08-004921MPI Agency For Health Care Administration vs. Hamid Bagloo, M.D. Status: Closed Recommended Order on Thursday, September 10, 2009.

Summary: Petitioner established by a preponderance of evidence some, but not all, of the Medicaid overpayments.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 08-4921MPI

)

HAMID BAGLOO, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on July 28 and 29, 2009, in Tallahassee, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Tracie L. Wilks, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Station 3

2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: Hamid Bagloo, M.D., pro se

521 East Central Avenue

Winter Haven, Florida 33880

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent was overpaid

Medicaid funds for services provided to his patients, and, if

so, whether the alleged overpayment was properly calculated.

PRELIMINARY STATEMENT

By letter dated October 18, 2006, Petitioner, Agency for

Health Care Administration ("AHCA" or the "Agency"), notified

Respondent of a pending audit review concerning records relating

to certain of Respondent's patients. This letter was followed

by correspondence dated October 30, 2008, 1 requesting certain

documents from Respondent. The documents were timely submitted

to AHCA, and on March 27, 2007, AHCA issued its Preliminary

Audit Report. On April 26, 2007, Respondent, through his

counsel at the time, 2 provided additional documents and

information contesting the audit findings. A Final Audit Report

was issued by AHCA on July 15, 2007, setting forth the amount of

the alleged overpayment ($82,836.07) and setting a fine of

$3,000. Respondent timely filed a challenge to the audit

findings. His Amended Petition for Formal Administrative

Hearing was forwarded to the Division of Administrative Hearings

("DOAH") by the Agency on October 2, 2008.

At the final hearing, the Agency called three witnesses:

Dr. Gregory K. Sloan, a practicing family physician in Chipley,

Florida, acting as a consultant to AHCA; Tracy B. McDonnell, a

program analyst for the Bureau of Medicaid Program Integrity

(the "Bureau"); and Greg Riley, a reviewer for the Bureau.

AHCA's Exhibits 1 through 15 (including 40 subparts to

Exhibit 15) were admitted into evidence without objection.

Respondent testified on his own behalf, but did not call any

other witnesses. Respondent did not offer any additional

documentary evidence. 3

Official recognition was requested (and granted without

opposition) as to the following items:

• Sections 409.905 through 409.908, 409.913, 409.9131, and

414.41, Florida Statutes (versions 2001 through 2006);

• Florida Administrative Code Rule 59G-1.010 (as amended

6-24-98 and 4-16-06);

• Florida Administrative Code Rule 59G-4.230 (as amended

8-5-01, 2-20-03, 8-5-03, 8-3-04, 8-18-05 and 8-31-05);

• Florida Administrative Code Rule 59G-5.010 (as amended

7-10-00, 5-7-03 and 7-7-05);

• Florida Administrative Code Rule 59G-110 (as amended

5-9-99);

• Florida Administrative Code Rule 59G-5.020 (as amended

8-6-01, 10-8-03 and 1-19-05);

• Florida Administrative Code Rule 59G-9.070 (as amended

4-19-05 and 4-26-06);

• Florida Medicaid Provider General Handbook;

• Florida Medicaid Physicians Coverage and Limitations

Handbook;

• Medicaid Provider Reimbursement Handbook, HCFA-1500 and

Child Health Check-up 221;

• Child Health Check-up Coverage and Limitations Handbook;

• Current Procedural Terminology (CPT) Evaluation and

Management (E/M) Service Guidelines and Codes (versions

2002 through 2006); and

• Relevant Medicaid Fee Schedules.

The parties advised that a transcript of the final hearing

would be ordered. They were given ten days from the filing of

the transcript at DOAH to submit proposed findings of fact and

conclusions of law. Respondent indicated that he would not be

filing anything subsequent to the final hearing. The Transcript

was filed at DOAH on August 18, 2009. The Agency timely filed

its post-hearing Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. AHCA is the state agency responsible for, inter alia ,

administering the Medicaid program in the State of Florida. The

Bureau, a division of AHCA located in Tallahassee, Florida, is

responsible for monitoring payments to Medicaid providers, and,

when necessary, collecting return of any overpayments made to

the providers.

2. Medicaid providers enter into a contract with AHCA

agreeing to bill patients no more than the usual and customary

charges for services provided. Charges are established, in

part, in accordance with procedure codes from the Current

Procedural Terminology (CPT) guidelines. The CPT codes describe

the kind of office visit which occurs during treatment to

individual patients. A monetary charge is then assigned to the

CPT code so that Medicaid will know how much to pay for the

visit in question.

3. The provider submits its claim for payments each month

to AHCA, setting forth the number of visits within each CPT

procedure code. The Bureau then determines the amount of

Medicaid payment earned by the provider pursuant to the claimed

services. The payment is then made by AHCA to the provider.

4. The Bureau periodically performs audits of the claims

submitted by providers. If a discrepancy or overpayment is

discovered during the audit process, the Bureau notifies the

provider by way of a demand letter. The Bureau then requests

records and documents from the provider concerning the patients

and charges in question. Upon review of the provider's records,

the Bureau issues a Preliminary Audit Report setting forth its

findings. The provider may agree (and repay the overpayment

amount) or challenge the audit findings.

5. In the present case, Respondent challenged the audit

findings. As a result of that challenge, AHCA requested and

Respondent provided additional documentation concerning

Respondent's provision of services to certain patients. The

Bureau then issued a Final Audit Report, again stating the

amount of the overpayment and imposing a fine. The overpayment

amount in this case is $82,836.07 and a fine of $3,000 was

imposed.

6. The overpayment discovered by AHCA relates to

40 individual patients who Respondent treated during the period

January 1, 2002, through August 31, 2006. Each will be more

fully discussed below. For some of the patients, there was only

one charge in dispute; for others there are numerous charges.

7. There are a small number of CPT procedure codes

relevant to Respondent's patients at issue in this proceeding.

A discussion of them is necessary to the analysis of the

individual cases. Definitions and descriptions of the various

codes are found in the Evaluation and Management Services

Guidelines manual issued by the American Medical Association

(AMA). The codes at issue are:

• 99201--Office or other outpatient visit for the

evaluation and management of a new patient, which

requires these three key components: A problem

focused history; a problem focused examination;

and Straightforward medical decision making.

Usually, the presenting problems are self limited

or minor. Physicians typically spend 10 minutes

face-to-face with the patient and/or family.

• 99202--Office or other outpatient visit for the

evaluation and management of a new patient, which

requires these three key components: An expanded

problem focused history; An expanded problem

focused examination; and Straightforward medical

decision making.

Usually, the presenting problems are of low to

moderate severity. Physicians typically spend 20

minutes face-to-face with the patient and/or

family.

• 99203--Office or other outpatient visit for the

evaluation and management of a new patient, which

requires these three key components: A detailed

history; A detailed examination; and Medical

decision making of low complexity.

Usually the presenting problems are of moderate

severity. Physicians usually spend 30 minutes

face-to-face with the patient and/or family.

• 99204--Office or other outpatient visit for the

evaluation and management of a new patient, which

requires these three key components: A

comprehensive history; A comprehensive

examination; and Medical decision making of

moderate complexity.

Usually the presenting problems are of moderate to

high severity. Physicians typically spend 45

minutes face-to-face with the patient and/or

family.

• 99205--Office or other outpatient visit for the

evaluation and management of a new patient, which

requires these three key components: A

comprehensive history; A comprehensive

examination; and Medical decision making of high

complexity.

Usually, the presenting problems are of moderate

to high severity. Physicians typically spend 60

minutes face-to-face with the patient and/or

family.

• 99211--Office or other outpatient visit for the

evaluation and management of an established

patient that may not require the presence of a

physician.

Usually, the presenting problem(s) are minimal.

Typically, 5 minutes are spent performing or

supervising these services.

• 99212--Office or other outpatient visit for the

evaluation and management of an established

patient, which requires at least two of these

three key components: A problem focused history;

A problem focused examination; and Straightforward

medical decision making.

Usually the presenting problem(s) are self limited

or minor. Physicians typically spend 10 minutes

face-to-face with the patient or family.

• 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;

and Medical decision making of low complexity.

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

evaluation and management of an established

patient, which requires at least two of these

three key components: A detailed history; A

detailed examination; and Medical decision making

of moderate complexity.

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.

• 99215--Office or other outpatient visit for the

evaluation and management of an established

patient, which requires at least two of these

three key components: A comprehensive history;

A comprehensive examination; and Medical decision

making of high complexity.

Usually, the presenting problem(s) are of moderate

to high severity. Physicians typically spend 40

minutes face-to-face with the patient and/or

family.

• 99382--Initial comprehensive preventive medicine

evaluation and management . . . for a child age

1 through 4 years.

• 99384--An initial comprehensive preventive

medicine evaluation and management . . . of a new

patient, aged 12 through 17 years.

• 99385--An initial comprehensive preventive

medicine evaluation and management . . . of a new

patient, aged 18 to 39 years.

• 99392--A periodic comprehensive preventive

medicine evaluation and management . . . for a

child age 1 to 4 years.

• 99393--A periodic comprehensive preventive

medicine evaluation and management . . . of a

child age 5 through 11 years.

• 99395--A periodic comprehensive preventive

medicine evaluation and management . . . of an

existing patient, aged 18 through 39 years.

• 99396--A periodic comprehensive preventive

medicine evaluation and management . . . of an

existing patient, aged 40 through 64 years.

• W9881--A checkup and screening for a child. 4

8. The exact correlation between the CPT procedure codes

and specific dollar amounts was not provided at final hearing,

but there was a dollar amount assigned (by AHCA) to each of the

services provided by Respondent to his patients. The Medicaid

Fee Schedules (of which official recognition were taken) do

provide a maximum fee for each code, but there was no testimony

as to how each fee was assigned in this case, i.e., whether it

was the maximum fee or not.

9. AHCA used the services of a hired consultant

(Dr. Sloan) to review Respondent's patient records concerning

the assignment of CPT procedure codes for services rendered.

Dr. Sloan is an experienced physician with a family practice in

Chipley, Florida (a city in the Florida panhandle). Dr. Sloan

had never, prior to the instant action, performed a review of

another physician's records for the purpose of ascertaining the

proper procedure code. This was his first foray into this

process.

10. Dr. Sloan reviewed Respondent's patient records and

determined that all 40 patient records at issue had at least one

erroneous procedure code, resulting in the reduction of

allowable charges for those procedures. After Dr. Sloan's

review was completed, another medical professional (Greg Riley,

a registered nurse) reviewed the charts and made some

adjustments to the monetary charges. Riley had reviewed the

records initially just to make sure the records were complete.

His subsequent review, after Dr. Sloan, was to determine the

correct charges based on Dr. Sloan's adjustments of the

procedure codes.

11. For the purposes of reviewing the following paragraph,

the patients were each assigned a number (1 through 40) and will

be referenced by their assigned number herein with a

parenthetical number, e.g., (1) (2) (3), etc. Some patients had

more than one visit at issue. For those patients, the visit

will be referred to by a written number, e.g., One, Two, Three,

etc. A review of each patient and each office visit will be

discussed in the following Findings of Fact. The original code

and monetary charge will be stated, followed by Dr. Sloan's

revised code and Riley's reduction in monetary charge. A

statement of Respondent's position concerning the charge will

come next, followed by a conclusion as to the proper charge

based on all the evidence presented.

12. The evidence at final hearing as to each resident was

presented by way of three groups of documentation. First, there

is an AHCA form listing all claims in the Medicaid sample,

showing the CPT code for each patient and each patient visit.

Second, there is the Respondent's office chart from each patient

visit. Third, there is a written response from Respondent's

former counsel as to each patient visit. This evidence, along

with the testimony of witnesses, shows:

(1) One: Coded 99205 with a charge of $85.41--Dr. Sloan

reduced the code to 99203, due to lack of a

comprehensive history; charge was reduced to $48.68.

Respondent showed that, according to annotations in

the chart, the patient presented with multiple

problems and a comprehensive examination was

conducted. 99205 is supported.

Two: Coded 99214 for $39.46--claim denied in full,

as visit was a follow up only; no face-to-face time

with doctor. Respondent's records show he did meet

with patient, but did not exercise complex medical

decision-making. The evidence supports a reduction

to 99211, with the appropriate charge for that code.

(2) One: Coded 99205 for $85.41--reduced to 99202 due to

lack of documentation. Respondent did not prove

entitlement to a higher code. 99202 is appropriate.

Two: Coded 99215 for $58.28--reduced to 99212 for

$21.84, because visit was not deemed "extensive" by

Dr. Sloan. Respondent did not prove elements of

99215. 99212 is appropriate.

Three: Coded 99395 for $51.85--denied in full due to

lack of documentation and no management issues during

the visit. Respondent's records indicate

comprehensive exam, and he testified to long face-to-

face visit with resident. 99395 is supported.

(3) One: Coded 99204 for $66.74--reduced to 99203 for

$48.37, because the examination was deficient.

Respondent's records show that comprehensive

examination done, history taken, and moderate

complexity medical decisions made. 99204 is

supported.

Two: Coded 99215 for $58.94--reduced to 99213 for

$26.47, due to lack of complex history or exam. The

records show some level of medical decision-making

that could support a higher code. 99214 would be

appropriate.

(4) One: Coded 99204 for $66.74--reduced to 99203 for

$48.37, due to lack of complex history. Respondent

did not prove otherwise. 99203 is appropriate.

Three: Coded 99214 for $39.51--reduced to 99213 for

$26.61 for lack of documentation. Respondent did not

prove otherwise. 99212 is appropriate.

Four: Coded 99213 for $24.47--reduced to 99212 for

$21.84 (a difference of $2.63) for lack of

complexity. Respondent did not prove otherwise.

99212 is appropriate.

(5) One: Coded 99204 for $68.74--reduced to 99203 for

$48.66, due to lack of complexity. Respondent

explained his notations in the patient chart and

proved the complex nature of the patient's medical

problems. 99204 is supported.

Four: Coded 99214 for $39.64--reduced to 99212 for

$21.84, because the examination lacked detail.

Respondent's records and testimony established that a

detailed examination was performed. 99214 is

supported.

(6) One: Coded 99204 for $66.74--reduced to 99202 for

$32.44, because of lack of complexity, i.e., upper

respiratory infection. Respondent did not prove that

a higher code was justified. 99202 is appropriate.

(7) One: Coded 99205 for $6.74--denied in full, because

the exam lacked a review of services (ROS) component.

Respondent's records showed otherwise. 99205 is

supported.

Three: Coded 99214 for $39.49--reduced to 99212 for

$21.84 due to lack of exam and/or exam was "problem

focused." 5 Respondent indicated patient had undergone

complete physical three days prior. Visit at issue

was for a specific problem. 99212 is appropriate.

Four: Coded 99213 for $24.47--reduced to 99212 for

$21.84, because no exam shown; visit was problem

focused. Respondent's records indicate only a brief

visit. 99212 is appropriate.

Five: Coded 99213 for $24.4--reduced to 99211 for

$12.48, due to visit being solely to refill

medication. Respondent states, erroneously, that the

99211 code means that only a nurse saw the patient.

In actuality, the code says that the physician does

not have to see the patient, but may do so. 99211 is

appropriate.

Six: Coded 99214 for $39.49--reduced to 99212 for

$21.84, because the visit was only problem focused.

The examination performed by Respondent appears to be

just that, for an oral problem. 99212 is

appropriate.

Seven: Coded 99213 for $24.47--denied in full,

because of absence of history taken and examination

record. Doctor appeared to only provide results of

prior test. Respondent did not prove otherwise.

Denial is appropriate.

(8) One: Coded 99204 for $68.74--denied in full by

Dr. Sloan, but upgraded to 99203 for $50.64, by the

RN. No comprehensive history or exam was proven by

Respondent. 99203 is appropriate.

(9) One: Coded 99384 for $71.54--reduced to 99213 for

$32.56 due to insufficient documentation. Respondent

showed that the patient came in for a school checkup.

99384 is supported.

(10) One: Coded 99204 for $68.74--reduced to 99202 for

$34.01, because the visit was only problem focused.

But Respondent showed that although patient showed

with only one problem (toothache), other problems

were identified during the visit. 99204 is

supported.

(11) One: Coded 99204 for $68.74--reduced to 99202 for

$32.71, because visit was only problem focused, i.e.,

skin irritation. Respondent showed that patient was

also in a high risk pregnancy and additional services

were provided. 99204 is supported.

Two: Coded 99395 for $71.54--denied in full by

Dr. Sloan for failure to do more than an abdominal

exam and take vital signs. Respondent did show that

an annual evaluation was done, but the records do not

appear to indicate a full examination. 99212 would

be warranted.

(12) One: Coded 99214 for $41.51--reduced to 99213 for

$32.56, because the visit was problem focused.

Respondent did spend some time with patient, but did

not show elements of higher code. 99213 is

appropriate.

(13) One: Coded 99204 for $68.74--reduced to 99202 for

$34.01, because visit was problem focused for an

ingrown toenail. Respondent showed that the patient

actually had multiple issues and Respondent did a

fairly comprehensive history and examination. 99204

is supported.

(14) One: Coded 99204 for $68.74--reduced to $32.71,

because visit was problem focused for an upper

respiratory infection. Respondent showed that a

comprehensive history and examination were done in

order to more adequately address the new patient's

needs. 99204 is supported.

Two: Coded 99395 for $68.84; denied in full, because

of full examination done just one week prior.

Respondent showed that the annual evaluation done on

this date had a different focus than the prior visit

and was justified and necessary. 99395 is supported.

(15) One: Coded 99215 for $58.29--reduced to 99212 for

$21.84, because the visit was only to refill a

prescription. A one-item exam plus vitals was

performed. Respondent did not establish need for

higher code. 99212 is appropriate.

Two: Coded 99214 for $39.46--reduced to 99213 for

$26.61, because the visit was only to address

dermatitis. Respondent showed the existence of

multiple problems and extensive time spent with

patient. 99214 is supported.

Three: Coded 99214 for $41.46--reduced to 99212 for

$21.84, because visit was problem focused for an

insect bite. Respondent did not prove higher code

was needed. 99212 is appropriate.

Four: Coded 99214 for $39.46--reduced to 99213 for

$23.61, because visit was problem focused for

vaginitis. Respondent did not prove otherwise.

99213 is appropriate.

Five: Coded 99396 for $53.72--initially denied in

full by Dr. Sloan, then reduced to 99211 by the RN.

Respondent showed that a legitimate annual evaluation

of patient was done. 99396 is supported.

Six: Coded 99215 for $60.29--reduced to 99213 for

$26.61, because Dr. Sloan deemed the examination

inadequate; Respondent failed to do a ROS.

Respondent showed that he spent a lot of time with

the patient, but not that there was any degree of

medical decision-making at a high complexity level

involved. 99214 would be appropriate.

Seven: Coded 99214 for $41.46--reduced to 99213 for

$26.21, because visit was for an expanded problem-

focused reason (ear infection). Respondent did not

prove otherwise. 99213 is appropriate.

(16) One: Coded 99215 for $58.88--reduced to 99212 for

$21.84, due to lack of examination documentation and

that visit was problem focused. Respondent showed

that additional issues were presented and discussed.

99215 is supported.

Four: Coded 99214 for $41.49--reduced to 99212 for

$21.84 for same reasons as prior visit. Respondent

did not provide evidence of further issues. 99212 is

appropriate.

(17) One: Coded 99214 for $41.51--reduced to 99213 for

$27.67, due to lack of examination details.

Respondent could not support higher code. 99213 is

appropriate.

(18) One: Coded 99204 for $66.73--reduced to 99203 for

$48.25, due to inadequate ROS and low complexity of

the patient. Respondent could not support higher

code. 99203 is appropriate.

(19) One: Coded 99204 for $68.74--reduced to 99202 for

$34.01, because visit was for an expanded problem

focus reason with straightforward medical decision-

making. Respondent did not establish reason for

higher code. 99202 is appropriate.

(20) One: Coded 99204 for $66.74--reduced to 99202 for

$32.37, because it was a problem focused visit for an

upper respiratory infection (URI). Respondent found

patient to be in a high risk pregnancy and

examination escalated due to that fact. 99204 is

supported.

(21) One: Coded 99204 for $66.74--reduced to 99202 for

$37.37, because visit was problem focused for URI.

Respondent did not support higher code. 99202 is

appropriate.

(22) One: Claim was allowed.

(23) Two: Coded 99214 for $41.51--reduced to 99213 for

$32.56, because the visit was problem-focused for a

URI. Respondent could not prove higher code was

necessary. 99213 is appropriate.

Three: Coded 99213 for $26.47--reduced to 99212 for

$26.45 (two cent difference). Respondent acquiesced.

99212 is appropriate.

Four: Coded 99214 for $41.51--reduced to 99213 for

$32.56, because visit was problem-focused for an

allergic reaction. Respondent noted that patient had

allergic rhinitis and perhaps pneumonia. 99214 is

supported.

Five: Coded 99213 for $26.47--reduced to 99212 for

$26.45 (two cent difference). Respondent acquiesced.

99212 is appropriate.

Six: Coded 99214 for $41.51--reduced to 99213 for

$32.56, because visit was problem focused for URI.

Respondent did not prove need for higher code. 99213

is appropriate.

Eight: Coded 99393 for $71.54--denied in full, due

to fact that prior visit should have covered

examination. Respondent showed that the annual

evaluation or physical focused on different aspects

of patient's wellbeing than regular office visits.

99393 is supported.

Ten: Coded 99214 for $41.51--reduced to 99213 for

$32.56, because visit was problem focused for

gastrointestinal problem. Respondent did not

sufficiently justify the higher code. 99213 is

appropriate.

Twelve: Coded 99214 for $41.51--reduced to 99213 for

$32.56, because visit was problem focused.

Respondent did not prove otherwise. 99213 is

appropriate.

Thirteen: Coded 99214 for $41.51--reduced to 99213

for $32.56, because visit was problem focused.

Respondent did not prove otherwise. 99213 is

appropriate.

Fourteen: Coded 99214 for $41.51--reduced to 99213

for $32.56, because visit was problem focused.

Respondent did not prove otherwise. 99213 is

appropriate.

Sixteen: Coded 99214 for $41.51--reduced to 99213

for $27.67, because visit was problem focused.

Respondent did not prove otherwise. 99213 is

appropriate.

(24) One: Coded 99205 for $85.11--reduced to 99203 for

$48.69, because of lack of documentation. The

evidence and documentation presented by Respondent

was sufficient to validate higher code. 99205 is

supported.

(25) Two: Coded 99214 for $41.51--reduced to 99212 for

$26.45, because visit was problem focused.

Respondent did not support a higher code. 99212 is

appropriate.

Three: Coded 99214 for $41.51--reduced to 99213 for

$32.56, because visit was problem focused.

Respondent did not prove otherwise. 99213 is

appropriate.

(26) One: Claim was allowed.

(27) One: Coded 99205 for $87.41--reduced to 99202 for

$34.01, due to inadequate documentation. Respondent

showed sufficient documentation to warrant code.

99205 is supported.

Three: Coded 99215 for $60.95--reduced to 99213 for

$27.67, because visit was problem focused.

Respondent did not prove otherwise. 99213 is

appropriate.

Four: Coded 99212 for $21.84--reduced to 99211 for

$12.97, because visit was for a lab draw only.

Respondent did not prove otherwise. 99211 is

appropriate.

Five: Coded 99214 for $41.51--reduced to 99212 for

$27.71, because visit was problem focused.

Respondent failed to show all elements of higher

code. 99212 is appropriate.

Six: Coded 99214 for $41.51--reduced to 99213 for

$27.67, because visit was problem focused.

Respondent failed to show all elements of higher

code. 99213 is appropriate.

(28) One: Coded 99214 for $41.49--reduced to 99213 for

$32.56, because visit was problem focused.

Respondent showed that patient had several complex

problems. 99214 is supported.

(29) One: Coded 99204 for $68.74--reduced to 99202 for

$33.66, because visit was problem focused for a URI.

Respondent did not prove otherwise. 99202 is

appropriate.

(30) One: Coded 99214 for $41.51--reduced to 99212 for

$26.45, because no examination done on a problem

focused visit. Respondent showed that more extensive

examination was done, that patient had disappeared

for two years and doctor needed to catch up on their

history, and diagnoses were complex. 99214 is

supported.

Two: Coded W9881 for $68.74--reduced to 99211 for

$12.48, because visit was for minor checkup.

Respondent showed that visit was a legitimate checkup

for the child. W9881 is supported.

Three: Coded 99212 for $21.84--reduced to 99211 for

$12.97, because visit was just for refills and vital

signs taken. Respondent did not show otherwise.

99211 is appropriate.

Four: 99214 for $41.51--reduced to 99213 for $32.56,

because visit was only for expanded problem focus.

Respondent did not prove elements of higher code.

99213 is appropriate.

(31) One: Coded 99204 for $68.74--reduced to 99202 for

$33.74, because visit was problem focused.

Respondent showed the patient had multiple problems

that required treatment. 99204 is supported.

Three: Coded 99214 for $41.51--reduced to 99213 for

$32.56, because visit was problem focused for URI.

Respondent showed the elements of the higher code.

99214 is supported.

Four: Coded 99392 for $71.54--reduced to 99212 for

$26.45, because it was deemed a simple office visit.

Respondent proved that the visit was indeed an annual

evaluation. 99392 is supported.

Five: Coded 99214 for $41.51--reduced to 69210 (a

procedure code having to do with cerumen impaction

removal, i.e., removing wax from the patient's ear)

for $25.31. Respondent proved the difficulty of that

procedure for a child and that by doing so he saved

the family a much higher medical charge had they gone

to a specialist. 99214 is supported.

(32) One: Claim was allowed.

(33) One: Coded 99204 for $66.74--reduced to 99202 for

$33.66, because visit was problem focused for a

depressive disorder. Respondent did not prove

otherwise. 99202 is appropriate.

(34) One: Coded 99215 for $60.35--denied, in full,

because of lack of evidence that face-to-face

examination occurred. Respondent showed sufficient

evidence that such an examination did occur. 99215

is supported.

(35) One: Coded 99382 for $71.54--initially denied, in

full, but then reduced to 99202 for $34.01 by the RN.

Respondent showed that a full screening for a new

patient was done. 99382 is supported.

(36) One: Coded 99204 for $66.74--reduced to 99202 for

$33.74, because visit was problem focused for

hypertension. Respondent indicated he spent

considerable time with the patient, but did not meet

the requirements for a higher code. 99202 is

appropriate.

Two and Three: The dates and designations for these

two visits are confused in the record. One visit is

coded 99396 for $55.16, the other is 99215 for

$58.35. The first was allowed, the second denied.

Respondent did not prove the elements of the two

higher codes. 99396 is appropriate. 99215 is

denied.

Four: Coded 99212 for $19.84--reduced to 99211 for

$12.48, because the visit was simply a blood pressure

check. Respondent did not prove otherwise. 99211 is

appropriate.

Five: Coded 99214 for $39.46--reduced to 99212 for

$21.84, because visit was problem focused, and there

was no examination. Respondent did not prove

otherwise. 99212 is appropriate.

Six: Coded 99396 for $54.75--denied, in full,

because of lack of documentation. Respondent showed

the existence of a legitimate annual exam. 99396 is

supported.

Seven: Coded 99214 for $39.46--reduced to 99213 for

$26.61, because visit was an expanded problem focused

relating to hypertension. Respondent did not prove

otherwise. 99213 is appropriate.

Eight: Coded 99214 for $39.46--reduced to 99212 for

$21.84, because visit was problem focused with only

vitals taken. Respondent showed the visit was more

extensive than that, but not to the level of 99214.

99213 would be supported.

(37) One: Coded 99204 for $66.74--reduced to 99202 for

$32.37, because visit was problem focused.

Respondent showed that patient had many special needs

and additional services were required. 99204 is

supported.

Two: Coded 99214 for $39.51--amount was adjusted to

$34.75, due to fact that wrong code was used.

Respondent provided sufficient evidence to support

his code. 99214 is supported.

Four: Coded 99214 for $39.51--denied, in full,

because lack of documentation and belief that visit

was simply a pre-op visit. Respondent did not

support the higher procedure code, but did support a

code of 99202.

Six: Coded 99214 for $41.49--reduced to 99213 for

$26.61, because visit was problem focused to remove

foreign object from patient's ear. Respondent

satisfied elements of the higher procedure code.

99214 is supported.

Seven: Coded 99212 for $19.84--denied, in full,

because of lack of documentation. Respondent's

testimony and documents show that services were

performed. 99212 is supported.

Nine: Coded 99213 for $24.47--denied, in full,

because visit seemed to be only an interpretation on

a test. Respondent did not prove otherwise. Claim

is denied.

Ten: Coded 99214 for $41.46--reduced to 99213 for

$26.61, because visit was problem focused.

Respondent did not prove otherwise. 99213 is

appropriate.

Eleven: Coded 99395 for $51.83--denied in full,

because the issues had been covered during the

patient's prior visit. Respondent showed that the

visit was an annual periodic visit and was

legitimate. 99395 is supported.

Twelve: Coded 99213 for $24.47--denied, in full,

because of lack of documentation and visit was only

for lab work. Respondent did not prove otherwise.

Claim is denied.

(38) One: Coded W9881 for $68.74--reduced to 99212 for

$26.45, because visit was only a skin evaluation.

Respondent showed that the patient was brought in by

a state agency for a physical. W9881 is supported.

(39) One: Coded 99204 for $66.74--reduced to 99201 for

$31.20, because visit was problem focused on obesity.

Respondent spent time with the patient, but did not

prove the elements of the higher code. 99202 would

be appropriate.

Two: Coded 99212 for $19.84--denied, in full,

because there is no evidence of a visit. Respondent

did not prove otherwise. The claim is denied.

Three: Coded 99396 for $54.75--denied, in full,

because of lack of medical necessity. Respondent did

not prove otherwise. Claim is denied.

Four: Coded 99214 for $39.46--reduced to 99211 for

$12.48, because no exam was conducted. Respondent

did not prove otherwise. 99211 is appropriate.

Five: Coded 99212 for $19.84--denied, in full,

because the visit was for a lab draw only.

Respondent did not prove otherwise. 99211 is

appropriate.

Six: Coded 99214 for $39.46--reduced to 99211 for

$12.48, because visit was only for lab work review.

Respondent proved that more services were provided.

99214 is supported.

Seven: Coded 99212 for $19.84--denied, in full,

because of absence of face-to-face meeting.

Respondent showed documentation that such a meeting

occurred. 99212 is supported.

Eight: Coded 99213 for $24.47--denied, in full,

because no face-to-face meeting occurred. Respondent

did not prove otherwise. Claim is denied.

(40) One: Coded 99204 for $68.74--reduced to 99202 for

$32.71, because visit was problem focused for HIV

patient. Respondent did not prove otherwise. 99202

is appropriate.

Two: Coded 99385 for $49.83--denied, in full,

because of lack of medical necessity. Respondent

showed need for annual medical evaluation. 99385 is

supported.

Three: Coded 99214 for $39.46--reduced to 99213 for

$26.61, because visit was problem focused.

Respondent did not prove otherwise. 99213 is

appropriate.

Four: Coded 99214 for $39.46--reduced to 99212 for

$21.84, because visit was problem focused.

Respondent showed that more than a simple visit

occurred. 99213 would be appropriate.

13. Dr. Sloan, although undeniably a qualified family

medicine practitioner in his own right, operates his business in

a geographic area far removed from Respondent. Dr. Sloan's

office is located in Chipley. Respondent's office is in central

Florida, in Winter Haven. No evidence was presented to indicate

how the diversity of those two areas would affect Dr. Sloan's

ability to accurately address Respondent's coding. Thus, it is

presumed for purposes of this proceeding that Dr. Sloan was

competent to perform the review of records.

14. Nonetheless, Respondent is uniquely positioned to

evaluate the patients who came to his office. Respondent is the

only witness who testified at final hearing who knows exactly

what kind of treatment each such patient received. His

descriptions of the office visits and interpretation of the

patient charts are, therefore, given great weight. Further,

Respondent's testimony was very credible as to his description

of his patients and their various ailments.

15. The assignment of charges to each code was not

discussed sufficiently at final hearing for the undersigned to

make any specific findings as to the proper Medicaid charges for

the revised codes. That is the purview of AHCA. The fee

schedule introduced into evidence contains only the maximum fee

for each CPT code; it does not provide guidance in setting a fee

less than the maximum.

16. No evidence was presented to refute Respondent's

description of his services to the 40 patients at issue; nor did

Dr. Sloan address Respondent's explanation and interpretation of

the patient charts.

17. The Agency used the technique of "cluster sampling" to

determine the amount of overpayment to Respondent. This

technique, which has been upheld in Agency for Health Care

Administration v. Custom Mobility , 995 So. 2d 984 (Fla. 1st DCA

2008), rev. den. , Custom Mobility, Inc. v. Agency for Health

Care Administration (Fla. Feb. 2, 2009), was correctly applied

in the instant case.

18. It was the cluster sampling of Respondent's 40

patients that resulted in the calculation of overpayment by

AHCA.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2009).

20. The burden of proof in this case is on Petitioner, as

it is the party asserting the affirmative of the issue.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osbourne Stern & Co. , 670 So. 2d 932, 934

(Fla. 1996); see also Young v. Department of Community Affairs ,

625 So. 2d 831 (Fla. 1993).

21. The Agency made a prima facie case as to the

overpayments to Respondent by submitting into evidence its audit

report.

22. However, pursuant to Subsection 120.57(1)(j), Florida

Statutes (2009), Petitioner must prove its case by a

preponderance of the evidence. See also South Medical Services,

Inc. v. Agency for Health Care Administration , 653 So. 2d 440

(Fla. 3rd DCA 1995); Southpointe Pharmacy v. Department of

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

1992). It is then incumbent upon the provider to rebut,

impeach, or otherwise undermine AHCA's evidence. Disney Medical

Equipment, Inc., d/b/a Disney Pharmacy Discount , Case

No. 05-2277, WL979582, *6 (DOAH April 11, 2006). Respondent, as

set forth above, provided sufficient evidence to rebut or

impeach the Agency's evidence as to some of the patient visits.

23. The Agency is designated as the single state agency

authorized to make payments for medical assistance and related

services under Title XIX of the Social Security Act. The

medical assistance program is designated as the "Medicaid

Program" in Section 409.902, Florida Statutes (2009).

24. The Agency has the sole responsibility for overseeing

and administering the Medicaid Program for the State of Florida

pursuant to Section 409.913, Florida Statutes (2009).

25. The testimony of Dr. Sloan as to incorrect CPT codes

for the 40 patients was based entirely upon a "desk review" of

the patient records, including comments and notations made

therein by Respondent and his staff. To the extent that

Respondent testified as to specific circumstances relating to

individual patients that somewhat refute what Dr. Sloan

perceived from his review, Respondent's perception is given

greater weight.

26. AHCA met its initial burden of establishing questions

concerning the codes assigned to individual patients for their

office visits with Respondent. However, the questions raised by

AHCA for each patient did not firmly establish, by a

preponderance of the evidence, that Respondent had miscoded the

visits. Rather, the questions raised a possibility that

Respondent had used the wrong codes. Respondent then provided

competent and substantial evidence as to each code, in some

cases justifying the code he assigned and in some cases not (as

set forth in paragraph 11, above). It is of no particular

import that the evidence presented by Respondent was in some

instances (e.g., patient charts) exactly the same evidence

relied upon by AHCA.

27. AHCA also proposes to fine Respondent $3,000 in

accordance with its authority under Subsection 409.913(16),

Florida Statutes, which states:

The agency shall impose any of the

following sanctions or disincentives on a

provider or a person for any of the acts

described in subsection (15):

(c) Imposition of a fine of up to $5,000

for each violation. Each day that an ongoing

violation continues, such as refusing to

furnish Medicaid-related records or refusing

access to records, is considered, for the

purposes of this section, to be a separate

violation. Each instance of improper billing

of a Medicaid recipient; each instance of

including an unallowable cost on a hospital

or nursing home Medicaid cost report after

the provider or authorized representative has

been advised in an audit exit conference or

previous audit report of the cost

unallowability; each instance of furnishing a

Medicaid recipient goods or professional

services that are inappropriate or of

inferior quality as determined by competent

peer judgment; each instance of knowingly

submitting a materially false or erroneous

Medicaid provider enrollment application,

request for prior authorization for Medicaid

services, drug exception request, or cost

report; each instance of inappropriate

prescribing of drugs for a Medicaid recipient

as determined by competent peer judgment; and

each false or erroneous Medicaid claim

leading to an overpayment to a provider is

considered, for the purposes of this section,

to be a separate violation.

28. Submitting an erroneous request for a prior

authorization is one of the bases for which a penalty may be

assessed by AHCA. However, that particular violation must be

done "knowingly" in order to justify a fine. There is no

evidence in the record that Respondent knowingly submitted an

erroneous request. He presented evidence that he believed his

requests included the proper CPT codes and that each charge was

entirely justified. There is, therefore, no basis for imposing

a fine against Respondent in this matter.

29. However, Respondent's CPT codes were not always

correct or consistent with the definitions created by the AMA.

To the extent some codes were erroneous, adjustment of the

charge is appropriate. Upon completion of the adjustments, a

new sum total of overpayments should be calculated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Agency for Health Care Administration, setting forth the

following:

1. That each CPT code substantiated by Respondent, Hamid

Bagloo, M.D., be deemed proper and that the amount paid for

those office visits be allowed;

2. That the codes validated by Respondent pursuant to his

testimony at final hearing in this matter be assigned a monetary

charge consistent with the Medicaid Fee Schedule;

3. That the sum total of AHCA's overpayment to Respondent

be reduced in an amount commensurate with the findings herein; and

4. That the fine imposed against Respondent be stricken.

DONE AND ENTERED this 10th day of September, 2009, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of September, 2009.

ENDNOTES

1/ The letter is dated October 30, 2008, but that date is

completely out of sequence with the events. It is likely the

actual date of that letter was October 30, 2006, but that

discrepancy was not discussed at final hearing. Respondent does

not dispute that he received the letter, so the discrepancy is

not material to the ultimate findings herein.

2/ Respondent was represented by counsel in the initial stages

of this case. However, a disagreement between Respondent and

counsel ended in counsel withdrawing from representation. The

records introduced by AHCA at final hearing include information

submitted by Respondent's former counsel, including numerous

copies of a medical journal article about billing. The article

was not deemed relevant, was not relied upon by Respondent in

his case-in-chief, and will not be used as a basis for any

finding in this Recommended Order.

3/ Respondent's patient charts and office notes were already

part of the Agency's exhibits.

4/ The AMA materials introduced at final hearing do not provide

a definition of W9881, but this is the definition provided by

Respondent.

5/ "Problem focused" visits are those in which the patient

presents with a specific problem to be addressed, e.g., sore

throat, broken arm, cough, etc. In a problem focused visit, the

physician is not doing an overall examination, but is focusing

on the issue at hand.

COPIES FURNISHED :

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

Fort Knox Building III, Mail Station 3

2727 Mahan Drive

Tallahassee, Florida 32308

Justin Senior, Acting General Counsel

Agency for Health Care Administration

Fort Knox Building III, Suite 3431

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Tracie L. Wilks, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Station 3

2727 Mahan Drive

Tallahassee, Florida 32308

Hamid Bagloo

521 East Central Avenue

Winter Haven, Florida 33880

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.