18-005269MPI Agency For Health Care Administration vs. Mary Cecilia Crosby, D.D.S. Status: Closed Recommended Order on Thursday, April 18, 2019.

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. 18 - 5269MPI

MARY CECILIA CROSBY, D.D.S.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice , a formal administrative hearing was

conducted before Administrative Law Judge Mary Li Creasy by

video teleconference with locations in Lauderdale Lakes and

Tallahassee , Florida , on February 7 and 8, 201 9.

APPEARANCES

For Petitioner: Joseph G. H ern, Esquire

Susan Sapoznikoff, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

For Respondent: Dennis Vandenberg, Esquire

Peterson Bernard

1550 Southern Boulevard , Suite 300

West Palm Beach, Florida 33406

STATEMENT OF THE ISSUE S

Whether during the relevant audit period, Respondent,

Mary Cecilia Crosby, D.D.S. ("Dr. Crosby") , an oral and

maxillofacial surgeon, was overpaid for services that , in whole

or in part , were not covered by Medicaid, were not medically

necessary, were improperly coded , or were insufficiently

documented; and , if so, in what amount and what is the

appropriat e penalty.

PRELIMINARY STATEMENT

This case involves a Medicaid Audit by Petitioner, Agency

for Health Care Administration ("AHCA"), of Dr. Crosby's

practice for dates of service from July 1, 2011, through

December 31, 2014. During the audit period, Dr. Cr osby was an

enrolled Medicaid provider and had a valid Medicaid provider

agreement. Pursuant to AHCA's Final Audit Report ("FAR"), dated

April 18, 2016, in MPI Case ID 2015 - 0005032, AHCA sought

repayment from Dr. Crosby in the amount of $862,226.96 as a

M edicaid overpayment for paid claims that , in whole or in part ,

are not covered by Medicaid. AHCA sought to impose a fine of

$50,000.00 as a sanction for vio lations of Florida

Administrative Code Rule 59G - 9.070(7)(e) . AHCA also claims that

Respondent shou ld pay investigative, legal, and expert witness

cos ts, pursuant to section 409.913(23), Florida Stat utes . After

some revisions post - FAR, AHCA seeks $841,666.43 from Respondent

as a Medicaid overpayment; seeks to impose upon Respondent a

sanction fine of $ 49,000.00 for violation of rule 59G -

9.070(7)(e) ; and also seeks pa yment of costs pursuant to

section 409.913(23) .

The matter was referred to the Division of Administrative

Hearings ("DOAH") on September 21, 2016, and was opened as DOAH

Case No. 16 - 5513MPI. The parties filed a Joint Motion for

Relinquish ment of Jurisdiction so that the parties could

complete discovery of all relevant witnesses while exploring

settlement arrangements. The undersigned issued an Order

Closing File and Relinquishing Jurisdicti on back to AHCA on

January 3, 2017, with leave to reopen the matter in the event

that after discovery was complete, disputed issues of material

fact remained.

The parties were unable to successfully negotiate a

resolution. On September 5, 2018, AHCA file d a Motion to Reo pen

Proceedings, which was granted over o bjection, and DOAH Case

No. 18 - 5269 MPI was assigned. Respondent filed an Objection to

Petitioner' s Motion to Reopen Proceedings b efore the Division of

Administrative Hearings and Respondent's Reque st for Remand to

the Fifteenth Judicial Circuit for Jury Trial, which was denied

after a telephonic hearing on the motion on October 1, 2018.

The final hearing of this matter was conducted as scheduled

by video teleconference on February 7 and 8, 2019.

AHC A presented the testimony of two witnesses:

Ro bi Olmstead, AHCA Administrator; and the deposition testimony

of John H. Hardeman, D.D.S., M.D., who was accepted as an expert

in oral and maxillofacial surgery. AHCA Exhibits 1 through 24

were admitted into evidence without objection.

Dr. Crosby testified on her own behalf and presented the

testimony of Robert E. Marx, D.D.S., who was accepted as an

expert in oral and maxillofacial surgery. Respondent's

Exhibits 1 through 8 were admitted into evidence with n o

objection.

The two - volume Transcript of the final hearing was filed

with DOAH on February 27, 2019. Both parties timely filed their

proposed recommended orders, which were taken into consideration

in the drafting of this Recommended Order.

Except as oth erwise indicated, citations to Florida

Statutes or rules of the Florida Administrative Code refer to

the versions in effect at the time of the alleged violations.

FINDING S OF FACT

The Parties

1 . This case arises from an AHCA Medicaid audit of

Dr. Crosby f or services provided and paid for during the period

July 1, 2011, through December 31, 2014.

2 . Dr. Crosby is an oral and maxillofacial surgeon,

licensed to practice in Florida, who began her dental practice

in 1987 after receiving her dental degree from Ohio State

University College of D entistry and a certificate for oral and

m axillofacial surgery from Columbia University . Dr. Crosby

maintains her practice in Royal Palm, Florida.

3. AHCA does not contend that Dr . Crosby provided poor

quality of care . I t also does not claim that h er billings were

fraudulent .

4. The Florida Legislature has designated AHCA as the

single state agency authorized to make payments for medical

assistance and related services under Title XIX of the Social

Security Act ( " Medicai d program " ) . AHCA oversees and

administers the Medicaid program for the State of Florida .

§ 409.913, Fla. Stat. AHCA investigates and audits Medicaid

providers to identify and recoup overpayments for services

rendered to Medicaid recipients . The Legisl ature also empowered

AHCA to impose sanctions and fines against providers that

received overpayments . § 409 . 913 , Fla . Stat .

5. In the Medicaid p rogram , providers bill AHCA for

services rendered and AHCA pays the bills , also called claims .

Later AHCA audits the claims . This audit includes examination

of whether the services were proper , whether the amounts billed

were correct , and whether Medicaid covers the services provided .

If AHCA determines that it overpaid a provider , AHCA seeks

reimbursement of the funds .

6. The Medicaid program follows a process of record

collection , records analysis , provider input , and rebuttal from

the provider before reaching its final determination of amounts

overpaid . AHCA issues a FAR , sometimes amended , statin g its

determination and the reasons for it . If the provider disputes

AHCA' s final determination , it may request a formal

administrative hearing.

The Audit Process

7. AHCA audited Dr . Crosby' s claims and a gency payments

made during the period July 1, 2011, through December 31, 2014

( the " audit period " ) .

8. During the audit period , Dr . Crosby was an enrolled

Medicaid provider subject to the requirements of the Medicaid

provider agreement . The Medicaid provider agreement is a

contract between AH CA and the prov ider. It requires the

Medicaid provider to comply with all state and federal laws

establishing and regulating the Medicaid program . This includes

Florida Medicaid Provider General Handbooks ("Provider General

Handbooks") that are incorpora ted by reference into rules . The

agreement required Dr . Crosby to maintain medical records and

make those records available to AHCA in a systematic and orderly

manner for review . The records must be accessible , legible , and

comprehensive .

9. AHCA uses a statistical sampling and extrapolation

process for conducting Medicaid audits . Administrator

Robi Olmstead provided the framework by which this audit was

opened , investigated , reviewed , and reported . The process

involves identifying and analyzing a randomly selected number of

claims paid during the audit period . AHCA extrapolates the

results of the analysis of the selected claims to the amount of

claims paid during the audit period to determine the amount of

overpayment , if any . The process of st atistical sampling and

the statistical methods used to establish the validity of the

overpayment calculation in this case is an accepted and valid

process that complies with section 4 09.913(20) .

10. AHCA' s application of this process in this case is

consistent with the requirements of all applicable versions of

the Provider General Handbooks and Dental Services Coverage and

Limitations Handbooks ( " Dental Handbooks " ) , Current Dental

Terminology ("CDT" ) manual definitions , Current Procedural Code

("CPC ") definitions, Florida Statutes regulating dentistry , and

dental standards of care to guide his evaluation . AHCA' s

application of the claims sample program resulted in the

selection of the records of 35 of Dr. Crosby's patients.

11. AHCA then aske d Dr . Crosby to submit records an d other

documents to support her claims for the 35 patients . Dr . Crosby

p rovided documents, including her medical records and billing

records . Agency employees and a contracted expert , John H.

Hardeman, D.D.S., M.D., revi ewed the records . Dr . Hardeman is a

Florida - licensed medical doctor and dentist , who is board -

certified in oral and maxillofacial surgery . Dr . Crosby

stipulated and agreed that Dr . Hardeman meets the requirements

and qualifications of a " peer " as defined in section 409 . 9131 .

Dr . Hardeman ' s testimony is credible .

The Audit Reports

12. AHCA preliminarily concluded that it had overpaid

Dr . Crosby $862,226.96. AHCA advised Dr . Crosby of its

conclusion in a Preliminary Audit Report ("PAR"). This repor t

and its attached worksheets explicated AHCA' s rationale for its

conclusions . AHCA provided Dr . Crosby an opportunity to provide

a dditional records to support her claims , and to explain the

questioned billings , but Dr. Crosby provided no further records.

13. AHCA issued the FAR , seeking repayment from Dr . Crosby

in the amount of $862 , 226 . 96 as a Medicaid overpayment for paid

claims that , in whole or in part , are not covered by Medicaid .

AHCA sought to impose a fine of $50 , 000 . 00 a s a sanction for

v iolations of r ule 59G - 9 . 070(7)(e) . AHCA also claims that

Respondent should pay investigative , legal , and expert witness

costs , pursuant to section 409 . 913(23) .

14. Prior to the final hearing, AHCA performed further

revisions and seeks $841 , 666 . 43 from Dr. Crosby as a Medicaid

overpayment ; seeks to i mpose upon Respondent a reduced fine of

$49 , 000 . 00 for violation of r ule 59G - 9 . 070(7)(e) ; and also seek s

payment of costs pursuant to section 409 . 913(23) .

15. The FAR identifi ed four categories of shortcomings ,

result ing in reductions in payments for claims , under the

heading "Findings" as follows:

1 . The 2008 and 2012 Florida Medicaid

Provider General Handbooks , page 5 - 4 , state

that when presenting a claim for payment

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 . revealed

that the medical 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 ,

require 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 medical records revealed that some

s ervices rendered were erroneousl y 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 , pages 2 - 60 and 5 - 9 , define

incomplete records as records that lack

documentation that all requirements or

conditions for ser vice 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 these services are

considered an overp ayment . (INSUFFICIENT/NO

DOC)

4. The 2007 Dental Services Coverage and

Limitations Handbook, page 2 - 1 through 2 - 4,

and pages 3 - 1 through 3 - 8, and the 2011

Dental Services Coverage and Limitations

Handbook, page 2 - 1 through 2 - 5, state that

only those ser vices designated in the

applicable provider handbook and fee

schedule are reimbursed by Medicaid after

the correct code was assigned. Payments

made to you for these services are

considered overpayments. (NOT A COVERED

SERVICE).

Bone Grafting -- Coding Iss ues

16. Most of the claims in dispute in this case involve

whether procedures identified by Dr. Crosby as bone grafting,

following the extraction of molars or wisdom teeth, were

medically necessary or properly coded as procedures covered by

Medicaid.

17. The Florida Medicaid Dental Program , at the time of

the audit , was limited in scope in the services an d treatments

available. The program does not cover preventive care .

18. For the procedures in question, Dr. Crosby used CPC

codes 21210 and 21215 , which are codes for face bone and lower

jaw bone grafts , respectively . Dr. Hardeman opined that the

appropriate code for the procedures performed by Dr. Crosby is

CDT Code D7953, which is not a Medicaid - covered procedure.

19. CP C Code 212 10 is for a graft in the upper jaw and

described as " [g] raft , bone : nasal , maxillary or malar areas

(includes obtaining graft) ." CP C Code 21215 is for a graft in

the lower jaw and described as " [m] andible (includes obtaining

graft) ."

20. Significan tly, the CPC manuals in effect during the

years of the audit provide an introduction to the g raft codes

which states:

Codes for obtaining autogenous bone,

cartilage, tendon, fascia lata grafts, or

other tissues through separate skin/fascial

incisions shoul d be reported separately

unless the code descriptor references the

harvesting of the graft or implant (eg .,

includes obtaining graft) . (Emphasis

added).

21. CDT Code D7953 states as follows :

bone replacement graft for ridge

preservation -- per site

Osseous autograft , allograft or non - osseous

graft is placed in an extraction site at the

time of the extraction to preserve ridge

integrity (e . g ., clinically indicated in

preparation for implant reconstruction or

where alveolar contour is critical to

plan ned pro sthetic reconstruction) .

Membrane , if used should be reported

separately.

22. In laymen's terms, CPC codes 21210 and 21215 are for

complex bone grafting involving a fairly extensive surgical

procedure, including the harvesting of bone from t he patient's

body or that of a cadaver, and filling in or reconstructing a

portion of the jaw. These codes apply when the bone grafting

procedures are required because of traumatic or genetic defects

and relate to large areas of reconstruction , not a sing le

socket . None of the recipients who received bone grafts coded

as CPC 21210 and 21215 had a traumatic injury .

23. The Cod ing Guide for CPC codes 21210 and 21215 ,

respectively , state that these grafts " may be held in place with

wires , plates or s crews " and the graft " shall be firmly

positioned with wires, plates or screws". Dr. Crosby did not

use plates , wires , or screws in any of the bone grafting

procedures at issue .

24. Dr. Crosby did not harvest any bone from any recipient

but purchased the bone putty material from a manufacturer . Her

belief, that taking putty out of a jar for a graft, constitutes

"obtaining graft " is inconsistent with the CPC explanation of

grafts for purposes of codes 21210 and 21215. These codes

clearly require harv esting the bone material.

25. Dr . Hardeman credibly testified that the procedures

performed , with one exception , which was then allowed by AHCA

post - FAR , were socket or ridge preservation grafts more

appropriately coded as D7953 . However, D7953 is a dental code

that is not available for billing to Medicaid . That code is not

present in the Dental General Fee Schedules or the Dental

Oral/Maxillofacial Surgery Fee Schedules for any of the years of

the audit period .

26. Dr. Hardeman explained that it would take a competent

oral surgeon from 15 to 20 minutes to remove impacted wisdom

teeth and " just a few brief moments " to perform the bone

grafting procedures Dr. Crosby billed to Medicaid and which are

the subject of this audit . However, Dr. Crosby billed and

rec eived payment from Medicaid for bone grafting procedures at

rates as high as $2 , 256 . 56 .

Agreements Reached During Final Hearing

27. At final hearing, Dr. Crosby testified on her own

behalf and presented the testi mony of her expert witn ess,

Dr. Robert Marx, D.D.S., who is also an oral and maxillofacial

surgeon. D espite the claims in the Petition for Formal

Administrative Hearing and the Amended Joint Prehearing

Stipulation , at the final hearing, further agreement was reached

on certain claims.

28. Recipient 10 , cl aims 5 through 12 , were withdrawn

because Dr. Crosby acknowledged the records/claims were actually

for so meone other than the recipient (they belonged to a sibling

of the recipient). These claims we re properly denied by A HCA.

29. Also , in his final hearing testimony , Dr . Marx agreed

with Dr . Hardeman ' s conclusions that AHCA properly denied the

claims for the following :

a . Recipient 4 , claim 2 ;

b. Recipient 5, claims 3, 13, 15, and 18 1/ ;

c. Recipien t 10 , claim 2 ;

d. Recipient 13 , claim 2 ;

e. Recipient 16 , claim 7 ;

f. Recipient 17 , claim 4 ;

g. Recipient 18 , claim 4 ;

h. Recipient 20 , claim 2 ;

i. Recipient 24 , claim 5 ;

j. Recipient 27 , claim 7 ;

k. Recipien t 27 , claim 13 ;

l. Recipient 30 , claim 3 ;

m. Recipient 30 , claim 4 ;

n. Recipient 30 , claim 5 ;

o. Recipient 30 , claim 7 ;

p. Recipient 31 , claim 4 ;

q. Recipient 31 , claim 6 ;

r. Recipient 34 , claim 4 ; and

s. Rec ipient 34 , claim 13 .

30. In addition , Dr . Crosby also conceded the following

claims which had been disallowed by Dr . Hardeman , even though

her expert , Dr . Marx disagreed :

a . Recipient 27 , claim 6 ; and

b . Recipient 34 , claim 3 .

31. To the extent that Dr . Marx agreed with Dr . Hardeman ,

the undersigned uphold s their findings , even if disputed by

Dr . Crosby . To the extent that Dr . Crosby conceded claims , the

undersigned accept s that testimony , which is supported by that

of Dr . Hardeman .

Remaining Disputed Claims

32. Eliminating the claims conceded at the final hearing

leaves the following claims for determination :

a . Recipient 5 , claim 25 (code 41150 - - denied as error in

coding and not a covered service) .

b . Recipient 10 , claim 3 (code 21215 - - denied as error in

coding , not medically neces sary, and not a covered service) .

c . Recipient 10 , claim 4 (code 21215 - - denied as error in

coding , not medically necessary , and not a covered service) .

d . Recipient 11 , cla im 5 (code 21215 - - denied as error in

coding , not medically necessary , and not a covered service) .

e . Recipient 15 , claim 10 (code 21215 - - denied as error in

coding , not medically necessary , and not a covered service) .

f . Recipient 15 , claim 11 ( code 21215 - - denied as error in

coding , not medically necessary , and not a covered service) .

g . Recipient 16 , claim 8 (code 21215 - - denied as error in

coding , not medically necessary , and not a covered service) .

h . Recipient 20 , claim 1 (denied f or lack of

documentation) .

i . Recipient 21 , claim 1 (denied for lack of

documentation) .

j . Recipient 21 , claim 4 (error in coding - - payment was

reduced , but not denied) .

k . Recipient 23 , claim 4 (code 21215 - - denied as error in

coding and n ot a covered service) .

l . Recipient 23 , claim 5 (code 21215 - - denied as error in

coding and not a covered service) .

m . Recipient 24 , claim 4 (code 21210 - - denied as error in

coding and not a covered service) .

n . Recipient 24 , claim 5 (code 21210 - - denied as error in

coding and not a covered service) .

o. Recipient 27 , claim 8 (code 21215 - - denied as error in

coding , not medically necessary , and not a covered service) .

p. Recipient 27 , claim 12 (code 21215 - - denied as error in

coding , not medically necessary , and not a covered service) .

q. Recipient 29 , claim 6 (code 41150 - - denied as error in

coding and not a covered service) .

r. Recipient 34 , claim 12 (code 21215 - - denied as error in

coding , not medically necessary , and not a covered service) .

Specific Claims

Recipient 5 , Claim 25 , and Recipient 29, Claim 6

33. Recipient 5 , claim 25 , and Recipient 29 , claim 6 , both

concern claims billed for " Reconstruction of a Tongue Fold ."

AHCA denied these claims based on erro r in coding and the

procedures not being covered by Medicaid . With regard to these

claims , Dr . Hardeman testified that Dr . Crosby billed

code D41520 , which is very specific in its language and requires

an incision and rearrangement of tissues . However , t he

procedure she actually performed was a maxillary frenectomy ,

which only involves cutting the muscle attachments . Because

there was no documentation showing Dr . Crosby made an incision

and rearranged the tissues in a Z - plasty formation , Dr . Hardeman

opi ned that code 40806 was more appropriate .

34. Dr . Marx testified that the code used was proper

because Dr . Crosby had to place a stitch , even though that code

calls for repositioning of tissue , which Dr . Crosby admittedly

did not do .

35. The te stimony of Dr. Hardeman was more credible than

that of Dr. Marx with regard to this issue. AHCA properly

adjusted payment for these claims.

Recipient 10 , C laim s 3 and 4

36. Dr. Cr osby coded the procedures as CPC code 21215,

grafts in the lower jaw of a 14 - year - old patient. However,

Dr. Crosby did not "obtain a graft" from this patient. Rather

she opened a jar and removed putty to place in the socket after

removal of impacted wisdom teeth.

37. Dr. Hardeman testified that a bone graft was not

warranted, even for the preservation of the ridge. Younger

patients tend to heal better. The current standard of care is

not to perform grafting in patien ts less than 26 years old.

Dr. Hardeman relies on the position papers ("white papers") of

the A merican Association of Oral and Maxillofacial Surgeons

("AAOMS").

38. Dr. Marx d isagreed and opined that the 26 - year - old

cut - off has been disregarded in the last 15 years and that using

grafting material leads to complete bone regeneration.

Accordin g to Dr. Marx, younger patients will get complete

healing without gra f ting material but they will not get complete

bone regeneration. Dr. Marx offered no evidence in support of

this theory. Dr. Hardeman's testimony regarding the medical

necessity of gra f ting in younger patients is more credible and

accepted. 2/

39. Code D7953 is the appropriate code for these

procedures , and AHCA properly adjusted payment for these claims.

Recipient 11 , C laim 5

40. This claim involves the extraction of too th 17, an

impacted third molar with an enlarged follicle. Both experts

agree that grafting was appropriate to preserve tooth 18.

However, Dr. Hardeman explained that this was a ridge

preservation graft and should have been coded D7953 rather

than 21215. Dr. Marx offered no contradictory testimony. AHCA

properly adjusted payment for this claim.

Recipient 15 , C laims 10 and 11

41. Both claims involve the removal of wisdom t eeth from

the lower jaw of a 17 - year - old. Both experts agree that

grafti ng was appropriate. Again, the dispute centers on the

appropriate coding. The experts disagreed regarding the

extensiveness of the reconstruction needed. However, because

Dr. Crosby did not harvest any graft material from the patient,

these procedures w ere miscoded , and AHCA properly adjusted

payment for these claims.

Recipient 16 , C laim 8

42. This procedure involved extraction of a molar in the

lower jaw and a graft. Dr. Hardeman testified he would not have

used a graft for this tooth , but d id not explain why. Dr. Marx

testified that "if Dr. Crosby had to remove bone to get out the

roots and such, then it would be justifiable, but I would have

her testify to that, not me."

43. During her testimony, Dr. Crosby agreed with Dr. Marx

that this claim should be allowed , but provided no explanation.

44. Insufficient testimony and evidence was provided to

decide whether this procedure was medically necessary. However,

given the fact that Dr. Crosby did not harvest bone for any of

the cla ims in dispute in this audit, code 21215 is not

appropriate , and AHCA properly adjusted payment for this claim.

Recipient 20 , C laim 1 ; Recipient 21 , C laim 1

45. AHCA denied c laim 1 (limited oral evaluation ; problem

focused) on Recipients 20 and 21 based on insufficient medical

documentation of the evaluation .

46. Dr . Hardeman testified that the necessary components

of an evaluation that need to be documented are the medical

history , review of symptoms , a review of the data , and an

assessme nt leading to a plan of action .

47. For Recipient 20, claim 1, there was only a notation

that the risks were mentioned to the mother . Missing were the

chief complaint, a brief medical history of the patient, a

review of systems, a review of data (s uc h as X - rays or tests) ,

and a treatment plan. Dr. Marx's explanation , that this amount

of information is unnecessary for a limited oral exam, was not

credible.

48. For Recipient 21 , claim 1 , the notes and the treatment

provided did not match . The notes reflect Dr. Crosby performed

a limited exam for teeth 1, 16, and 32. However, on the

treatment date, teeth 31 and 32 were removed.

49. AHCA properly adjusted the payment for these claims.

Recipient 21 , C laim 4

50. AHCA reduced paym ent by $14.00 on claim 4 (to oth root

removal) on Recipient 21 based on an error in coding .

Dr . Hardeman testified that D7250 was inappropriate and D7210

was appropriate due to the initial status of the tooth .

51. CDT Code 7250 is for the "surgical r emoval of residual

tooth roots (cutting procedure) and "includes cutting of soft

tissue and bone, removal of tooth structure, and closure."

52. CDT Code 7210 is for "surgical removal of erupted

tooth requiring removal of bone and/or sectioning of too th, and

including elevation of mu coperiosteal flap if indicated, " and

"includes related cutting of gingiva and bone, removal of tooth

structure, minor smoothing of socket bone and closure."

53. Which code applies depends on how much tooth, if any,

is present at the beginning of the procedure. If tooth is

present above the gum line, the appropriate code is D 7210. If

only roots remain, the code is D 7250.

54. Dr. Marx offered n o testimony on this claim.

Dr. Crosby explained that she used D7250 b ecause the decay was

so extensive that there was virtua lly no tooth left. However

Dr. Hardem an credibly testified that the X - ray taken before the

procedure for the tooth showed some tooth remaining. AHCA

properly adjusted the payment for this procedure.

Recipient 23 , C laim s 4 and 5

55. This claim involves the appropriate coding for the

removal of two side - by - side molars (teeth 1 and 2) in the upper

jaw of a 30 - year - old. Dr. Crosby used CPC code 21215 for both

procedures. Dr. Marx testified t hat this coding was appropriate

for one tooth but not both. The removal of the two teeth

created a jaw defect because the teeth occupied a "fair amount

of bone," and was more than a socket defect.

56. However, as with Recipients 10 and 15 discussed above,

no harvesting of bone was done. CDT Code 7953 is the

appropriate code for the kind of graft used here. AHCA properly

adjusted the payment for these procedure s.

Recipient 24 , C laims 4 and 5

57. These claims involve the removal of teeth 1 and 2 from

t he upper jaw of a 17 - year - old. Both experts agreed that

gra f ting was medically necessary. Dr. Crosby used CPC

code 21210. Because there was no harvesting of bone, CDT

Code 7953 is the appropriate code for the kind of graft used

here . AHCA properly adjusted the payment for these procedures .

Recipient 27 , C laims 8 and 12

58. These claims involve the removal of upper and lower

left wisdom teeth of a 16 - year - old. Dr. Hardeman testified that

these procedures were not medically necess ary , but did not

explain why. However, b ecause there was no harvesting of bone ,

CDT Code 7953 is the appropriate code for the kind of graft used

here , rather than CPC code 21210 and 21215 used by Dr. Crosby.

AHCA properly adjusted the payment for these p rocedures .

Recipient 34, C lai m 12

59. This claim involves t he lower jaw bone graft in a

12 - year - old after removal of tooth 29. Gra f ting was not

appropriate due to the age of the patient. Further, because

there was no harvesting of bone , CDT C ode 7953 is the

appropriate code for the kind of graft used here , rather than

CPC code 21215 used by Dr . Crosby . AHCA properly adjusted the

payment for th is procedure .

CONCLUSIONS OF LAW

60. DOAH has jurisdiction over the subject matter of this

proceedin g . §§ 120 . 569 and 120 . 57(1) , Fla . Stat .;

§ 409 . 913(31) , Fla . Stat .

61. AHCA bears the burden of establishing an alleged

Medicaid overpayment by a preponderance of the evidence .

Southpointe Pharmacy v . Dep ' t of HRS , 596 So . 2d 106 , 109 (Fla .

1st DCA 1992 ) .

62. AHCA is authorized to seek repayment of overpayments

it may have made for goods or services reimbursed under the

Medicaid program . §§ 409 . 913(1) , 409 . 913(11) , 409 . 913(15)(j) ,

and 409 . 913(30) , Fla . Stat .

63. Although AHCA bears the ultimate burden of persuasion ,

section 409 . 913(22) provides that " [t]he audit report , supported

by agency papers , showing an overpayment to the provider

constitutes evidence of the overpayment ." This means that AHCA

can make a prima facie case by proffering a properly s upported

audit report , which must be received in evidence . Absent

credible evidence to the contrary , the audit report and agency

papers establish the total overpayment .

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

preponderance of the evidenc e , that Dr . Crosby should not have

been paid for the claims based on the Findings listed in the

FAR . Consequently, A HCA is entitled to reimbursement for the

improper claims .

65. Section 409 . 913(7)(f) requires providers to make sure

that claims for servic es are documented by records created

contemporaneously with the provision of the service . The

medical records must fully and properly document the medical

basis and specific need for the service .

66. To be eligible for coverage by Medicaid , a service

mus t be " medically necessary ," defined in section 409 . 913(1)(d) ,

as follows :

" Medical necessity " or " medically necessary "

means 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 or services are

provided in accordance with generally

accepted standards of medical practice .

67. As discussed in the Finding of Facts , AHCA met its

burden of proof for all claims . AHCA proved that it paid

Dr . Crosby for claims that failed to comply with the laws ,

rules , and regulations governing Medicaid providers .

68. Florida Administrative Code Rule 59G - 9 . 070(7)

addresses a provider ' s failure to comply with Medicaid laws and

authorizes AHCA to impose an administrative fine . It states in

pertinent part :

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[ . ]

69. The rule provides for imposition of a $1 , 000 . 00 fine

per claim for a first offense . The violations found in this

O rder and those conceded by Dr. Crosby , totaled 49. The

undersigned finds no factual basis for an enhancement of the

fine amount. The appropriate fine is $49,000.00.

70. The authority un der rule 59G - 9 . 070 to impose sanctions

on providers is clear . The meaning of the phrases " will impose "

and " shall be imposed " are unambiguous and directory . Carmack

v . State , 31 So . 3d 798 , 800 (Fla . 1st DCA 2009)(holding that

the terms of a law or regul ation should be given their plain

meaning) .

71. To impose a punitive administrative fine , AHCA must

establish the factual grounds for doing so by clear and

convincing evidence . Dep ' t of Child . & Fams . v . Davis Fam . Day

Care Home , 160 So . 3d 8 54, 857 (Fla. 2015). AHCA presented

clear and convincing evidence that Respondent failed to comply

with state and federal law , rules , regulations , and policies of

the Medicaid program for the violations found in this Order .

72. AHCA seeks, and is entitled to, r eimbursement of costs

that it expended the investigation of Dr. Crosby and the

litigation of the audit findings . This includes services

rendered by the investigators involved in the audit and the

expert consulted to a ssist the a gency . § 409 . 913(23) , Fla .

Stat . The amount expended pre - hearing was $1 , 125 . 05 .

Additional costs have been incurred in preparing for and

attending the final hearing .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency f or Health Care

Administration enter a final order : requiring Respondent to

repay claims in the amount of $841,666.43; imposing a sanction

of $49,000.00; and requiring Dr. Crosby to repay AHCA's

investigative, legal and expert witness costs. If the partie s

do not stipulate to the amount of costs, the final order should

permit Dr. Crosby to request a hearing to contest the amount of

costs .

DONE AND ENTERED this 18th day of April , 2019 , in

Tallahassee, Leon County, Florida.

S

MARY LI CREASY

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 o f Administrative Hearings

this 18th day of April , 2019 .

ENDNOTE S

1/ Although Dr . Crosby disagreed with her own expert as to all

claims for Patient 5, she also admit ted that she had no records

to document the basis for the claims, just the procedure cod es

which she entered. The undersigned finds the testimony of the

two experts more credible than that of Dr. Crosby and that these

claims were properly denied by AHCA.

2/ Dr. Marx also testified at hearing that the teeth involved in

this claim were signi ficantly impacted. Code D7953 refers to

preservation of the ridge. Due to the level of impaction, there

was no ridge to preserve and this was a defect in the bone,

according to Dr. Marx. He reasoned that code 21215 was

appropriate. This was a significa nt deviation from his

deposition testimony during which he agreed code D 7953 was

appropriate. Dr. Marx offered no explanation for his change in

testimony. Therefore, his opinion offered at final hearing was

discredited.

COPIES FURNISHED:

Dennis A. Van denberg, Esquire

Peterson Bernard

1550 Southern Boulevard, Suite 300

West Palm Beach, Florida 33406

(eServed)

Susan Sapoznikoff, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Joseph G. Hern, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Sh eena Grantham , Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

A gency for H ealth C are A dministration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 3230 8

(eServed)

Stefan Grow, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Mary C. Mayhew, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahasse e, 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 th at

will issue the Final Order in this case.