07-002462MPI Agency For Health Care Administration vs. Ana M. Elosegui, M.D. Status: Closed Recommended Order on Tuesday, April 1, 2008.

Summary: Recoup of overpayment is established where the Respondent showed that the physicians are not entitled to bill for global service when they only performed technical component of the item.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 07-2195MPI

)

LAZARO N. PLASENCIA, M.D., )

)

Respondent. )

_________________________________)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 07-2462MPI

)

ANA M. ELOSEGUI, M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on

December 17, 2007, in Tallahassee, Florida, before J. D. Parrish,

a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: L. William Porter, II, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Building 3

Tallahassee, Florida 32308-5403

For Respondent: Robert N. Nicholson, Esquire

Broad and Cassel

Post Office Box 14010

Fort Lauderdale, Florida 33302-14010

STATEMENT OF THE ISSUE

Whether the Respondents were overpaid by Medicaid for

radiology and nuclear medicine services provided to Florida

Medicaid patients. The Agency for Health Care Administration

(AHCA, Agency or Petitioner) asserts that the Respondents, Lazaro

N. Plasencia, M.D., and Ana M. Elosegui, M.D., billed Medicaid

for procedures they did not perform in violation of Medicaid

policy, the Florida Administrative Code, and Florida Statutes.

The Respondents maintain that because of ambiguities in Medicaid

policy regarding reimbursement protocols for the radiology

services at issue, the Respondents mistakenly believed in good

faith that under the applicable Medicaid regulations and

guidelines, Medicaid would reimburse the "maximum" fee allowable

under the relevant fee schedule. The Respondents acknowledge

that the "professional component" of the radiology services at

issue was provided by a third-party physician specialist. The

Respondents further assert that they are entitled to, at the

minimum, payment of the "technical component" of the medically

necessary radiological services that they provided to Medicaid

recipients. The Petitioner seeks reimbursement from

Dr. Plasencia in the amount of $196,129.52 and $122,065.08 from

Dr. Elosegui.

PRELIMINARY STATEMENT

On January 9, 2007, the Agency referred DOAH Case No.

07-2195MPI to the Division of Administrative Hearings. That case

related to the Medicaid billing attributable to the Respondent,

Dr. Plasencia. The case against Dr. Elosegui, DOAH Case No.

07-0102MPI, was also opened on January 9, 2007. In

Dr. Elosegui's case, however, the case was closed and

jurisdiction relinquished to the Agency on or about March 15,

2007. When additional audit efforts did not resolve the issue of

Medicaid over payment, Dr. Elosegui's case was reopened as DOAH

Case No. 07-2462MPI on June 1, 2007. The cases were consolidated

for final hearing on November 11, 2007. The Respondents are

Medicaid providers and in the regular course of doing business

were audited by the Agency regarding their Medicaid claims. The

audit period pertinent to Dr. Plasencia is July 1, 2001 through

December 31, 2005. The pertinent period for Dr. Elosegui is

October 11, 2002 through December 31, 2005.

At the hearing, the Petitioner presented evidence from Ouida

Mazzoccoli, a program administrator at the Agency; and Vicki

Stiles, an investigator for Medicaid Program Integrity. The

Petitioner's Exhibits 1 through 20 (Plasencia) and Petitioner's

Exhibits 1 through 19 (Elosegui) were admitted into evidence.

Petitioner's Exhibits 12-A and 12-B were also received in

evidence. The Respondents presented no evidence.

The Transcript of the proceeding was filed on January 4, 2008. A

Joint Motion for Enlargement of Time was granted by order entered

on January 23, 2008, and the parties were granted leave until

February 25, 2008, to file their proposed recommended orders.

The parties' Proposed Recommended Orders have been fully

considered in the preparation of this Recommended Order. Also,

pertinent stipulated facts set forth in the parties’ Prehearing

Stipulation are incorporated below.

FINDINGS OF FACT

1. The Petitioner is the state agency charged with the

responsibility of monitoring the Medicaid Program in Florida.

2. At all times material to the allegations of DOAH Case

No. 07-2195MPI, the Respondent, Dr. Plasencia, was a licensed

medical doctor in good standing with the State of Florida,

license #ME49315, and was also a Medicaid provider, #0448125-00.

3. Similarly, at all times material to the allegations of

DOAH Case No. 07-2462MPI, the Respondent, Dr. Elosegui, was a

licensed medical doctor in good standing with the State of

Florida, license #ME85963, and was also a Medicaid provider,

#2654636-00.

4. Drs. Elosegui and Plasencia practiced medicine together

in a shared office space in Miami, Florida.

5. The Respondents were not members of a "group practice."

The Respondents were individual providers who billed Medicaid

separately, using their individual Medicaid provider numbers.

The doctors performed services for Medicaid recipients and

submitted the charges for those services to Medicaid.

6. Medicaid has a "pay and chase" policy of paying Medicaid

claims as submitted by providers. Audits performed by the Agency

then, after-the-fact, reconcile the amounts paid to providers

with the amounts that were payable under the Medicaid guidelines

and pertinent rules. If more is paid to the provider than

allowable, a recoupment against the provider is sought.

7. In these cases, the Respondents conducted (or

supervised) various tests including "Radiological and Nuclear

Medicine" services for Florida Medicaid patients in a shared

office setting. The services at issue in these cases were billed

under the CPT procedure codes of series 70000 and 90000.

8. The Petitioner has not challenged any procedure at issue

as not "medically necessary."

9. Moreover, the Petitioner does not dispute that the

Respondents performed or supervised the "technical component" of

the universe of the radiological services at issue.

10. The "professional component" for the universe of the

radiological services at issue in this proceeding was outsourced

to third-party physicians. The Respondents contracted with the

outside third-party physicians for the "professional component"

services to read and interprete the radiological product. These

third party physicians were not Medicaid providers, nor were they

part of a Medicaid group provider that included the Respondents.

11. When billing for the radiological services, the

Respondents billed Medicaid for both the "technical" and

"professional" components using the "maximum" fee set forth in

the Fee Schedule. The Respondents knew or should have known that

they had not performed a global service as they never performed

or supervised the "professional" component of the services

billed.

12. The Petitioner performed an audit of the radiological

claims for Dr. Plasencia for the dates of service July 1, 2001

through December 31, 2005.

13. On December 1, 2006, the Petitioner issued a Final

Audit Report that concluded Dr. Plasencia had been overpaid

$196,129.52. Additionally, the Petitioner sought an

administrative fine against Dr. Plasencia in the amount of

$1,000.00.

14. Similarly, the Petitioner performed an audit of the

radiological claims submitted by Dr. Elosegui for the dates of

service October 11, 2002 through December 31, 2005.

15. On December 1, 2006, the Petitioner issued a Final

Audit Report that concluded Dr. Elosegui had been overpaid

$122,065.08. The Petitioner also sought an administrative fine

against Dr. Elosegui in the amount of $1,000.00.

16. In January 2005, the Fee Schedule applicable to CPT

90000 procedure code services was revised. The Fee Schedule

specified a reimbursement amount for the "technical" component of

the radiological services in the CPT 90000 code set. Prior to

that time, there had been no reimbursable amount for the

"technical component" performed separately from the "professional

component."

17. The Medicaid provider agreements executed between the

parties govern the contractual relationships between these

providers and the Agency. The parties do not dispute that those

provider agreements, together with the pertinent laws or

regulations, control the billing and reimbursement claims that

remain at issue. The amounts, if any, that were overpaid were

related solely to the radiological services billed under a global

or inclusive manner that included the "professional" component

within the amount claimed to be owed by Medicaid.

18. The provider agreements pertinent to these cases are

voluntary agreements between AHCA and the Respondents.

19. The Fee Schedule adopted by the Petitioner dictates the

code and reimbursement amounts authorized to be billed pursuant

to the provider agreement.

20. The Respondents performed or supervised the "technical

components" for the radiological services billed to Medicaid.

The Respondents did not perform the "professional component."

21. For all of the 70000 series billing codes the

components can be split and the "technical component" can be

identified and paid separately. For these billing codes, the

Respondents were given (or paid for) the "technical component" of

the 70000 codes.

22. Similarly, for the 90000 billing codes, for the

"technical component" portion where it was identifiable and

allowable, the Petitioner gave the Respondents credit for that

amount.

23. The "technical component" for the 90000 billing codes

was not identifiable or allowable prior to 2005.

24. Prior to the amendment to the Fee Schedule the 90000

billing codes were presumed to be performed in a global manner;

i.e. the "professional component" and the "technical component"

were done together by the Medicaid provider submitting the claim.

That was not the factual case in these audits.

25. Respondents were not authorized to bill the 90000 codes

in the global manner as they did not perform the "professional

component" of the services rendered.

26. Any Medicaid provider whose billing is not in

compliance with the Medicaid billing policies may be subject to

the recoupment of Medicaid payments.

27. The Petitioner administers the Medicaid program in

Florida. Pursuant to its authority AHCA conducts audits to

assure compliance with the Medicaid provisions and provider

Medicaid providers are aware that they may be audited.

28. These “integrity” audits are to assure that the

provider bill and receive payment in accordance with applicable

rules and regulations. The Respondents do not dispute the

Agency’s authority to perform audits such as the ones at issue.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. § 120.57(1), Fla. Stat. (2007).

30. Pursuant to Chapter 409, Florida Statutes (2007), the

Petitioner is responsible for administering the Medicaid Program

in Florida.

31. As the party asserting the overpayment, the Petitioner

bears the burden of proof to establish the alleged overpayment by

a preponderance of the evidence. See Southpointe Pharmacy v.

Department of Health and Rehabilitative Services , 596 So. 2d 106

(Fla. 1st DCA 1992).

32. Section 409.913, Florida Statutes (2007), 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 occur to the minimum extent

possible, and to recover overpayments and

impose sanctions as appropriate.

(1) For the purposes of this section, the

term:

* * *

(d) "Overpayment" includes any amount that

is not authorized to be paid by the Medicaid

program whether paid as a result of

inaccurate or improper cost reporting,

improper claiming, unacceptable practices,

fraud, abuse, or mistake.

* * *

(7) When presenting a claim for payment

under the Medicaid program, a provider has an

affirmative duty to 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 and services that:

* * *

(e) Are provided in accord with applicable

provisions of all Medicaid rules,

regulations, handbooks, and policies and in

accordance with federal, state, and local

law.

* * *

(20) When making a determination that an

overpayment has occurred, the agency shall

prepare and issue an audit report to the

provider showing the calculation of

overpayments.

33. In this case the Agency seeks reimbursement of

overpayments based upon the Respondents' failures to perform the

"professional" component of the services billed. In this case it

is concluded the Respondents were not entitled to bill for and be

paid the maximum (global) fee for the radiology services as they

did not perform the global service.

34. Finally, the Respondents did not submit bills for the

"technical" component of any radiology service they performed.

35. Had they submitted a bill in the 90000 codes for the

"technical" component, the service they performed, it would have

been denied as it was not an allowable billing under the Medicaid

system as a payable service.

35. For any "technical" service performed by the

Respondents that was allowable and identifiable, they have been

given credit.

36. The Respondents voluntarily participated in a program

that dictated the manner in which all claims would be filed and

allowed. Apart from the strict compliance with those dictates,

the Respondents not entitled to payment for their claims. See

Colonnade Medical Center, Inc. v. Agency for Health Care

Administration , 847 So. 2d 540 (Fla. 4th DCA 2003).

37. The Respondents' assertions that they should be

compensated for the "technical" component despite their

indifference to the billing requirements is unacceptable. Had

they billed correctly, recoupment of the overpayments would not

be necessary as the payments would not have been made.

38. The “overpayments” in this cause result from an

unacceptable practice or mistake. The unacceptable practice was

the Respondents' global billing practice when they did not

perform the "professional" component of the radiology service.

The mistake was claiming that after-the-fact they should receive

a portion of a fee that was not divisible or allowable. In

complying with its mandate from the federal government, AHCA is

held to a high standard and must assure that overpayments are

recouped. See 42 C.F.R. § 433.312(a)(2).

39. In this case, the audit reports support and constitute

evidence of the overpayments claimed. See § 409.913(22), Fla

Stat. (2007). The Respondents did not present substantial,

credible evidence to rebut the overpayments claimed.

40. The Agency has met its burden of proof in this case and

has established by a preponderance of the evidence that the

Respondents received overpayments as claimed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Administration enter a final order of recoupment as set forth in

the reports at issue. The final order should also impose an

administrative fine against each Respondent in the amount of

$1,000.00.

DONE AND ENTERED this 1st day of April, 2008, in

Tallahassee, Leon County, Florida.

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of April, 2008.

COPIES FURNISHED :

Richard 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 Stop 3

Tallahassee, Florida 32308

Holly Benson, Secretary

Agency for Health Care Administration

Fort Knox Building, Suite 3116

2727 Mahan Drive

Tallahassee, Florida 32308

Robert M. Penezic, Esquire

Broad and Cassel

Post Office Box 14010

Fort Lauderdale, Florida 33302-4010

L. William Porter, II, Esquire

Agency for Health Care Administration

Fort Knox Executive Center III

2727 Mahan Drive, Building 3, Mail Stop 3

Tallahassee, Florida 32308-5403

Robert N. Nicholson, Esquire

Broad and Cassel

Post Office Box 14010

Fort Lauderdale, Florida 33302-4010

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.