STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0082

)

EUSEBIO SUBIAS, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on October 27, 1987, January 26, April 25 and 26, 1988, in Miami, Florida. Thereafter the parties were afforded leave through August 22, 1988, to file proposed recommended orders. Proposed Recommended Orders have been filed and were considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an Appendix attached hereto.

APPEARANCES

For Petitioner: M. Floy Mikell, Esquire

and Theodore E. Mack, Esquire Office of the General Counsel Department of Health and

Rehabilitative Services 1223 Winewood Boulevard

Tallahassee, Florida 32399-0700

For Respondent: James J. Breen, Esquire

Wampler, Buchanan and Breen 602 Sun Bank Building

777 Brickler Avenue

Miami, Florida 33131 ISSUE PRESENTED

The issue presented in this case is whether the Respondent should be required to pay $79,903.05 to the Florida Medicaid Program for services he rendered to patients during the period of January 1, 1983 through December 31, 1985 which Petitioner contends were either not medically necessary or not properly documented in his medical records.

PRELIMINARY MATTERS AND BACKGROUND

1. Prior to the hearing in the above referenced cause, the Respondent filed a motion to reclassify parties and for an order specifying the burden of

   proof which was granted to the extent that the Department of Health and Rehabilitative Services (DHRS) 1/ was determined to have the burden of proof by proving, by a preponderance of the evidence, that it is entitled to the recoupment that it seeks. Based thereon, DHRS was required to present its case at the outset and was reclassified as the Petitioner.

   
   

2. The Respondent also filed, prior to the final hearing, a motion for final order denying recoupment and to relinquish jurisdiction. Ruling on that motion was reserved and will be addressed herein.

   
   

3. At the hearing, DHRS presented the testimony of Mildred Martin, R.N.; Bernard Tumarkin, M.D.; and Charles B. Mutter, M.D., and Petitioner's Exhibits 1-22 were admitted into evidence. The Department further presented the deposition testimony of Michael W. Forsthoefel, M.D.

   
   

4. Respondent, testified on his own behalf and presented the testimony of Charles Stillman, M.D., and Frank Recio, C.P.A. Respondent's Exhibits 1-9 and 11-13 were admitted into evidence. Respondent presented the deposition testimony of Hank Luckower, Bernard Tumarkin, John Whiddon and James Conn, M.D.

   
   

5. This proceeding arose upon a decision by Petitioner that Respondent had overbilled Medicaid for the years 1983 through 1985 for psychiatric office visits in the amount of $79,093.05. Petitioner arrived at the amount in controversy on the basis of a review, by its medical consultant, of Respondent's medical records for 85 Medicaid recipients (a random sample) during the applicable period. Petitioner's consultant denied all office visits which he determined were not documented in the medical records as medically necessary. Petitioner's staff of the Office of Program Integrity then computed the amount by extrapolating the number of visits denied in the sample to the whole population for the applicable period.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings:

1. During times material hereto, and particularly from January 1, 1983 through December 31, 1985, Respondent, Eusebio Subias, M.D., was a licensed medical doctor in Florida, board certified in Psychiatry and an eligible Medicaid provider of psychiatric services pursuant to the Medicaid contract he is party to with DHRS dated October, 1982. (Petitioner's Exhibit 1).

   
   

2. Medicaid regulations and guidelines require physicians to meet board certification in psychiatry before they may provide reimbursable psychiatric services to Medicaid eligible recipients.

   
   

3. As part of his agreement to participate in the Medicaid Program, Respondent agreed to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance in the state plan. Respondent also agreed to abide by the provisions of pertinent Florida administrative rules, statutes, policies, procedures and directives in the manual of the Florida Medicaid Program. (Petitioner's Exhibit 2).

   
   

4. During 1986, the Surveillance & Utilization Review System unit of the Medicaid Office indicated that the amount of Respondent's medicaid billing greatly exceeded that of his peers. Based on that indication, the Office of

   Program Integrity asked Respondent to provide them with copies of certain medical records for the year 1982. Respondent provided the Department with those records as requested. (Petitioner's Composite Exhibit 3).

   
   

5. Those records were forwarded to the peer review committee for evaluation. The records were reviewed by both the local and state peer review committees. The 1982 records contained inadequate information for the peer review committee to document or otherwise justify the number of office visits per patient. The records did not contain reasons for treatment, reasons for frequency of visits or what specific services were rendered to patients. (Petitioner's Exhibits 16 and 17, Pages 3 and 4 and Composite Exhibit 3).

   
   

6. On April 21, 1986, Petitioner notified Respondent that it determined that he overbilled Medicaid in the amount of $17,820.09 for the calendar year 1982. Respondent was then notified that a similar review would be conducted for the period January 1, 1983 through December 31, 1985. That review and the results thereof are the subject of this proceeding.

   
   

7. The Department subsequently requested, and Respondent provided medical records for 85 specific recipients which were selected by means of the "Disproportionate Stratified Random Sampling" (DSRS). (Petitioner's Exhibit 7).

   
   

8. Respondent's 1983-85 records contain substantially more details than the records he provided Petitioner during the 1982 review period.

   
   

9. Petitioner had its medical consultant, Dr. Forsthoefel, review the 1983-85 records. He was a member of the peer committee which made the peer review determination in 1982 which was used as a guide for the degree of

   overutilization. Forsthoefel denied those office visits that he determined were not supported by documentation in the medical records and concluded that the visits were not medically necessary. As a result, Petitioner sent Respondent a letter advising that he had overbilled medicaid in the amount of $79,093.05 for the years 1983-1985. (Petitioner's Exhibits 9 and 13).

   
   

10. By letter dated September 5, 1986, Respondent requested a meeting to discuss the Department's proposed action and such a meeting was granted on October 31, 1986 at 1:30 p.m.

    
    

11. Dr. Forsthoefel, Dr. Conn, Petitioner's Chief Medical Consultant in 1982, Millie Martin, and Respondent attended the October 31 meeting. During the meeting, Respondent attempted to individually review each of the approximately 3200 medical records for patients he treated during the years 1983-85 such that he could explain and document the medical necessity of each of the patient's office visits. He also requested that Petitioner have the records reviewed by a psychiatrist. Neither Dr. Conn nor Dr. Forsthoefel are psychiatrists. Dr. Conn left soon after the meeting began. Dr. Forsthoefel, unable and unwilling to comply with Respondent's request that each medical record be individually reviewed, concluded that continuing the meeting would not be productive and left after approximately 2 hours. The Department again denied those visits which it had early concluded were not medically necessary based on the review by its medical consultants.

    
    

12. By letter dated November 10, 1986, Petitioner again advised Respondent that the Department would seek a $79,093.05 overpayment for the years 1983-85 and advised him of his rights to a formal hearing.

13. Drs. Mutter and Tumarkin were commissioned by Petitioner to review the medical records under scrutiny with each doctor reviewing one half of the records. Based on their review, Respondent was denied reimbursement for even more office visits based on their opinion that the records did not contain sufficient documentation or notations that would indicate continued office visits were medically necessary. (Petitioner's Exhibits 17a and 18).

    
    

14. Dr. Tumarkin made his comments on Respondent's medical records in green ink. Those records which did not contain green marking were records numbered 3 and 27 resulting in the Department's overstating the overpayment claim by $125.01.

    
    

15. Respondent introduced information regarding Medicaid's denial of claims which should have been billed to Medicare. During the period from May 1985 through December 31, 1985, certain denials fall within the 1983-85 review period and since the Department never paid such claims, the Department agreed at hearing to reduce its overpayment amount by $6,421.44. Also at hearing, Petitioner determined that it made an error in its computation of the figures stated in the November 10, 1986 letter and was now seeking $78,661.93 minus

    $6,421.44 for the amount claimed to be overbilled by Respondent as $72,240.49.

    
    

16. Respondent, who is of hispanic origin, treats a substantial number of Spanish speaking patients. Respondent graduated from medical school in Cuba at the age of 22 and participated in a rotating internship at Mercy Hospital in Hampton, Ohio. He came to Florida in 1963 and was licensed in 1964. In April, 1963, Respondent was employed at Hollywood Memorial Hospital. Respondent was the third Spanish speaking doctor to practice in South Florida and was the first to be promoted to a chairmanship at Hollywood Memorial Hospital. Respondent was the first clinical director at Coral Reef's Hospital. He is a member of several medical societies and was involved in the development of several psychotic drugs, including Elavil. Respondent is board certified in psychiatry. Respondent has staff privileges at Hollywood Memorial Hospital and three other area hospital. He has practiced psychiatry for more than 25 years in the United State and is accomplished in the treatment of severe psychotic patients. Respondent was tendered and received as an expert in psychiatry.

    
    

17. Southeastern Florida was inundated during the early 1980's with mentally ill refugees during the Mariel Boat Lift. That area has a uniquely high need for psychiatric services due to its characteristic as a metropolitan area with a large homeless population. The Marlowe Study which was commissioned by Petitioner to review the need for psychiatric services in Dade County during the period which coincided with the Respondent's 1983-1985 office practice here under review, concluded that insufficient resources were earmarked for the treatment of mentally ill residents of Dade County, Florida.

    
    

18. Respondent prefers to treat severely psychotic patients on an outpatient basis. He has been very successful in utilizing this method of treatment and it has resulted in substantial public benefit in the form of substantial financial savings that would have otherwise been required to hospitalize such patients for treatment. Respondent is paid $35.01 for a 45 minute session for each Medicaid patient whereas the average cost for inpatient treatment at an area hospital is approximately $400.00 per day.

    
    

19. Respondent modified his record keeping practice in 1982 so that his medical records for 1983-85 contained the minimum requirements for medical records necessary to support Medicaid billings as specified in Rule 10C- 7.030(1)(m) and 10C-7.062(1(n) Florida Administrative Code. All of the medical

    experts testified that Respondent's records for the period at issue here met the minimum requirements specified in the required regulations and DHRS's procedure manuals. Those requirements are:

    
    

    1. dates of services;

    2. patients name and date of birth;

    3. name and title of person performing the service, when it is someone other than the billing practitioner;

    4. chief complaint on each visit;

    5. pertinent medical history;

    6. pertinent findings on

       examinations; medications administered or prescribed;

       1. description of treatment when applicable;

       2. recommendations for additional treatments or consultations; and

       3. tests and results.

       
       

20. Petitioner presented testimony through Ms. Martin to the effect that Respondent had admitted during his October 1986 meeting with the medicaid consultants that he had, from memory, gone back and recreated his medical records for 1983-85. Respondent denied this at hearing and credibly testified that based on the deficiencies found in the latter part of 1982 concerning his medical records, he commenced to prepare a complete medical record for each patient visit. Respondent's testimony in this regard is credited and none of the medical professionals, save Ms. Martin, presented any evidence which would call into question the accuracy of Respondent's records during the period 1983-

1. Ms. Martin's testimony to the contrary is rejected.

   
   

   1. Dr. Forsthoefel candidly admitted that he is not qualified to render an opinion with respect to medical necessity and appropriateness of specialized psychiatric services.

      
      

   2. Respondent is the first psychiatrist reviewed by the Medicaid officials of Petitioner for over-utilization as Petitioner's officials were unaware of any other psychiatrist who had been reviewed prior to Respondent. The peer review process for determination of over-utilization and mis- utilization of Medicaid services is designed so that the physician being

      reviewed may discuss individual patient records and cases with the Committee, as well as the Medicaid consultants who later apply peer review findings, and such discussion will be considered in arriving at a final determination. (Peer Review SOP, April, 1987, Respondent's Exhibit 12). An integral part of peer review for the physician being reviewed is to be able to discuss individual cases with the reviewer prior to a final determination being made concerning medical necessity and appropriateness. Such interplay and explanations regarding certain aspects of a case can lead to a more detailed determination concerning an overpayment issue.

      
      

   3. Respondent's October 1986 review should have been a complete new review of individual records affording him an opportunity to discuss specific cases with the physician consultants, provide him an opportunity to substantiate certain treatments based upon his recollection and justify the treatment modality he utilized for the 85 patients which comprised the random sampling. 2/ Respondent was not permitted to meaningfully discuss those individual cases even though he requested an opportunity to do so. This is so despite Petitioner's

      consultant's admission that such a consultation would have aided them and perhaps changed their opinion with respect to medical necessity and appropriateness of specific treatments rendered by Respondent. (Testimony of Conn, Forsthoefel, Tumarkin and Whiddon).

      
      

   4. While some experts would treat severely psychotic patients on a less frequent basis than Respondent and hospitalize them sooner, Respondent's method of treatment is well accepted among qualified board certified psychiatrists. Dr. Tumarkin's different treatment philosophy wherein he favored inpatient treatment for severely psychotic patients while Respondent showed a preference for outpatient treatment, is in no way indicative of inappropriateness by Respondent's method of treatment since his method was proven to be successful.

      
      

   5. Additionally, one expert, Dr. Tumarkin would have allowed more visits as being medically necessary and appropriate had he been advised by Petitioner's representatives that he should apply the community standard for medical necessity and appropriateness of psychiatric services. A Medicaid provider of psychiatric services is required to provide services equivalent to that of their peers. Had Dr. Tumarkin consulted with Respondent, his opinion concerning medical necessity and appropriateness would have been affected and he would have requested such had he known that he was allowed to. This is especially so based on the fact that his treatment preference is more hospital oriented. It is thus concluded that Respondent was not given a fair opportunity to present circumstances relevant to the overpayment amount in question here, despite his request to do so. (Petitioner's Exhibit 14).

      
      

   6. A review of a Peer Comparison Analysis with Respondent's practice respecting the number of office procedures per patient performed by him in contrast to other medicaid psychiatrists, indicates that Respondent saw his patients, on average, less than the average for other psychiatrists in Dade, Monroe and Broward Counties between the years 1983-85. (Petitioner's Exhibit 22).

      
      

   7. Dr. Stillman is board certified in psychiatry and has been practicing for more than 30 years. He reviewed, as Respondent's expert witness, all of the

      85 patient charts in question.

      
      

   8. Dr. Mutter rendered a specific report about the even numbered charts that he reviewed. His reports indicates, with respect to many charts, that he was unable to find specific documentation supporting the reasons and medical necessity for treatment. This testimony was sharply contradicted by that of both Dr. Stillman and Respondent who easily located specific record documentation which indicated the medical necessity and reasons for services provided to patients by Respondent. Examples of over-utilization from Dr. Mutter's report were inquired about and on each occasion, Respondent and Dr. Stillman were able to identify documents not referred to by Dr. Mutter that substantiated the medical need and reasons for treatment. Drs. Subias and Stillman's testimony was not contradicted by Petitioner.

      
      

   9. Without going through each patient's records, a review of the findings concerning several patients is illustrative and will be herein discussed. Patient number 85, S. T., Jr. 3/ was a schizophrenic, suffering from epilepsy with borderline intellectual functioning. He was a very psychotic patient who was, during his early years, treated in an institution. (Petitioner's Composite Exhibit 5). He was obese, apprehensive, disoriented, suffered from impaired insight and judgment, a depressed mood, flat affect and a constant feeling of rejection. Respondent commenced treating patient number 85 twice weekly as an

      outpatient and as his condition improved, he was seen once a week and office visits were reduced further as his condition continued to improve. Without this intense continuity of treatment, patient number 85 would have decompensated and would have required an extensive institutionalization. Respondent provided substantial documentation as to the need for each of S. T.'s visits. Patient number 83, C. C., was a schizophrenic who suffered from depression, was delusional with a flat affect, poor reality contact and went through extended periods of depression on a monthly basis. Respondent prescribed benadryl to counteract patient C. C.'s delusional symptoms and otherwise justified his method of treatments, frequency and reason for each visit. Respondent substantiated that it was medically necessary to treat patient C. C. on each occasion where treatment was provided. Respondent's medical records provided the documentation for treatment in each instance. Patient number 81, F. D., was a schizophrenic who suffered severe mental depression. His condition had deteriorated to the point whereby family therapy sessions had to be scheduled by Respondent. Respondent was able to keep F. D. out of the hospital, he remained with his family and his condition improved to the point where the frequency of visits were reduced. Respondent's records justified the medical necessity and reasons for the treatment he provided patient F. D. Respondent testified as to his method of treatment as to patients 88, 78, 77, 52, 56, 48, 46, 38, 40, 60,

      68 and as to each of those patients, Respondent's records document that the patients treatment and visits were medically necessary and appropriate. Dr. Stillman demonstrated that on each occasion, there was substantial record documentation which supported the necessity for the treatment as provided by Respondent. Based upon the inconsistent evidence presented by Petitioner respecting its claim that Respondent failed to document the medical necessity for the treatment he provided to the patients during the years 1983-85 and the direct evidence presented by Respondent which established that all of the services rendered by him to Medicaid recipients were medically necessary and appropriate under the circumstances, it is concluded that Petitioner failed to establish by a preponderance of the evidence that any of the treatments here in dispute were unnecessary, inappropriate or were not otherwise documented by the medical records under review. Moreover, all of the experts agree that the treating psychiatrist is best able to determine the medical necessity and appropriateness of specific treatments to render to a patient as that psychiatrist has direct contact with, and is best able to fully apply his or her training and experience. Respondent amply demonstrated that the services here at issue were medically necessary, appropriate and was of clear benefit to the patient. Petitioner has failed to meet its burden of establishing any basis for an overpayment as claimed. 4/

      
      

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceeding pursuant to Section 120.57(1), Florida Statutes (1987).

       
       

   11. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

       
       

   12. The authority of the Petitioner is derived from Chapter 409, Florida Statutes.

       
       

   13. Section 409.266, Florida Statutes, authorizes the Petitioner to administer medicaid funds in Florida.

   14. Pursuant to Rule 10C-7.038, Florida Administrative Code, Medicaid Reimbursable Physician Services are defined as those "Medically necessary procedures provided in the course and diagnosis and treatment of an illness or injury." The services that Respondent rendered, which at issue here, were in conformance with that definition.

       
       

   15. In order to qualify for medicaid reimbursement, the physician is required to keep accurate medical records which fully disclose the extent of the service. Rule 10C-7.38(11), Florida Administrative Code. Respondent maintained accurate medical records for services he rendered and he is entitled to medicaid reimbursement.

       
       

   16. The evidence presented at final hearing in this cause established that the patients treated by Respondent, were in need of intense psychiatric treatment to avoid potential harm to themselves and others. The treatment provided by Respondent was medically necessary, appropriate and was well documented in the medical records. The medical records were accurate and disclosed the extent of the services rendered as well as the reasons there for.

RECOMMENDATION

Based on the foregoing Findings of- Fact and Conclusions of Law, it is RECOMMENDED that:

1. The Department of Health and Rehabilitative Services enter a Final Order finding that there was no overpayment to Respondent during the years 1983- 85.

   
   

2. Respondent is entitled to a refund of all monies held pursuant to the overpayment calculation by the Department in this cause together with 10% for annual interest pursuant to Rule 10C-7.060(12), Florida Administrative Code.

DONE and ORDERED this 18th day of November, 1988, in Tallahassee, Florida.

JAMES E. BRADWELL

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 21st day of November, 1988.

ENDNOTES

1/ Herein the Department or DHRS.

2/ Although Respondent was desirous of reviewing all of his patient records, such an undertaking would be unwieldy. However, it was clear during the hearing

that Petitioner's consultants were not prepared to discuss individual cases even in the scaled down manner consisting of the 85 patients in the random sampling.

3/ Numbers and initials are used to maintain patient confidentiality. 4/ Based on the above findings, these findings will not be changed by a

determination that the Department conducted an appropriate peer review and a statistically correct calculation as it was established by a preponderance of the evidence that the medicaid services rendered by Respondent in 1983, 1984 and 1985 were documented in the medical records to be medically necessary and appropriate.

COPIES FURNISHED:

M. Floy Mikell, Esquire

and Theodore E. Mack, Esquire Office of the General Counsel Department of Health and Rehabilitative Services

1223 Winewood Boulevard

Tallahassee, Florida 32399-0700

James J. Breen, Esquire Wampler, Buchanan and Breen & 602 Sun Bank Building

777 Brickler Avenue

Miami, Florida 33131

Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner, CASE NO.: 87-0082

vs.

EUSEBIO SUBIAS, M. D.

Respondent.

/

ORDER REMANDING TO THE DIVISION OF ADMINISTRATIVE HEARINGS

Counsel for the department excepted to the Recommended Order on the grounds that the Hearing Officer did not rule on its proposed findings. A specific ruling on each proposed finding is required by law. Section 120.59(2), Florida Statutes; Island Harbor Beach Club, Ltd. vs. Department of Natural Resources, 476 So.2d 1350 (Fla. 1st DCA 1985).

Based on the foregoing, this cause is remanded to the Division of Administrative Hearings.

DONE and ORDERED this 19th day of December, 1988, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Programs

COPIES FURNISHED TO:

CAROL A. BERKOWITZ ASSISTANT GENERAL COUNSEL DEPARTMENT OF HEALTH AND

REHABILITATIVE SERVICES 1323 WINEWOOD BLVD. BUILDING ONE, ROOM 407

TALLAHASSEE, FLORIDA 32399-0700

JAMES J. BREEN, ESQUIRE WAMPLER, BUCHANAN & BREEN 602 SUN BANK BUILDING

777 BRICKELL AVENUE

MIAMI, FLORIDA 33131

JAMES E. BRADWELL HEARING OFFICER

DIVISION OF ADMINISTRATIVE HEARINGS THE OAKLAND BUILDING

2009 APALACHEE PARKWAY

TALLAHASSEE, FLORIDA 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 23rd day of December, 1988.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

(904)488-2381

FO12/13/88

Docket for Case No: 87-000082

Orders for Case No: 87-000082