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Are You the Target of a Medicaid Audit? Tips Health Professionals Should Be Following

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

The Agency for Health Care Administration (AHCA), Office of Inspector General (OIG), and Bureau of Medicaid Program Integrity is the Florida agency responsible for routine Medicaid audits The agency ensures that the Medicaid program was billed correctly for services by health care professionals. Those receiving the greatest amounts of Medicaid payments are also the ones most likely to be audited.

These include pediatricians, Ob/Gyns, family practice physicians, and dentists. The Medicaid audit usually requests information in a questionnaire form. It also includes a request for copies of medical records (including X-rays and other diagnostic studies) for the patients selected for the audit.

If AHCA determines that Medicaid overpaid for services, it will use a complex mathematical extrapolation formula to determine the repayment amount. Additionally, fines and penalties can be added by the Medicaid program. However, you can eliminate or reduce the amount of any such repayment by actions taken both before and during the Medicaid audit.

Practical Tips for Your Practice.

There are ways to run the everyday practice that will help you if you are selected for a Medicaid audit.
1. Every patient record entry should be clearly dated and signed or initialed by the provider. Make sure this is always done.

2. When documenting the patient’s record, make sure that you document exactly what services were needed and completed to support what was billed to Medicaid.

3. Communicate with the person responsible for your billing so that the actual services provided are billed for. Do not bill in advance for anticipated services needed as indicated in the appointment calendar or on a treatment plan.

4. Keep the patient records organized and ready for copying, if necessary. Using only one-sided documents and securely fastening small forms (prescriptions, telephone memos, small sticky notes) onto 8-1/2″ by 11″ paper will help those still using paper charts. Scan all such documents into the patient record using an electronic health record (EHR).

5. Services provided by a physician not enrolled in the Medicaid program to a Medicaid patient may not be billed to or paid by the Medicaid program. Therefore, never allow any other physician associated with your practice who is not enrolled as a Medicaid provider to provide services to Medicaid patients. Do not allow a new physician coming into your practice to treat Medicaid patients until he or she actually has received his or her Medicaid provider number. The group may not bill for the services, nor may another physician bill for the services.

6. Ensure that all health care professionals’ licenses and permits are updated. Ensure that all X-rays, clinical lab, and diagnostic equipment are permitted and kept up to date. Ensure that any CLIA license or exemption certificate is correct and kept up to date. Services billed by unlicensed personnel or services provided by improperly-licensed facilities may not be paid by the Medicaid program.

7. Use only standard abbreviations in your medical records documentation, orders, and reports. While an abbreviation may seem familiar to you or your practice, the auditors may not recognize it if it is not a universally accepted abbreviation.

8. Make sure all records are timely made, accurate and legible. Safeguard them, and never let the original leave your office. Illegible records are treated as a non-record, and payment is wholly disallowed for an illegible note or order. A missing record, X-ray, or chart entry will result in a complete repayment being directed for those services.

The Medicaid Audit.

If you are on the receiving end of an audit, AHCA will send you a letter notifying you. AHCA will also supply you with a list of patients to be sampled. A standard sample will include a list of anywhere from 30 to 150 patient names, as a general rule, depending on the size of the practice. Regular audits routinely request 30 to 50 patients’ records. The audit letter will also include a questionnaire to be completed (Medicaid Provider Questionnaire) and a “Certification of Completeness of Records” form to complete and return with the copies of the patient records. (Please note: This will be used against you in the future if you attempt to add or supplement the copies of the records you provided.)

For more information, read a past blog that will let you know if you are the subject of an audit.

You must retain the services of an expert consultant or experienced health care attorney to correctly and accurately complete the questionnaire. The letter will also request that you provide copies of the patient records for the list of patients included with the letter. You will only be given a short time to provide these documents.

If you have been accused of Medicaid fraud and need to prepare for an audit, watch our informational video blog.

Contact Health Law Attorneys Experienced in Handling Medicaid Audits, Investigations and other Legal Proceedings.

Medicaid fraud is a serious crime and is vigorously investigated by the state MFCU, the Agency for Healthcare Administration (AHCA), the Zone Program Integrity Contractors (ZPICs), the FBI, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (DHHS). Often other state and federal agencies, including the U.S. Postal Service (USPS), and other law enforcement agencies participate. Don’t wait until it’s too late. If you are concerned of any possible violations and would like a confidential consultation, contact a qualified health law attorney familiar with medical billing and audits today. Often Medicaid fraud criminal charges arise out of routine Medicaid audits, probe audits, or patient complaints.

The Health Law Firm’s attorneys routinely represent physicians, dentists, orthodontists, medical groups, clinics, pharmacies, assisted living facilities (AFLs), home health care agencies, nursing homes, group homes and other healthcare providers in Medicaid and Medicare investigations, audits and recovery actions.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 2018 The Health Law Firm. All rights reserved.

By The Health Law Firm|2023-11-16T19:00:02-05:00November 18, 2023|Categories: Health Facilities Law Blog|Tags: administrative hearing representation, Agency for Health Care Administration, ahca, Bureau of Medicaid Program Integrity, defense attorney, defense lawyer, Florida health law attorney, Florida health law lawyer, Florida Medicaid attorney, Florida Medicaid lawyer, health care fraud attorney, health care fraud representation, health care law firm, health law attorney, health law lawyer, licensure defense attorney, Medicaid attorney, Medicaid audit appeal attorney, Medicaid audit attorney, Medicaid audit lawyer, Medicaid audit representation, Medicaid defense attorney, Medicaid defense lawyer, Medicaid overpayment demands, Office of Inspector General, overbilling attorney, PAR, physician attorney, preliminary audit report, representation for licensure issues, representation for Medicaid overpayment, representation for Medicaid program, representation for overbilling, The Health Law Firm review|0 Comments

Burden of Proof in Administrative Cases Involving Discipline of a Health Professional’s License – Part 1

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

I am often asked about the burden of proof that must be met by the state Department of Health (DOH) in professional licensing disciplinary cases. This could be a complaint against a physician, dentists, mental health counselor, nurse, psychologist, pharmacist or anyone else. It also includes, for example, engineers, general contractors, school teachers, architects, cosmetologists, or any other professional holding a professional license in Florida. However, since we routinely represent health professionals, I will concentrate on those licenses by the state DOH in this blog.

Overview.

What few people (even attorneys) know is that cases which involve discipline against a professional’s license are treated as “punitive” or “penal” cases. This means the standards applied to them, at least in Florida, are the same that are applied to criminal cases.

Therefore, if the statute that is being charged is unclear or ambiguous, the courts apply a “strict scrutiny” standard. If the language of the statute does not clearly prohibit the acts being charged or is unclear about being covered by the statute, then there should be a ruling in favor of the one charged.

Additionally, rights that apply in criminal cases, such as the right to have an attorney and the right to not be compelled to be a witness against oneself found in the Fifth Amendment of the U.S. Constitution, also apply to administrative cases involving discipline against a license holder.

The state has a higher burden of proof in an administrative licensure case, as well. The burden of proof that applies in a civil case, “preponderance of the evidence” (also described as the greater weight of the evidence, the preponderance of the evidence or more than fifty percent), does not apply in administrative discipline cases. Instead a higher burden, “clear and convincing evidence” applies. Therefore, if the evidence supports the license holder’s position, just as much as it supports the state’s case, the state loses.

How Constitutional Rights Are Involved.

The Fifth Amendment of the United States Constitution provides individuals protection against self-incrimination, stating:

No person . . . shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. . . .

Note that in Florida, as in most states, a professional license is considered to be a property right which cannot be taken by the state without due process of law.

Article I, Section 9 of the Constitution of Florida also provides similar protections stating:

No person shall be deprived of life, liberty or property without due process of law . . . or be compelled in any criminal matter to be a witness against oneself.

In addition, case law in Florida has upheld as a protected right the individual’s ability to practice a profession of choice if otherwise so qualified. To take away this right requires due process of law and reviewing courts will apply a strict scrutiny standard.

Under some states’ constitutions or state statutes there is a right to work or a right to practice the profession of one’s choice; this further lends credibility to an argument that agency actions which take away this substantial right should require a greater burden than that required in a mere civil case (i.e., preponderance of the evidence”). However, even without such a provision in the state constitution, a professional license (or the right to practice a profession) is a substantial right and to take it away should require a higher burden of proof (e.g., clear and convincing).

Supreme Court Gives More Protection In Cases That Are “Penal.”

The law is settled through U.S. Supreme Court cases that “penal statutes are to be construed strictly, Commissioner v. Acker, 361.U.S. 87, 80 S. Ct. 144, 4. L. Ed. 2d 127 (1959), Fed’l Comm. Comm’n v. Am. Broadcasting Co., 347 U.S. 284, 296. One “is not to be subjected to a penalty unless the words of the statute plainly impose it,” Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362. See, e.g., Tiffany v. National Bank of Missouri, 18 Wall. 409, 410; Elliott v. RR Co., 99 U.S. 573, 576.

Penal statutes must be construed narrowly and are interpreted against the state. Any part or term that is vague will not be enforced or will be stricken. Warren v. State, 16 Fla. L. Week 1346 (Fla. 1991). Accord, Riley v. Georgia, 219 Ga. 345, 133 S.E. 2d 367 (Ga. 1963); State v. Morrison, 25 N.J. Super. 534, 96 A. 2d 723 (Essex Cty. Ct., N.J., 1953); U.S. v. Ortiz, 24 M.J. 164 (CMA 1987), at 168.

Florida Courts Apply Criminal Law Rights and Protections to Cases Involving Administrative Penalties.

The Florida Supreme Court has affirmatively extended the proscription against self-incrimination to any administrative proceeding of a “penal” character. This could be one in which the state seeks revocation or suspension of a license or one in which the state seeks a fine on a licensee. Kozerowitz v. Fla. Real Estate Comm’n, 289 So. 2d 391 (Fla. 1974).

Any administrative proceeding in which the state seeks to inflict a penalty against the license or the licensee would invoke these rights. An action to revoke a professional license is penal. So, too, is an action which results in the loss of income or a fine.

More to Come.

Be sure to check our blog regularly to learn more on the burden of proof in administrative cases involving discipline of professional licenses. Part two of this blog series will be posted soon.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.

Burden of Proof in Administrative Cases Involving Discipline of a Health Professional’s License – Part 2

By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

I am often asked about the burden of proof that must be met by the state Department of Health (DOH) in professional licensing disciplinary cases. This could be a complaint against a physician, dentists, mental health counselor, nurse, psychologist, pharmacist or anyone else. It also includes, for example, engineers, general contractors, school teachers, architects, cosmetologists, or any other professional holding a professional license in Florida. However, since we routinely represent health professionals, I will continue to concentrate on those licenses by the state DOH in this blog. Click here to read part one.

Fifth Amendment Protection Against Self-Incrimination Applies.

Because potential license revocation proceedings are penal in nature, a respondent or license holder in such an investigation or administrative hearing has the right to remain silent under the Fifth Amendment of the United States Constitution and under the Florida Constitution.

Otherwise, this would defeat the spirit and intent of the constitutional protections guaranteed by the Fifth and Fourteenth Amendments to the United State Constitution. See, State v. Caballero, 396 So. 2d 1210, 1213 (Fla. 3d DCA 1981) (“A coerced confession offends due process of law.”); Dickerson v. U.S., 530 U.S. 428, 434, 120 S. Ct. 2326, 2331 (2000) (“We have never abandoned this due process jurisprudence, and thus continue to exclude confessions that were obtained involuntarily”); Chambers v. State of Fla., 309 U.S. 227, 228, 60 S. Ct. 472, 473 (1940) (“[U]se by a state of an improperly obtained confession may constitute a denial of due process of law as guaranteed in the Fourteenth Amendment”); and Barnes v. Merrill, 2002 WL 1313123 (D. Me. 2002) (“Involuntary statements are inadmissible under the Fifth Amendment requirement that no person can be compelled to be a witness against himself in a criminal case.”).

For Florida cases on point, see, Chancellor Media Whiteco Outdoor v. Fla. Dep’t of Transport., 26 Fla. L. Weekly D627 (Fla. 5th DCA March 2, 2001), substitute opinion entered on rehearing, 795 So. 2d 991, 26 Fla. L. Weekly D1894 (Fla. 5th DCA July 30, 2001). See also, State ex rel. Vining v. Fla. Real Estate Comm’n, 281 So.2d 487, 491 (Fla. 1973); Best Pool & Spa Service Co., Inc. v. Romanik, 622 So. 2d 65, 66 (Fla. 4th DCA 1993) (“We agree that requiring Kassover to answer . . . questions does violate his right against self-incrimination which applies not only to criminal matters but also administrative proceedings such as licensing”).

Florida Courts Require Higher Standard for Administrative Licensure Cases.

In Florida, the courts have adopted and have required the “clear and convincing” standard to be used in any case involving a professional license, finding that such action by the state is punitive or penal in nature and affects a substantial right of the respondent. The key Florida cases that discuss this are two Florida Supreme Court cases, Florida Bar v. Rayman, 238 So. 2d 594 (Fla. 1970) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). See also, Kozerowitz v. Fla. Real Estate Comm’n, 289 So. 2d 391 (Fla. 1974).

Any case in which a state administrative agency seeks a penalty, a fine or action affecting the status of a professional license, would require the application of a “clear and convincing standard.” An action to revoke a professional license is definitely considered to be penal. So too is an action which results in the loss of income, such as by suspending a license (so there is no professional income), a fine, or an order to refund professional fees. McDonald v. Dep’t of Prof. Reg., Bd. of Pilot Commissioners, 582 So. 2d 660 (1st DCA 1991)

Although these are all Florida cases, if you read them and follow their rationale, they go back to basic constitutional principles of due process of law and the taking away of rights or property without due process.

For example, in one case in which I defended a nursing home’s license, the state had evidence that contradicted itself. There were certain facts at issue and the state put forth two different sets of facts. The state could not prove either set of facts by “clear and convincing evidence.” Therefore, by law, the administrative law judge had to rule in favor of the license holder.

Penal Statutes, Such as Professional Discipline Statutes and Professional Practice Acts Must Be Narrowly Interpreted.

A statute is unconstitutionally void for vagueness if it fails to give a personal of ordinary intelligence fair notice of what conduct is forbidden by the Statute. Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972). United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989, (1954). Criminal statutes must be written with sufficient specificity so that citizens are given fair warning of the offending conduct, and law enforcement officers are prevented from engaging in arbitrary and erratic enforcement activity. Papachristou; Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); Lanzetta v. New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888 (1939).

Florida case law has long upheld this principle of the common law as well. Statutes must be written well enough so as to provide fair notice to ordinary citizens as to their exact meaning. State v. Warren, 558 So. 2d 55 (Fla. 5th DCA 1990), aff’d. Warren v. State 16 Fla., L. Week 28 (Fla. 1991).

When First Notified of a Pending Investigation Seek the Advice of an Experienced Health Law Attorney.

When you receive any notice, by telephone, by mail, by hand delivery or by information passed along by your employer, that an investigation has been opened against your professional license, immediately contact an attorney experienced in such matters. Do not talk to the investigator. Do not talk to the prosecuting attorney. Do not call the state agency and ask for advice on what you should do. Do not send a written statement explaining your side of the story.

You have important constitutional rights that protect you. But you have to exercise the common sense required to use these rights. Part of this is by obtaining competent legal counsel who can advise you and protect your rights. Again, we remind you that unless an attorney routinely handles this type of case, he or she may be unfamiliar with what your rights are in such a situation or how to handle it.

Contact Health Law Attorneys Experienced in Representing Health Care Professionals and Providers.

At the Health Law Firm we provide legal services for all health care providers and professionals. This includes physicians, nurses, dentists, psychologists, psychiatrists, mental health counselors, Durable Medical Equipment suppliers, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions.

The services we provide include reviewing and negotiating contracts, business transactions, professional license defense, representation in investigations, credential defense, representation in peer review and clinical privileges hearings, Medicare and Medicaid audits, commercial litigation, and administrative hearings.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.