STATE OF FLORIDA

DEPARTMENT OF HEALTH,

PETffiONER,

CASE NO. 2006-32322

V.

GUSTAVO ACOSTA, D.C.,

RESPONDENT.

DEPARTMENT Of HEALTH

Administrative Complaint

Petitioner, Department of Health, by and through its' undersigned counsel, files this Administrative Complaint before the Board of Chiropractic Medicine against Respondent, Gustavo Acosta, D.C. In support Petitioner alleges:

1. Petitioner is. the state department charged with regulating the practtce of Chiropractic Medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 460, Florida Statutes.

2. At all times material to this administrative compaint, Respondent was licensed to practice chiropractic medicine in the State of Florida, having been issued license number CH 8885 on or about December 9, 2004.

   
   

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   Filed September 9, 2011 9:38 AM Division of Administrative Hearings

   
   

   
   

   
   

3. Respondent's address of record is 14850 Southwest 199 Avenue, Miami, Florida 33196·.

   . . .

4. On or about March 31, 2006, Patient RT presented to Y & R Medical Center for treatment of injuries sustained during an automobile accident that occurred on March 30, 2006.

5. At the time that Patient RT presented to Y & R Medical Center, the Respondent was the medical director for Y & R Medica,I Center, and provided health care services directly to patients.

6. Current Procedural Terminology CCPT'') is a listing of descriptive

   terms and identifying codes for reporting medical services and procedures. The purpose of CPT is to provide a uniform language that accurately describes medical, surgical, and diagnostic services, and thereby serves as an effective means for reliable nationwide communication among physicians and other healthcare providers, patients, and third parties. CPT is the most widely accepted medical nomenclature used to report medical procedures and services under public .and private heaith insurance programs;

   · · 7) The Respondent submitted a claim to the insurer for Patient RT for personal injury protection benefits under CPT code 99203.

   
   

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   1. To justify the use of the CPT Code 99203, a patient visit requires these three key components (1) a detailed history; (2) a detailed

      .· examination; and (3) medical decision making of low complexity.

      
      

   2. Required elements of a detailed history include an extended history of present illness and problem pertinent system review extended to include a review of a limited number of additional systems. Neither was documented in Respondent's records for the March 31, 2006 examination.

   3. Code 99203 pays a greater amount for a new patient

      
      

      receiving an initial examination than a code for a less extensive examination that would have accurately described the level of examination conducted by the Respondent.

   4. The Respondent in his records for March 31, 2006, did not record the specific ranges of motion that were decreased on Patient RT's knee on March 31, 2006.

   5. The Respondent in his records for March 31, 2006 lacked findings relative to palpitation of the soft tissues, particularly in the area injured, and clinical findings that would support the diagnosis of cervical root lesion.

      
      

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   6. Respondent initiated a treatment regimen for Patient RT consisting of massage, electrical muscle stimulation, ultrasound, paraffin bath, mechanical traction, and hot/cold packs.·

   7. According to the treatment notes, Patient RT returned to Y &

      
      

      R Medical Center for treatment on the following dates: April 3, 41 5, 6, 7,

      
      

      10, 11, 12, 13, 14, 17, 18, 19, 21, 24, 26, 28; May 1, 3, 5, 8, 10, 12, 15,

      
      

      17; June 1, 2, 5, 7,-9, 12, 13, 14, 19, 21, 2006.

      
      

   8. The patient notes created consist of check off forms. Each check off form had check boxes for treatments allegedly provided to Patient RT along with a genera_lized statement regarding Patient RT's response. The form included a body diagram where parts were circled to indicate where Patient RT received treatment.

   9. The check off forms failed to adequately describe the treatment provided to Patient RT. For instance, the forms fail to indicate what body parts were treated with electric muscle stimulation, massage, or ultrasound, or the duration of such treatments.

   10. The check off forms failed to describe adequately the objective or subjective symptoms of Patient RT and his response to treatments.

       
       

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   11. The check off forms failed to justify the medical necessity of the treatment provided to Patient RT.

   12. The Respondent initialed his typewritten signature on the Health Insurance Claim Forms (CMS-1500 forms) in the field for "Signature of Physician or Supplier, Including Degrees or Credentials."

   13. By signing a Health Insurance Claim Form, the Respondent caused the claim form to be submitted to the insurer of Patient RT for payment.

   14. The Respondent signed the bills for service under Patient RT's personal injury protection policy, and thus the Respondent is required to

       use the CPT codes as explained in Section 627.736(5)(d), Florida Statutes (2005)..

   15. Respondent billed or caused to be submitted for payment to

       
       

       Patient RT's insurer claims for:

       
       

       1. electrical muscle stimulation using Current Procedural Terminology C'CPT'') Code 97014;

       2. ultrasound using CPT Code 97035;

          
          

          ,C.) massage using CPT Code 97124; and

          . \ ;:t• ti, ti - ?!itraction using CPT Code 97012.

          ··. : \; ··•..... .. ..

          
          

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   16. Patient RT's treatment visits did not last longer than thirty to thirty-five minutes, yet at least four (4) different modalities were billed for each date of service.

   17. Billing for each of these treatments was not appropriate as CPT guidelines call for Respondent to aggregate the entire time spent on all timed modalities· and only bill one (1) treatment modality for each fifteen (15) minutes sperit providing treatment. In the event that the full fifteen-minute interval of treatment is not provided, it would only be·· acceptable to bill for an additional modality provided at least eight (8) minutes of treatment is provided.

   18. On April 19, 2006 and May 17, 2006, the Respondent

       
       

       examined Patient RT according to the records maintained by Y & R Medical Center.· The Respondent signed the Health Insurance Claim Form (CMS- 1500) for each of these dates indicating he provided an examination at . level CPT 99213.

   19. To justify the use of the CPT Code 99213, a patient visit requires at least two of these three key components (1) an expanded problem focused history; (2) an expanded problem focused examination; and (3) medical decision making of low complexity..

       
       

   20. The records did not justify the use of CPT Code 99213 for

       
       

       either April 19, 2006 or May 17, 2006.

       
       

   21. CPT code 99213 pays a greater amount for a patient receiving an examination than a code for a less extensive examination that would have accurately described the level of exc1mination conducted by the Respondent on either April 19, 2006 or May 17, 2006.

   22. According to the records maintained by Y & R Medical Center, on June 21, 2006, the Respondent conducted a final examination of Patient RT. Respondent billed RT's insurer for this final examination using CPT Code 99214.

30} To justify the use of the CPT Code 99214, a patient visit must involve at least two out of the three following items: a detailed history; a detailed examination, and medical decision making of moderate complexity.

1. The June 21, 2006, re-examination recorded by the Respondent was insufficient to justify the use of CPT Code 99214.

2. The June 21, 2006, . re-examination was recorded by the

   
   

   Respondent on a form titled "Final Examination. 11 The Respondent did not

   
   

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   record the level at which Patient RT could perform a given Activity of Daily Living.

3. The June 21, 2006 examination records maintained by Y & R Medical Center include another examination form which was not signed by the Respondent on the "Doctor's Signature" line or anywhere else on the document.

4. Respondent signed the health insurance claim form for the June 21, 2006 date of service listing CPT code 99214 for Patient RT's June 21, 2006 visit. This code pays a greater amount for a patient receiving an examination than a code for a less extensive examination that would have accurately described the level of examination conducted by the Respondent.

5. The Respondent billed Patient RT's insurer $11,731.00 for

   
   

   services allegedly provided to RT.

   
   

6. The amount of services provided to Patient RT were excessive and constituted overutilization.

   
   

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   ountOne

   
   

7. Petitioner re-alleges and incorporates paragraphs one (1)

through thirty-six (36) as if fully stated herein.

38) Section 460.413(1)(m), Florida Statutes (2005)-(2006), provides that failing to keep legibly written chiropractic· 'medical records that identify clearly by name and credentials the licensed chiropractic physician rendering, orderlng, supervising, or billing for each examination

or treatment procedure and that justify the course of treatment of the

patient, including, but not limited to, patient histories, examination results, X rays, and diagnosis of a disease, condition, or injury is grounds for disciplinary action by the Board of Chiropractic Medicine.

1. Rule 64B2-17.0065, Florida Administrative Code (F.A.C.), sets forth the minimal recordkeeping standards as set forth below in pertinent part:

   1. The medical record shall be legibly maintained and shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs dispensed or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request

      
      

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      of the physician and relied upon by the physician in determining the appropriate treatment of the

      patient. Initial and follow-up seNices (daily records) shall consist of documentation to justify care. If abbreviations or symbols are used in the daily recordkeeping, a key must be provided.

   2. All patient records shall include:

      1. Patient history,

      2. Symptomatology and/or wellness care,

      3. Examination finding(s), including X-rays when medically or clinically indicated,

      4. Diagnosis,

      5. Prognosis,

      6. Assessment(s),

      7. Treatment plan, and

      8. Treatment(s) provided.

   3. All entries made into the medical records shall be accurately dated. The treating physician must be readily identifiable either by signature, initials, or printed name on the record. Late entries are permitted, but must be clearly and accurately noted as late entries and dated accurately when they are entered into the record.

      · (6) Once a treatment plan is established, daily records shall include:

      1. Subjective complaint(s)

      2. Objective finding(s)

      3. Assessment( s)

      4. Treatment(s) provided, and

      5. Periodic reassessments as indicated.

         
         

2. The Respondent violated Section 460.413(1)(m), Florida Statutes (2005)-(2006) and/or Rule 6482-17.0065, F.A.C., one or more of the following ways:

   1. By failing to record and/or maintain clinical findings that would suppo the di-agnosis of cervical root lesion when made on or about March 31, 2006.

   2. By failing to record and/or maintain the examination findings of the specific ranges of motion for the orthopedic tests performed on or about March 31, 2006;

   3. By failing to record and/or maintain daily treatment notes that

      
      

      adequately described the treatment provided to Patient RT;

      
      

   4. By failing to record and/or maintain sufficient records that

      
      

      . justified the care rendered to Patient RT.

      
      

   5. By failing to record and/or maintain daily treatment notes that adequately described Patient RT's objective and· subjective symptoms;

   6. By failing to record and/or maintain a sufficient examination for

      
      

      Patient RT's reexamination on April 19, 2006 to justify Respondent's use of CPT Code 99213;

      
      

   7. By failing to record and/or maintain a sufficient examination for Patient RT's reexamination on May 17, 2006 to justify the Respondent's use of CPT Code 99213;

   8. By failing to record and/or maintain a sufficient examination for Patient RT1 s reexamination on June 21, 2006, to justify the Respondent's use of CPT Code 99214;

3. Based on the foregoing, the Respondent violated Section

   
   

   460.413(l)(m), Florida Statutes (2005)-(2006) and/or Rule 64B2-17.0065,

   
   

   F.A.C. by failing to record or maintain sufficient medical records.

   
   

   Count Two

   
   

4. Petitioner re-alleges and incorporates paragraphs one (1) through thirty-six (36) as if fully stated herein.

43) Section 460.413(1)(n), Florida Statutes (2005)-(2006),

subjects a chiropractor to discipline for exercising influence on the patient or client in such a manner as to exploit the patient or client for financial gain of the licensee or of a third party which sl)all include but not be

limited to, the promotion or sale of services, goods, or appliances, or

drugs.

1. Rule 642B2-17.005(1), F.A.C., states that the overutilization of chiropractic services or practice by exercising influence on a patient in such a manner as to exploit the patient for financial gain of a licensee or a third party is prohibited by Section 460.413(1)(n), Florida Statutes.

2. Overutilization of chiropractic services or practice is defined as services or practices rendered, or goods or appliances sold by a chiropractic physician to a patient for financial gain of the chiropractic physician or a third party which are excessive in quality or quantity to the justified needs of the patient.

3. Rule 64B2-17.005(3)(a), F.A.C., states that overutilization occurs when the written chiropractic records, required to be kept by subsection 460.413(1)(m), Florida Statutes, do not justify or substantiate the quantity or number of chiropractic services, practices rendered, or goods or appliances sold by a chiropractic physi ian to a patient.

   · 47) Respondent violated Section 460.413(1) (n), Florida Statutes

   
   

   through one or more of the following actions:

   
   

   1. By submitting a claim to RTs insurer for personal injury protection benefits under CPT code 9920) for Patient RT's

      
      

      March 12, 2006 visit without sufficient records to indicate such

      
      

      a high level of examination occurred;

      
      

   2. By submitting a claim to RT's insurer for personal injury protection benefits under CPT code 99213 for Patient RT's April 19, 2006 visit without sufficient records to indicate such a high level of examination occurred;

   3. By submitting a claim to RT's insurer for personal injury protection benefits under CPT code 99213 for Patient RT's May 17, 2006 visit without sufficient records to indicate such a high level of examination occurred.

   4. By submitting a claim to RT's insurer for personal injury protection benefits under CPT code 99214 for Patient RT's June

      . 21, 2006 re-examination without sufficient records to indicate

      
      

      such.a high level of examination occurred;

      
      

   5. By improperly submitting claims to Patient RT's insurance. for too many timed treatment modalities that. did not aggregate the total amount time spent; or

   6. By ordering numerous treatments for Patient RT that were not

justified by the medical records.

48) Based on the foregoing, The Respondent has violated Florida Statute 460.413(1)(n), Florida Statutes (2005)-(2006).

WHEREFORE, the Petitioner respectfully requests that the Board of Chiropractic Medicine enter an order imposing one or more of the following penalties: permanent revocation or suspension of The Respondent's

license, restriction of practice; imposition of an administrative fine, issuance

of a reprimand, placement of the Respondent on probation, corrective

action, refund of fees billed or coflected, remedial education and/or any other relief that the Board deems appropriate.

SIGNED this r:rt..Q day of S£F-iTEf1P::£{( , 2009.

FILED

DEPARTMENT OF HEALTH

PUTV9LERK CLERK:

. DATE _ 9/ lr:a.

Ana M. Viamonte Ros, M.D., M.P.H. State Surgeon Gener

Joanna Daniels

Assistant General Counsel

DOH Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, FL 32399

Florida Bar# 118321

(850) 245-4640 ext. 8242

(850) 245-4682 FAX

Joanna Daniels@doh.state.fl.us

PCP: L)62_.Jorv at- . \r{o1..:f--s:>N

PCP Date: 5'e.PT, )._ > )...o::fi

NOTICE OF RIGHTS

The Respondent has the right to request a hearing to be conducted in accordance with Section 120.569 and 120.57, Florida Statutes, to be represented by counsel or other qualified representative, to present evidence and argument, to call and cross-examine witnesses and to have subpoena and subpoena duces tecum issued on his or her behalf if a hearing is requested.

NOTICE REGARDING ASSESSMENT OF COSTS

The Respondent is placed ·on notice that Petitioner has incurred costs.related to the investigation and prosecution of this matter. Pursuant to Section 456.072(4), Florida Statutes, the Board · shall assess costs related to the ·investigation and prosecution of a disciplinary matter, which may include attorney hours and costs, on the Respondent in addition to any · other discipline imposed.

Docket for Case No: 11-004526PL