STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE CITY MEDICAL CENTER, )

)

Petitioner, )

)

vs. ) CASE NO. 93-0210

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Lake City, Florida.

APPEARANCES

For Petitioner: Elizabeth Manning, Esquire

BUCKINGHAM, DOOLITTLE & BURROUGHS

50 South Main Street Post Office Box 1500 Akron, Ohio 44308

For Respondent: Gordon B. Scott, Esquire

HRS Medicaid Office 1317 Winewood Boulevard Building Six, Room 234

Tallahassee, Florida 32399-0700 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Petitioner was over-reimbursed for hospital care provided to medicaid beneficiaries, which involves a determination of whether the care rendered to those beneficiaries was "medically necessary".

PRELIMINARY STATEMENT

The Respondent, Department of Health and Rehabilitative Services (HRS), has denied payment for four admissions to the Petitioner's facility, Lake City Medical Center (the Center), and five days of the fifth admission, allegedly based upon a peer review organization's (PRO) finding that those admissions and days were not medically necessary. A petition was filed seeking a Section 120.57(1), Florida Statutes, proceeding to contest that initial agency decision. Prior to the hearing, HRS altered its position and allowed the initial day of one of the originally-denied admissions.

A formal administrative hearing was conducted as noticed in Lake City, Florida. The Petitioner adduced the testimony of Umesh Mahtre, M.D., the attending physician; patient R.S., one of the patients whose admission was denied reimbursement; and Judy Pruitt, Vice President of Quality Management at the Center. HRS adduced the testimony of Nedra Mansager. By stipulation, joint composite Exhibit 1, the medical records of the four medicaid patients involved, were admitted into evidence. The Respondent's Exhibits 1-6 were admitted into evidence, as well. The Petitioner's Exhibits A - C were admitted into evidence.

Official recognition was taken of Sections 409.266 and 409.901, et. seq., Florida Statutes; 10C-7.039, Florida Administrative Code, and Section 42 CFR 456.50, Subpart C.

The parties availed themselves of the right to submit Proposed Recommended Orders subsequent to the hearing. Those Proposed Recommended Orders contained proposed findings of fact which have been addressed in this Recommended Order and specifically ruled upon again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. HRS is a state agency responsible for the administration of the Florida Medicaid Program provided for in Title XIX of the Social Security Act. The medicaid program was implemented through Section 409.902, Florida Statutes. The peer review aspect of the Florida Medicaid Program involves the responsibility of insuring that hospitals comply with state and federal utilization review requirements.

   
   

2. The Petitioner, at all times material hereto, was the treating facility for the four patients involved in the issues in this case. It is assigned Medicaid Provider No. 011976800.

   
   

3. The medicaid/medical benefits program for the State of Florida administered by HRS under Title XIX of the Social Security Act reimburses hospitals for "medically necessary" in-patient hospital care provided to medicaid beneficiaries. See Rule 10C-7.039, et. seq. The determination of "medical necessity" is to be made by the hospitals' utilization review committee and by the utilization and quality control PRO which is under contract to provide that service with HRS. Utilization review is defined as "regular prescribed program for the review of each recipient's need for services to insure efficient provision of care". HRS has established procedures for determining the medical necessity and appropriateness of care for use by hospitals and by the PRO's. The procedures include a review of medical record documentation against a list of criteria published by HRS. These criteria are popularly called ISD criteria. "ISD" is an acronym signifying severity of illness, intensity of service, and "discharge screens." Each medicaid recipient must meet ISD criteria for severity of illness before being admitted to a hospital. They must also meet the intensity of service ISD criteria for continued hospitalization. Once a patient meets one of the ISD discharge screens (standards), there is the indication that the patient is ready to be discharged. The ISD criteria are to be used as a "basis for professional determinations of the medical necessity of acute care hospitalizations" by the hospital utilization review (UR) committee and the PRO.

4. These criteria are not an absolute measure of medical necessity. They may be balanced or overridden by a physician during the review process. The severity of illness (SI) criteria are acknowledged by HRS to be set at a high level. The SI criteria need not be met to justify an admission, however. "If treatment has been rendered and the intensity of service criteria are met, or if evidence relevant to more than one severity of illness indicator is available, lower levels than those specified in the criteria may justify certifying the admission. A case presenting marginal findings for certifying an admission will be referred to the physician advisor." See Respondent's Exhibit 4, page 6.

   
   

5. According to the policy expressed in the HRS manual for hospitals providing services to medicaid beneficiaries, the hospital UR committee may consider "other supporting data as the committee deems appropriate" and contact the attending physician when determining medical necessity. Similarly, when medical necessity is an issue at the PRO level of review, the attending physician is to be contacted by the PRO and given an opportunity to speak to the physician advisor of the PRO so as to provide additional information going to the question of medical necessity.

   
   

6. If the PRO denies coverage, HRS then accepts the PRO determination and does not conduct any independent review. HRS, having charged the hospital UR committee and the PRO with the evaluation of medical necessity, does not conduct its own review of the medical record or undertake any independent evaluation of medical necessity before notifying the relevant physician and hospital if reimbursement is denied.

   
   

7. The Petitioner is in compliance with the medicaid program concerning utilization review. The hospital has established a UR plan which has been approved by the PRO and by HRS. The UR plan utilizes the same ISD criteria as the PRO. The UR committee was monitored to make sure that it was complying with the utilization review requirements.

   
   

8. The five cases at issue were reviewed by five different physicians on the Center's UR committee and were felt to meet the criteria and to be medically necessary as appropriate admissions and appropriate lengths of stay. The PRO, however, disagreed with the UR committee. The attending physician was contacted by the PRO and asked to call a physician advisor to discuss these cases and to provide additional information to the advisor. The attending physician followed those instructions and attempted numerous times to contact the physician advisor with additional information concerning the cases but was never given the opportunity to do so.

   
   

9. These PRO denials included one admission denial following a suicide attempt, despite the fact that "suicide attempt" is included in the ISD criteria as justification for admission. This denial of admission itself is clearly in error. Although this proceeding is a de novo one and not a proceeding designed to simply review the appropriateness and legal efficacy of the HRS initial decision, it is noteworthy, to the extent that HRS' position relies heavily on the PRO review of the patient admissions and lengths of stay in question, that the PRO's work product is of marginal credibility. This is because the PRO which was responsible for the UR and reviewed these cases lost its designation as an approved PRO and became involved in criminal litigation concerning a failure to carry out medical reviews properly. The PRO was unable to meet payroll obligations for its nursing and physician reviewers. The records of the PRO reviews of the five cases at issue in this proceeding were not available to HRS. Consequently, HRS had no information concerning the underlying data or facts relied upon by the PRO nor whether the PRO actually consulted the

   attending physician or whether its physician advisor did. Thus, the testimony of the attending physician, to the effect that he attempted to contact the physician advisor but was not permitted to as to any of these cases, is uncontraverted.

   
   

10. The approved UR committee, in conducting its procedure at the Center, determined that the admission and lengths of stay of the five patients involved was medically necessary and compensable as determined by five physicians taking part in that process. The PRO, although it informed the physicians that they had the right to speak to a physician advisor, did not actually afford them that opportunity. The PRO determination was accepted by HRS without any HRS personnel speaking to the attending physician. Although HRS later allowed one day of an admission immediately following a suicide attempt, it upheld the other PRO determinations without actually knowing or reviewing any underlying information which might have been relied upon by the PRO and without HRS personnel conferring with the attending physician or affording him the opportunity to provide them with additional information. If the PRO, its physician advisor and HRS had given the attending physician the opportunity to explain and provide additional information concerning medical necessity, perhaps this dispute could have been resolved without the necessity and expense of formal proceedings.

    
    

11. This is a de novo proceeding and, therefore, the information from the attending physician which was not utilized by the PRO or HRS in the review of these cases can be brought forward at this time providing the attending physician's testimony and evidence is deemed relevant, material, competent and credible. The attending physician named above, in fact, testified in this proceeding. His testimony is deemed competent and credible on the material issues and is not refuted by the Respondent. Based upon the attending physician's testimony, which is accepted, especially since no other physician with knowledge of the facts concerning these patients testified, the following findings of fact are made:

    
    

12. Patient M.D.: This patient was treated at the emergency room following a suicide attempt on August 19th and transferred by the police to the Center where she was then admitted. She had previously sought out-patient treatment unsuccessfully. The initial examination showed her to be moderately depressed, avoiding eye contact, showing psycho-motor retardation, and crying easily. She made the statement that her two children would be better off if she were dead. She was placed on the medication prozac but after several days remained depressed and crying and complaining of insomnia. She was then given "Pamelor" which caused some adverse side effects, but she appeared to respond to the medication as to her depression. During her stay, she received an intensive rehabilitation program of at least three encounter therapies per day. On the basis of the medical record alone, patient M.D. met the following criteria:

    AK11-A (suicide attempt); AK57-B (treatments). These criteria do not require that the patient remain suicidal or admit to being suicidal during the in- patient stay in order to justify further treatment. The HRS representative testified that nursing notes indicated that the patient could perform some self- care functions during her hospitalization ("activities of daily living" or "ADL's"). Because of this and because the physician noted that the patient was denying suicidal ideations, she interpreted that circumstance to mean that the discharge "screen" or standard of "able to function in a non-hospital environment" was met after August 20th, the day of admission. However, HRS also admitted that whether the patient could function in a non-hospital environment was a medical decision to be made on the hospital level and the PRO level. The attending physician testified that records of self-care in a restricted hospital

    environment do not mean that the patient could function in a non-hospital setting. He further testified that the patient in this instance required treatment and did not meet the discharge standard or "screen" of being "able to function in a non-hospital environment" before August 30th. He testified that the services could not be effectively provided on an out-patient basis prior to August 30th. That testimony is accepted and the fact established. The ISD criteria and explanatory bulletins promulgated by HRS do not contain requirements that a patient remain suicidal during a stay nor a discharge criteria that equates self-care in the hospital environment with the ability to care for oneself safely and adequately in a non-hospital environment. On the basis of the evidence presented, the in-patient admission of M.D. from August 20th to August 30th met the criteria for admission and continued stay. The services provided were shown by unrefuted testimony to be medically necessary and the discharge screens or criteria were not satisfied until August 30, 1991.

    
    

13. Patient M.D. (Admission of September 21, 1990 through September 29, 1990): Nineteen (19) days after her first discharge, patient M.D. again attempted suicide. She had been referred for out-patient care after her previous hospitalization but did not follow up and obtain that care and did not continue to take her medication. She wrote a suicide note on the second attempt and was treated in an intensive care unit for three days before being re- admitted to the Center. Throughout her hospitalization, she received intensive rehabilitation therapy as before and remained in a highly-restricted, locked unit, where suicide precautions were in effect. She was assigned to a counselor for "one-on-one" therapy in addition to her group therapy. Her attending physician did not consider her able to function in a non-hospital environment prior to September 29th, and his testimony so establishes. The HRS witness, when asked whether she had an opinion when the patient should have been released, stated a date prior to the actual discharge based upon her opinion that the patient was able to function in a non-hospital environment. That decision, however, is a medical decision which the witness was not qualified to make. In any event, the fact that a patient might be able to perform some "ADL" functions in a highly-supervised, protective hospital setting does not mean that the patient is well enough and responsible enough to perform those functions adequately and safely on her own outside a supervised hospital setting. In summary, based upon the unrefuted evidence presented, particularly the testimony of the attending physician, the in-patient admission of M.D. on September 21, 1990 met the ISD criteria for admission and continued stay. The services were medically necessary and the patient was not appropriately ready for discharge until September 29, 1991.

    
    

14. Patient W.P. (Admission of April 11, 1990 to April 16, 1990): This patient suffered a severe psychotic episode a month before her admission and then presented to an emergency room stating that she was "about to lose it" and that it was only her religious beliefs which prevented her from committing suicide. This alarmed the attending physician concerning her suicidal ideation and possibility. The patient had been married five times and was then seeing a married man and also allegedly contemplating a lesbian relationship with that man's wife. She had been blamed by her family for the death of her grandchild.

    
    

15. Upon her admission, it took her approximately three days to become aware that she was in a locked psychiatric unit. This indicated to the physician that she did not fully comprehend where she was or what she was doing in terms of her orientation as to reality of time and place. She was severely depressed, out of touch with reality, and not able to perform the affairs of daily living (ADL's). She exhibited anorexia and insomnia at the time of admission. She indicated merely that she was not eating as much as she had

    previously. She was placed on prozac, to which she responded in approximately five days. The services provided to her after her admission met the intensity of service criteria for a continued stay. The physician testified that she did not meet discharge standards prior to the actual discharge date whereupon she was referred to out-patient care for follow-up treatment. The physician's testimony establishes that necessary medical services could not have been effectively or safely provided on an out-patient basis prior to the discharge date. The physician's testimony establishes that in the artificial environment of a hospital, the notations in medical records that a patient is eating and sleeping does not mean that she is able to perform those functions outside of the hospital safely and adequately or will consistently do so if left to her own devices. The HRS witness admitted that not eating and not sleeping is relevant to the question of whether a patient can perform normal ADL's. The later contention by HRS that inability to perform ADL's requires a patient to be in a "nearly vegetative" state is simply unsupported by medical testimony nor by any definition in evidence. The unrefuted testimony of the attending physician establishes that the in-patient admission of patient W.P. on April 11, 1990 met the ISD criteria for admission and continued stay and that the services were medically necessary. The patient was not recovered sufficiently for appropriate discharge until April 16, 1990.

    
    

16. Patient D.G. (Admission of May 4, 1990 to May 11, 1990): This patient had a recent history of heavy drug usage and criminal convictions near the time of her admission. HRS had removed her children from her custody, which created an additional crisis in her life, as did the fact that her husband was then in prison. The attending physician stated that the patient was exhibiting acute withdrawal symptoms from drug usage and delirium tremors from the drugs upon her admission. She was at a high risk of resuming her heroin use and threatened suicide if she did not get help for her addiction. A urine screen performed was positive upon her admission for drug usage and withdrawal symptoms. Impending delirium tremors were exhibited at that time. She was depressed and required acute medication, being placed on a high dose of both librium and anti- depressants. D.G. could not be treated in a de-toxification unit because of her suicidal ideation and attendant depression. She received intensive therapy consisting of three sessions per day while she was hospitalized. Her depression responded to the medication and discharge planning began on her third day of admission, with a view toward placing her in a de-toxification unit. She was discharged to complete her de-toxification as soon as a placement was available. The HRS witness opined that because D.G. was not "comatose" or "impending comatose", she did not meet the admission standards for substance abuse and because she was able to sleep, eat, and dress herself in the hospital, she did not meet the admission criteria concerning performance of ADL's. The attending physician testified, however, that she was in withdrawal from heroin use, needed de-toxification, and could not be admitted to a de-toxification program until her other psychiatric problems had been stabilized. The attending physician, by his training, his experience, and by his personal contact with and treatment of the patient, is best able to evaluate the patient's medical circumstance, need for admission and treatment and the length of treatment required. Consequently, his testimony as to this patient and all the others is accepted over that of the non-physician HRS witness. Based upon the evidence presented at hearing, the

    in-patient admission and stay of D.G. was medically necessary and could not have been provided effectively in a less-restrictive or out-patient setting.

    
    

17. Patient S.R. (Admission of June 20, 1990 to June 29, 1990): Upon this patient's admission, she related not having slept for two months and not having eaten for five days. She had then undergone approximately three years of out- patient treatment unsuccessfully and had no family or community-support system

    in the area where she lived. She related that her ex-husband had been abusive and had recently abducted her daughter and vandalized her home. She related that her ex-husband had threatened her daughter's life and had had S.R. arrested and supposedly transported to the Palm Beach County Women's Stockade. She testified that she was unable to sleep or eat and was taking 10 to 12 baths per day. She complained of being unable to remember simple tasks, to take care of simple matters such as paying her rent, and was in the habit of wearing the same clothes from three to five days in a row without changing or washing, or being unable to remember whether she had washed or not.

    
    

18. The patient was also taking a high dosage of a chronic asthma medication, which includes steroids. This can cause serious problems with depression. The patient was severely depressed and had recently started smoking. The patient met the ADL admissions criteria and while she was in the hospital, she received services which met the intensity of services criteria. The HRS witness admitted that the medical record note which stated "past two months she had not slept at all" constitutes insomnia and the record note "is not eating, has gone five days without food" constitutes anorexia. Based upon the evidence submitted at hearing, the in-patient treatment of S.R. from June 20, 1990 to June 29, 1990 met the criteria for admissions and continued stay and was shown by the treating physician's testimony to be medically necessary. The services could not have been safely and adequately provided on an out-patient basis, and the discharge standards were not satisfied as to this patient until June 29, 1990, when she was discharged.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. It has been held that the factual matters susceptible of ordinary methods of proof are the perogative of the Hearing Officer as the finder of fact. See, Orlando General Hospital v. Department of Health and Rehabilitative Services, 567 So.2d 962 (1990); MacDonald v. Department of Banking and Finance,

    346 So.2d 569 (Fla. 1st DCA 1977). It is the Hearing Officer's function to consider all evidence presented, resolve the conflicts, judge the credibility of the witnesses, draw permissible inferences from the evidence, and to reach findings of fact based upon competent, substantial evidence. State Beverage Department v. Ernal, Inc., 115 So.2d 566 (Fla. 3rd DCA 1959). It has been held that competent, substantial evidence is "such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred" or such evidence as is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached". See, DeGroot v. Sheffield, 95 So.2d 912 (Fla. 1975). If the evidence presented supports two inconsistent findings, it is the Hearing Officer's perogative and appropriate role to decide which evidence to accept as more credible and to decide the issue.

    
    

21. In this proceeding, HRS has argued that its denials of reimbursement were based upon policy considerations. While policy may dictate broad, general decisions, such as excluding a certain procedure from coverage or placing a limit on the number of in-patient care days per year or such pronouncements of general applicability, when HRS established a UR system which includes medical necessity decision-making, it recognized that determinations such as those involved in this proceeding are issues of fact and do not turn solely on policy determinations. The issues to be determined in this proceeding are really

    susceptible to ordinary methods of proof and thus are within the province of the Hearing Officer for determination. The precise medical circumstances of the patients involved, upon admission and during their treatment stays, which is best observed and described by the treating physician, are the necessary facts which must be found. Once those facts are found, it can be determined whether the patients involved met the admission, length of stay and discharge standards described above. Thus, these facts must be found before the ultimate fact, concerning whether the ISD criteria were met or not, can be arrived at. Because such factual findings are necessary to decide the ultimate factual and legal issues presented, it is obvious that mere resort to policy cannot cogently, intelligently and fairly resolve the questions presented in a proceeding such as this involving patients such as those involved herein. Because these matters are matters susceptible to ordinary methods of proof, the issue of reimbursement is not solely dependent upon HRS policy but rather on expert opinion testimony predicated on ordinary facts and thus the denials are not entitled to any deferential, policy-related treatment by the Hearing Officer.

    
    

22. A hospital is entitled to rely on the opinion of a treating, attending physician that in-patient hospital services are necessary. Under Title II of the Social Security Act, 42 U.S.C. Section 401, et. seq., the opinion of a treating physician is given additional weight in determining whether a claimant is entitled to disability insurance benefits. See, Jones v. Secretary of Health and Human Services, 945 F.2d 1365 (6th Cir. 1991); Loy v. Secretary of Health and Human Services, 901 F.2d 1306 (6th Cir. 1990); Shellman v. Heckler, 821 F.2d

    316 (6th Cir. 1987). The attending physician's opinion is generally accorded greater weight because the physician is more familiar with the patient and the physician's evaluation of the patient is the basis for treatment and is not simply for the purpose of qualifying for benefits, thus according it greater indicia of credibility. "The opinion of a non-examining physician is entitled to little weight if it is contrary to the opinion of the claimant's treating physician." Shellman, 821 F.2d at 321 (citations omitted).

    
    

23. The opinion of a treating physician has the same indicia of credibility whether offered in connection with a claim under Title II or Title

    XIX. Similarly, the opinion of a non-examining physician is entitled to the same limited probative value in Title XIX cases as in Title II cases. In this case, the PRO determined that these admissions were unnecessary only after the hospitalization and based solely on hospital records. The PRO did not consider all of the available information about the patients' total condition, despite repeated attempts by the attending physician to confer with the physician reviewer. Thus, the PRO violated established HRS procedures and thereby prevented an accurate determination of medical necessity, which necessitated this proceeding. Dr. Mahtre personally evaluated and treated the patients upon admission and during their hospital stay and based upon their total conditions and medical circumstance, decided they should be admitted to the Center. He provided cogent reasons for their admissions and their lengths of stay. The Center's UR physicians also reviewed the cases and agreed with him that the admissions, lengths of stay and discharge dates were appropriate. The Petitioner was, therefore, justified in relying upon the physician's opinion and the physician's opinion is accepted over the opinion of the HRS witness who has no medical training and expertise, who was not in a position to observe the patients upon admission and during their hospital stays and for the other reasons delineated in the above Findings of Fact.

24. In Orlando General Hospital v. DHRS, supra, the Court of Appeals for the Fifth District reviewed the outcome of an administrative proceeding on Medicaid in-patient admission denials. Noting that the hospital involved had complied with Medicaid's UR requirements, the Court stated:

    
    

    An after-the-fact determination that a provider of medical services to indigent substance abusers is not entitled to payment under a public program when the provider followed prescribed broad procedures, which, as was established by all witnesses in this case, can be overridden by the treating physician, is simply unfair.

    
    

25. Thus, it must be concluded, in light of the above findings of fact, discussions and conclusions of law that the medical services at issue were medically necessary and should be compensated.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore

RECOMMENDED

That a final order be entered determining that the medical services at issue were medically necessary in the manner and for the time periods delineated in the above findings of fact and conclusions of law.

DONE AND ENTERED this 31st day of August, 1993, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-210

Petitioner's Proposed Findigns of Fact:

1-12 Accepted.

13 Accepted, but subordinate to the Hearing Officer's Findings of Fact on this subject matter.

14-45 Accepted.

Respondent's Proposed Findings of Fact:

1-8 Accepted.

1. Accepted, but not materially dispositive.

2. Accepted.

3. Accepted.

4. Accepted.

5. Accepted, but not itself materially dispositive and subordinate to the Hearing Officer's Findings of Fact on this subject matter.

14-16 Accepted in terms of depicting HRS policy, but not as materially dispositive on the issue of medical necessity concerning the patients involved in this proceeding.

17 Accepted.

18-21 Accepted, but not materially dispositive.

1. Accepted, but not materially dispositive.

2. Accepted, but not materially dispositive.

3. Accepted, but not materially dispositive.

25-28 Accepted, but not materially dispositive.

1. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter and is not material.

2. Accepted, but not materially dispositive. 31-33 Accepted.

34 Accepted.

35-43 Accepted, but not as to the material import for which they are advanced. The patient's circumstances as described in the treatment physician's testimony and support of "medical necessity" are accepted and the fact that the medical records themselves may not have reflected all findings necessary for medicaid compensability is not itself materially dispositive given the treating physician's testimony, which is accepted.

44-52 Accepted, but subordinate to the Hearing Officer's Findings of Fact on this subject matter

1. Rejected as not entirely supported by the preponderant weight of the evidence and is subordinate to the Hearing Officer's Findings of Fact on this subject matter.

2. Rejected as irrelevant in this de novo proceeding. The reason the Department initially rejected compensability is irrelevant. The determination must be made as to medical necessity and therefore compensability based upon the evidence adduced in this de novo proceeding in which the Hearing Officer has accepted the physician's testimony as to medical necessity.

55-58 Accepted.

59-65 Accepted, but not materially dispositive on the issue of medical necessity and compensability.

66 Rejected as contrary to the preponderant weight of the evidence based upon the treating physician's testimony.

67-70 Accepted, but not in themselves material dispositive

1. Rejected as to its overall material import and subordinate to the Hearing Officer's Findings of Fact on this subject matter.

2. Rejected as to its overall material import and subordinate to the Hearing Officer's Findings of Fact on this subject matter.

3. Accepted, but not as to its purported material import in resolving the ultimate issue.

4. Rejected as contrary to the preponderant weight of the evidence and is subordinate to the Hearing Officer's Findings of Fact on this subject matter.

COPIES FURNISHED:

Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

John Slye, Esq.

General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Elizabeth Manning, Esq. BUCKINGHAM, DOOLITTLE & BURROUGHS

50 South Main Street Post Office Box 1500 Akron, OH 44308

Gordon B. Scott, Esq. HRS Medicaid Office 1317 Winewood Boulevard Building Six, Room 234

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 93-000210

Orders for Case No: 93-000210