11-005090MPI Agency For Health Care Administration vs. Mark Isenberg, D.P.M. Status: Closed Recommended Order on Thursday, May 31, 2012.

Summary: Respondent was overpaid for certain Medicaid claims reimbursed between Jan. 1, 2007, and Dec. 31, 2008, by AHCA, and the agency is entitled to sanction Respondent and impose costs related to establishing the overpayment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) )

ADMINISTRATION, )

)

Petitioner, )

vs. ) Case No. 11-5090MPI

)

MARK ISENBERG, D.P.M., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

by video teleconference between Tampa and Tallahassee, Florida,

on January 12 and March 15 and 16, 2012, before the Division of

Administrative Hearings by its designated Administrative Law

Judge Linzie F. Bogan.

APPEARANCES

For Petitioner: Shena L. Grantham, Esquire

Jamie Jackson, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

For Respondent: Richard M. Hanchett, Esquire

Trenam, Kemker, Scharf, Barkin,

Frye, O'Neil and Mullis, P.A.

Bank of America Plaza, Suite 2700

101 East Kennedy Boulevard

Tampa, Florida 33602

and

Michael A. Igel, Esquire

Trenam, Kemker, Scharf, Barkin,

Frye, O'Neil and Mullis, P.A.

200 Central Avenue

Tampa, Florida 33701

STATEMENT OF THE ISSUES

Whether Respondent was overpaid for Medicaid claims

submitted during the audit period January 1, 2007, through

December 31, 2008, and, if so, what amount Respondent is

obligated to reimburse Petitioner; and whether sanctions and

costs should be assessed against Respondent.

PRELIMINARY STATEMENT

Petitioner, Agency for Health Care Administration

(Petitioner/Agency/AHCA), issued a Final Audit Report (FAR) dated

August 4, 2011, informing Respondent, Mark Isenberg, D.P.M.

(Respondent), that an audit of claims for the period January 1,

2007, through December 31, 2008, determined that Respondent was

overpaid in the amount of $105,010.14 (subsequently reduced to

$102,953.97). The FAR also advised Respondent of Petitioner's

intent to impose administrative sanctions and costs associated

with the audit.

Respondent filed a Petition for a Formal Administrative

Hearing challenging the FAR determinations. The matter was

referred to the Division of Administrative Hearings (DOAH) on

October 3, 2011.

The final hearing in this matter was originally scheduled

for December 19 and 20, 2011, via video teleconference between

Tallahassee and Tampa, Florida. A continuance was granted, and

the final hearing was rescheduled for January 12 and 13, 2012.

At the commencement of the hearing on January 12, 2012, a second

continuance, per the request of the parties, was granted, and the

final hearing was rescheduled for March 15 and 16, 2012.

At the final hearing, Petitioner presented the testimony of

Robi Olmstead, Effie Green, and Dr. Peter Mason. Respondent

appeared at the final hearing and testified on his own behalf.

Respondent did not offer the testimony of any other witnesses

during the final hearing. Petitioner's Exhibits 1 through 21

were admitted into evidence. By agreement of the parties, the

record was left open following the conclusion of the presentation

of evidence on March 16, 2012, so that redacted versions of

certain exhibits and final cost affidavits and related documents,

as appropriate, could be included in the record. Respondent's

Exhibits 1 through 7 were admitted into evidence. The record

closed on April 6, 2012.

A two-volume Transcript of the proceeding was filed with

DOAH. A Proposed Recommended Order (PRO) was filed by Petitioner

and Respondent. Each PRO was considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. This case involves a Medicaid audit of claims paid by

AHCA to Respondent for dates of service from January 1, 2007,

through December 31, 2008. The audit in this case evaluated

258 paid claims and of these, 255 were found to be claims that,

according to Petitioner, were not submitted in compliance with

Medicaid rules. 1/

2. During the audit period, Respondent was an enrolled

Medicaid waiver provider, had a valid Medicaid Provider Agreement

with AHCA, and received in excess of $102,953.97 for services

provided to Medicaid recipients.

3. Paragraph 3 of the Medicaid Provider Agreement states

that "[t]he provider agrees to comply with local, state and

federal laws, as well as rules, regulations, and statements of

policy applicable to the Medicaid program, including the Medicaid

Provider Handbooks issued by AHCA."

4. Among other duties, Petitioner investigates and audits

Medicaid providers in an effort to identify and recoup

overpayments made to providers for services rendered to Medicaid

recipients. Petitioner is also empowered to impose sanctions and

fines against offending providers.

5. Petitioner, when it identifies overpayment, fraud, or

abuse, is charged with taking affirmative steps to recoup any

overpayments and can, as appropriate, impose fines, sanctions,

and corrective actions plans on the offending provider.

6. Pursuant to what is commonly referred to as the "pay-

and-chase" system, Petitioner pays Medicaid providers under an

honor system for services rendered to Medicaid recipients. If

Petitioner determines that the provider was paid for services

rendered which were not in compliance with Medicaid requirements,

then Petitioner seeks reimbursement from the provider.

7. By correspondence dated March 17 and April 12, 2010,

Petitioner contacted Respondent and requested records related to

claims billed to Medicaid by Respondent. Respondent provided

documents in response to Petitioner's requests.

8. After considering the information provided by

Respondent, Petitioner, on July 16, 2010, issued a Preliminary

Audit Report (PAR) and advised therein that it was believed that

Petitioner had overpaid Respondent in the amount of $160,159.77.

In response to the PAR, Respondent met with Petitioner's

representatives and submitted additional documentation that it

desired for Petitioner to consider.

9. After receipt and evaluation of the additional

information submitted by Respondent, Petitioner, on August 4,

2011, issued an FAR and noted therein that Petitioner had

determined that Respondent was overpaid by Medicaid in the amount

of $105,010.14. 2/ In this same correspondence, Petitioner

notified Respondent that Petitioner was seeking to impose against

Respondent a $3,000.00 fine and investigative, legal, and expert

witness costs.

10. The FAR provided to Respondent provides, in part, as

follows:

A statistically valid random sample of 30 of

your Medicaid recipient records, involving

258 paid claims, for dates of service from

January 1, 2007, through December 31, 2008,

was reviewed. This review determined that:

1. Lower Level (LL) --You billed and received

payment for procedure codes that were not

properly documented to substantiate the

procedures for which you were paid. Medicaid

policy defines the varying levels of care and

expertise required for the procedure codes

specific to your specialty of podiatry. The

documentation that you provided supports a

lower level than the one for which you billed

and received payment. This determination was

made by a peer consultant in accordance with

Sections 409.913 and 409.9131, F.S. These

claims have been adjusted accordingly and are

indicated on the enclosed worksheets.

The Medicaid Podiatry Services Coverage and

Limitations Handbook, Update January 2004,

Chapter 2, pages 2-1 and 2-2, state:

" General Service Requirements, Limitations

and Exclusions

* * *

Medically Necessary

Medicaid reimburses for services that are

determined medically necessary and do not

duplicate another provider's service. In

addition, the services must meet the

following criteria:

Be necessary to protect life, to prevent

significant illness or significant

disability, or to alleviate severe pain;

Be individualized, specific, consistent

with symptoms or confirmed diagnosis of the

illness or injury under treatment, and not

in excess of the recipient's needs;

Be consistent with generally professional

medical standards as determined by the

Medicaid program, and not experimental or

investigational;

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

Be furnished in a manner not primarily

intended for the convenience of the

recipient, 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 service."

Review Determination #1

Procedure codes for which you billed and were

paid have been adjusted to lower levels of

service and the difference between the amount

you were paid and the amount allowed for the

appropriate level of service is considered an

overpayment .

2. Routine Foot Care (ROUT) --Medicaid policy

states that routine foot care must be billed

with a report submitted with the claim form

that documents the service and contains the

name and Medicaid provider number of the

referring physician.

The Medicaid Podiatry Services Coverage and

Limitations Handbook, Update January 2004,

Chapter 2, pages 2-10, states:

" Podiatry Visit Services, Continued

Routine Foot Care

Routine foot care, procedure code 28899, can

be reimbursed in addition to an office visit

if the recipient is under a physician's care

for a metabolic disease, has conditions of

circulatory impairment, or conditions of

desensitization of the legs or feet.

Routine foot care must be billed with a

report submitted with the claim form that

documents the service and contains the name

and Medicaid provider number of the referring

physician."

" Definition of Routine Foot Care

Routine foot care means the cutting or

removal of corns and calluses, the trimming

of nails, routine hygienic care, and other

routine-type care of the foot."

Review Determination #2:

Routine foot care services that you billed

and were paid by billing with procedure codes

11306 and 11307, have been denied. According

to the peer reviewer, the documentation

substantiates that routine foot care

(procedure code 28899) was rendered.

However, you billed and were paid by billing

procedure codes 11306 and 11307. As Medicaid

policy states, routine foot care must be

billed as procedure code 28899 with a report

submitted with the claim form. Our review

did not reveal that reports were included in

the recipients' documentation. Therefore,

the amount you were paid for services that

were determined by your peer as routine foot

care, is considered an overpayment.

3. Incomplete Documentation (ID)-- Medicaid

policy states that medical records must state

the necessity for and the extent of services

provided. Medicaid payments for services

that lack required documentation are

considered overpayment.

The Florida Medicaid Provider General

Handbook, Chapter 5, page 5-8, January 2007,

states the following:

" Incomplete or Missing Records

Incomplete records are records that lack

documentation that all requirements or

conditions for service provision have been

met. Medicaid may recover payments for

services or goods when the provider has

incomplete records or does not provide the

records.

Note: See Chapter 2 in this handbook for

Medicaid record keeping and retention

requirements."

4. No Documentation (NO DOC)-- Medicaid

policy specifies how medical records must be

maintained. A review of your medical records

revealed that some services for which you

billed and received payment were not

documented. Medicaid requires documentation

of the services and considers payment made

for services not appropriately documented as

overpayment.

The Florida Medicaid Provider General

Handbook, Chapter 5, page 5-4, January 2007,

states the following:

" Provider Responsibility

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:

Have actually been furnished to the

recipient by the provider prior to

submitting the claim;

Are Medicaid-covered services that are

medically necessary;

Are of a quality comparable to those

furnished to the general public by the

provider's peers;

Have not been billed in whole or in part to

a recipient's responsible party, except for

such co-payments, coinsurance, or

deductibles as are authorized by AHCA;

Are provided in accord with applicable

provisions of all Medicaid rules,

regulations, handbooks, and policies and in

accord with federal, state, and local law;

and

Are documented by records made at the time

the goods or services were provided,

demonstrating the medical necessity for the

goods or services rendered. Medicaid goods

or services are excessive or not medically

necessary unless the medical basis and

specific need for them are fully documented

in the recipient's medical record."

11. Respondent is a doctor of podiatric medicine and has

practiced podiatry since graduating from the Ohio College of

Podiatric Medicine in 1979. Respondent has been licensed to

practice podiatry in Florida since 1979 and is certified by the

American Board of Podiatric Surgery. In the late 1990's

Respondent opened his own practice and, since that time, has

focused his professional efforts on providing podiatric services

to patients residing throughout the panhandle of Florida.

Respondent visits patients in their homes and also sees patients

that reside in group homes and assisted living facilities.

12. Dr. Peter M. Mason (Dr. Mason) was offered and accepted

as Petitioner's expert in areas regarding podiatric medical

claims coding, podiatric standards of care, and podiatric medical

necessity. Dr. Mason was also offered and accepted as a

physician peer reviewer pursuant to section 409.9131, Florida

Statutes (2011). 3/ Dr. Mason is a doctor of podiatric medicine

and has practiced podiatry since graduating in 1973 from Temple

University School of Podiatric Medicine (formerly Pennsylvania

College of Podiatric Medicine). Dr. Mason holds certification

from the American Board of Podiatric Orthopedics and Primary

Podiatric Medicine and has been a Diplomate in Foot and Ankle

Orthopedics since 1978. Dr. Mason is licensed by the State of

Florida to practice podiatric medicine and has maintained a

private practice in Largo, Florida, since 1975. Dr. Mason has

been a physician advisor and peer reviewer continuously since

1990 and has conducted approximately 100 peer reviews.

CPT Codes 11306 and 11307

13. Of the 258 audited claims, 60 were identified as claims

where Respondent billed either CPT Code 11306 or 11307.

14. CPT Code 11306 is used when the following service is

provided: "[s]having of epidermal or dermal lesion, single

lesion, scalp, neck, hands, feet, genitalia; [with] lesion

diameter .06 to 1.0 cm."

15. CPT Code 11307 is used when the following service is

provided: "[s]having of epidermal or dermal lesion, single

lesion, scalp, neck, hands, feet, genitalia; [with] lesion

diameter 1.1 to 2.0 cm."

16. The CPT Procedure Guidelines and Codes Manual (2007-

2008) for CPT Codes 11306 and 11307 provides that "[s]having is

the sharp removal by transverse incision or horizontal slicing to

remove epidermal and dermal lesions without a full-thickness

dermal excision [and] [t]his includes local anesthesia, chemical

or electrocauterization of the wound [and] [t]he wound does not

require suture closure."

17. The American Medical Association publishes a CPT

Coders' Desk Reference (AMA Desk Reference). According to the

AMA Desk Reference, the guidelines for CPT Codes 11306 and 11307

provide as follows:

The physician removes a single, elevated

epidermal or dermal lesion from the scalp,

neck, hands, feet, or genitalia by shave

excision. Local anesthesia is injected

beneath the lesion. A scalpel blade is

placed against the skin adjacent to the

lesion and the physician uses a horizontal

slicing motion to excise the lesion from its

base. The wound does not require suturing

and bleeding is controlled by chemical or

electrical cauterization.

18. For each of the 60 claims where Respondent used either

CPT Code 11306 or 11307, Respondent diagnosed a benign neoplastic

lesion. As applied to the instant case, a benign neoplastic

lesion is a non-cancerous new growth on a patient's foot or feet.

19. Medicaid will reimburse for routine foot care when

included within a claim for reimbursement associated with an

office visit. For the same date of service, Medicaid will not,

however, reimburse for routine foot care, in addition to an

office visit, unless "the recipient is under a physician's care

for a metabolic disease, has conditions of circulatory

impairment, or conditions of desensitization of the legs or

feet." There is no evidence of record that the 60 claims in

dispute involved recipients who were under the care of a

physician for a metabolic disease, a condition of circulatory

impairment, or a condition causing desensitization of the legs or

feet.

20. Respondent, as an experienced podiatrist, is capable of

independently diagnosing whether a growth on a patient's foot is

either a corn or a callus.

21. According to Dr. Mason, corns and calluses are benign

growths "caused by friction and pressure against an area of the

foot [and] can be on the bottom of the foot, on a toe, [or] it

can be in various locations, but it is always caused by friction

or pressure . . . [and] the simplest form of care that can be

offered to a patient with that type of growth is to just shave

the growth . . . smooth it down, [and] take off the excessive

growth. That makes the patient feel better." Tr. pgs. 109-10.

22. Dr. Mason credibly opined that when a skin growth is

neither a corn nor callus, the medical standard of care for

determining whether the growth is benign or malignant requires

that the growth, or some portion thereof, be submitted to

pathology for microscopic evaluation and diagnosis. According to

the medical records associated with the 60 claims where

Respondent secured reimbursement using CPT Codes 11306 and 11307,

none of the growths removed by Respondent were sent to pathology

for microscopic evaluation and diagnosis.

23. CPT Codes 11306 and 11307 are primarily used when a

physician cannot determine what a growth is by looking at it, and

the physician wants to get a sample of the growth so that it can

be submitted to pathology for microscopic evaluation.

24. For the 60 claims in dispute, Respondent identified

each patient as possessing some combination of the following skin

characteristics: tender, painful, swollen, regular, raised,

inflamed, indurated, hyperkeratotic, yellow, erythematous, and

hyperpigmented. Dr. Mason credibly opined that each of these

skin characteristics is associated with corns and calluses and

may also be associated with other medical conditions.

25. Though Respondent, for each patient, noted the presence

of the skin characteristics enumerated above, he did not include

in the patient medical records specific information related to,

for example, the duration, range, or intensity of the identified

characteristics. For a significant majority of these recipients,

the medical records prepared by Respondent merely note that the

respective benign neoplastic lesions have existed for "an

extended duration," that the quality of the pain associated with

the condition is "tender and throbbing," and that "shoe gear

worsens [the] condition."

26. Dr. Mason credibly opined that the medical records

where CPT Codes 11306 and 11307 were used for treatment of benign

neoplastic lesions do not affirmatively demonstrate that the

benign neoplastic lesions were medical conditions other than

corns or calluses. Because the benign neoplastic lesions were

corns or calluses and, thus, included within the definition of

"routine foot care," Respondent was not permitted to receive

additional reimbursement for the shaving of the corns and

calluses because as previously noted, none of the patients to

which Respondent provided these services was under a physician's

care for a metabolic disease, had conditions of circulatory

impairment, or had desensitization of the legs or feet.

27. Included within the cluster of 60 claims where

Respondent sought reimbursement using either CPT Code 11306 or

11307, are three claims for patient A.R. where Respondent claimed

and secured reimbursement for the removal of corns or calluses.

Unlike the other 57 claims, Respondent did not couple these

claims with a separate charge for an office visit. Petitioner

denied these three claims.

28. In his review of these claims, Dr. Mason opined that

these claims should be denied because the "[s]having of [a] corn

or callus is routine foot care, a non-covered service by Medicaid

as it is routine foot care." As previously noted, included

within the definition of "routine foot care" are services related

to the removal of corns and calluses and the trimming of nails.

When Respondent trimmed a patient's toenails and used CPT Code

99336, Petitioner allowed the charge, but reduced it to CPT Code

99334. If the trimming of nails and the removal of corns and

calluses are both considered routine foot care, then consistent

with how Petitioner adjusted the charges for the trimming of

nails, Petitioner should not have denied these claims. While it

is true that these three claims were billed using CPT Code 11306,

and not 99336 or 99334, Petitioner did not deny the claims

because Respondent used the wrong CPT code. It is inconsistent

for reimbursement purposes to treat the removal of corns and

calluses differently from the trimming of nails, when both are

considered routine foot care.

29. Additionally, Respondent provided services to patient

A.R. on October 17, 2007, related to the shaving of a corn or

callus. Respondent billed for this service date using CPT Code

11721. Dr. Mason's written opinion as to this claim erroneously

indicates that Respondent submitted this claim using CPT Code

11306. As previously stated, it is inconsistent for

reimbursement purposes to treat the removal of corns and calluses

differently from the trimming of nails, when both are considered

routine foot care. Petitioner erroneously determined that

Respondent should not have been reimbursed for this claim.

Lower Level Billing

30. CPT Codes 99309, 99325, 99326, 99334, 99335, 99336, and

99349 are used, in part, to identify whether a patient is a "new

or existing" patient and where a patient was physically located

(e.g., nursing home) when evaluated by the Medicaid provider.

These CPT codes are included within the phrase "office visit," as

found within the section of the Podiatry Services Coverage and

Limitations Handbook where billing procedures for "routine foot

care" is discussed.

31. In each instance where claims submitted by Respondent

were reduced to a lower level of service, the medical records

created by Respondent showed that Respondent's examination of the

patients included an assessment of the patients' neurological,

cardiovascular, constitutional, integumentary, and

musculoskeletal systems (Systems). Dr. Mason credibly opined

that Respondent's evaluation of these respective Systems was not

medically necessary.

A. CPT Codes 99324, 99325, 99326

32. According to the CPT Evaluation and Management Service

Guidelines and Codes Manual (2007 and 2008), CPT Codes 99324

through 99326 are service billing codes used by Medicaid

providers for a "[d]omiciliary or rest home visit for the

evaluation and management of a new patient. . . ."

33. For CPT Code 99324, the patient medical records

maintained by the Medicaid provider must document the following

three key components: a problem-focused history; a problem-

focused examination; and straight-forward medical decision-

making. "Usually, the presenting problem(s) are of low severity

[and] [p]hysicians typically spend 20 minutes with the patient

and/or family or caregiver."

34. For CPT Code 99325, the patient medical records

maintained by the Medicaid provider must document the following

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

moderate severity [and] [p]hysicians typically spend 30 minutes

with the patient and/or family or caregiver."

35. For CPT Code 99326, the patient medical records

maintained by the Medicaid provider must document the following

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 [and] [p]hysicians typically spend 45 minutes with the

patient and/or family or caregiver."

36. Respondent saw patient B.B. on June 24, 2007, for

services related to the removal of corns and calluses and used

CPT Code 99326 in support of the claim for reimbursement. For

this service, Petitioner correctly changed the CPT Code to 99324

to reflect a lower level of service. Dr. Mason credibly opined

that the medical record for this claim reflects that Respondent

conducted a problem-focused history and examination related to

the patient's corns and calluses and that the ultimate decision

to shave the patient's corns and calluses involved straight-

forward medical decision-making as contemplated by CPT Code

99324.

37. Respondent saw patient D.B. on February 28, 2008, for

services related to complaints about areas of skin on the

patient's feet being inflamed, itchy, raw, and scaly. For the

services provided, Respondent used CPT Code 99326 in support of

the claim for reimbursement. For this service, Petitioner

correctly changed the CPT Code to 99325 to reflect a lower level

of service. Dr. Mason credibly opined that the medical record

for this claim reflects that Respondent conducted an expanded

problem-focused history and examination related to the patient's

complaint and that the ultimate treatment decision was of low

complexity as contemplated by CPT Code 99325.

38. Respondent saw patient D.C. on April 22, 2007, for

services related to elongated toenails and used CPT Code 99326 in

support of the claim for reimbursement. For this service,

Petitioner correctly changed the CPT Code to 99324 to reflect a

lower level of service. Dr. Mason credibly opined that the

medical record for this claim reflects that Respondent conducted

a problem-focused history and examination related to the

patient's toenails and that the ultimate decision to trim the

patient's toenails involved straight-forward medical decision-

making as contemplated by CPT Code 99324. Respondent also saw

D.C. for elongated toenails on April 16, 2008, and again used CPT

Code 99326 in support of the claim for reimbursement. Petitioner

correctly denied this claim on the basis that the medical records

do not establish that D.C. was a "new patient" when Respondent

provided services to the patient on April 16, 2008.

39. Respondent saw patient J.D. on May 9, 2007, for

services related to the removal of corns and calluses and used

CPT Code 99326 in support of the claim for reimbursement. For

this service, Petitioner correctly changed the CPT Code to 99324

to reflect a lower level of service. Dr. Mason credibly opined

that the medical record for this claim reflects that Respondent

conducted a problem-focused history and examination related to

the patient's corns and calluses and that the ultimate decision

to shave the patient's corns and calluses involved straight-

forward medical decision-making as contemplated by CPT Code

99324.

40. Respondent saw patient R.J. on October 18, 2007, for

services related to a small abrasion on the right foot and used

CPT Code 99326 in support of the claim for reimbursement. For

this service, Petitioner correctly changed the CPT Code to 99324

to reflect a lower level of service. Dr. Mason credibly opined

that the medical record for this claim reflects that Respondent

conducted a problem-focused history and examination related to

the patient's small abrasion and that the ultimate decision to

apply antibiotic ointment to the small abrasion involved

straight-forward medical decision-making as contemplated by CPT

Code 99324.

41. Respondent saw patient I.W. on July 31, 2007, for

services related to elongated toenails and used CPT Code 99326 in

support of the claim for reimbursement. For this service,

Petitioner correctly changed the CPT Code to 99324 to reflect a

lower level of service. Dr. Mason credibly opined that the

medical record for this claim reflects that Respondent conducted

a problem-focused history and examination related to the

patient's toenails and that the ultimate decision to trim the

patient's toenails involved straight-forward medical decision-

making as contemplated by CPT Code 99324.

42. Respondent saw patient M.H. on February 28, 2008, for

services related to elongated toenails and used CPT Code 99325 in

support of the claim for reimbursement. Dr. Mason credibly

opined that the medical record for this claim reflects that the

patient presented with no symptoms or abnormal findings related

to the complaint of elongated nails, and, therefore, the record

provides no basis for a diagnosis. For this service, Petitioner

correctly denied the claim.

B. CPT Codes 99334, 99335, 99336

43. According to the CPT Evaluation and Management Service

Guidelines and Codes Manual (2007 and 2008), CPT Codes 99334

through 99336 are service billing codes used by Medicaid

providers for a "[d]omiciliary or rest home visit for the

evaluation and management of an established patient. . . ."

44. For CPT Code 99334, the patient medical records

maintained by the Medicaid provider must document at least two of

the three following key components: a problem-focused interval

history; a problem-focused examination; and straight-forward

medical decision-making. "Usually, the presenting problem(s) are

self-limited or minor. Physicians typically spend 15 minutes

with the patient and/or family or caregiver."

45. For CPT Code 99335, the patient medical records

maintained by the Medicaid provider must document at least two of

the three following key components: an expanded problem-focused

interval 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 25 minutes with the patient and/or

family or caregiver."

46. For CPT Code 99336, the patient medical records

maintained by the Medicaid provider must document at least two of

the three following 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 40 minutes with the

patient and/or family or caregiver."

47. Respondent used CPT Code 99336 for 153 of the 258

audited claims and used CPT Code 99335 only once. Unless

otherwise indicated, in those instances where Respondent used CPT

Code 99336 or CPT Code 99335 for services related to the trimming

of elongated toenails, Petitioner correctly changed the CPT Code

to 99334 to reflect a lower level of service. Dr. Mason credibly

opined that the medical records for these claims reflect that

Respondent conducted problem-focused interval histories related

to the patients' elongated toenails and that the ultimate

decision to trim the patients' toenails involved straight-forward

medical decision-making as contemplated by CPT Code 99334.

48. Respondent used CPT Code 99336 for services related to

the removal of corns and calluses. For these services,

Petitioner correctly changed the CPT Code to 99334 to reflect a

lower level of service. Dr. Mason credibly opined that the

medical records for these claims reflect that Respondent

conducted problem-focused interval histories related to the

patients' corns and calluses and that the ultimate decision to

shave the patients' corns and calluses involved straight-forward

medical decision-making as contemplated by CPT Code 99334. For

patient J.T., Dr. Mason did not express an opinion regarding date

of service January 24, 2008, where Respondent filed the claim

using CPT Code 99336.

49. Respondent saw patient J.H. on May 30, 2008, and used

CPT Code 99336 in support of the claim for reimbursement.

Dr. Mason opined in his written narrative that "[t]he record

indicates a problem-focused history (elongated nails), and

straight-forward decision making (trimmed toenails). The note is

a duplicate of the previous note, except for change of date.

Adjust to 99334." As for the patient's elongated nails, it is

factually accurate that other than the date, the entries in the

medical record duplicate previous entries. However, this record

also lists a second chief complaint expressed by the patient that

is not duplicative of a previous complaint. There is no

indication in the record that Dr. Mason considered the second

complaint when reaching his opinion regarding the patient history

taken by Respondent and the nature of the medical decision-making

involved in treating the patient. Finally, as to patient J.H.,

Dr. Mason credibly opined that for date of service August 14,

2008, the CPT Code should be adjusted to 99334; and for dates of

service October 16, 2008, and December 18, 2008, the CPT Code

should be adjusted to 99335.

50. Respondent saw patient M.H. on May 8, 2008, for

treatment related to an ingrown toenail and used CPT Code 99336

in support of the claim for reimbursement. For this service,

Petitioner correctly changed the CPT Code to 99334 to reflect a

lower level of service. Dr. Mason credibly opined that the

medical record for this claim reflects that Respondent conducted

a problem-focused interval history related to the patient's

ingrown toenail and that the ultimate decision to "slant back"

the patient's ingrown toenail involved straight-forward medical

decision-making as contemplated by CPT Code 99334.

51. Respondent saw patient R.J. on November 16, 2007, for

follow-up treatment related to an injury to the top of the

patient's right foot. For this visit, Respondent submitted a

claim for reimbursement using CPT Code 99336. For this service,

Petitioner correctly changed the CPT Code to 99334 to reflect a

lower level of service. Dr. Mason credibly opined that the

medical record for this claim reflects that Respondent conducted

a problem-focused interval history related to the patient's

injury. The medical decision-making was straight-forward, as

Respondent provided no specific treatment to the patient other

than counseling the patient about treatment options and related

matters.

52. Respondent saw patient S.L. on April 27, 2007, for

elongated toenails. For this visit, Respondent submitted a claim

for reimbursement using CPT Code 99336 and a diagnostic code of

701.1. For patient S.L., Respondent, in other instances where he

used CPT Code 99336 for reimbursement related to trimming

elongated toenails, used diagnostic code 703.8. Dr. Mason

credibly opined that this claim should be denied because "[t]he

diagnosis used is not consistent with the medical record."

53. Respondent saw patient J.M. on October, 17, 2007,

December 19, 2007, and February 27, 2008, for treatment related

to "the skin over both feet [that was] blistering, inflamed,

itchy, painful, raw, reddened, scaly and swollen." Respondent,

for each visit, used CPT Code 99336 in support of the claim for

reimbursement. For these services, Petitioner correctly changed

the CPT Code to 99334 to reflect a lower level of service.

Dr. Mason credibly opined that the medical records for these

claims reflect that Respondent conducted a problem-focused

interval history related to the patient's skin condition and that

the ultimate decision to treat the patient's condition with

antifungal spray involved straight-forward medical decision-

making as contemplated by CPT Code 99334.

54. Respondent saw patient Y.P. on June 13, 2007, for

treatment related to the right third toenail that was swollen,

reddened, painful, ingrown, inflamed, deformed, and had a

thickened nail groove. Respondent used CPT Codes 99336 and 11730

in support of the claim for reimbursement. For CPT Code 99336,

Respondent used a CPT Code Modifier 25.

55. For CPT Code Modifier 25, the Podiatry Services

Coverage and Limitations Handbook provides as follows:

Use modifier 25 for a significant,

separately identifiable evaluation and

management service by the same podiatrist or

podiatry group on the same day of the

procedure or other service. A podiatrist

may need to indicate that on the same day a

procedure or service identified by a

procedure code was performed, the patient's

condition required a significant, separately

identifiable evaluation and management

service above and beyond the usual

preoperative and postoperative care

associated with the procedure that was

performed.

The evaluation and management service may be

prompted by the symptom or condition for

which the procedure or the service was

provided. As such, different diagnoses are

not required for reporting of the evaluation

and management services on the same date.

The circumstance is reported by adding the

modifier 25 to the appropriate level of

evaluation and management service.

The modifier is not used to report an

evaluation and management service that

resulted in a decision to perform surgery.

A report must be submitted with the claim.

This modifier requires the claim to be

reviewed by a Medicaid medical consultant

for justification of the evaluation and

management service and appropriate pricing.

56. Petitioner reimbursed Respondent for services claimed

under CPT Code 11730, but denied reimbursement for services

claimed pursuant to CPT Code 99336, as modified. Dr. Mason

credibly opined that the medical record for this claim failed to

include the "significant, separately identifiable evaluation and

management service" as required. This claim was properly denied

by Petitioner.

C. CPT Codes 99307, 99308, 99309

57. According to the CPT Evaluation and Management Service

Guidelines and Codes Manual (2007 and 2008), CPT Codes 99307

through 99309 are service billing codes used by Medicaid

providers for "[a]ll levels of subsequent nursing facility care

[that] include[s] reviewing the medical record and reviewing the

results of diagnostic studies and changes in the patient's status

(i.e. changes in history, physical condition, and response to

management) since the last assessment by the physician."

58. For CPT Code 99307, the patient medical records

maintained by the Medicaid provider must document at least two of

the three following key components: a problem-focused interval

history; a problem-focused examination; and straight-forward

medical decision-making. "Usually, the patient is stable,

recovering, or improving."

59. For CPT Code 99308, the patient medical records

maintained by the Medicaid provider must document at least two of

the three following key components: an expanded problem-focused

interval history; an expanded problem-focused examination; and

medical decision-making of low complexity. "Usually, the patient

is responding inadequately to therapy or has developed a minor

complication."

60. For CPT Code 99309, the patient medical records

maintained by the Medicaid provider must document at least two of

the three following key components: a detailed history; a

detailed examination; and medical decision-making of moderate

complexity. "Usually, the patient has developed a significant

complication or a significant new problem."

61. Respondent used CPT Code 99309 to secure reimbursement

for services provided to patients C.H. and L.T. for the trimming

of elongated toenails and the shaving of corns and calluses.

Unless otherwise indicated, Petitioner, in each instance where

Respondent used CPT Code 99309, correctly changed the CPT Code

to 99307 to reflect a lower level of service. Dr. Mason credibly

opined that the medical records for these claims reflect that

Respondent conducted problem-focused interval histories related

to the patients' ailment(s) and that the ultimate treatment

decisions involved straight-forward medical decision-making as

contemplated by CPT Code 99307. Respondent used CPT Code 99309

to secure reimbursement for services provided to patient C.H. on

July 26, 2008. Petitioner properly denied this claim, because

Respondent failed to provide documentation to support the same.

D. CPT Codes 99347, 99348, 99349

62. According to the CPT Evaluation and Management Service

Guidelines and Codes manual (2007 and 2008), CPT codes 99347

through 99349 are service billing codes used by Medicaid

providers "to report evaluation and management services provided

[to an established patient] in a private residence."

63. For CPT Code 99347, the patient medical records

maintained by the Medicaid provider must document at least two of

the three following key components: a problem-focused interval

history; a problem-focused examination; and straight-forward

medical decision-making. "Usually, the presenting problem(s) are

self limited or minor [and] [p]hysicians typically spend 15

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

64. For CPT Code 99348, the patient medical records

maintained by the Medicaid provider must document at least two of

the three following key components: an expanded problem-focused

interval history; an expanded problem-focused examination; and

medical decision-making of low complexity. "Usually, the

presenting problem(s) are of low to moderate severity [and]

[p]hysicians typically spend 25 minutes face-to-face with the

patient and/or family."

65. For CPT Code 99349, the patient medical records

maintained by the Medicaid provider must document at least two of

the three following key components: a detailed history; a

detailed examination; and medical decision-making of moderate

complexity. "Usually, the presenting problem(s) are moderate to

high severity [and] [p]hysicians typically spend 40 minutes

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

66. Respondent used CPT Code 99349 to secure reimbursement

for services provided to patient T.E. for trimming the patient's

elongated toenails and prescribing cream for a skin rash. Unless

otherwise indicated, Petitioner, in each instance where

Respondent used CPT Code 99349, correctly changed the CPT Code to

99347 to reflect a lower level of service. Dr. Mason credibly

opined that the medical records for these claims reflect that

Respondent conducted problem-focused interval histories related

to the patient's ailment(s) and that the ultimate treatment

decisions involved straight-forward medical decision-making as

contemplated by CPT Code 99347. Respondent used CPT Code 99349

to secure reimbursement for services provided to patient T.E. on

October 15, 2008. Petitioner properly denied this claim, because

Respondent failed to provide documentation to support the same.

Costs

67. Petitioner submitted affidavits in support of its claim

for costs. Petitioner retained Drs. Huffer and Mason to provide

expert services in the instant matter. For the combined services

of Drs. Huffer and Mason, Petitioner incurred expert witness

costs totaling $4,756.25.

68. Petitioner had two investigators to perform tasks

related to the instant dispute: Effie Green and Jennifer

Ellingsen. Petitioner's total cost incurred for work performed

by Ms. Green related to the audit and ensuing litigation is

$1,025.46. Petitioner's total cost incurred for work performed

by Ms. Ellingsen related to the audit and ensuing litigation is

$561.17.

69. Petitioner's total costs related to the instant dispute

are $6,342.88.

CONCLUSIONS OF LAW

70. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569, 120.57(1)

& 409.913(31), Fla. Stat. (2011).

71. As the party asserting the overpayment, Petitioner

bears the burden of proof to establish the alleged overpayment by

a preponderance of the evidence. See Southpointe Pharmacy v.

Dep't of HRS , 596 So. 2d 106, 109 (Fla. 1st DCA 1992); S. Medical

Servs. v. Ag. for Health Care Admin. , 653 So. 2d 440, 441 (Fla.

3d DCA 1995) (per curiam).

72. The statutes, rules, and the Medical Provider Handbooks

in effect during the period for which the services were provided

govern the outcome of the dispute. Toma v. Ag. for Health Care

Admin. , Case No. 95-2419 (Fla. DOAH July 26, 1996; Fla. AHCA

Sept. 24, 1996).

73. The Medicaid program is the federal-state medical

assistance program authorized by Title XIX of the Federal Social

Security Act, pursuant to which the State of Florida provides

medical goods and services to eligible indigent recipients.

§ 409.901(15).

74. Petitioner is the State of Florida agency designated to

administer the Medicaid program in the State of Florida.

§§ 20.42, 409.901(2) & (14), & 409.902, Fla. Stat.

75. Among other statutory duties, Petitioner oversees the

activities of Medicaid providers; conducts reviews,

investigations, and audits of Medicaid providers to identify

fraud, abuse, and overpayments; issues audit reports with

Medicaid overpayment determinations; recovers Medicaid

overpayments; and imposes sanctions upon Medicaid providers for

fraud, abuse, and overpayments. § 409.913.

76. Petitioner is authorized to seek repayment of

overpayments that it may have made for goods or services

(15)(j) & (30).

77. Section 409.913(7)(e) and (f) requires providers to

present claims for reimbursement in accordance with all Medicaid

rules, regulations, and handbooks and appropriately document

goods and services supplied by them.

78. Section 409.913(20) provides that "[w]hen 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."

79. Section 409.913(21) provides that "[t]he audit report,

supported by agency work papers, showing an overpayment to a

provider constitutes evidence of the overpayment." Consistent

with this language, Petitioner can establish a prima facie case

by proffering a properly supported audit report, which must be

received in evidence. Colonial Cut-Rate Drugs v. AHCA , Case

No. 03-1547MPI (Fla. DOAH Mar. 14, 2005; Fla. AHCA May 27, 2005).

80. Section 409.913(5), provides as follows:

A Medicaid provider is subject to having

goods and services that are paid for by the

Medicaid program reviewed by an appropriate

peer-review organization designated by the

agency. The written findings of the

applicable peer-review organization are

admissible in any court or administrative

proceeding as evidence of medical necessity

or the lack thereof.

81. Section 409.9131(5)(b) provides that the Agency, in

making a determination of overpayment to a physician, must "refer

all physician service claims for peer review when the agency's

preliminary analysis indicates that an evaluation of the medical

necessity, appropriateness, and quality of care needs to be

undertaken to determine a potential overpayment. . . ."

82. Section 409.9131(2)(d) defines "peer review" to mean:

[A]n 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.

83. Florida Administrative Code Rule 59G-4.220 (August 18,

2005) provides as follows:

(1) This rule applies to all podiatry

providers enrolled in the Medicaid program.

(2) All podiatry services providers enrolled

in the Medicaid program must be in compliance

with the provisions of the Florida Medicaid

Podiatry Services Coverage and Limitations

Handbook, January 2004, updated January 2005,

which is incorporated by reference, and the

Florida Medicaid Provider Reimbursement

Handbook, CMS-1500, which is incorporated by

reference in Rule 59G-4.001, F.A.C. Both

handbooks are available from the Medicaid

fiscal agent.

84. The Medicaid Podiatry Services Coverage and Limitations

Handbook (January 2004), Chapter 2, pages 2-1 and 2-2, states in

part as follows:

General Service Requirements, Limitations and

Exclusion:

* * *

Medically Necessary

Medicaid reimburses for services that are

determined medically necessary and do not

duplicate another provider's service. In

addition, the services must meet the

following criteria:

Be necessary to protect life, to prevent

significant illness or significant

disability, or to alleviate severe pain;

Be individualized, specific, consistent

with symptoms or confirmed diagnosis of the

illness or injury under treatment, and not

in excess of the recipient's needs;

Be consistent with generally professional

medical standards as determined by the

Medicaid program, and not experimental or

investigational;

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

Be furnished in a manner not primarily

intended for the convenience of the

recipient, 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 service.

85. The Medicaid Podiatry Services Coverage and Limitations

Handbook (January 2004), Chapter 2, pages 2 through 10, states,

in part, as follows:

Routine Foot Care

Routine foot care, procedure code 28899, can

be reimbursed in addition to an office visit

if the recipient is under a physician's care

for a metabolic disease, has conditions of

circulatory impairment, or conditions of

desensitization of the legs or feet.

Routine foot care must be billed with a

report submitted with the claim form that

documents the service and contains the name

and Medicaid provider number of the referring

physician.

Definition of Routine Foot Care

Routine foot care means the cutting or

removal of corns and calluses, the trimming

of nails, routine hygienic care, and other

routine-type care of the foot.

86. The Florida Medicaid Provider General Handbook,

Chapter 5, pages 5 through 8, (January 2007), states in part as

follows:

Incomplete or Missing Records

Incomplete records are records that lack

documentation that all requirements or

conditions for service provision have been

met. Medicaid may recover payments for

services or goods when the provider has

incomplete records or does not provide the

records.

87. The Florida Medicaid Provider General Handbook,

Chapter 5, page 5 and 4 (Jan. 2007), states, in part, as follows:

Provider Responsibility

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:

Have actually been furnished to the

recipient by the provider prior to

submitting the claim;

Are Medicaid-covered services that are

medically necessary;

Are of a quality comparable to those

furnished to the general public by the

provider's peers;

Have not been billed in whole or in part to

a recipient's responsible party, except for

such co-payments, coinsurance, or

deductibles as are authorized by AHCA;

Are provided in accord with applicable

provisions of all Medicaid rules,

regulations, handbooks, and policies and in

accord with federal, state, and local law;

and

Are documented by records made at the time

the goods or services were provided,

demonstrating the medical necessity for the

goods or services rendered. Medicaid goods

or services are excessive or not medically

necessary unless the medical basis and

specific need for them are fully documented

in the recipient's medical record.

88. Petitioner met its burden of proof and established for

those claims identified herein that Respondent was paid for

claims that failed to comply with the laws, rules, and

regulations governing Medicaid providers. 4/

Costs, Sanctions, and Interest

A. Costs

89. Section 409.913(22)(a) allows Petitioner to recover its

investigative, legal, and expert witness costs. Petitioner met

its burden of proof and established costs in the amount of

$6,342.88.

B. Sanctions

90. Petitioner, in the FAR provided to Respondent, informed

Respondent that it was seeking imposition of a fine in the amount

of $3,000.00 as a result of Respondent's non-compliance with the

laws, rules, and regulations governing the Florida Medicaid

program. Section 409.913(15)(e) provides that Petitioner may

seek any remedy provided by law, including, but not limited to,

the remedies provided in subsections (13) and (16) and section

812.035, Florida Statutes, if "[t]he provider is not in

compliance with provisions of Medicaid provider publications that

have been adopted by reference as rules in the Florida

Administrative Code . . . ." Section 409.913(16)(c) provides

that for a violation of section 409.913(15), Petitioner shall

impose "a fine of up to $5,000 for each violation."

91. Florida Administrative Code Rule 59G-9.070(10)(i)

(April 26, 2006) provides that for a violation of section

409.913(15)(e), the Agency may impose against a Medicaid provider

for the first violation of this statute "[a] $500 fine per

provision, not to exceed $3,000 per agency action."

92. Petitioner has established by clear and convincing

evidence its entitlement to impose against Respondent a fine in

the amount of $3,000.00.

C. Statutory Interest

93. Section 409.913(25)(c) provides, in part, that

"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."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that that Petitioner, Agency for Health

Care Administration, issue a final order and note therein that:

1. Respondent, Mark Isenberg, D.P.M., was not overpaid for

services provided to patient A.R. during the audit period;

2. Respondent was not overpaid for services provided to

patient J.T. on January 24, 2008;

3. Respondent was not overpaid for services provided to

patient J.H. on May 30, 2008;

4. Petitioner shall recalculate, using generally accepted

statistical methods, the total overpayment determination to

reflect that Respondent was not overpaid for certain services

provided to patients A.R, J.T., and J.H., as set forth in the

Findings of Fact;

5. Respondent was overpaid for all other services

identified in the FAR and that Petitioner is entitled to recoup

the overpayment as determined in accordance with the preceding

paragraph;

6. Petitioner is entitled to statutory interest on the

overpayment;

7. Petitioner is entitled to recover from Respondent its

costs in the amount $6,342.88; and

8. Petitioner is entitled to impose against Respondent an

administrative fine in the amount of $3,000.00.

DONE AND ENTERED this 31st day of May, 2012, in Tallahassee,

Leon County, Florida.

S

LINZIE F. BOGAN

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 31st day of May, 2012.

ENDNOTES

1/ Respondent does not dispute the statistical sampling

methodology used by Petitioner.

2/ Following the issuance of the FAR, Petitioner met with

Respondent and his counsel on December 15, 2011, to discuss the

audit review determinations. As a result of this meeting,

Petitioner adjusted some of the claims at issue in the audit,

thereby, reducing the claimed overpayment amount to $102,953.97.

3/ All statutory references are to Florida Statutes (2011),

unless otherwise noted.

4/ Following the final hearing, Respondent, without objection,

submitted an affidavit wherein he advised that as of March 30,

2012, "AHCA has withheld a total of $10,381.36 in Medicaid

payments to which [Respondent] is entitled." As appropriate, and

subject to review under chapter 120, Respondent may be entitled

in the instant case to an offset of the referenced amount

withheld.

COPIES FURNISHED:

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard M. Hanchett, Esquire

Trenam, Kemker, Scharf, Barkin,

Frye, O'Neil and Mullis, P.A.

Bank of America Plaza, Suite 2700

101 East Kennedy Boulevard

Tampa, Florida 33602

Shena L. Grantham, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.