

October 21, 2003 ) ("[T]he Agency, once it has 'ultimately

prevailed' in this case, may then determine the amount of its

costs associated with this matter and assess those costs against

Meji. Should Meji dispute the Agency's determination and raise

disputed issues of material fact, the matter may then be

referred by the Agency to the Division for hearing.").

67. Not only is AHCA seeking to recover the $80,788.23 in

overpayments Respondent received, as well as the "investigative,

legal, and expert wi tness costs" it has incurred, it also seeks

(according to the Final Agency Audit Report) to impose a

"sanction" on Respondent: subjecting Respondent to "a

comprehensive follow - up review in six months."

68. Although AHCA now has the authority, pursuant to

Section 409.913(16)(h), Florida Statutes, to "sanction"

providers by ordering " [c]omprehensive followup reviews . . .

every 6 months to ensure that they are billing Medicaid

correctly," it was not authorized to impose this "sanction"

until June 7, 2002, the effective date of Chapter 2002 - 400, Laws

of Florida, the legislative enactment which added to Section

409.913 the language now found in Subsection (16)(h) of the

statute.

69. Since the wrongdoing alleged in the instant case

occurred prior to June 7 , 2002, AHCA may not "sanction"

Respondent for engaging in such wrongdoing by ordering a

" comprehensive follow - up review in six months." See Willner v.

Department of Professional Regulation, Board of Medicine , 563

So. 2d 805, 806 (Fla. 1st DCA 1990) (" [A]p pellant argues that the

fines imposed against him are in violation of the ex post facto

provisions of the state and federal constitutions. We agree.

In 1986, Section 458.331(2)(d), Florida Statutes, was amended to

increase the amount of the maximum admin istrative fine which

could be assessed by appellee for violations of Section

458.331(1), Florida Statutes. The 1986 amendment increased the

maximum fine from $1,000 per violation to $5,000 per violation.

Since all the violations for which appellant was f ound guilty

occurred prior to the effective date of the 1986 amendment, the

maximum fine which could lawfully be imposed by appellee was

$1,000 per violation.")(citation omitted); and Baker v. State ,

499 So. 2d 15, 16 (Fla. 2d DCA 1986)("Appellant argues t hat the

order requiring him to pay costs violated the constitutional

prohibition against ex post facto laws (U.S. Const. art. I, § 9;

Fla. Consti. Art. I, § 10), since it imposed a penalty that was

not in effect at the time that appellant committed the

of fense. . . . Appellant's crime occurred on June 25, 1985, and

the section under which appellant was ordered to pay costs

(section 27.3455, Florida Statutes (1985)) became effective on

July 1, 1985. We agree . . . that the imposition of costs here

pursuan t to section 27.3455 violated the constitutional

prohibition against ex post facto laws and is, as such,

invalid.")(citation omitted).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that AHCA ent er a final order finding that

Respondent received $80,788.23 in Medicaid overpayments for the

Audit Period Claims , and requiring Respondent to repay this

amount to AHCA.

DONE AND ENTERED this 30th day of April, 2007 , in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

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 30th day of April, 2007 .

ENDNOTES

1 Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to Florida Statutes (2006).

2 Petitioner's Exhibit 27 is the deposition of Larry Deeb, M.D.,

taken March 16, 2005, and Oc tober 25, 2006. It was offered and

received into evidence, over objection, in lieu of Dr. Deeb's

live testimony at hearing. In urging its admissibility, AHCA's

counsel stated that Dr. Deeb's deposition was being offered only

for the purpose of showing th e inadequacy of the " first set of

records [Respondent provided AHCA]" to support Respondent's

Audit Period Medicaid billings and that it was not being offered

to demonstrate when the additional entries on the "second set of

records" were made. The deposit ion was received into evidence

for the purpose offered.

3 The amount of time that the parties requested for the filing

of proposed recommended orders was, in the view of the

undersigned, not unreasonably excessive, given the voluminous

nature of the exhi bits received into evidence.

4 The undersigned has accepted these factual stipulations. See

Columbia Bank for Cooperatives v. Okeelanta Sugar Cooperative ,

52 So. 2d 670, 673 (Fla. 1951) (" When a case is tried upon

stipulated facts the stipulation is co nclusive upon both the

trial and appellate courts in respect to matters which may

validly be made the subject of stipulation . "); Schrimsher v.

School Board of Palm Beach County , 694 So. 2d 856, 863 (Fla. 4th

DCA 1997) (" The hearing officer is bound by the p arties'

stipulations."); and Palm Beach Community College v. Department

of Administration, Division of Retirement , 579 So. 2d 300, 302

(Fla. 4th DCA 1991)("When the parties agree that a case is to be

tried upon stipulated facts, the stipulation is binding not only

upon the parties but also upon the trial and reviewing courts.

In addition, no other or different facts will be presumed to

exist.").

5 The term "medically necessary" was defined in Appendix D of

the MPR Handbook, in pertinent part, as follows:

Medically Necessary or Medical Necessity

Means that the medical or allied care,

goods, or services furnished or ordered

must:

(a) Meet the following conditions:

1. Be necessary to protect life, to prevent

significant illness or significant

disabilit y, or to alleviate severe pain;

2. Be individualized, specific, and

consistent with symptoms or confirmed

diagnosis of the illness or injury under

treatment, and not in excess of the

patient's needs;

3. Be consistent with generally accepted

professiona l medical standards as determined

by the Medicaid program, and not

experimental or investigational;

4. Be reflective of the level of service

that can be safely furnished, and for which

no equally effective and more conservative

or less costly treatment i s available

statewide; and

5. Be furnished in a manner not primarily

intended for the convenience of the

recipient, the recipient's caretaker, or the

provider.

* * *

(c) The fact that a provider has

prescribed, recommended, o r approved medical

or allied care, goods, or services does not,

in itself, make such care, goods or services

medically necessary or a medical necessity

or a covered service.

6 In taking such action, AHCA was exercising its statutory

authority under Secti on 409.913(2), Florida Statutes, to

"conduct . . . audits . . . to determine possible . . .

overpayment . . . in the Medicaid program."

7 "The Medicaid program provides reimbursement to service

providers on a 'pay - and - chase' basis. In other words, cla ims

are paid initially subjec t to preliminary review. [AHCA] or its

agent may later subject these claims to closer scrutiny during

periodic audits. If overpayments are found, [AHCA] obtains

reimbursement from the service provider." Agency for Health

Car e Administration v. Cabrera , No. 92 - 1898, 1994 Fla. Div. Adm.

Hear. LEXIS 5127 *3 (Fla. DOAH January 24, 1994)(Recommended

Order).

8 To meet this requirement, the provider's records must be

legible and comprehensible. Cf . Tsoutsouris v. Shalala , 977 F.

Supp. 899, 905 (N.D. Ind. 1997)("Dr. Freeman stated that

although Dr. Tsoutsouris' medical records alone would not enable

a third party to make a determination that medical necessity

existed in the cases of Hazel Kershaw and Emma MacIntosh,

Dr. Tsoutsouris ' testimony deciphering his illegible handwriting

and explaining his abbreviations and 'as above' references would

permit a determination of medical necessity. . . . However, as

in the cases of Mr. Walker and Mrs. Potts, this conclusion does

not compel a finding of medical necessity because the issue that

the ALJ was reviewing was whether Dr. Tsoutsouris provided

sufficient documentation for a third party to find that the

appropriate medical necessity existed to enable payment of

Dr. Tsoutsouris' claims.") .

9 Effective July 1, 2004 , Section 409.913(21), Florida Statutes,

was renumbered Section 409.013(22), Florida Statutes (but not

otherwise changed) . See Ch. 2004 - 344, §§ 6 and 34 , Laws of Fla.

10 That the Legislature has amended Section 409.913, Florid a

Statutes, but has left unchanged the language therein that AHCA,

since prior to these amendments, has interpreted as enabling it

to make a prima facie showing of overpayment by merely offering

its audit report and supporting audit work papers, suggests t hat

the Legislature approves of this interpretation. See State ex

rel. Szabo Food Services, Inc. v. Dickinson , 286 So. 2d 529, 531

(Fla. 1973)("When the Legislature reenacts a statute , it is

presumed to know and adopt the construction placed thereon by

th e State tax administrators."); Cole Vision Corp. v. Department

of Business and Professional Regulation , Board of Optometry , 688

So. 2d 404, 408 (Fla. 1st DCA 1997 )(" When the legislature

reenacts a statute, it is presumed to know and adopt the

construction of the statute by the agency responsible for its

administration except to the extent that the new statute differs

from prior constructions. "); and Lanoue v. Department of Law

Enforcement , No. 98 - 4571RX, 2000 Fla. Div. Adm. Hear. LEXIS 4899

*56 (Fla. DOAH M ay 23, 2000)(Final Order)(citations

omitted)("FDLE adopted Rule 11D - 8.002(1), Florida Administrative

Code, in 1997 prior to the most recent amendment of the statutes

in 1998. Therefore, the Legislature is presumed to have adopted

the Department's interpre tation of Sections 316.1932(1)(b)2. and

316.1932(1)(f)1., Florida Statutes. ").

11 " [O]bligat[ing] [a provider] to come forward with written

proof to rebut, impeach, or otherwise undermine [AHCA's]

statutorily - authorized evidence" of overpayment is not an

unreasonable burden to place on the provider. See Illinois

Physicians Union v. Miller , 675 F.2d 151, 158 (7th Cir.

1982)("We see nothing arbitrary or capricious about requiring

physicians who are benefiting from the [Medicaid] program to

bear this burden , particularly when the state has already borne

the cost of the initial audit and the evidence to rebut that

initial determination is uniquely within the physician's

control.").

12 These supporting audit work papers are found in Petitioner's

Exhibit 31, u nder the "Original Submission" cover sheets.

13 Although, in his Proposed Recommended Order, Respondent

decries AHCA's failure to "call Ms. Notman as a witness" and to

elicit more specific and detailed testimony from Dr. Deeb

concerning his findings, AHCA did not need to present this

additional evidence to make a prima facie case.

14 The Second Set of Copies is part of the evidentiary record,

but it was offered into evidence by AHCA, not Respondent.

15 Respondent initially suggested in his testimony (on page 66

of the Transcript) that the Second Set of Copies was made with

the Old Photocopier after "they [had] added the ink to it." He

later testified, however (on pages 93, 94, and 95 of the

Transcript), that the new copier was used to make the Second Se t

of Copies.

16 The timing is certainly suspicious: Respondent took these

steps only after having received the July 7, 2003, Provisional

Agency Audit Report advising him of the deficiencies found by

AHCA in the documentation contained in the First Set of Copies.

17 Section 409.913(25)(c), Florida Statutes, contains the

following provisions regarding the repayment of overpayments

AHCA has determined to have been made to a provider:

Overpayments owed to the agency bear

interest at the rate of 10 percent per year

from the date of determination of the

overpayment by the agency, and payment

arrangements must be made at the conclusion

of legal proceedings. A provider who does

not enter into or adhere to an agreed - upon

repayment schedule may be terminated by the

agency for nonpayment or partial payment.

18 The version of the statute in effect during the Audit Period

capped the amount of "investigative, legal, and expert witness

costs" AHCA could recover upon establishing the correctness of

its audit findings at $15,000.00. The current version of the

statute, which has been in effect since January 1, 2002, allows

AHCA to recover "all" of its "investigative, legal, and expert

witness costs." See Ch. 2001 - 377, §§ 12 and 21 , Laws of Fla.

COPIES FURNISHED :

Tracie L. Wilk s, Esquire

Jeffries H. Duvall, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 - 5403

Patrick A. Scott, Esquire

2800 Miami Center

201 South Biscayne Boulevard

Miami, Florida 33131 - 4330

Craig H. Smith , General Counsel

Agency for Health Care Administ ration

Fort Knox Building, Suite 3431

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

Andrew C. Agwunobi , Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

N OTICE OF RIG HT TO SUBMIT EXCEPTI ONS

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.