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03/16/88 Dominic Boffa, v. the Department of Public

March 16, 1988

DOMINIC BOFFA, PLAINTIFF-APPELLEE

v.

THE DEPARTMENT OF PUBLIC AID ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

522 N.E.2d 644, 168 Ill. App. 3d 139, 118 Ill. Dec. 974 1988.IL.364

Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARTMAN delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

Defendants appeal the circuit court's reversal of a decision by the Illinois Department of Public Aid (Department) on administrative review, which also required the Department to refund $50,776 to a vendor dentist. They seek review of whether the circuit court: (1) erred in determining plaintiff did not impermissibly alter his records to reflect documentation for reimbursable prophylaxis rather than nonreimbursable oral hygiene instruction; and (2) lacked jurisdiction on administrative review to enter a money judgment against the Department by ordering it to repay funds already recouped.

In early 1981, the Department requested plaintiff, a participating vendor of dental services in the Illinois Medical Assistance program, to produce patient records for the period July 1978 through December 1979. Plaintiff responded that these records could not then be produced. In January 1983, the Department audited plaintiff's records for the period January 1981 through August 1981. That audit disclosed that plaintiff's patient records only documented nonreimbursable oral hygiene instructions, although plaintiff had billed for prophylaxis services, a mechanical cleaning of teeth to remove plaque and tartar deposits. Plaintiff maintained his patient records on preprinted forms. The service actually rendered to the patient was to be indicted by placing a check mark next to the service printed on the form. This printed list of various services included both oral hygiene instruction and prophylaxis, among others. Prophylaxis services, if rendered, could be indicated by placing a check mark next to the entry "PX" and code 111 (the appropriate code for prophylaxis for patients over age 15; code 110 applied to younger patients). Plaintiff's 1981 records left unchecked "PX" 110 or 111; instead the records showed check marks next to the preprinted entry "ORAL HYGIENE INST." (code 133) with the word "Fluoride" written below. The Department recouped payment made to plaintiff for prophylaxis during the 1981 audited period, based upon his billing practices, and explained to plaintiff that his records insufficiently documented that treatment so as to qualify for such payments.

On October 3, 1983, the Department sent plaintiff a notice of intention to recover $156,742 improperly paid him for the 1978-79 period and to terminate him as a vendor for failure to produce for audit charges for 947 patient services. On October 14, 1983, plaintiff requested a hearing, which began on November 4, 1983 and ended on October 29, 1984. Plaintiff only then provided the previously missing 1978 and 1979 patient records to Department auditors in December 1983.

When Department auditors examined plaintiff's records on December 19 and 20, 1983, they found that preprinted entries for "PX" and code 111 had been scratched out, a check mark and code numbers 110 or 111 placed before the preprinted entry for "ORAL HYGIENE INST." also scratched out, while a handwritten word "Prophy." was added following the oral hygiene entry. The Department's senior auditor became suspicious, since he had worked on the 1981 audit, and he discussed the situation with his superior, who sent a unit supervisor to investigate. The unit supervisor informed plaintiff that the Department would seek his termination as a vendor if he lied to them but not if there was a reasonable explanation for the record alterations. Plaintiff then asked to consult his attorney.

The auditing unit supervisor met plaintiff in the attorney's office, where plaintiff explained he "was attempting to change the records to reflect the reality of the situation." The supervisor believed plaintiff had recently altered his records, although he had no direct knowledge of when the records had been changed. These record alterations were made during the autumn of 1983, according to plaintiff's counsel. The assistant manager of the Department's audit section instructed the auditors to disallow the prophylaxis documentation as insufficient, as approved by his superior.

The form dentists use to request reimbursement, DPA 134, include a certification statement to be signed by the dentist attesting that "records necessary to fully disclose the nature and extent of services provided are maintained and will be made available upon request of State and Federal officials." The back of the form lists the appropriate procedure code numbers.

The auditors found that the greatest instances of discrepancy were 815 record alterations. Other discrepancies included 20 occurrence limits violations, four overpayments, four missing X rays, one misuse of procedure code, one instance of failure to locate a patient record and two cases of failure to find a service documented in a patient record. Using extrapolation techniques based on the size of the sample (375 items) and the size of the universe of items in the time period involved (2253 items), the Department calculated a total recoupment of $53,427.10 due.

On January 9, 1984, the Department moved to withdraw the termination charges, strike the original statement of grounds and reduce the recoupment amount to $53,440.10, which the hearing officer permitted. Department officials testifying at the administrative hearing were uncertain if any previously announced policy barred changing patient record entries subsequent to treatment; however, the two auditors found the record alterations in this case very unusual. Plaintiff did not testify at the hearing and contested only those discrepancies involving alteration of records. On November 28, 1984, the hearing officer found that: plaintiff admitted altering his records and inferred this was done solely to avoid a recoupment assessment; the records lacked a contemporary assurance of reliability; it was inappropriate to change such records after an audit request; such a change represented "a form of concealment and deception" and thus the records failed to support the payments made to plaintiff; and $53,427.10 should be recouped.

On January 2, 1985, defendant Michael Tristano, Department executive deputy director, notified plaintiff that he adopted the hearing officer's finding of facts, Conclusions and recommendation as the Department's final decision. On February 1, 1985, plaintiff filed an administrative review complaint against defendants Department and Tristano, appealing the decision and requesting recoupment be stayed pending the decision of the circuit court. On June 18, 1985, defendants filed their ...


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