14-003183MPI Agency For Health Care Administration vs. David Vine, D.D.S. Status: Closed Recommended Order on Friday, May 29, 2015.

Summary: Petitioner proved that Respondent was overpaid for certain Medicaid charges, but failed to prove that he was overpaid for other Medicaid charges. Petitioner proved that administrative fine should be assessed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case No. 14 - 3183

DAVID VINE, D.D.S.

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, on December 19, 2014, a final hearing

was conducted pursuant to sections 120.569 and 120.57(1),

Florida Statutes (201 4 ), before Cathy M. Sellers, an

Administrative Law Judge of the Division of Administrative

Hearings ("DOAH") . The hearing was conducted by video

teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Jeffries H. Duvall, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail St op 3

Tallahassee, Florida 32308

For Respondent: David Vine, D.D.S., pro se

Sheridan Center, Suite 403

400 Arthur Godfrey Road

Miami Beach, Florida 33140

STATEMENT OF THE ISSUE S

The issue s in this case are whether the Agency for Health

Care Administration ( " AHCA " ) is entitled to repayment of

Medicaid reimbursements that it made to Respondent, pursuant to

section 409.913(11) , Florida Statues ; if so, the amount of the

repayment; the amount of any sanctions that should be imposed

pursuant to sub section s 409.913(15) through (17); and the amount

of any investigative, legal, and expert witness costs that AHCA

is entitled to recoup pursuant to section 409.9 13(23).

PRELIMINARY STATEMENT

On March 22, 2013, AHCA issued a Final Audit Report ( " FAR " )

in which it asserted that Respon dent, David Vine, D.D.S., a

Medicaid provider, had been overpaid $102,444.33 for services

not covered by Medicaid. The FAR also sought to impose an

administrative fine of $20,488.86 and assessed $576.83 in costs

for conducting the audit. Respondent filed a Petition for

Formal A dministrative Hearing on April 1 7, 2013.

On July 11, 2014, the matter was referred to DOAH to

conduct a hearing pursuant to sections 120.569 and 120.57(1).

On July 28, 2014, after granting the parties additional time to

identify d ates on which to hold the final hearing, the

undersigned scheduled the final hearing for September 15 and 16,

2014. On July 30, 2014, Respondent's counsel was granted leave

to withdraw for good cause shown.

On September 3 , 2014, the undersigned granted Respondent's

unopposed motion for a continuance to enable him to retain

counsel , and the hearing was rescheduled for November 10, 2014.

Due to a scheduling conflict with another case, the undersigned

issued an Order on October 17, 2014, re - schedul ing the final

hearing in this proceeding for D ecember 19, 2014.

On November 18, 2014, AHCA filed a Notice of Inte nt to Seek

Investigative, Legal and Expert Witness Costs.

The final hearing was held on December 19, 2014. AHCA

presented the testimony of Robi Olmst ead and Kr istopher Creel,

both of whom are employed with AHCA 's Bureau of Medicaid Program

Integrity. AHCA's Exhibits 1 through 6 and 9 through 16 were

admitted into evidence without objection. Additionally,

pursuant to AHCA's motion, t he undersigned took official

recognition of the versions of the following laws and rules in

effect between February 1, 2010, and March 1, 2011: chapters

393, 408, and 409, Florida Statutes; Florida Administrative Code

Chapter 59G ; the Med icaid Provider Ge neral Handbook; the Florida

Medicaid Provider Re imbursement Handbook (CMS - 1500); the Florida

Medicaid Dental Services Co verage and Limitations Handbook; and

the Florida Medicaid Dental Fee Schedules . Respondent testified

on his own behalf and presented the testimony of Cynthia Almora.

Respondent's late - filed Exhibits 1 and 2 were admitted into

evidence over objection.

On January 8, 2015, AHCA filed a Motion for Assessment of

Costs, seeking to recover its investigative, legal, and expert

witness costs incurred as a result of the audit and this

proceeding.

The one - volume Transcript of the final hearing was filed on

January 16 , 201 5. Pursuant to Respondent's unopposed motion,

the parties were granted an extension of time until February 4,

2015, to file proposed recommended orders. AHCA's Proposed

Recommended Order was timely filed on February 4, 2015, and

Respondent's Proposed Recommended Order was filed on February 5,

2015. Both proposed recommended o rders were duly considered in

preparing this Recommended Order.

FINDINGS OF FACT

I. The Parties

1. AHCA is the agency responsible for administeri ng the

Medicaid Program in the S tate of Florida, pursuant to section

403.902, Florida Statutes.

2. During all times relevant to this proceeding ,

Respondent was an enrolled Medicaid provider authorized to

receive reimbursement for covered services rendered to Medicaid

recipients.

II. AHCA's Agency Action

3. Pursuant to its s tatutory authority to oversee the

integrity of the Medicaid program in Florida, AHCA conducted a n

audit of Respondent's claims for Medicaid reimbursement for the

period from Fe bruary 1, 2010, to March 1, 2011 , to verify that

claims paid by AHCA to Respondent under the Medicaid program did

not exceed the amount authorized by Medicaid law and applicable

rules.

4 . As a result of the audit, AHCA determined it was

entitled to reimbursement from Respondent for $102,444.33 that

it paid to him for serv ices not covered under the Medicaid

program . AHCA also sought to impose sanctions consisting of a

$20,488.86 administrative fine and investigative, legal, and

expert witness costs.

5. Respondent requested an administrative hearing under

sections 120.569 and 120.57(1) to challenge the overpayment

determination and imposition of sanctions.

III. Evidence Adduced at Final Hearing

6 . At the final hearing, AHCA presented the testimony of

Robi Olmstead, an administrator with AHCA's Bureau of Medicaid

Program Integrity ( " MPI " ) . Olmstead's responsibilities include

supervising AHCA's staff perform ance of MPI audits. As a result

of her employment with AHCA in this position for several years ,

Olms tead is very familiar with, and knowledgeable about,

conducting MPI audits.

7 . No evidence was presented to show that Olmstead is a

licensed physician, has any substantive medical or dental

knowledge , or is a medical or dental services expert.

8 . Olmstead did not serve as a peer reviewer for AHCA in

determining or describing the nature or determining medical

necessity of the specific procedures at issue in this

proceeding, and she was neither proffered n or accepted as a peer

reviewer or expert w itness for these purposes at the final

hearing .

A. Description of the Audit and Overpayment Determination

9 . Olmstead described the audit of Respondent's claims at

issue in this case.

10. For reason s unspecified in the record , AHCA initiated

an audit of the Medicaid claims for which Respondent had been

paid. 1/

11 . Using AHCA's data support system, investigator Theresa

Mock 2/ accessed the complete universe of Medicaid claims paid to

Respondent . 3/ Mock selected the period from February 1, 2010, to

March 1, 2011, as the Audit P eriod ( " Audit Period " ) 4 / and

selected a statistically - based claim sampling program ÏÏ in this

case , cluster 5 / sampling ÏÏ to perform the audit.

1 2 . A computer - generated r epresentative sample , consisting

of 30 Medicaid recipients for whom Respondent had billed claims

during the A udit P eriod and been paid , was identified . AHCA

c ontact ed Respondent by demand letter , requesting that he submit

do cument s to substantiate the claims .

13. In response, Respondent provided document s consisting

of his records of service and billing for each claim for each of

the 30 recipients . Mock forwarded the records to AHCA's peer

review coordinators, who, in turn, forwarded them to Dr. Mark

Kuhl, AHCA's peer reviewer for this audit . 6/

14 . Kuhl r eview ed the records and prepared worksheets

reflecting his determination regarding the nature of the service

rendered for each claim and whether such claim was eligible for

payment under the Medicaid program.

1 5 . Respondent's records and Kuhl's worksh eets were sent

to Mock, who, based on Kuhl's determination regarding the nature

and eligibility of each claim , calculated that Respondent had

been overpaid by a total of $85,582.02 , or $355.11211618 per

claim, for the sampled claims.

1 6 . To extrapolate the total probable overpayment to

Respondent for all claims, Mock applied the statistical formula

for cluster sampling 7 / to the calculated overpayment amount of

$85,582.02 for the representative sample . This yielded a total

extrapolated overpayment amount of $102,444.33, with in a

95 p ercent probability that the actual overpayment amount was

equal to or greater than that amount.

1 7 . In a Preliminary Audit Report ("PAR") dated

December 12, 2011, AHCA notified Respondent that it had

determined that he had been overpaid by $102,444.33 and gave him

the options of paying th at amount or submitting further

documentation to support the claims identified as overpayments

in the PAR .

1 8 . Respondent provide d additional information in an

effort to support the se claims ; however, AHCA apparently found

the information insufficient to support changes to its previous

determination that Respo ndent had been overpaid by $102,4 44.33.

19 . O n March 22, 2013, AHCA issu ed a Final Audit Report

( " FAR " ) stating its determination that Respo ndent had been

overpaid by $102, 444.33. T he following explanation in the FAR

was provided as the basis for AHCA's overpayment determination :

REVIEW DETERMINATIONS

1. A review of your dental records revealed

that some services rendered were erroneously

coded on the submitted claim. The procedure

code that would accurately reflect the

service provided is not covered by Medicaid.

The payment for those claims is considered

an overpayment .

2. Medicaid policy specifies how medi cal

records must be maintained. A review of

your medical records revealed that some

services for which you billed and received

payment were not documented sufficiently.

Therefore, the payment for those claims is

c onsidered an overpayment.

3. A review of your records indicated that

some procedure codes were double billed in

error. In those instances, the amount paid

for the second (duplicate) procedure is

considered an o verpayment .

2 0 . The FAR also notified Respondent that AHCA had

assessed an administrative fine of $20,488.86 and audit cost s of

$576.83.

2 1 . In sum, the FAR notified Respondent that he was

required to remit a total of $123,510.02.

2 2 . The FAR also notified Responden t that AHCA was

entitled to recover all investigative, legal, and expert witness

costs.

2 3 . Following issuance of the FAR, Respondent provided

additional records to support claims that AHCA asserted were

ineligible for payment. After considering these records, AHCA

determined that some of these claims had not been overpaid , and

on June 17, 2014, performed another calculation of the alleged

overpayment for the entire universe of Respondent's claims using

the cluster sampling formula. AHCA ultimately det ermined that

Respondent had been overpaid by a total of $102,410.79 , the

alleged overpayment amount at issue in this proceeding.

B . Requirements for Payment of Claims by Medicaid

2 4 . T o be eligible for coverage by Medicaid, a procedure

must be "medically necessary , " which is defined as follows :

ÐMedical necessityÑ or Ðmedically necessaryÑ

means any goods or services necessary to

palliate the effects of a terminal

condition, or to prevent, diagnose, correct,

cure, alleviate, or preclude deteriora tion

of a condition that threatens life, causes

pain or suffering, or results in illness or

infirmity, which goods or services are

provided in accordance with generally

accepted standards of medical practice.

§ 403.913(1)(d), Fla. Stat. (2010) . 8 /

2 5 . AHCA is the final arbiter of medical nece ssity f or

purposes of dete rmining Medicaid reimbursement. Id.

2 6 . The statute expressly requires that d eterminations of

medical necessity be made by a licensed physician employed by or

under contract with the a gency ÏÏ i.e., a peer reviewer ÏÏ based on

information available at the time the goods or services are

provided. Id.

2 7 . T o ensure that services rendered by a provider are

correctly billed to and paid by Medicaid , the provider must

identify the services by referring to specific codes

corresponding to the specific procedure or service rendered. If

services rendered are incorrectly coded on a provider's billing

submittals , they may be determined ineligible for payment by

Medicaid.

C . Applicable Medicaid Handbooks , Codes , and Fee Schedules

2 8 . To guide and inform providers regarding the types of

services that are covered by the Medicaid program and how to

correctly bill Medicaid for those services , AHCA has adopted

several documents by rule through incorporation by reference .

29 . The documents incorporated by reference that are

applicable to this case are the Florida Medicaid Provider

Genera l Handbook ( July 2008) 9 / ; the Florida Medicaid Dental

Services Coverages and Limitations Handbook (January 2006) 1 0 / ;

the Florida Medicaid Provider Reimbursement Handbook ,

CMS - 1500 (July 2008) 1 1 / ; the Dental Oral/ Maxillofacial Surgery

Fee Schedule (effective January 1, 2010) 1 2 / ; and the Dental

General Fee Schedule (effective January 1, 2010) 1 3 / .

30 . Additionally, AHC A rule 1 4 / refer s to " CPT " codes, which

are the Current Procedural Terminology ® codes developed and kept

up - to - date by the American Medical Association. These codes,

which are published, are used by AHCA to identify the specific

services rendered by providers for purposes of determining

whether the service is covered by Medicaid. In this proceeding,

AHCA pr ovided, for admission into evidence, excerpts from the

2010 CPT codes , which were in effect during the A udit P eriod .

3 1 . AHCA rules adopted in the Florida Administrative Code

do not expressly define , incorporate, or otherwise refer to

" CDT " codes, which are the Current Dental Terminology© codes

published by t he American Dental Association.

3 2 . Th e Florida Medicaid Dental Services Coverages and

Limitations Handbook (January 2006) was in effect during the

Audit Period. Th is handbook refers to the Current Dental

Terminology© codes, but does not specify the version of the CDT

codes by year that were applicable to that version of the

handbook. 15/

3 3 . AHCA provide d, as exhibits , portions of the 2011 / 2012

CDT codes. 16/

D. The Specific Claims at Issue

3 4 . Respondent's records and other documentation regarding

the services for which he submitted claims for payment under

Medicaid were admitted into evidence at the final hearing.

3 5 . The claims at issue in this proceeding are identified

on worksheets prepared by Kuhl, who reviewed Respondent's

records and documents provided in response to AHCA's demand

letter. Kuhl's worksheets were admitted into evidence.

3 6 . These worksheets document , for each claim reviewed ,

Kuhl's determination regarding the nature of the service

rendered by Respondent and whether the claim was eligible for

payment under the Medicaid program.

3 7. As noted above, Kuhl did not testify at the final

hearing . Accordingly, the sole evidence in the record regarding

Kuhl's determinations consists of the notations on his

worksheets and Ms. Olmstead's testimony regarding his

conclusions.

3 8 . As discerned from Kuhl's worksheets, Kuhl determined

that Respondent had been ov erpaid for three reasons: (1) for

s ome claims, Respondent did not provide records, such as x - rays

or other documents, to support or verify that he had, in fa ct,

rendered the service; (2) for some claims, Respondent billed

twice ( i.e., d uplicate - billed) and was paid twice for the same

service rendered to a recipient ; and (3) for some claims,

Respondent performed , and billed for , procedures that were not

medically necessary so were not payable by Medicaid. Each of

these bases is addressed below.

Lack of D ocumentation to Support C laim s

3 9 . Based on his review of Respondent's records, Kuhl

determined that Respondent did not provide adequate

documentation to support some claims for which he was paid . For

each such claim, Kuhl wrote on the applicable worksheet next to

the applicable claim: " n ot in the record" or " not in record."

40 . As noted above, Respondent subsequently submit ted

additional documentation for some claims. Based on Kuhl's

worksheets and this additional documentation , AHCA determined

that Respondent had been overpaid a total of $ 3 , 091 . 91 for the

sampled claims as a result of his failure to provide supporting

information . The table below summarizes AHCA's overpayment

determinations for the sampled claims on this basis .

Undocumented Claims

Recipient No. No. of Claims Amount of

Overpaid Overpayment

1 2 $8.00

17 2 $3.00

21 3 $ 1,120.75

26 1 $4.00

28 3 $1,956.16

Total Amount of Overpayment $ 3,091.91

Double - billed Claims

4 1 . Kuhl determined that for some claims, Respondent

d uplicate - billed and was paid twice f or the same service. For

each such claim , Kuhl wrote on the applicable worksheet next to

the applicable claim , what appears to be a notation stating

" duplicate charge am t " or " duplicate charge ou t. " 1 7 / Either way ,

it is clear from the worksheets that Kuhl determined that

Respondent had d uplicate - billed for certain services rendered t o

certain recipients.

4 2 . Based on Kuhl's worksheets and Respondent's billing

records , AHCA determined that due to duplicate billing,

Respondent had been overpaid a total of $30.00 for the sampled

claims . The table below summarizes AHCA's o verpayment

determinations for the sampled claims on this basis.

Duplicate - Billed Claims

Recipient No. No. of Claims Amount of

Double - Billed Overpayment

8 1 $27.00

9 1 $3.00

Total Amount of Overpayment $30.00

Claims for Face Bone Graft and Lower Jaw Graft

4 3 . Three Medicaid billing codes are implicated in this

proceeding : CPT codes 21210 and 21215, and CDT code D7953 .

4 4 . The 201 0 version of CPT code 21210 is defined as

" graft, bone; nasal, maxillary, or malar areas (includes

obtaining graft)." The notations on AHCA's spreadsheet

summarizing its overpayments refer to this procedure, in lay

terms, as a " face bone graft. "

4 5 . The 2010 version of CPT code 21215 is defined as

" mandible (includes obtaining graft)." The notations on AHCA's

spreadsheet summarizing its overpayments refer to this

procedure, in lay terms, as a " lower jaw bone graft. "

4 6 . Respondent billed and was paid for 4 4 claims under CPT

code 21210 for face bone grafts and 2 5 claims under CPT code

21215 for lower jaw bone grafts.

4 7 . For each claim identified on Kuhl's worksheets as

either "21210 ## ## Face Bone Graft" or "21 215 ## ## Lower Jaw

Bone Graft," Kuhl made th e notation "correct code = D7953 = bone

graft place in ext site at time of ext" or a similar notation to

that effect.

4 8 . For each such claim, Kuhl checked the "deny" option on

the worksheet . B elow the "deny" option , Kuhl made the following

or a similar notation: "as it was stated by Robi Olmstead it is

a non - covered procedure" or "if a non - covered procedure."

4 9 . CDT code D7953 is defined in the 2011 - 2012 18/ version

of the CDT code s as :

bone replacement graft for ridge

p reservation Î per site

Osseous autograft, allograft, or non - osseous

graft is placed in an extraction or implant

removal site at the time of the extraction

or removal to preserve ridge integrity

(e.g., clinically indicated in preparation

for implant recons truction or where alveolar

contour is critical to planned prosthetic

reconstruction). Membrane, if used, should

be reported separately.

50 . Olmstead testified that the D7953 procedure is not

medically necessary s o is not covered by Medicaid. According to

Olmstead, the D7953 procedure is not considered medically

necessary because " most often sufficient bone will be

regenerated or, you know, you won't really need it unless you

[are] getting implants are (sic) [or] dentures, and it's just

not always ÏÏ infrequently medically necessary to do this

according to some of the literature, and so Medicaid, you know,

as they're allowed to do, has decided not to cover this

procedure, and it's clearly not covered except for the o ral

surgeon 1 9 / under these two codes, but again, it still has to be

med ically necessary."

51 . Olmstead te stified that the absence of D795 3 as a

listed procedure on the Dental General Fee Schedule (January

2010) and the Dental Oral/Maxillofacial Surgery Fee Schedule

( January 2010 ) further evidence s that D79 5 3 is not covered by

Medicaid .

5 2 . Kuhl did not make an y express finding on his

worksheets that the D7953 procedure is not medically necessary.

Indeed, Olmstead acknowledged that Kuhl's worksheets did not

state that the D7953 procedure is not medically necessary.

5 3 . Kuhl also did not make any express finding on his

worksheets that the CPT code 21210 and CPT code 21215 procedures

were not medically nec essary.

5 4 . Based on Kuhl's worksheets, AHCA determined that for

each claim Respondent billed under CPT codes 21210 or 21215, the

claim was not covered by M edicaid , so should not have been paid.

5 5 . The table below summarize s AHCA's determinations of

over payment , on the basis of lack of medical necessity, for the

sampled claims for CPT Code 21210 for face bone grafts performed

by Respondent .

CPT Code 21210 - Face Bone Graft

Recipient No. No. of Claims for Total Amount of

CPT Code 21210 Overpayment for

Recipient

1 1 $1,089.75

2 1 $ 544.88

4 4 $3,814.13

5 2 $1,634.63

6 1 $1,0 8 9.75

7 1 $1,089.75

9 3 $2,724.38

10 1 $1,089.75

11 6 $ 4,903.89

12 1 $1,089.75

17 2 $1,634.63

19 2 $1,634.63

20 1 $1,089.75

21 2 $ 1,634.63 20 /

22 1 $ 544.88

23 3 $1,847.07

24 1 $1,089.75

25 6 $5,448.76

26 3 $3,269.25

29 1 $1,089.75

30 1 $1,089.75

5 6 . The table below summarizes AHCA's determinations of

overpayment, on the basis of lack of medical necessity, for the

sa mpled claims for CPT Code 21215 for lower jaw bone grafts

performed by Respondent.

CPT Code 21215 - Lower Jaw Bone Graft

Recipient No. No. of Claims for Total Amount of

CPT Code 21215 Overpayment for

Recipient

1 5 $8,591.22

2 1 $1,909.16

4 1 $1,909.16

5 1 $1,909.16

8 3 $4,772.90

11 2 $ 3 , 818 . 32

14 1 $1,909.16

15 1 $ 1 , 909 . 16

16 2 $3,818.32

17 1 $1,909.16

18 2 $3,81 7 . 8 2

22 1 $1,909.16

27 2 $ 2,863.74

28 2 $ 1 , 909 . 16

IV. F indings Regarding Alleged Overpayment

5 7 . The undersigned determines that the record evidence

supports AHCA's determinations that Respondent was overpaid in

the amount of $ 3,091.91 for claims for which he did not provide

required documentation.

5 8 . The undersigned determines that the record evidence

supports AHCA's determinations that Respondent was over paid in

the amount of $30.00 for claims for which he duplicate - billed

Medicaid.

5 9 . As previously noted , t he Florida Medicaid Dental

Services Coverages and Limitations Handbook (January 2006) was

in effect during the Audit Period. However, AHCA did not

provide, as part of its evidence , pertinent e xcerpts of this

version of the h andbook referencing the CDT codes in effect

during the A udit P erio d. AHCA also failed to provide the

version of the C D T codes in effect during the A udit P eriod.

Thus, th e undersigned is left without any evidence regarding the

nature or description of procedure D795 3 as it was defined under

the version of the CDT codes in effect during the A udit P eri od .

Accordingly, the undersigned is unable to verify the correctness

of Kuhl's notations stating that CDT code D795 3, rather than CPT

codes 21210 or 21215, was the correct notation for the

procedure s Respondent performed.

60 . As discussed above, AHCA's audit supervisor, Robi

Olmstead, testified regarding the nature of the procedure

identified in D7953 and distinguished that procedure from the

procedures to which CPT codes 21210 and 21215 apply. However,

there is no evidence establishing that she was competent to

testify abou t the medical nature of the D7953 procedure , how it

substantively differs from the other procedures at issue as

defined in CPT c odes 21210 or 21215 , whether or not the

procedures Respondent performed were medically necessary, or

whether the D795 3 procedure is medically necessary . As such,

the undersigned finds her testimony unpersuasive to show that

the procedures Respondent performed and billed under CPT codes

21210 and 21215 were not medically necessary and therefore not

billable to Medicaid , that D795 3 was the correct billing code

for the procedures Respondent performed , and that the procedure

correspo nding with code D795 3 is not medically necessary. 21/

61 . AHCA chose not to present testimony by its peer

reviewer, Dr. Mark Kuhl, at the final hearing. 2 2 / A lthough

Kuhl's worksheets were admitted into evidence, they do not

provide a credible, independent ly veri fi able explanation for his

conclusion that Respondent incorrectly billed a particular

procedure by using either CPT code 21210 or 21215 instead o f CDT

code D7953. Moreover , the worksheets contain notations,

discussed above , which indicat e or appear to indicate that Kuhl

relied on Olmstead's direction that the bone graft procedures

for which Respondent billed were not medically necessary .

6 2 . Olmstead is not competent to determine medical

necessity, and Kuhl's apparent r eliance on her direction

regarding medical necessity is directly contrary to section

409.913(1)(d), which expressly requires that "[d]eterminations

of medical necessity must be made by a licensed physician

employed by or un der contract with the agency. " As such, the

undersigned find s Kuhl's worksheets un persuasive to show that

the procedures Respondent performed and billed under CPT codes

21210 and 21215 were not medically necessary and therefore not

billable to Medicaid, that D795 3 was the correct billing code

for the procedures Respondent performed, and that the proced ure

corresponding with code D795 3 is not medically necessary.

6 3 . For these reasons, it is determined t hat AHCA has not

proven, by a preponderance of the competent substantial evidence

in the record, that Respondent was overpaid for the claims he

billed for bone grafts using CPT codes 21210 and 21215.

6 4 . Based on the foregoing , it is determined that AHCA

overpaid Respondent in the total amount of $3,121.91 .

V. Determination of Administrative Fine

6 5 . As found above, Respondent was overpaid in the amount

of $ 3,091.91 for undocumented claims.

6 6 . Pursuant to Florida Administrative Code Rule 59G -

9.070 (7), sanctions are required to be imposed for failure to

furnish all Medicaid - related records to be used by AHCA in

determining whether Medicaid payments are or were due.

6 7 . Under rule 59G - 9.070(7)(d), a $2,500 fine is to be

imposed for the first offense 2 3 / of failing to furnish all

Medicaid - relate d records.

68 . AHCA proved that Respondent was paid for undocumented

claims, and Respondent does not appear to challenge that.

Accordingly, it is determined that sanctions consisting of a

$2,500 administrative fine should be imposed for this violation.

Duplicate - billed Claims

6 9 . As found above, Respondent was overpaid in the amount

of $30.00 for duplicate - billing of services.

70 . AHCA did not present any evidence that Respondent

engaged in a "pattern of erroneous claims. " Rather, t he

evidence indicates that Respondent inadvertently duplicate -

billed for services rendered to two recipients for a total of

$30.00. Moreover, in its Proposed Recommended Order, AHCA did

not cite and ot herwise discuss any basis for the imposition of

an administrative fine for Respondent's duplicate - billing.

Therefore, it is determined that no administrative fine should

be imposed for Respondent's violations consisting of two

incidents of duplicate bi lling.

CONCLUSIONS OF LAW

7 1 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569 and 120.57(1),

Florida Statutes.

7 2 . AHCA is authorized to recover Medicaid overpayments

and to impose sanctions as appropri ate . § 409.913, Fla. Stat.

An " overpayment " includes " any amount that is not authorized to

be paid by the Medicaid program whether paid as a result of

inaccurate or improper cost reporting, improper claiming,

unacceptable practices, fraud, abuse, or mistake ."

§ 409.913(1)(e), Fla. Stat.

7 3 . AHCA also is authorized to " require repayment for

inappropriate, medically unnecessary, or excessive goods or

services from the person furnishing them, the person under whose

supervision they were furnished, or the person causing them to

be furnished." § 409.913(11), Fla. Stat.

7 4 . " M edically necessary " goods or services are:

any goods or services necessary to palliate

the effects of a terminal condition, or to

prevent, diagnose, correct, cure, alleviate,

or preclude deterioration of a condition

that threatens life, causes pain or

suffering, or results in illness or

infirmity, which goods and services are

provided in accordance with generally

accepted standards of medical practice.

For purposes of determining Medicaid

reimbursement, the agency is the final

arbiter of medical necessity.

Determinations of medical necessity must be

made by a licensed physician employed by or

under contract with the agency and must be

based upon informa tion available at the time

the goods or services are provided.

§ 403.913(1)(d), Fla. Stat.

7 5 . AHCA has the burden of establishing an alleged

Medicaid overpayment by a preponderance of the evidence. S.

Medical Servs., Inc. v. Ag. for Health Care Admin. , 653 So. 2d

440, 441 (Fla. 3d DCA 1995); Southpointe Pharmacy v. Dep't of

HRS , 596 So. 2d 106, 109 (Fla. 1st DCA 1992).

7 6 . Although AHCA bears the ultimate burden of persuasion,

section 409.913(22), Florida Statutes, provides that " [t]he

audit report, supported by agency work papers, showing an

overpayment to the provider constitutes evidence of the

overpayment." Thus, AHCA can make a prima facie case by

proffering a properly supported audit report, which must be

received in evidence. See Maz Pharm., Inc. v. Ag. for Health

Care Admin. , Case No. 97 - 3791, 1998 Fla. Div. Adm. Hear. LEXIS

6245, *6 - *7 (Fla. DOAH Mar. 20, 1998) (emphasis added) ; see also

Full Health Care, Inc. v. Ag. for Heal th Care Admin. , Case

No. 00 - 4441, 2001 WL 729127, *8 - 9 (Fla. DOAH June 25, 2001; Fla.

AHCA Sept. 28, 2001).

7 7 . AHCA established a prima facie case of overpayment and

proved, by a preponderance of the evidence, that Respondent was

overpaid in the total amount of $3,121.91: $3,091.91 for claims

for which he failed to provide required documentation, and

$30.00 for duplicate - billed claims.

78 . AHCA failed to establish a prima facie case, and

failed to prove by a preponderance of the evidence, that

Respondent was overpaid for claims billed under CPT codes 21210

or 21215. AHCA's Final Audit Report and work papers were

admitted as evidence of overpayment, but a s discussed herein,

they were not " properly supported " by competent or persuasive

evidence showing that Respondent was overpaid for performing

bone graft procedures that were not medically necessary. 24/

7 9 . Thus, AHCA is not entitled to reimbursement f rom

Respondent for the claims he billed using CPT codes 21210 and

21215.

80 . AHCA is authorized to impose sanctions on a provider,

including administrative fines. § 409.913(16), Fla. Stat.

81 . To impose an administrative fine, AHCA must establish

factual grounds for doing so by clear and convincing evidence.

Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v.

Osborne Stern & Co. , 670 So. 2d 932, 935 (Fla. 1996); see also

Dep't of Child. & Fams. v. Davis Fam. Day Care Home , 20 15 Fla.

LEXIS 578 (Fla. Mar. 26, 2015). I n Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983 ), the court explained that:

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses tes tify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

c onviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id.

See In re Davey , 645 So. 2d 398, 404 (Fla. 1994) ; Westinghouse

Elec. Corp. v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st

DCA 1991 ) .

8 2 . Florida Adminis trative Code Rule 59G - 9.070 provides in

pertinent part:

59G - 9.070 Administrative Sanctions on

Providers, Entities, and Persons.

(1) Purpose: This rule provides notice of

administrative sanctions imposed upon a

provider, entity, or person for each

violation of any Medicaid - related law.

* * *

(3) Definitions:

* * *

(b) ÐClaimÑ is as defined in Section

409.901(6), F.S., and includes the total

monthly payment to a provider for per diem

payments and the payment of a cap itation

rate for a Medicaid recipient.

* * *

(f) ÐFineÑ is a monetary sanction. The

amount of a fine shall be as set forth

within this rule.

* * *

(h) ÐOffenseÑ means the occurrence of one

or more violations as set forth in a final

audit report. For purposes of the

progressive nature of sanctions under this

rule, offenses are characterized as ÐfirstÑ,

ÐsecondÑ, ÐthirdÑ, or ÐsubsequentÑ offenses;

subsequ ent offenses are any occurrences

after a third offense.

* * *

( k) ÐPattern of erroneous claimsÑ is

defined as when more than 5% of the claims

reviewed are found to contain an error or

the reimbursements for the claims found to

contain an error are more than 5% of the

total reimbursement for the claims reviewed.

(l) ÐProviderÑ is as defined in Section

409.901(17), F.S., and includes all of the

providerÓs locations that have the same base

provider number (with separate locator

codes).

* * *

(n) ÐSanctionÑ shall be any monetary or

non - monetary disincentive imposed pursuant

to this rule; a monetary sanction may be

referred to as a Ðfine.Ñ

(q) ÐViolationÑ means any omission or act

performed by a provider, entity, or perso n

that is contrary to Medicaid laws, the laws

that govern the providerÓs profession, or

the Medicaid provider agreement.

1. For purposes of this rule, each day that

an ongoing violation continues and each

instance of an act or omission contrary to a

Me dicaid law, a law that governs the

providerÓs profession or the Medicaid

provider agreement shall be considered a

Ðseparate violationÑ.

2. For purposes of determining first,

second, third or subsequent offenses under

this rule, prior Agency actions dur ing the

preceding five years will be counted where

the provider, entity, or person was deemed

to have committed the same violation.

* * *

(7) Sanctions: In addition to the

recoupment of the overpayment, if any, the

Agency will impose sanctions as outlined in

this subsection. Except when the Secretary

of the Agency determines not to impose a

sanction, pursuant to Section

409.913(16)(j), F.S., sanctions shall be

imposed as follows:

* * *

(c) For fail ure to make available or

furnish all Medicaid - related records, to be

used in determining whether and what amount

should have or should be reimbursed: For a

first offense, $2,500 fine per record

request and suspension until the records are

made available; if after 10 days the

violation continues, an additional $1,000

fine per day; and, if after 30 days the

violation remains ongoing, termination. For

a second offense, $5,000 fine per record

request and suspension until the records are

made available; if aft er 10 days the

violation continues, an additional $2,000

fine per day; and if after 30 days the

violation remains ongoing, termination. For

a third or subsequent offense, termination

(Section 409.913(15)(c), F.S.);

* * *

(h) For false or a pattern of erroneous

Medicaid claims:

* * *

2. For a first offense of a pattern of

erroneous claims, $1,000 fine per claim

found to be erroneous. For a second offense

of a pattern of erroneous claims, $2,500

fine per claim found to be e rroneous. For a

third or subsequent offense of a pattern of

erroneous claims, $5,000 fine per claim

found to be erroneous (Section

409.913(1 5)(h), F.S.)[.]

8 3 . For the reasons addressed above and pursuant to this

rule, it is determined that Respondent should be assessed an

administrative fine of $2,500 for the first offense of failing

to furnish all available Medicaid - related records to be used in

determining whether and what amount should have or should be

reimbursed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that AHCA issue a final order finding

that Respondent was overpaid, and therefore is liable for

reimbursement to AHC A, the total amount of $3,121.91 ; imposing

an administrative fine of $2,500; and remanding the matter to

the Division of Administrative Hearings for an evidentiar y

hearing on the recovery of AHC A's costs, if necessary.

DONE AND ENTERED this 29th day of May, 2015, in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of May , 2015 .

ENDNOTES

1/ AHCA is authorized to initiate audits without stating its

basis for doing so. It is required to conduct at least five

percent of its audits on a random basis. § 409.913(2), Fla.

Stat.

2/ Theresa Mock, who is no longer employed with AHCA and who did

not testify at the final hearing, conducted the audit of the

Medicaid claims submitted by, and paid to, Respondent.

3/ Respondent was paid for a total of 302 claims. Of these,

241 were sampled for the audit.

4/ According to Olmstead, an A udit P eriod typically consists of

a claim period spanning more than the previous 12 months, and

typically consists of a two - to three - year period. Here, the

A udit P eriod spanned a 13 - month period because Respondent only

had been enrolled as a Medicaid provider since February 26,

2010.

5/ A cluster is comprised of all claims relating to an

individual recipient in the sample population.

6/ AHCA chose not to prese nt Kuhl's testimony at the final

hearing. See infra note 24.

7/ The following cluster sampling formula was used to

extrapolate the total overpayment amount:

8/ The A udit P eriod spanned from February 1, 2010, to March 1,

2011. Accordingly, the 2009 and 2010 versions of section

409.913, Florida Statutes, apply to this proceeding. This

statutory section was not amended during the 2010 legislative

session so, as a practical m atter, the 2009 and 2010 versions of

the statute are the same.

9 / Incorporated by reference in rule 59G - 5.020(1).

10/ Incorporated by reference in rule 59G - 4.060(2).

11/ Incorporated by reference in rule 59G - 4.001(1).

12/ Incorporated by reference in rule 59G - 4.002.

13/ Incorporated by reference in rule 59G - 4.002.

14/ Rule 59G - 1.010(59).

15/ The version of the Handbook available on the internet, to

which AHCA generally referred in its Proposed Recommended Order,

is the November 2011 version, whic h w as not in effect during the

A udit P eriod, so is not applicable to this proceeding. The

November 2011 version refers to the 2009/2010 CDT codes, but

that reference appears to have been added in the November 2011

version of the Handbook. It was not include d in the 2006

version, so the undersigned is unable to determine which CDT

codes were referenced in the 2006 version of the Handbook.

Under any circumstances, AHCA has not shown that the 2011 / 2012

CDT codes are applicable to this proceeding.

16/ See supra note 15.

17/ The undersigned found a portion of this notation illegible

and did not have the benefit of Kuhl's testimony regarding what

he wrote.

18/ In order to analyze and address a key issue in this case ÏÏ

i.e., whether Respondent incorrectly billed for, and thus was

improperly paid for, certain bone graft procedures ÏÏ all

references herein to CDT code D7953 are to that procedure as it

was defined in the 2011 - 2012 version of the CDT codes . However,

as discussed herein, there is no competent, pe rsuasive evidence

showing that the definition of the D7953 procedure in the

2011 - 2012 CDT codes is the same as was included in the version

of the CDT codes in effect during t he A udit P eriod, and, as

discussed herein, AHCA failed to provide the version of the CDT

codes in effect during the A udit P eriod.

19/ Respondent is not an oral surgeon.

20/ The overpayment for recipient no. 21 for face bone grafts

does not include a claim for which Respondent did not submit

documentation to support payment; that cla im is included in the

table summarizing undocumented claims.

21/ The fee schedules that Olms tead cited as evidence that D795 3

is not a covered procedure are hearsay that cannot form the sole

basis of a finding of fact in this proceeding. In deeming

Olmstead's testimony unpersuasive, the undersigned has assigned

no weight to these fee schedules.

2 2 / AHCA chose not to present Kuhl's testimony at the hearing

because Respondent stipulated that he did not challenge the

"correctness" of Kuhl's conclusions as stated on the worksheets.

However, this is a de novo proceeding in which the undersigned

is charged with determining anew whether Respondent was

overpaid. The und ersigned finds Kuhl's worksheets unpersuasive

to prove that Respondent was incorrectly paid, and therefore

liable for reimbursement, for the face bone grafts and lower jaw

bone grafts for which he submitted claims.

2 3 / Pursuant to rule 59G - 9.070(3)(q)2., Respondent's failure to

provide documentation to support Medicaid claims is considered a

"first offense" because he has not had any prior offenses.

Under this rule, prior agency actions for violations in the

preceding five years are counted for purposes of determining

whether the offense is a "first" offense or subsequent offense.

24/ A H C A posits, in its Proposed Recommended Order, that " the

trier of fact should not presume to substitute his or her own

perceived expertise for that of the experts who have provided a

medical opinion in a matter." The undersigned notes that in

this case, because Kuhl did not testify, no expert provided a

medical opinion. As discussed herein, Kuhl's worksheets did not

state his medical opinion regarding whether the D795 3 procedure

was medically necessary or whether CPT procedures 21210 or 21215

were medically necessary, but instead appeared to rely on

Olmstead's direction regarding medical necessity. Further, AHCA

failed to provide the correct CDT codes applicable to th is

proceeding. Accordingly, AHCA's case fails due to lack of

competent, persuasive evidence ÏÏ not due to the undersigned

substituting her " perceived expertise " for t hat of AHCA's

medical expert.

COPIES FURNISHED :

Jeffries H. Duvall, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

David Vine, D.D.S

Sheridan Center, Suite 403

400 Arthur Godfrey Road

Miami Beach, Florida 33140

( eServed)

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Debora E. Fridie, Esquire

Agency for Health Care Administration

Fort Knox Building III, Mail St op 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

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.