16-004735MPI Agency For Health Care Administration vs. Ason Maxillofacial Surgery, P.A. Status: Closed Recommended Order on Thursday, March 23, 2017.

Summary: Petitioner proved by a preponderance of the evidence that Respondent was overpaid; a fine, sanctions imposed by statute and costs imposed by statute, shall be paid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case No. 16 - 4735MPI

ASON MAXILLOFACIAL SURGERY,

P.A.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On F ebruary 1 and 2, 2017, 1/ an administrative hearing in

this case was held in Tallahassee, Florida , before Administrative

Law Judge Lynne A. Quimby - Pennock of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Joseph G. Hern, Esquire

James Countess, Esquire

Ephraim Durand Livingston, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

For Respondent: Pierre Seacord, Esquire

Joseph Scott Justice, Esquire

Ringer Henry Buckley & Seacord, P.A.

Suite 400

105 East Robinson Street

Orlando, Florida 32801

STATEM ENT OF THE ISSUE S

Whether the Agency for Health Care Administration

(Pet itioner or AHCA) is entitled to recover : certain Medicaid

payments made to Respondent, Ason Maxillofacial Surgery, P.A.,

pursuant to section 409.913(11), Florida Statutes (2016); an

a mount of sanctions imposed pursuant to section 409.913(15); and

the amount of any investigative, legal, and expert witness costs

that AHCA incurred pursuant to section 409.913(23).

PRELIMINARY STATEMENT

By Final Audit Report (FAR) dated July 6, 2016, Petit ioner

alleged that Respondent, a Medicaid provider, had received

overpayments totaling $654,485.81 Ðfor services that in whole or

in part are not covered by Medicaid.Ñ AHCA computed the sanction

amount to be $118,000.00. Respondent disputed the alleged

o verpayments and requested a formal administrative hearing.

Following receipt of additional documentation from Respondent,

just prior to the hearing, AHCA revised the overpayment total

amount to $640,493.77 and the sanction was reduced to $106,000.00.

On A ugust 19, 2016, Petitioner forwarded the request to the

Division of Administrative Hearings (DOAH) which scheduled the

hearing to commence on November 1, 2016. The hearing was

continued twice, and the re - scheduled hearing commenced on

February 1, 2017 .

Pr ior to the hearing, the parties submitted a Joint

Prehearing Stipulation, including a statement of undisputed facts.

To the extent that the stipulated facts are relevant, the facts

are adopted and inc orporated herein as necessary.

At the hearing, the part ies Ó Joint Exhibits 1 through 31 were

offered and admitted into evidence. Petitioner presented the

testimony of : AHCA Administrator Robi Olmstead ; AHCA Nurse

Consultant Karen Kinser; and John H. Hardeman, D.D.S., M.D.

Petitioner did not offer any additi onal exhibits. Respondent

presented the testimony of : Raphael Ason, D.M.D., M.D.; Raymond

Fonseca, D . M . D . ; and Steven Dicksen. Respondent did not offer any

additional exhibits into evidence.

The three - volume Transcript was filed on February 17, 2017.

O n February 20, 2017, a Notice of Filing Transcript was issued

directing the parties to file their post - hearing submissions on or

before 5:00 p.m. on February 27, 2017. Both parties timely

submitted their proposed recommended orders, and each has been

cons idered in the preparation of this Recommended Order.

Except as otherwise indicated, citations to Florida Statutes

or rules of the Florida Administrative Code refer to the versions

in effect during the time in which the alleged overpayments were

made.

FIND ING S OF FACT

Based upon the testimony and documentary evidence presented

at hearing, the demeanor and credibility of the witnesses, and

the entire record of this proceeding, the following factual

findings are made:

1. Petitioner is the state agency author ized to administer

and make payments for medical and related services under Title XIX

of the Soc ial Security Act, the Medicaid P rogram, relevant to this

proceeding.

2 . At all times pertinent to this case, Respondent, an oral

and maxillofacial surgery prac tice operated by Dr. Ason, was

enrolled in the Florida Medicaid Program as a Medicaid dental

provider. RespondentÓs Medicaid provider number was 007294600.

3 . Petitioner engaged the services of Dr. Hardeman as its

expert and peer reviewer. Dr. Hardeman is a Florida - licensed

medical doctor and dentist, who is board - certified in oral and

maxillofacial surgery. He practices in the same specialty or

subspecialty as RespondentÓs provider, Dr. Ason. Respondent

stipulated and agreed that Dr. Hardeman meets th e requirements

and qualifications of a ÐpeerÑ as defined in section 409.9131 ,

Florida Statutes . Dr. HardemanÓs testimony is credible.

4 . Petitioner offered the testimony of AHCA Administrator

Olmstead to describe the process by which the audit was condu cted.

Administrator Olmstead has years of experience in this process,

and her testimony is credible.

5 . Nurse Kinser holds a Bachelor of Science deg ree in

nursing and is a Florida - licensed registered nurse. She is

employed as a registered nurse - consulta nt for Petitioner. Nurse

Kinser is a certified professional coder, having received her

credentials from the American Academy of Professional Coders. Her

testimony is credible.

6 . Respondent offered the testimony of Dr. Fonseca, of North

Carolina, as an expert in the field of oral and maxillofacial

surgery to opine on the medical necessity of the se rvices provided

by Respondent.

7 . Respondent offered the testimony of Mr. Dicksen as a

coding expert. Mr. Dicksen holds a degree in health information

manage ment and is licensed as a registered health information

administrator. Mr. Dicksen is not licensed as a medical doctor,

oral surgeon or dentist in Florida, and is not trained to read a

panorex, X - ray or CT scan in his scope of work. Mr. DicksenÓs

lack of medical or dental training in reading medical/dental

records seriously detracted from his testimony regarding the

proper coding of services.

8. RespondentÓs representative, Dr. Ason is a well - educated,

board - certified oral and maxillofacial surgeon. His lack of

understanding in the various aspects of his coding for services

rendered is a disservice to his practice, as it is apparent from

his testimony that he cares for his patient s . Dr. Ason does not

watch the clock during a procedure, but instead he Ðt akes care of

[his] p atients.Ñ

9. Title XIX of the Social Security Act establishes Medicaid

as a collaborative federal - state program in which the state

receives federal funding for services provided to Medicaid -

eligible recipients in accordance with federa l law. The Florida

Statutes and rules relevant to this proceeding essentially

incorporate federal Medicaid standards.

10. In order to receive payment, a provider must enter a

Medicaid provider agreement, which is a voluntary contract between

AHCA and the provider. Respondent, as an enrolled Medicaid

provider must comply fully with all state and federal laws

pertaining to the Medicaid Program, including Medicaid Provider

Handbooks incorporated by reference into rules which were in

effect during the audit period .

11. AHCAÓs Bureau of Medicaid Program Integrity (MPI) is

required to identi fy and recover overpayments to e nsure that

Medicaid funds are appropriate ly utilized and to reduce f raud and

abuse to the Medicaid P rogram. Pursuant to section 409.913, MP I

conducted an audit of RespondentÓs paid Medicaid claims for

services rendered to Medicaid recipients between Janu ary 1, 2013 ,

and June 30, 2014.

12. The Florida Medicaid Dental Program (Dental Program)

covers all medical ly necessary and dental services to eligible

children. The Dental Program is limited in the services and

treatments available to persons over 21 years of age. These

limited services include relief of pain , suffering, and trauma,

and preparation for dentures. The Dental Program does not cover

preventive dental care for adults .

13. Administrator Olmstead provided the framework by which

this audit was opened, investigated, reviewed and reported. The

investigation followed all the required procedures and the audit

was properly conducted.

14. On July 6, 2016, AHCA issued a F AR 2 / alleging that

Medicaid overpaid Respondent $654,485.81 for services that were

not covered, in whole or in part , by Medicaid. Additionally,

pursuant to section 409.913(23), AHCA sought to assess a sanction

of $118, 000.00 for the alleged violations.

15. In the FAR, the following ÐFindingsÑ were set forth (and

will be discussed in this O rder below):

1. The 2008 and 2012 Florida Medicaid

Provider General Handbooks, page 5 - 4, state

that when presenting a claim for pay ment under

the Medicaid program, a provider has an

affirmative duty to present a claim for goods

and services that are medically necessary. A

review of your medical records by a peer

consultant in accordance with Sections 409.913

and 409.9131, F.S. reveal ed that the medi c al

necessity for some claims submitted was not

supported by the documentation. Payments made

to you for these services are considered an

overpayment. (NMN)

2. The 2008 and 2012 Florida Medicaid

Provider General Handbooks, page 5 - 4, req uire

that when presenting a claim for payment under

the Medicaid program, a provider has an

affirmative duty to present a claim that is

true and accurate and is for goods and

services that have actually been furnished to

the recipient. A review of your me dical

records revealed that some services rendered

were erroneously coded on the submitted claim.

The appropriate dental code was applied.

These dental services are not reimbursable by

Medicaid. Payments made to you for these

services are considered an overpayment.

(ERROR IN CODING)

3. The 2008 Florida Medicaid Provider General

Handbook, pages 2 - 57 and 5 - 8 and the 2012

Florida Medicaid Provider General Handbook,

page s 2 - 60 and 5 - 9, define incomplete records

as records that lack documentation that all

requirements or conditions for service

provision have been met. A review of your

medical records revealed that the

documentation for some services for which you

billed and received payment was incomplete or

was not provided. Payments made to you for

thes e services are considered an overpayment.

(INSUFFICIENT/NO DOC)

4. The 2011 Dental Services Coverage and

Limitations Handbook, page 2 - 40, states use of

Evaluation and Management Services must follow

guidelines set by the PhysiciansÓ Current

Procedural T erminology (CPT) for E&M code

levels. A review of your medical records by a

peer consultant in accordance with Sections

409.913 and 409.9131, F.S. revealed that the

level of service for some claims submitted was

not supported by the documentation. The

ap propriate code was applied and the payment

adjusted. Payments made to you for these

services, in excess of the adjusted amount,

are considered an overpayment. (LOS)

5. The 2011 Dental Services Coverage and

Limitations Handbook, pages 2 - 38 and 2 - 39,

def ines a consultation as a type of service

provided by an accredited dental specialist

whose opinion or advice regarding the

evaluation or management of the specific

problem is request by another dentist. The

following components must be recorded in the

rec ipientÓs dental records: a request and

need for consultation from the attending or

requesting provider; the consultantÓs opinion

and any services ordered or performed; and a

written report of the findings and

recommendations provided to the attending or

r equesting provider. If the referring

provider will not participate in the on - going

care of the recipient for this problem, this

is not a consultation, but is instead a

referral, and should be billed as an

examination or appropriate evaluation and

manageme nt code. The documentation you

provided did not meet the criteria for a

consultation service. The appropriate code

was applied and the payment adjusted.

Payments made to you for these services, in

excess of the adjusted amount, are considered

an overpay ment. (NOT A CONSULT)

6. The 2008 and 2012 Florida Medicaid

Provider General Handbooks, page 1 - 3, define

global reimbursement as a method of payment

where the provider is paid one fee for a

service that consists of multiple procedure

codes that are rend ered on the same date of

service or over a span of time rather than

paid individually for each procedure code.

A review of your medical records revealed that

some services, for which you billed and

received payment, were covered under a global

procedure code. Payments made to you for

these services are considered an overpayment.

(GLOBAL)

7. The 2011 Dental Services Coverage and

Limitations Handbook, page 2 - 1, states that

only those services designated in the

applicable provider handbook and fee schedu le

are reimbursed by Medicaid. You billed and

received payment for services that are not

covered by Medicaid after the correct code was

assigned. Payments made to you for these

services are considered overpayments.

(NOT A COVERED SERVICE) (e mphasis ad ded).

16. AHCA used a statistical analysis to review claims. AHCA

obtained a list of claims for 35 randomly selected recipients from

the cluster sample program. Petitioner then requested the medical

records for those 35 recipients from Respondent. Res pondent

provided the medical records, and throughout the process has

provided additional records when requested. Further, Respondent

has not contested the process of the statistical sampling or the

statistical methods utilized to establish the validity of the

overpayment calculation.

17. Following the issuance of the FAR, and after receiving

and reviewing additional documentation, AHCA amended RespondentÓs

overpayment downward to $640,493.77 and the sanction amount to

$106,000.00.

18. Teeth are numbered 1 through 16 from right to left on

the upper jaw, and 17 through 32 from left to right on the lower

jaw. The wisdom teeth are numbered 1, 16, 17, and 32, and are

also called the 3rd molars. Additionally, the mouth is divided

into four quadrants: upper j aw left and right, and lower jaw left

and right.

Not Medically Necessary (NMN)

19. Recipient 7 had seven claims labeled as NMN. Of

claims 3, 4, 5, 6, 9, and 12, 3 / Dr. Hardeman agreed that the bone

grafts were necessary and medically appropriate ; howeve r, other

causes for disallowance of the claims shall be add ressed below.

20. Recipient 23 had two claims labeled as NMN regarding

lower jaw bone grafts on teeth 17 and 32. Recipient 23 was a

22 - year - old male with impacted wisdom teeth. Dr. Ason extract ed

the wisdom teeth and then completed bone grafts on the areas.

Dr. Hardeman opined that bone grafts were not indicated in this

young patient as he would heal without the grafts. 4 /

21. Recipient 24 had one claim labeled as NMN regarding a

lower jaw bon e graft on tooth 17. Tooth 17 is the lower left

wisdom tooth. Dr. Ason extracted the wisdom tooth and then

completed a bone graft on the area. Dr. Hardeman opined that the

graft was not medically necessary because following the

extraction, the site shou ld have granulated and healed naturally.

Error in Coding

22. CPT code Ð21210 Graft, bone; nasal, maxillary or malar

areas (includes obtaining graft)Ñ is explained with a coding tip

as follows:

The physician reconstructs the nasal,

maxillary, or malar area bones with a bone

graft to correct defects due to injury,

infection, or tumor resection. The procedure

may also be performed to augment atrophic or

thin bone, or to aid in healing fractures.

The physician harvests bone from the patientÓs

hip, rib, or sk ull. Incisions are made

overlying the harvest site. Tissues are

dissected away to the desired bone. The

physician removes the bone as needed for

grafting to the defect area. After the bone

is harvested, the donor site is repaired in

layers. Access inc isions are made to the

recipient site and the area of bony defect is

exposed. The graft is placed to repair the

defect and may be held in place with wires,

plates, or screws. The access sites are

irrigated and sutured closed.

Harvesting of the bone graf t is not reported

separately. If bone graft is not harvested

from the patient, modifier 52 Reduced

services, should be appended. For harvest of

graft by another physician, append modifier 62

Two surgeons, to t he applicable bone graft

code.

23. CPT code Ð21215 Graft, bone; mandible (includes

obtaining graft)Ñ is explained with a coding tip as follows:

The physician reconstructs the mandible with a

bone graft to correct defects due to injury,

infection, or tumor resection. The procedure

may also be perfo rmed to augment atrophic or

thin mandibles, or to aid in healing

fractures. The physician harvests bone from

another site on the patientÓs body, most

commonly the rib, hip, or skull, and repairs

the surgically created wound. The physician

makes facial sk in incisions to expose the

mandible and place the graft from the donor

site. Occasionally, intraoral incisions are

used. The graft is held firmly positioned

with wires, plates or screws. The incisions

are sutured with a layered closure.

Harvesting of t he bone graft is not reported

separately. If bone graft is not harvested

from the patient, modifier 52 Reduced

services, should be appended. For harvest of

graft by another physician, append modifier 62

Two surgeons, to the applicable bone graft

code. F or interdental wiring, see code 21497.

For application, including removal of an

interdental fixation device for conditions

other than fracture or dislocation, see code

21110. Because this procedure may be

performed for cosmetic purposes, verify

coverage with insurance carrier. Supplies

used when providing this procedure may be

reported with appropriate HCPCS Level II code.

Check with specific payer to determine

coverage.

24. CPT code 41823 is for the ÐExcision of osseous

tuberosities, dentoalveolar st ructures.Ñ

25. CDT code D7140 is explained as follows:

[E]xtraction, erupted tooth or exposed root

(elevation and/or forceps removal)

Includes routine removal of tooth structure,

minor smoothing of socket bone, and closure,

as necessary.

Surgical Extract ions (Includes Local

Anesthesia, Suturing, If Needed, and Routine

Postoperative Care)

26. CDT code D7210 is explained as follows:

[S]urgical removal of erupted tooth requiring

removal of bone and/or sectioning of tooth,

and including elevation of mucoper iosteal flap

if indicated Includes related cutting of

gingiva and bone, removal of tooth structure,

minor smoothing of socket bone and closure.

27. CDT code D7220 is explained as follows:

[R]emoval of impacted tooth Î soft tissue

Occlusal surface of toot h covered by soft

tissue; requires mucoperiosteal flap

elevation.

28. CDT code D7230 is explained as follows:

[R]emoval of impacted tooth Î partially bony

Part of crown covered by bone; requires

mucoperiosteal flap elevation and bone

removal.

29. CDT code D7240 is explained as follows:

[R]emoval of impacted tooth Î completely bony

Most or all of crown covered by bone; requires

mucoperiosteal flap elevation and bone

removal.

30. CDT code D7250 is explained as follows:

Surgical removal of residual roots (cutting

procedure), includes cutting of soft tissue

and bone, removal of tooth structure and

closure.

31. CDT code D7310 is explained as follows:

[A]lveoloplasty in conjunction with

extractions Î four or more teeth or tooth

spaces, per quadrant

The alv eoloplasty is distinct (separate

procedure) from extractions and/or surgical

extractions. Usually in preparation for a

prosthesis or other treatments such as

radiation therapy and transplant surgery.

32. CDT code D7953 is explained as follows:

[B]one re placement graft for ridge

preservation Î per site 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 reconstruction or

where a lveolar contour is critical to planned

prosthetic reconstruction). Does not include

obtaining graft material. Membrane, if used

should be reported separately.

33. Recipient 2Ós claim 3, coded as 21210, related to a face

bone graft for tooth 15. Follow ing the extraction of tooth 15,

Dr. Ason used a bone graft to close the opening in the sinus.

Dr. Hardeman opined there was Ða hole in the alveolus, the

socket.Ñ Dr. Hardeman further opined that ÐThis fee (using code

21210) would be applicable for augme ntation of an atrophic ridge,

but not for a small graft used in conjunction with the treatment

of a sinus exposure.Ñ Dr. Ason testified that when he extracted

the tooth Ða part of the floor of the sinus . . . came with the

root, leaving a defect.Ñ He the n saw the Schneiderian Membrane, 5 /

placed the bone graft, and closed the site. There was no break in

the membrane, and a small graft closure was more appropriate. For

Recipient 2Ós claim at issue, the appropriate code should be

D7953.

34. Recipient 4Ós claims 3 and 4, both coded as 21215,

related to the lower jaw bone grafts for teeth 17 and 18.

Dr . Hardeman reviewed the operative note that provided Ð a large

periodontal defect in the area adjacent to Tooth No. 19. It was

therefore grafted.Ñ Dr. Harde man did not find tooth 19 on the

panorex, and the reasoning for a graft was Ðinvalid.Ñ

Dr. Hardeman opined the grafting was a socket preservation. For

Recipient 4Ós claims at issue, the appropriate code is D7953.

35. Dr. Ason qualified his operative no te, which discussed

the Ðarea of teeth #Ós 17, 18 where a sulcular incision was

made. . . . There was a large defect of bone distal to tooth

#19,Ñ with a comment that when he referred to ÐArea 19Ñ that does

no t mean that tooth 19 was there, just that he was referring to

the area. Dr. AsonÓs attempt to re - write the operative note to

reflect his current testimony is not persuasive.

36. Recipient 6Ós claims 3, 4, 6, and 7 , coded as 21215 ,

related to lower jaw bone grafts for teeth 21, 22, 27, and 28 ;

and claim 5, coded as 21210 , related to a face bone graft for

tooth 12. Recipient 6 had multiple teeth extracted from the lower

jaw, and one removed from the upper jaw. Dr. Ason grafted both

the bottom and the top where the extractions were completed.

Dr. Hardeman opined that these Ðwere merely socket preservation

grafts,Ñ and the appropriate code for all the claims should be

D7953.

37. Recipient 7Ós claims 3, 4, 5, and 6, coded as 21210 ,

related to face bone grafts for teeth 1, 2, 15 and 16.

Recipient 7 had teeth 1, 2, 15, and 16 surgically extracted, 6 / and

Dr. Ason used allograft bone to preserve the alveolar ridge in all

four locations. Dr. Hardeman reviewed the panorex, and teeth 1

and 16 were not present on it. Dr. Hardeman could not find a

Ðclear - cutÑ clinical indication for the grafting done on

Recipient 7. For Recipient 7Ós claims at issue, the appropriate

code should be D7953.

38. Recipient 8Ós claims 3 and 4, both coded as 21215,

related to the lower jaw bone grafts for teeth 17 and 32.

Rec ipient 8 had multiple wisdom teeth and a supernumerary wisdom

tooth removed. Dr. Ason testified that there were Ðwide - rooted

molars with chronic infectionÑ and because of the infection, Ðit

spreads throughout the bone and you canÓt predictably take out a

root and leave a socket.Ñ Dr. Hardeman found nothing remarkable

about these extractions, and opined that these were socket

preservation grafts. Dr. Hardeman agreed that it was reasonable

to put a graft distal to teeth 18 and 31, but did not alter his

opi nion that these were socket preservations. For Recipient 8Ós

claims at issue, the appropriate code should be D7953.

39. Recipient 13Ós claim 3 , coded as 21215, related to the

lower jaw bone graft for tooth 32. Recipient 13 had multiple

dec ayed teeth whi ch were extracted; however , only claim 3 is at

issue here. Dr. Hardeman opined the bone graft was not warranted

because the distal bone was at the appropriate height. For this

claim, the appropriate code should be D7953.

40. Recipient 14Ós claim 2 , code d as 21210, related to the

face bone graft for tooth 1. Recipient 14 had one wisdom tooth

extracted. Dr. Hardeman agreed there was a Ðgood defect on the

back side ofÑ the tooth and agreed that a graft Ðcould be

medically appropriate.Ñ Dr. Hardeman furth er stated that he would

have Ðtried to do something for that , Ñ however this involved

socket preservation grafting, not the higher medical grafting

code. The appropriate code should be D7953.

41. Recipient 17Ós claims 5 through 8, coded as D41823,

related to excision of gum lesions for teeth 2, 3, 4, and 5.

These four teeth are in the upper right quadrant; however ,

Dr. Ason billed for alveoloplasties in four quadrants. AHCA

allowed claims 1 through 4, but denied claims 5 through 8 because

that would hav e been double - billing for the same procedure , which

is not allowed.

42. Recipient 21Ós claim 6 was coded as 21210 for a face

bone graft for tooth 16, and claim 8 was coded as 21215 for a

lower jaw bone graft for tooth 32. Recipient 21 had four wisdom

tee th extracted, and a repair of a sinus exposure on t ooth 16.

Initially , there was no documentation for a peer review of the

procedures billed. After receiving the documentation,

Dr. Hardeman opined that these Ðwere socket preservation grafts.Ñ

The appro priate code should be D7953.

43. Recipient 23Ós claims 3 and 4 were coded as 21215 for

lower jaw bone grafts to teeth 17 and 32, and claims 7 and 8 were

coded as D7230 for impacted teeth removed for teeth 1 and 16.

Recipient 23 had four wisdom teeth remo ved. Dr. Hardeman opined

that bone grafts were not indicated to preserve the integrity of

the bone adjacent to the second molars in this young patient. The

appropriate codes for claims 3 and 4 are D7953, and the

appropriate codes for claims 7 and 8 are D 7220 and D7210 ,

respectively.

44. Recipient 25Ós claims 4 and 5 were coded as 21215 for a

lower jaw bone graft for teeth 19 and 30, and claims 6 and 7 were

coded as 21210 for a face bone graft for teeth 1 and 16.

Recipient 25 had five teeth surgically re moved (1, 16, 17, 19

and 30), and bone grafts placed at sites 1, 16, 19 and 30.

Dr. Hardeman opined that some bone grafting may have been

medically necessary, but that he would have coded these claims as

D7953. The appropriate code for all these claims is D7953.

45. Recipient 26Ós claims 3 and 4 were coded as 21215 for a

lower jaw bone graft for teeth 22 and 27, and claims 5, 6, 7,

and 8 were coded as 21210 for a face bone graft for teeth 2, 3,

14, and 15. Recipient 26, a 30 - year - old male had all the teeth in

the maxilla removed and all the teeth present in the mandible

removed. Bone grafts were placed at sites 2, 3, 14, 15, 22,

and 27. Dr. Ason testified that there were a few sinus exposures

(of the upper jaw) in Ðcommon locationsÑ and he used bon e graft to

those areas. Dr. Ason also testified that for teeth 22 and 27,

these teeth were infected, and when he extracted them , he placed

bone graft at those sites. Dr. Ason did not testify that he saw

infection in the vacated sites. Dr. Hardeman opine d that the

procedures may have been medically necessary, but were not

properly coded. The appropriate code for all of these claims is

D7953.

1 9

46. Recipient 28Ós claim 7 was coded as D7240 for removal of

an impacted tooth 16. Dr. Hardeman reviewed t he pan oramic X - ray

and determined that this tooth was just a partially impacted

tooth, as opposed to a completely bone - impacted tooth. The

appropriate code for this claim is D7230.

47. Recipient 29Ós claim 8 was coded 20680 for the removal

of support for tooth 3. Dr. Hardeman candidly admitted that he

made an error in determining that Dr. Ason had simply put a

screwdriver on hardware in Recipient 29 Ó s mouth to remove screws

and plates. Upon an additional review of the operative report,

Dr. Hardeman opined tha t Dr. Ason did make an incision to remove

the screws and plates. 7 /

48. Recipient 31Ós claims 3 and 4 were coded as 21215 for a

lower jaw bone graft for teeth 22 and 27, and claims 5, 6, 7,

and 8 were coded as 21210 for a face bone graft for teeth 5, 6,

1 1, and 12. There was no direct testimony on the bone grafts

performed on this Recipient. The documentation (Exhibit 18 - 31 :

Bate s - stamped pages 1031 through 1062) reflected Dr. Hardeman

wrote Ðsocket graftÑ at each claim. However , this is insufficient

t o support a finding of fact.

Insufficient or No Documentation

49 . Recipient 3Ós claims 2, 3 and 4 included a panoramic

image, a primary closure of a sinus perforation at tooth 1, and a

primary closure of a sinus perforation at tooth 16, respectively.

Ini tially claim 2 was denied because of a lack of documentation,

however, additional documentation was received and claim 2 was

allowed. As to claims 3 and 4, Dr. Hardeman opined there was

insufficient documentation to support the claims as he could find

Ðno sinus exposure was notedÑ in the Ðop [operation] note.Ñ

Dr. AsonÓs testified that he had Ðto get a primary closure for

this patient on both sides,Ñ and his operative note provides:

The roots were in the radiograph close to or

into the sinus. As a preca ution, a primary

sinus closure was performed on both sites #1

and #16 by using chromic gut 3 - 0 to get a

watertight seal.

Dr. AsonÓs operative note did not document that there was sinus

exposure during the operation. There is insufficient

documentation to support these two claims. The claims should not

be allowed.

50 . Recipient 5Ós claim 3 involved insufficient

documentation to support a ÐRepair Tooth SocketÑ for an unknown

tooth. Dr. Hardeman agreed that an alveolopl asty was appropriate

in this case; h owever , there was no documentation for the site at

which it was performed. Dr. Ason recited four sentences from his

operative note ; however , he did not provide a tooth number for the

procedure. There is insufficient documentation to support this

claim , a nd the claim should not be allowed .

51 . Recipient 7Ós claim 2 involved a missing panoramic

image, claims 7 and 8 involved no documentation for the ÐRepair

Tooth SocketÑ for unknown teeth, and claims 9 and 12 involved the

removal of impacted teeth 1 and 16 . During the hearing ,

PetitionerÓs counsel affirmed that Ðclaim 7, page 2Ñ was paid, 8 /

and claims 2, 9, and 12 9 / were paid. N o testimony was received

regarding claims 7 and 8 . The claims (7 and 8) are allowed.

52 . Recipient 10Ós claim 4 involved the la ck of

documentation for the ÐExcision Of Gum FlapÑ for tooth 32.

Dr. Hardeman opined there was no documentation of this procedure.

The claim should be disallowed.

53 . Recipient 13Ós claim 9 involved insufficient

documentation to support a ÐRepair Tooth SocketÑ for an unknown

tooth. The documentation (Exhibit 18 - 13 : Bate s - stamped page 600)

reflected Dr. Hardeman wrote ÐWhat socket was repaired? I would

allow if site was #30, that is what is in the op note. But the

cover sheet does not indicate tooth# .Ñ Dr. Hardeman adopted his

written notations as his testimony. This claim should not be

allowed .

54 . Recipient 22Ós claim 1 involved the lack of

documentation to support an office consultation claim.

Dr. Hardeman did not find any documentation to sup port an office

consultation visit. The claim should be disallowed.

55 . Recipient 29Ós claim 2 involved the lack of

documentation to support an inpatient consultation claim, and

claim 6 involved the lack documentation of a ÐCTÑ scan of the

maxillofacial r egion without dye. Dr. Hardeman did not find any

documentation to support an in - patient consultation on the date

specified, nor could he find a CT scan for this recipient in any

of the records. These claims should be disallowed.

56 . Recipient 34Ós claim 1 lack s documentation of a ÐCTÑ

scan of the maxillofacial region without dye. Dr. Hardeman did

not see a CT scan for this recipient in any of the records. This

claim should be disallowed.

Level of Service and Not a Consult

57 . As provided in paragraph 15.5. above, the description

for an office consultation is clear. The Dental Handbook details

the components of a consultation. The Dental Handbook provides

guidance between a ÐCo nsultation Versus ReferralÑ as:

If a provider sends a recipient to another

provider for specialized care that is not in

the referring providerÓs domain, and the

referring provider will not participate in the

on - going care of the recipient for this

problem, this is not a consultation. This is

a referral and should be billed as an

examination or appropriate evaluation and

management code.

The distinguishing feature between a

consultation and an established or new patient

visit will depend on whether the referring

provider is going to continue to care for the

patient for that parti cular problem. If this

condition can be met, then the referral should

be billed as a consultation. If this

condition cannot be met, then the referral

should be billed as a new or established

patient.

58 . Respondent billed an office consultation for the vast

majority of the 35 recipients. 10 / Respondent consistently billed

CPT codes 99424, 99243 or 99244. AHCA adjusted the codes

downward, uses CPT codes 99202, 99203, or 99204 as warranted, and

AHCA seeks to recover the difference as overpayment .

59 . Re spondent did not provide a written report of the

findings and recommendations to the attending or requesting

provider, but instead provided treatment to each of the 35

recipients in this sample.

60 . For R ecipient 22, there was no documentati on to support

an office visit.

61 . For R ecipient 29 , the consultation was covered within a

global surgery code, and will be discussed below.

62 . RespondentÓs surgeon, Dr. Ason , mistakenly thought that

he was providing a consult because the Ðpatients were receiving

car e for their oral health by a general dentist. . . . So they

[general dentists] sent the patient to me to consult on the area

and confirm that the extraction or whatever procedure was needed,

and after I was done with the procedure, I would then hand the

p atient right back to the dentist.Ñ Dr. AsonÓs explanation does

not justify coding as a consult .

Global

63 . Codes 21462, 21453, and 13132 involve the surgical

procedures in the treatment of a fractured jaw with the insertion

of hardware or an oral splint .

64 . Code 20680 involves the removal of support, i.e. , the

hardware that was used in the surgical procedure to treat a

fractured jaw.

65 . The Florida Medicaid Provider General Handbook provides

the following regarding global reimbursements:

Global reimb ursement is a method of payment

where the provider is paid one fee for a

service that consists of multiple procedure

codes that are rendered on the same date of

service or over a span of time rather than

paid individually for each procedure code.

If a pr ovider bills for several individual

procedure codes that are covered under a

global procedure code, which is referred to as

Ðunbundling,Ñ Medicaid Program Integrity will

audit the providerÓs billing.

66 . The Florida Medicaid Dental Services Coverage and

Limitations Handbook provides the following description regarding

surgery services:

Surgical services are manual and operative

procedures for correction of deformities and

defects repair of injuries, and diagnosis and

cure of certain diseases.

The followi ng services are included in the

payment amount for a global surgery:

• The preoperative visit on day one (the day

of surgery);

• Intraoperative Services Î Intraoperative

services area usual and necessary part of a

surgical procedure; examples are local

anest hesia and topical anesthesia;

• Complications Following Surgery Î All

additional medical or surgical services

required of the surgeon during the

postoperative period of the surgery, because

of complications that do not require

additional trips to the operat ing room;

• Post Surgical Pain Management Î By the

surgeon;

• Miscellaneous Services and Supplies Î Items

such as dressing changes; local incisional

care; removal of operative pack; removal of

cutaneous sutures and staples, lines, wires,

tubes, drains, splin ts; routing peripheral

intravenous lines, nasogastric tubes; and

changes and rem oval of tracheostomy tubes; and

• Postoperative Visits Î Follow - up visits

within the postoperative period of the surgery

that are related to recovery from the surgery.

Note : S ee the Florida Medicaid Provider

Reimbursement Schedule for the number of

follow - up days that are included in the

surgical fee. The reimbursement schedule is

available on the Medicaid fiscal agentÓs Web

site at: www.mymedicaid - florida.com . Select

Public Information for Providers, then

Provider support, then Fee Schedules.

The following services are not included in the

payment amount for a global surgery:

• Diagnostic tests and procedures, including

diagnostic radiological procedures; or

• Treatment for po stoperative complications,

which requires a return trip to the operating

room (OR). An OR for this purpose is defined

as a place of service specifically equipped

and staffed for the sole purpose of performing

surgical procedures. It does not include a

pa tientÓs room, a minor treatment room, a

post - anesthesia care unit, or an intensive

care unit (unless the patientÓs condition was

so critical there would be insufficient time

for transportation to an OR.

67 . The Physician Surgical Fee Schedule in the Flor ida

Medicaid Provider Reimbursement Schedule provides the global

treatment period (also known as follow - up days, FUD) for codes

21453, 21454, 21461, and 21462, as 90 days.

68 . Recipient 29 had a fractured jaw. On March 18, 2014,

Dr. Ason performed a Ð clo sed reduction of bilateral condylar

fracture of the mandible, Ñ and an Ð open redu ction and internal

fixation of symphysis fracture of the mandible Ñ on Recipient 29.

On March 26, 2014, this recipient presented to RespondentÓs

practice for an office follow - u p visit. On May 15, 2014, another

surgical procedure was performed on Recipient 29 to remove the

hardware that had been inserted into Recipient 29Ós mouth during

the March surgery.

69 . The March 26 office follow - up visit was eight days after

the surgery, and within the 90 FUD. Claim 7 was coded as an

office consultation on March 26, 2014. Claim 7 should not be

allowed as the office vis it occurred eight days after the surgery

and was included with the global billing code.

70 . Recipient 29Ós claims 8 thr ough 13 involved the removal

of support implants from teeth 3, 8, 14, 19, 24, and 30, dated

May 15, 2014. Claims 9 through 13 were appropriately denied as

occurring within the 90 FUD period, and were excluded because they

were covered under the global bi lling code. Nurse Kinser adjusted

claim 8 downward, but admitted that claim 8 should have been

denied as it occurr ed within the 90 FUD period .

71 . Nurse Kinser testified that when an error is made to the

providerÓs benefit, the benefit stays. However, i f an error was

made that was not to the providerÓs benefit, it would be

appropriately adjusted.

Not a Covered Service

72. The Florida Medicaid Dental services coverage and

limitations handbook provides the following overview introduction

of dental service s:

This chapter defines the services covered by

the dental services programs, the services

that are limited and excluded, services that

must be prior authorized, and the services

that are specialty specific.

73. Those claims that were not initially coded

appropriately fall under ÐNot a Covered ServiceÑ finding. Now

that the correct codes have been assigned, the claims are not

allowed per Medicaid guidelines.

Other Findings

74 . Administrative sanctions shall be imposed for failure to

comply with the prov ision of Medicai d law. For the first offense,

Florida Administrative Code R ule 59G - 9.070(7)(e) authorizes AHCA

to impose a penalty in the amount of $1,000.00 per violation.

AHCA is seeking to impose a fine of $10 6 ,000.00 for 106 separate

offenses. The s anction should be imposed for the claims that have

been sustained; however , the actual sanction amount is unknown at

this time due to the adjustments that must be made based on the

findings of fact above.

75 . Section 409.913 (23) provides that AHCA is enti tled to

recover all investigative, legal, and expert witness costs if the

agency ultimately prevails. At this time, the total costs are

unknown.

76. Dr. Fonesca is not licensed to practice either medicine

or dentistry in Florida. Dr. Fonesca testified h e has an Ðexpert

witness certificate as it relates toÑ Florida. However, this

matter is not a medical negligence litigation action, or a

criminal child abuse or neglect case. This case revolves around

whether Respondent coded certain services appropriate ly for

Medicaid reimbursement. Dr. Fon s e ca is not a qualified Florida

peer, and his testimony, while informative, is not competent in

this case.

CONCLUSIONS OF LAW

77 . The Division of Administrative Hearings has jurisdiction

over the parties to and the s ubject matter of this proceeding.

§§ 120.569 and 120.57, Fla. Stat. (2016).

7 8 . The burden of proof is on Petitioner to prove the

material allegations by a preponderance of the evidence. See

e.g. , S. Med. Servs., Inc. v. Ag. f or Health Care Admin. , 653

So. 2d 440, 441 (Fla. 3d DCA 1995); Southpointe Pharm. v. Dep't of

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

79 . Section 409.913(22) provides:

The audit report, supported by agency work

papers, showing an overpayment to a provider

constitutes eviden ce of the overpayment. A

provider may not present or elicit testimony

on direct examination or cross - examination in

any court or administrative proceeding,

regarding the purchase or acquisition by any

means of drugs, goods, or supplies; sales or

divestmen t by any means of drugs, goods, or

supplies; or inventory of drugs, goods, or

supplies, unless such acquisition, sales,

divestment, or inventory is documented by

written invoices, written inventory records,

or other competent written documentary

evidence m aintained in the normal course of

the providerÓs business. A provider may not

present records to contest an overpayment or

sanction unless such records are

contemporaneous and, if requested during the

audit process, were furnished to the agency or

its age nt upon request. This limitation does

not apply to Medicaid cost report audits.

This limitation does not preclude

consideration by the agency of addenda or

modifications to a note if the addenda or

modifications are made before notification of

the audit, the addenda or modifications are

germane to the note, and the note was made

contemporaneously with a patient care episode.

Notwithstanding the applicable rules of

discovery, all documentation to be offered as

evidence at an administrative hearing on a

Me dicaid overpayment or an administrative

sanction must be exchanged by all parties at

least 14 days before the administrative

hearing or be excluded from consideration.

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. f or Health Care Admin. , Case No. 97 - 3791

(Fla. DOAH Mar. 20, 1998; Fla. AHCA June 26, 1998).

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

including administrative fines. § 409.913(1 6), Fla. Stat. To

impose an administrative fine, AHCA must establish by clear and

convincing evidence the factual grounds for doing so. DepÓt of

Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern &

Co. , 670 So . 2d 932, 935 (Fla.1996); DepÓt o f Child. & Fams. v.

Davis Fam. Day Care Home , 160 So . 3d 854, 857 (Fla. 2015). AHCA

has done so in some of the claims listed above.

8 1 . Section 409. 913(11) provides the following:

The agency shall deny payment or require

repayment for inappropriate, medi cally

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.

82 . AHCA established a prima facie case, and proved by a

preponderance of the evidence that Respondent should not have been

paid: for the services that were not medically necessary

identified above; for the errors in coding (including the bone

grafts claims) identified above; for those claims that had

insufficient or no docu mentation to support the claim as

identified above; for those claims involving the incorrect level

of services or consultation codes as identified above; for claims

that were covered through the global coding as identified above;

or those claims that were for services not covered by Medicaid.

AHCA is entitled to reimbursement from Respondent for the claims

he billed for these services.

83 . Rule 59G - 9.0 70 provides in pertinent part:

(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:

* * *

(e) For failur e to comply with the provisions

of the Medicaid laws: For a first offense,

$1,000 fine per claim found to be in

violation. For a second offense, $2,500 fine

per claim found to be in violation. For a

third or subsequent offense, $5,000 fine per

claim fou nd to be in violation (Section

409.913(15)(e), F.S.);

84 . Section 409.913(23)(a) provides:

In an audit or investigation of a violation

committed by a provider which is conducted

pursuant to this section, the agency is

entitled to recover all investigativ e, legal,

and expert witness costs if the agencyÓs

findings were not contested by the provider

or, if contested, the agency ultimately

prevailed.

85 . Petitioner seeks an award of costs, including the

investigation and litigation (including an expert) of this FAR

pursuant to section 409.913(23). Petitioner incurred pre - hearing

expenses of $5,112.88. Petitioner also incurred expenses in the

preparation for and presentation at hearing. The exact cost for

the preparation and presentation is unknown at this time.

RECOMMENDATION S

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Administration enter a final order finding that Respondent was

overpaid, and is liable for reimbursement to AHCA for th e claims

detailed above (AHCA shall rework the claims detailed above to

determine the overpayment) ; finding that an administrative fine

should be imposed based on each violation ; and finding that

Petitioner is entitled to recover all investigative, legal, and

expert witness costs. Jurisdiction is retained to determine the

amount of appropriate costs if the parties are unable to agree.

Within 30 days after entry of the final order, either party may

file a request for a hearing on the amount. Failure to re quest a

hearing within 30 days after entry of the final order shall be

deemed to indicate that the issue of costs has been resolved.

DONE AND ENTERED this 23rd day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

L YNNE A. QUIMBY - PENNOCK

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

Divi sion of Administrative Hearings

this 23rd day of March , 2017 .

ENDNOTE S

1/ The hearing was conducted via telephone between Tallahassee

and Ash e ville, North Carolina , on February 1, 2017 , to

accommodate a witness ; and via video teleconferencing between

s ite s in Tampa and Tallahassee , Florida , on February 2, 2017 , to

accommodate a witness.

2/ On January 22, 2016, AHCA issued a Preliminary Audit Report

(PAR). Following receipt of this PAR, Respondent provided

additional documentation which was reviewed a nd utilized for the

preparation of the FAR.

3/ One claim, claim 2 was resolved and allowed when the panorex

was received and evaluated by AHCA.

4/ Other causes for disallowance shall be addressed in another

section.

5/ The Schneiderian Membrane is th e lining of the maxillary

sinus.

6/ Other teeth were extracted but they are not the subject of

these claims.

7/ See Endnote 4 above.

8/ In Exhibit 18 - 7, claim 7 is on the first page of the claims.

The undersigned finds that counsel was referring to cl aim 12,

page 2 regarding tooth 16.

9/ Dr. Hardeman testified that teeth 1 and 16 were not on the

panorex, so that they were not present to be removed. However,

during Dr. Ason testimony, PetitionerÓs counsel advised that

claim 12 was adjusted ., p . 373.

10/ For R ecipient 17, no office consultation was billed .

COPIES FURNISHED:

Joseph G. Hern, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308 - 5403

(eServed)

Joseph Scott Justice, Esquire

Ringe r Henry Buckley & Seacord, P.A.

Suite 400

105 East Robinson Street

Orlando, Florida 32801

(eServed)

Pierre Seacord, Esquire

Ringer Henry Buckley & Seacord, P.A.

Suite 400

105 East Robinson Street

Orlando, Florida 32801

(eServed)

Ephraim Durand Livingst on, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308 - 5403

(eServed)

James Countess, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308 - 5403

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Justin Senior, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 3 2308

(eServed)

Stuart Williams, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallah assee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

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 excep tions 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.