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


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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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8AGENCY FOR HEALTH CARE )

13ADMINISTRATION, )

15)

16Petitioner, )

18)

19vs. ) Case No. 07-2195MPI

24)

25LAZARO N. PLASENCIA, M.D., )

30)

31Respondent. )

33_________________________________)

34AGENCY FOR HEALTH CARE )

39ADMINISTRATION, )

41)

42Petitioner, )

44)

45vs. ) Case No. 07-2462MPI

50)

51ANA M. ELOSEGUI, M.D., )

56)

57Respondent. )

59_________________________________)

60RECOMMENDED ORDER

62Pursuant to notice a formal hearing was held in this case on

74December 17, 2007, in Tallahassee, Florida, before J. D. Parrish,

84a designated Administrative Law Judge of the Division of

93Administrative Hearings.

95APPEARANCES

96For Petitioner: L. William Porter, II, Esquire

103Agency for Health Care Administration

1082727 Mahan Drive, Building 3

113Tallahassee, Florida 32308-5403

116For Respondent: Robert N. Nicholson, Esquire

122Broad and Cassel

125Post Office Box 14010

129Fort Lauderdale, Florida 33302-14010

133STATEMENT OF THE ISSUE

137Whether the Respondents were overpaid by Medicaid for

145radiology and nuclear medicine services provided to Florida

153Medicaid patients. The Agency for Health Care Administration

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

170N. Plasencia, M.D., and Ana M. Elosegui, M.D., billed Medicaid

180for procedures they did not perform in violation of Medicaid

190policy, the Florida Administrative Code, and Florida Statutes.

198The Respondents maintain that because of ambiguities in Medicaid

207policy regarding reimbursement protocols for the radiology

214services at issue, the Respondents mistakenly believed in good

223faith that under the applicable Medicaid regulations and

231guidelines, Medicaid would reimburse the "maximum" fee allowable

239under the relevant fee schedule. The Respondents acknowledge

247that the "professional component" of the radiology services at

256issue was provided by a third-party physician specialist. The

265Respondents further assert that they are entitled to, at the

275minimum, payment of the "technical component" of the medically

284necessary radiological services that they provided to Medicaid

292recipients. The Petitioner seeks reimbursement from

298Dr. Plasencia in the amount of $196,129.52 and $122,065.08 from

310Dr. Elosegui.

312PRELIMINARY STATEMENT

314On January 9, 2007, the Agency referred DOAH Case No.

32407-2195MPI to the Division of Administrative Hearings. That case

333related to the Medicaid billing attributable to the Respondent,

342Dr. Plasencia. The case against Dr. Elosegui, DOAH Case No.

35207-0102MPI, was also opened on January 9, 2007. In

361Dr. Elosegui's case, however, the case was closed and

370jurisdiction relinquished to the Agency on or about March 15,

3802007. When additional audit efforts did not resolve the issue of

391Medicaid over payment, Dr. Elosegui's case was reopened as DOAH

401Case No. 07-2462MPI on June 1, 2007. The cases were consolidated

412for final hearing on November 11, 2007. The Respondents are

422Medicaid providers and in the regular course of doing business

432were audited by the Agency regarding their Medicaid claims. The

442audit period pertinent to Dr. Plasencia is July 1, 2001 through

453December 31, 2005. The pertinent period for Dr. Elosegui is

463October 11, 2002 through December 31, 2005.

470At the hearing, the Petitioner presented evidence from Ouida

479Mazzoccoli, a program administrator at the Agency; and Vicki

488Stiles, an investigator for Medicaid Program Integrity. The

496Petitioner's Exhibits 1 through 20 (Plasencia) and Petitioner's

504Exhibits 1 through 19 (Elosegui) were admitted into evidence.

513Petitioner's Exhibits 12-A and 12-B were also received in

522evidence. The Respondents presented no evidence.

528The Transcript of the proceeding was filed on January 4, 2008. A

540Joint Motion for Enlargement of Time was granted by order entered

551on January 23, 2008, and the parties were granted leave until

562February 25, 2008, to file their proposed recommended orders.

571The parties' Proposed Recommended Orders have been fully

579considered in the preparation of this Recommended Order. Also,

588pertinent stipulated facts set forth in the parties’ Prehearing

597Stipulation are incorporated below.

601FINDINGS OF FACT

6041. The Petitioner is the state agency charged with the

614responsibility of monitoring the Medicaid Program in Florida.

6222. At all times material to the allegations of DOAH Case

633No. 07-2195MPI, the Respondent, Dr. Plasencia, was a licensed

642medical doctor in good standing with the State of Florida,

652license #ME49315, and was also a Medicaid provider, #0448125-00.

6613. Similarly, at all times material to the allegations of

671DOAH Case No. 07-2462MPI, the Respondent, Dr. Elosegui, was a

681licensed medical doctor in good standing with the State of

691Florida, license #ME85963, and was also a Medicaid provider,

700#2654636-00.

7014. Drs. Elosegui and Plasencia practiced medicine together

709in a shared office space in Miami, Florida.

7175. The Respondents were not members of a "group practice."

727The Respondents were individual providers who billed Medicaid

735separately, using their individual Medicaid provider numbers.

742The doctors performed services for Medicaid recipients and

750submitted the charges for those services to Medicaid.

7586. Medicaid has a "pay and chase" policy of paying Medicaid

769claims as submitted by providers. Audits performed by the Agency

779then, after-the-fact, reconcile the amounts paid to providers

787with the amounts that were payable under the Medicaid guidelines

797and pertinent rules. If more is paid to the provider than

808allowable, a recoupment against the provider is sought.

8167. In these cases, the Respondents conducted (or

824supervised) various tests including "Radiological and Nuclear

831Medicine" services for Florida Medicaid patients in a shared

840office setting. The services at issue in these cases were billed

851under the CPT procedure codes of series 70000 and 90000.

8618. The Petitioner has not challenged any procedure at issue

871as not "medically necessary."

8759. Moreover, the Petitioner does not dispute that the

884Respondents performed or supervised the "technical component" of

892the universe of the radiological services at issue.

90010. The "professional component" for the universe of the

909radiological services at issue in this proceeding was outsourced

918to third-party physicians. The Respondents contracted with the

926outside third-party physicians for the "professional component"

933services to read and interprete the radiological product. These

942third party physicians were not Medicaid providers, nor were they

952part of a Medicaid group provider that included the Respondents.

96211. When billing for the radiological services, the

970Respondents billed Medicaid for both the "technical" and

"978professional" components using the "maximum" fee set forth in

987the Fee Schedule. The Respondents knew or should have known that

998they had not performed a global service as they never performed

1009or supervised the "professional" component of the services

1017billed.

101812. The Petitioner performed an audit of the radiological

1027claims for Dr. Plasencia for the dates of service July 1, 2001

1039through December 31, 2005.

104313. On December 1, 2006, the Petitioner issued a Final

1053Audit Report that concluded Dr. Plasencia had been overpaid

1062$196,129.52. Additionally, the Petitioner sought an

1069administrative fine against Dr. Plasencia in the amount of

1078$1,000.00.

108014. Similarly, the Petitioner performed an audit of the

1089radiological claims submitted by Dr. Elosegui for the dates of

1099service October 11, 2002 through December 31, 2005.

110715. On December 1, 2006, the Petitioner issued a Final

1117Audit Report that concluded Dr. Elosegui had been overpaid

1126$122,065.08. The Petitioner also sought an administrative fine

1135against Dr. Elosegui in the amount of $1,000.00.

114416. In January 2005, the Fee Schedule applicable to CPT

115490000 procedure code services was revised. The Fee Schedule

1163specified a reimbursement amount for the "technical" component of

1172the radiological services in the CPT 90000 code set. Prior to

1183that time, there had been no reimbursable amount for the

"1193technical component" performed separately from the "professional

1200component."

120117. The Medicaid provider agreements executed between the

1209parties govern the contractual relationships between these

1216providers and the Agency. The parties do not dispute that those

1227provider agreements, together with the pertinent laws or

1235regulations, control the billing and reimbursement claims that

1243remain at issue. The amounts, if any, that were overpaid were

1254related solely to the radiological services billed under a global

1264or inclusive manner that included the "professional" component

1272within the amount claimed to be owed by Medicaid.

128118. The provider agreements pertinent to these cases are

1290voluntary agreements between AHCA and the Respondents.

129719. The Fee Schedule adopted by the Petitioner dictates the

1307code and reimbursement amounts authorized to be billed pursuant

1316to the provider agreement.

132020. The Respondents performed or supervised the "technical

1328components" for the radiological services billed to Medicaid.

1336The Respondents did not perform the "professional component."

134421. For all of the 70000 series billing codes the

1354components can be split and the "technical component" can be

1364identified and paid separately. For these billing codes, the

1373Respondents were given (or paid for) the "technical component" of

1383the 70000 codes.

138622. Similarly, for the 90000 billing codes, for the

"1395technical component" portion where it was identifiable and

1403allowable, the Petitioner gave the Respondents credit for that

1412amount.

141323. The "technical component" for the 90000 billing codes

1422was not identifiable or allowable prior to 2005.

143024. Prior to the amendment to the Fee Schedule the 90000

1441billing codes were presumed to be performed in a global manner;

1452i.e. the "professional component" and the "technical component"

1460were done together by the Medicaid provider submitting the claim.

1470That was not the factual case in these audits.

147925. Respondents were not authorized to bill the 90000 codes

1489in the global manner as they did not perform the "professional

1500component" of the services rendered.

150526. Any Medicaid provider whose billing is not in

1514compliance with the Medicaid billing policies may be subject to

1524the recoupment of Medicaid payments.

152927. The Petitioner administers the Medicaid program in

1537Florida. Pursuant to its authority AHCA conducts audits to

1546assure compliance with the Medicaid provisions and provider

1554Medicaid providers are aware that they may be audited.

156328. These “integrity” audits are to assure that the

1572provider bill and receive payment in accordance with applicable

1581rules and regulations. The Respondents do not dispute the

1590Agency’s authority to perform audits such as the ones at issue.

1601CONCLUSIONS OF LAW

160429. The Division of Administrative Hearings has

1611jurisdiction over the parties to and the subject matter of these

1622proceedings. § 120.57(1), Fla. Stat. (2007).

162830. Pursuant to Chapter 409, Florida Statutes (2007), the

1637Petitioner is responsible for administering the Medicaid Program

1645in Florida.

164731. As the party asserting the overpayment, the Petitioner

1656bears the burden of proof to establish the alleged overpayment by

1667a preponderance of the evidence. See Southpointe Pharmacy v.

1676Department of Health and Rehabilitative Services , 596 So. 2d 106

1686(Fla. 1st DCA 1992).

169032. Section 409.913, Florida Statutes (2007), provides, in

1698pertinent part:

1700The agency shall operate a program to oversee

1708the activities of Florida Medicaid

1713recipients, and providers and their

1718representatives, to ensure that fraudulent

1723and abusive behavior and neglect of

1729recipients occur to the minimum extent

1735possible, and to recover overpayments and

1741impose sanctions as appropriate.

1745(1) For the purposes of this section, the

1753term:

1754* * *

1757(d) "Overpayment" includes any amount that

1763is not authorized to be paid by the Medicaid

1772program whether paid as a result of

1779inaccurate or improper cost reporting,

1784improper claiming, unacceptable practices,

1788fraud, abuse, or mistake.

1792* * *

1795(7) When presenting a claim for payment

1802under the Medicaid program, a provider has an

1810affirmative duty to supervise the provision

1816of, and be responsible for, goods and

1823services claimed to have been provided, to

1830supervise and be responsible for preparation

1836and submission of the claim, and to present a

1845claim that is true and accurate and that is

1854for goods and services that:

1859* * *

1862(e) Are provided in accord with applicable

1869provisions of all Medicaid rules,

1874regulations, handbooks, and policies and in

1880accordance with federal, state, and local

1886law.

1887* * *

1890(20) When making a determination that an

1897overpayment has occurred, the agency shall

1903prepare and issue an audit report to the

1911provider showing the calculation of

1916overpayments.

191733. In this case the Agency seeks reimbursement of

1926overpayments based upon the Respondents' failures to perform the

"1935professional" component of the services billed. In this case it

1945is concluded the Respondents were not entitled to bill for and be

1957paid the maximum (global) fee for the radiology services as they

1968did not perform the global service.

197434. Finally, the Respondents did not submit bills for the

"1984technical" component of any radiology service they performed.

199235. Had they submitted a bill in the 90000 codes for the

"2004technical" component, the service they performed, it would have

2013been denied as it was not an allowable billing under the Medicaid

2025system as a payable service.

203035. For any "technical" service performed by the

2038Respondents that was allowable and identifiable, they have been

2047given credit.

204936. The Respondents voluntarily participated in a program

2057that dictated the manner in which all claims would be filed and

2069allowed. Apart from the strict compliance with those dictates,

2078the Respondents not entitled to payment for their claims. See

2088Colonnade Medical Center, Inc. v. Agency for Health Care

2097Administration , 847 So. 2d 540 (Fla. 4th DCA 2003).

210637. The Respondents' assertions that they should be

2114compensated for the "technical" component despite their

2121indifference to the billing requirements is unacceptable. Had

2129they billed correctly, recoupment of the overpayments would not

2138be necessary as the payments would not have been made.

214838. The “overpayments” in this cause result from an

2157unacceptable practice or mistake. The unacceptable practice was

2165the Respondents' global billing practice when they did not

2174perform the "professional" component of the radiology service.

2182The mistake was claiming that after-the-fact they should receive

2191a portion of a fee that was not divisible or allowable. In

2203complying with its mandate from the federal government, AHCA is

2213held to a high standard and must assure that overpayments are

2224recouped. See 42 C.F.R. § 433.312(a)(2).

223039. In this case, the audit reports support and constitute

2240evidence of the overpayments claimed. See § 409.913(22), Fla

2249Stat. (2007). The Respondents did not present substantial,

2257credible evidence to rebut the overpayments claimed.

226440. The Agency has met its burden of proof in this case and

2277has established by a preponderance of the evidence that the

2287Respondents received overpayments as claimed.

2292RECOMMENDATION

2293Based on the foregoing Findings of Fact and Conclusions of

2303Law, it is RECOMMENDED that the Agency for Health Care

2313Administration enter a final order of recoupment as set forth in

2324the reports at issue. The final order should also impose an

2335administrative fine against each Respondent in the amount of

2344$1,000.00.

2346DONE AND ENTERED this 1st day of April, 2008, in

2356Tallahassee, Leon County, Florida.

2360J. D. PARRISH

2363Administrative Law Judge

2366Division of Administrative Hearings

2370The DeSoto Building

23731230 Apalachee Parkway

2376Tallahassee, Florida 32399-3060

2379(850) 488-9675 SUNCOM 278-9675

2383Fax Filing (850) 921-6847

2387www.doah.state.fl.us

2388Filed with the Clerk of the

2394Division of Administrative Hearings

2398this 1st day of April, 2008.

2404COPIES FURNISHED :

2407Richard Shoop, Agency Clerk

2411Agency for Health Care Administration

24162727 Mahan Drive, Mail Station 3

2422Tallahassee, Florida 32308

2425Craig H. Smith, General Counsel

2430Agency for Health Care Administration

2435Fort Knox Building, Suite 3431

24402727 Mahan Drive, Mail Stop 3

2446Tallahassee, Florida 32308

2449Holly Benson, Secretary

2452Agency for Health Care Administration

2457Fort Knox Building, Suite 3116

24622727 Mahan Drive

2465Tallahassee, Florida 32308

2468Robert M. Penezic, Esquire

2472Broad and Cassel

2475Post Office Box 14010

2479Fort Lauderdale, Florida 33302-4010

2483L. William Porter, II, Esquire

2488Agency for Health Care Administration

2493Fort Knox Executive Center III

24982727 Mahan Drive, Building 3, Mail Stop 3

2506Tallahassee, Florida 32308-5403

2509Robert N. Nicholson, Esquire

2513Broad and Cassel

2516Post Office Box 14010

2520Fort Lauderdale, Florida 33302-4010

2524NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2530All parties have the right to submit written exceptions within 15

2541days from the date of this Recommended Order. Any exceptions to

2552this Recommended Order should be filed with the agency that will

2563issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 05/13/2008
Proceedings: Agency Final Order
PDF:
Date: 05/13/2008
Proceedings: Final Order filed.
PDF:
Date: 04/02/2008
Proceedings: Recommended Order
PDF:
Date: 04/01/2008
Proceedings: Recommended Order (hearing held December 17, 2007). CASE CLOSED.
PDF:
Date: 04/01/2008
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 02/26/2008
Proceedings: Respondents` Proposed Recommended Order filed.
PDF:
Date: 02/25/2008
Proceedings: State of Florida, Agency for Health Care Administration`s Closing Argument and Proposed Recommended Order filed.
PDF:
Date: 01/23/2008
Proceedings: Order Granting Extension of Time (proposed recommended orders to be filed by February 25, 2008).
PDF:
Date: 01/17/2008
Proceedings: Joint Motion for 30 Day Enlargement of Time filed.
Date: 01/04/2008
Proceedings: Transcript filed.
PDF:
Date: 12/19/2007
Proceedings: Prehearing Stipulation filed.
Date: 12/17/2007
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 12/14/2007
Proceedings: Respondent`s Witness and Exhibit List filed.
PDF:
Date: 12/12/2007
Proceedings: Petitioner`s Witness and Exhibit List filed.
PDF:
Date: 12/04/2007
Proceedings: Notice of Additional Counsel filed.
PDF:
Date: 12/03/2007
Proceedings: Joint and Agreed Motion for Official Recognition filed.
PDF:
Date: 11/14/2007
Proceedings: Order of Consolidation (DOAH Case Nos. 07-2195MPI and 07-2462MPI).
PDF:
Date: 11/13/2007
Proceedings: Order of Consolidation (DOAH Case Nos. 07-2195MPI, 07-2462MPI).
PDF:
Date: 11/07/2007
Proceedings: Joint Status Report and Joint Motion to Consolidate filed.
PDF:
Date: 09/10/2007
Proceedings: Order Continuing Case in Abeyance (parties to advise status by November 5, 2007).
PDF:
Date: 08/27/2007
Proceedings: Status Report filed.
PDF:
Date: 06/26/2007
Proceedings: Order Placing Case in Abeyance (parties to advise status by August 27, 2007).
PDF:
Date: 06/26/2007
Proceedings: Joint Motion to Hold Case in Abeyance filed.
PDF:
Date: 06/18/2007
Proceedings: Joint Status Report filed.
PDF:
Date: 06/01/2007
Proceedings: Order Requiring Response.
PDF:
Date: 06/01/2007
Proceedings: Order Re-Opening Case.
PDF:
Date: 05/15/2007
Proceedings: Motion to Re-open filed. (FORMERLY DOAH CASE NO. 07-0102MPI)
PDF:
Date: 01/09/2007
Proceedings: Request for Mediation filed.
PDF:
Date: 01/09/2007
Proceedings: Final Audit Report filed.
PDF:
Date: 01/09/2007
Proceedings: Petition for Formal Administrative Hearing filed.
PDF:
Date: 01/09/2007
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
J. D. PARRISH
Date Filed:
06/01/2007
Date Assignment:
11/13/2007
Last Docket Entry:
05/13/2008
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
MPI
 

Counsels

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Related Florida Statute(s) (2):