STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINE GIBBS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2486

) DEPARTMENT OF ADMINISTRATION )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice of Hearing furnished to the parties on August 22, 1986, a hearing was held in this cause before Stephen F. Dean, a Hearing Officer with the Division of Administrative Hearings, in Gainesville, Florida, on September 11, 1986. The issue for consideration was whether the Petitioner was eligible for additional reimbursement for medical bills under the State of Florida Employees' Group Insurance Plan.

APPEARANCES

For Petitioner: Christine Gibbs, pro se

3650 Northwest 30 Place

Gainesville, Florida 32650

For Respondent: Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

ISSUES

The ultimate issue is whether the State's insurance program should pay for physical therapy provided to its insured, the Petitioner; however, this is dependent only upon a determination of what is medically necessary.

FINDINGS OF FACT

1. At all times pertinent to the issues contained herein, Petitioner was an eligible dependent of E. P. J. Gibbs, #F266-87-2492, an insured employee under the State of Florida Employees' Group Health Self Insurance Plan, provided for in Section 110.123, Florida Statutes. Eligible dependents are entitled to participate and obtain the identical level of benefits as are available to insured employees.

   
   

2. Petitioner first injured her right knee while jogging in September or October 1983. (Petitioner Exhibit 1 - letter of Dr. Peter Indelicato.)

3. Petitioner was first examined by Dr. Peter A. Indelicato, an Orthopedic Physician specializing in sports medicine, on October 10, 1983, for evaluation and treatment of pain in her right knee.

   
   

4. Dr. Indelicato diagnosed Petitioner's condition as patellofemoral pain syndrome (PPS). PPS is a condition which causes pain in the area surrounding the patella (knee cap) and the femur (bone of the thigh). This condition may be treated surgically or non-surgically (conservatively) by strengthening the leg and knee through physical therapy.

   
   

5. Dr. Indelicato treated Petitioner's condition conservatively, referring Petitioner to the Physical Therapy and Rehabilitation Center (PTRC) on October 11, 1983, for evaluation and treatment in the quadricep strengthening program in accordance with Anterior Cruciate Ligament Protocol (ACL Program). See Page 22 of Hearing Officer Exhibit 1. This protocol started at the same point as the post operative protocol in the 7-8 weeks after surgery and ran until the 16-18 weeks after surgery. See Page 20 of Hearing Officer Exhibit 12

   
   

6. On her referral to the PTRC, the Petitioner was observed by staff members. The Petitioner was unable to ambulate without difficulty; did not have full range of movement in her leg; the pain in Petitioner's knee made pedaling the stationary bicycle uncomfortable; and work out with the Cybex, another exercise machine, was totally precluded because of pain.

   
   

7. Following Petitioner's admission to the program, Petitioner's condition improved. Within one week of her admission into the program, Petitioner lost the "catch" in her patella. By October 28, 1983, Petitioner was able to tolerate the stationary bicycle. By November 9, 1983, Petitioner was able to exercise using the Cybex. On November 18, 1983, the charting for the Petitioner by the physical therapist reflected that she continued to do well and concluded: "She is scheduled to return to see Dr. Indelicato next week and I think we can discharge her on a home program at that time." See Hearing Officer's Exhibit 1 Page 25.

   
   

8. Dr. Indelicato examined the Petitioner on November 21, 1983. The doctor found visible atrophy or wasting away of the quadricep and that the strength of Petitioner's quadricep muscle could not be tested because of pain. Based upon these findings, Dr. Indelicato referred Petitioner back to therapy at the PTRC for an additional 4-6 weeks. See Gibbs Exhibit 1.

   
   

9. The charting for the physical therapist for November 27, 1983 stated: "Pt. returned to see Dr. Indelicato this week and in light of her diminished Cybex results it was decided to continue her on a further quadricep strengthening program. She is working terminal extension on the Cybex, stationary cycling and SLR (Straight Leg Raise) and not having any difficulty." See Hearing Officer Exhibit 1, page 26.

   
   

10. Dr. Indelicato's order for continued therapy was consistent with the ACL Protocol which calls for 9-10 weeks of therapy. See Hearing Officer's Exhibit 1, page 20.

    
    

11. Petitioner continued to receive physical therapy treatments until January 13, 1984. All total, Petitioner received 39 days of treatment from October 11, 1983 to January 13, 1984, or approximately eight weeks of therapy. The following is a list of treatments by date with costs.

    DATE			AMOUNT
    1. October	11,	1983	$30.00
    2. October	12,	1983	30.00
    3. October	14,	1983	30.00
    4. October	17,	1983	30.00
    5. October	19,	1983	30.00
    6. October	21,	1983	30.00
    7. October	24,	1983	30.00
    8. October	26,	1983	30.00
    9. October	28,	1983	30.00
    10. October	31,	1983	30.00
    11. November	2,	1983	35.00
    12. November	4,	1983	32.50
    13. November	7,	1983	32.50
    14. November	9,	1983	32.50
    15.	November	11, 1983	32.50
    16.	November	14, 1983	32.50
    17.	November	16, 1983	32.50
    18.	November	18, 1983	45.00
    19.	November	21, 1983	35.00
    20.	November	23, 1983	35.00
    21.	November	28, 1983	35.00
    22.	November	30, 1983	35.00
    23.	December	2, 1983	35.00
    24.	December	5, 1983	35.00
    25.	December	7, 1983	35.00
    26.	December	9, 1983	32.50
    27.	December	16, 1983	27.50
    28.	December	19, 1983	35.00
    29.	December	22, 1983	32.50
    30.	December	23, 1983	40.00
    31.	December	27, 1983	35.00
    32.	December	28, 1983	35.00
    33.	December	30, 1983	35.00
    34.	January	3, 1984	35.00
    35.	January	5, 1984	35.00
    36.	January	6, 1984	35.00
    37.	January	9, 1984	35.00
    38.	January	11, 1984	35.00
    39.	January	13, 1984	35.00

    
    

    TOTAL NOT PAID $622.50

    
    

12. The Department of Administration contracts with Blue Cross Blue Shield of Florida, Inc. (BCBS) to be its Administrative Services Only Agent pursuant to Section 110.123(5), Florida Statutes.

    
    

13. Dr. Richard C. Dever, Medical Director at BCBS, testified BCBS uses certain screens which allow a certain number of medical services to be paid simply on the basis of the submitted claim. The number of physical therapy sessions which triggers screening is 21 within a six month period. On November 30, 1983, the Petitioner's total visits to the therapist exceeded 21 visits within 6 months of October 11, 1983. (Deposition testimony of Dr. Richard Dever, page 6.) When the Petitioner's treatment exceed 21 visits, documentation

    was requested by letter dated March 29, 1984. See Hearing Officer Exhibit 1, page 18. This data was provided the first time by the physical therapist shortly after it was requested.

    
    

14. The record of the reviews, page 29 of Hearing Officer Exhibit 1, reflects a request for review by "RBB" on March 6, 1984. On April 12, 1984, M. Kunie, R.N., determined that maximum benefits had been paid and no additional payment should be made. No basis for this determination is stated in the BCBS records except that the number of visits exceeded the set number, 21.

    
    

15. On March 16, 1984, according to Composite Exhibit 1, page 2, Rhonda Brannon of BCBS advised the PTRC by letter as follows:

    
    

    The above claim, along with all supporting documents, was forwarded to our Medical Review Department. They have advised us that this claim was paid correctly, under the terms of this contract, and no further payment is due.

    
    

16. Brannon's letter gave no basis for denying the claim, was not addressed to Petitioner, and did not mention the Petitioner's right to an administrative hearing to controvert this administrative determination of her rights.

    
    

17. On May 22, 1984 Petitioner wrote to Nevin Smith, Secretary of the Department of Administration, requesting a formal administrative hearing on the denial of her claim pursuant to Chapter 120, Florida Statutes. See Composite Exhibit 1, Page 1.

    
    

18. On May 30, 1984, Daniel C. Brown, General Counsel for the Department of Administration, replied to Petitioner in care of the PTRC. In summary, Mr. Brown advised Petitioner that her request for a hearing was rejected because her letter was insufficient to permit the Department to determine whether a formal hearing is appropriate or whether the controversy may be resolved without a formal hearing. Mr. Brown's letter also stated that if Petitioner would provide a statement stating the nature of treatment rendered by the rehabilitation center, the date of service, the amount of payment that was made by BCBS for such service, and the reasons given Petitioner by BCBS for no further payment the Department would institute administrative proceedings. See Composite Exhibit 1, Page 4.

    
    

19. On June 8, 1984, Susan Gardner, Office Manager of PTRC, replied to Mr. Brown advising him that Petitioner was in Europe for six weeks, and forwarded to him the information which he requested. See Composite Exhibit 1, Page 5.

    
    

20. On June 14, 1984, Mr. Brown replied to Ms. Gardner advising her that Ms. Gibbs would have to submit a petition containing the information which he had earlier outlined in his May 30, 1984 letter. See Composite Exhibit 1, Page 6.

    
    

21. On June 25, 1984, the professional therapists at PTRC wrote Governor Bob Graham regarding the pending claims of the Petitioner and others outlining their difficulties in obtaining relief or a hearing. See Composite Exhibit 1, Page 7.

22. The next correspondence was from Petitioner on March 13, 1985, when she again wrote Nevin Smith, Secretary of the Department of Administration. Her letter references a telephone conversation with Mr. Smith in which he had represented that Petitioner's claim would be reviewed by a qualified person. See Composite Exhibit 1, Page 10.

    
    

23. Gilda Lambert, the new Secretary of Administration, replied to Petitioner on March 27, 1985. Lambert's letter reflects that BCBS had purged the file and that Petitioner's records were no longer on file. Ms. Lambert advised Petitioner to send copies of her file to Customer Service, Bureau of Insurance, Department of Administration to enable the Department to request BCBS to review Petitioner's claim to determine if the service was medically necessary. See Composite Exhibit 1, Page 11.

    
    

24. On April 12, 1985, Susan Gardner of PTRC wrote Ms. Lambert forwarding to her the records of Petitioner and all their patients with similar problems. See Composite Exhibit 1, Page 12.

    
    

25. On June 24, 1985, Dennis E. Nye, Chief of the Bureau of Insurance, wrote Petitioner advising her that guidelines limited treatment to four treatments per day for 21 days unless documentation is provided showing additional days of treatment are medically necessary. This was the first time the term "medically necessary" was used in explaining the agency's action. On February 17, 1984, PTRC had provided documentation for the treatment, which in the opinion of the Medical Review department did not support more than 21 days of treatment. Mr. Nye's letter did advise Petitioner of her right to a hearing within 21 days pursuant to Chapter 120, Florida Statutes.

    
    

26. Dr. Richard C. Dever, M.D., an employee of BCBS gave a deposition clarifying the review procedures of BCBS of Petitioner's file. Petitioner's file was subjected to Level II review of the documentation. Level II review is by nurses in the medical review area. According to their assessment, there was no further medical improvement after 21 treatments. According to Dr. Dever, if a patient does not show any improvement, their treatment is considered "maintenance therapy," is not considered medically necessary, and is not covered. See Dever Deposition, Page 7, Line 24 to Page 8, Line 5. There is no evidence introduced that Petitioner's file was reviewed by a physician, much less one specializing in orthopedics.

    
    

27. On July 23, 1985, Ms. Gibbs requested a hearing asserting that the treatment she received was medically necessary.

    
    

28. According to the Department, the contract for coverage provides as follows regarding medical-surgical expenses:

    
    

    III. COVERED MEDICAL-SURGICAL EXPENSES

    
    

    A. 100 percent of the actual charge for medically necessary inpatient/outpatient physician or physical therapist expenses shall be paid

    when ordered by a physician for the treatment of an insured as a result of a covered accident or illness subject to the one hundred dollar ($100.00) deductible per insured; however, such payment shall not exceed the maximum amount permitted under the AFS (approved fee schedule).

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has juris-diction over the parties and subject matter of this proceeding. Section 110.123(5), Florida Statutes, gives the Secretary of Administration the responsibility for administration of the State group insurance program.

    
    

30. Based upon the facts presented, the whole case can be decided upon the determination of what is medically necessary.

    
    

31. Rule 22K-1.103(40), Florida Administrative Code, defines "medically necessary" as follows:

    
    

    "Medically Necessary" shall mean that in the opinion of the administrator the service received is required to identify or treat the illness or injury which a physician has diagnosed or reasonably suspects. The ser- vice must be consistent with the diagnosis and treatment of the participant's condition, be in accordance with standards of good medical practice, and be required for reasons other than convenience of the participant or his or her physician. The fact that a service is prescribed by a physician does not necessarily mean that such service is medically necessary.

    
    

32. Medical necessity is predicated upon a physician's determination that:

    
    

    1. the service is required to treat or identify an illness or injury;

    2. the service is consistent with the diagnosis;

    3. the service is consistent with standards of good practice; and

    4. the service is not merely for the convenience of the participant.

       
       

33. Factually, medical necessity is established when the participant's physician files an insurance claim which documents that the participant was seen by the physician who diagnosed an injury or illness, and the physician ordered or prescribed a service which is basically and logically consistent with treatment of the injury or illness. Once these elements are presented, the claim must be paid or the Agency must state with specificity its basis for denying the claim. As the party asserting that the claim is not medically necessary, the agency must be prepared to present evidence in support of its ground(s) for denying the claim because this is an affirmative defense to payment of the claim.

    
    

34. The BCBS, as administrator of the insurance program, is charged with making decisions of medical necessity under the rule above; however, BCBS is not the agency head for administrative hearing purposes. The Secretary of the Department of Administration is responsible for insuring that the provisions of Chapter 120, Florida Statutes, are complied with. The notice provided by BCBS in this case does not state with specificity the grounds for denial and completely fails to advise the participant of her right to an administrative

    hearing thereby denying the participant with a point of entry for an administrative hearing. Subsequently, not only one but two Secretaries of the Department of Administration entirely disregarded the Petitioner's hearing request, which was absolutely sufficient based upon the data provided her. The process used by the DOA did not provide a clear point of entry and did not permit processing and control of requests for hearing by the agency head who is responsible for administering this process.

    
    

35. Concerning the "factual determination" of medical necessity, by BCBS, according to Dr. Dever, the decision which was made was based upon a determination that there had been no additional clinical improvement in Ms. Gibbs' condition after 21 sessions of therapy and that, therefore, the therapy was "maintenance therapy." Therefore, Petitioner's claim was denied because she did not appear to have any further clinical improvement. See Dever Deposition, Page 7, Lines 8-12 and Page 8, Lines 3-5.

    
    

36. Analyzing this determination, first, the facts do not support the conclusion reached by Level II review. The agency decision was based upon the therapist's "recommendation" that the Petitioner be discharged. The record does not reflect such a "recommendation"; however, if one took it as such, the therapist's recommendation is immaterial. It is the treating physician whose opinion must be considered because the coverage provides for 100 percent payment of expenses ordered by a physician. 1/ The terms of coverage do not reference recommendations, opinions, or thoughts of non-physicians.

    
    

37. Second, Dr. Indelicato ordered further treatment based upon his examination of the Petitioner and his findings that her quadricep had atrophied. The record certainly does not indicate that the Petitioner did not benefit from the continued therapy as Dr. Dever intimates. Petitioner's strength could not be tested because of pain on her second visit and evaluation to Dr. Indelicato; yet on her third visit and evaluation, Dr. Indelicato was able to test her and determined that the strength in her leg and quadricep mechanism had increased. See Gibbs' Exhibit 1.

    
    

38. Third, there is no legal basis for assessing medical necessity according to the standard outlined by Dr. Dever. The definition of medical necessity in the Department's rule does not mention clinical improvement or lack thereof. There is no mention of maintenance therapy. One can easily imagine legitimate cases involving serious injury or illness in which there would be no clinical improvement yet the service would be medically necessary, i.e., chemical or radiation therapy for a cancer patient.

    
    

39. Fourth, the standard suggested by BCBS assesses the benefit derived from the therapy after the fact. Medicine is an art, not a science, and the best of physicians cannot predict how a particular therapy will benefit a patient. Applying the BCBS test of clinical improvement, only those therapies which work would be "medically necessary." Clearly services can be ordered which are in accordance with the standards of good medical practice but which may not be efficacious for a particular patient. The clinical improvement test is contrary to the realities of medical practice and inconsistent with the "standards of good medical practice test."

    
    

40. Both legally and factually, the Petitioner has substantiated her claim for payment. BCBS and DOA have presented not a scintilla of evidence to show that the treatment did not comport with the rule. Their entire case is based upon the "rule of 21" and "lack of medical improvement" which are not factually

or legally substantiated. Far worse, the DOA failed to give Petitioner a hearing upon her initial request and caused this case to be delayed for over two years.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended that the Department of Administration pay the Petitioner's

claim and carefully assess the existing program to prevent a reoccurrence of the

many problems revealed in this case.

DONE and ORDERED this 3rd day of December, 1986, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1986.

ENDNOTE

1/ 100 percent of the actual charge for medically necessary... expenses shall be paid when ordered by a physician for the treatment of an insured...See Paragraph 28, Findings of Fact for full text.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2486

The Petitioner filed a letter containing her post hearing arguments. Only the Respondent filed proposed finds of fact all of which the Hearing Officer has adopted with minor grammatical changes.

COPIES FURNISHED:

Christine Gibbs

3650 Northwest 30 Place

Gainesville, Florida 32650

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Gilda Lambert, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

CHRISTINE GIBBS,

Petitioner,

vs. Case No. 86-2486

DEPARTMENT OF ADMINISTRATION, OFFICE OF STATE EMPLOYEES' INSURANCE,

Respondent.

/

FINAL ORDER

The Recommended Order in this matter having been entered on December 3, 1986, and no party having filed exceptions thereto, it is hereby ORDERED:

1. The Findings of Fact contained in the Recommended Order (Exhibit A" hereto) are hereby adopted as the Findings of Fact of the Department of Administration with one clarification, Findings of Fact Number 11 is modified to state the period from October 11, 1983 to January 13, 1984 is approximately 14 weeks, not 8 as recited in the Recommended Order.

   
   

2. The Conclusions of Law contained in the Recommended Order are rejected and replaced with the following:

   
   

   CONCLUSIONS OF LAW

   
   

   The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 110.123(5), Florida Statutes, gives the Secretary of Administra- tion the responsibility for administration of the State group insurance program.

   
   

   Based upon the facts presented, the whole case can be decided upon the determination of what is medically necessary.

   
   

   Rule 22K-1.103(40), Florida Administrative Code, defines "medically necessary" as follows:

   "Medically Necessary" shall mean that in the opinion of the administrator the service re- ceived is required to identify or treat the illness or injury which a physician has diagnosed or reasonably suspects. The ser- vice must be consistent with the diagnosis and treatment of the participant's con- dition, be in accordance with standards

   of good medical practice, and be required for reasons other than convenience of the participant or his or her physician. The fact that a service is Prescribed by a physician does not necessarily mean that such service is medically necessary.

   
   

   Accordingly, medical necessity is predicated upon the Administrator's determination that:

   
   

   1. the service is required to treat or identify an illness or injury:

      
      

   2. the service is consistent with the diagnosis;

      
      

   3. the service is consistent with standards of good practice; and

      
      

   4. the service is not merely for the con- venience of the participant.

Analyzing the facts of this case, the service rendered by the physical therapist, as ordered by Dr. Indelicato, was consistent with (1) the diagnosis;

(2) standards of good practice; and (3) was not merely for the convenience of the petitioner.

Respondent will pay Petitioner the sum of $622.50. This total consists of payment for 18 visits, which were previously denied as not being medically necessary.

This Order constitutes final agency action. Judicial review of this Proceeding may be instituted by the filing of a Notice of Appeal in the First District Court of Appeal pursuant to Section 120.68, Florida Statutes. Such notice must be filed with the District Court of Appeal within thirty (30) calendar days of the date this Order is filed in the official records of the Department of Administration as indicated in the Certificate of Clerk, or further review of this action will be barred.

So ordered in Tallahassee, Florida this 9th day of March 1987.

GILDA H. LAMBERT, SECRETARY

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550 (904) 488-4116

Filed with the Clerk of the Department of Administration this 9th day of March, 1987.

CLERK

COPIES FURNISHED:

Stephen F. Dean Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

Christine Gibbs

3650 Northwest 30th Place Gainesville, Florida 32650

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Docket for Case No: 86-002486

Orders for Case No: 86-002486