STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5043

)

JAIME VERGEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case before Patricia Hart Malono, Hearing Officer of the Division of Administrative Hearings, on July 19, 1995, at Miami, Florida.

APPEARANCES

For Petitioner: Gordon B. Scott, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox, Building 1 Tallahassee, Florida 32308

For Respondent: None

STATEMENT OF THE ISSUE

Whether an administrative fine should be imposed on the respondent for the violations alleged in Final Agency Audit Report number 94-0367-000-G, and, if so, the appropriate amount of the fine.

PRELIMINARY STATEMENT

In two Final Agency Audit Reports dated August 4 and 10, 1994, the Agency for Health Care Administration, Office of the Inspector General, Medicaid Program Integrity ("Agency"), advised Jaime Vergel, M.D., ("respondent") 1/ that the Agency intended to impose two $25,000 administrative fines against him for providing services which did not meet Medicaid requirements for medical necessity. The reports dealt separately with services provided at Dade Health Services, Inc., Final Agency Audit Report number 94-0367-000-G, and at Comprehensive Guidance Center, Final Agency Audit Report number 94-0981-000-G. The respondent timely requested a hearing on both of the reports, and the cases were referred to the Division of Administrative Hearings for assignment of a hearing officer.

The case involving the Comprehensive Guidance Center was assigned DOAH case number 94-5043, and the case involving Dade Health Services was assigned DOAH case number 94-5044. On January 5, 1995, an Order Cancelling Hearing and

Closing File was entered in DOAH case number 94-5044 based on the Agency's withdrawal of Final Agency Audit Report number 94-0981-000-G, which dealt with services performed at Comprehensive Guidance Services. By Order Rescheduling Hearing dated June 14, 1995, the instant case was set for hearing on July 19, 1995.

At the final hearing, the Agency presented the testimony of Art Williams, an auditor with Medicaid Program Integrity in the Agency's Inspector General's office, and of John Sullenberger, M.D., Chief Medical Consultant for the State of Florida Medicaid Group. The Agency's Exhibits 1 through 8 were admitted into evidence. All of the evidence presented by the Agency dealt with services provided at Dade Health Services. 2/

The respondent did not appear at the hearing. A transcript was filed, and the Agency timely filed its Proposed Recommended Order. No post-hearing submission was filed by the respondent. A ruling on each of the Agency's proposed findings of fact is contained in the appendix to this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Agency for Health Care Administration is the state agency responsible for administering the Medicaid program in Florida. Ch. 93-129, 58, Laws of Fla. (1993). The Agency oversees the activities of Medicaid providers and is authorized in section 409.913(9), Florida Statutes, to impose sanctions for violations of the Medicaid rules and regulations. The division of the Agency responsible for monitoring payments to Medicaid providers is referred to as Medicaid Program Integrity, which is part of the Agency's Office of the Inspector General. Medicaid payments are monitored to ensure that such payments are made in accordance with federal and state rules and regulations.

   
   

2. At all times relevant to this proceeding, the respondent was licensed to practice medicine in Florida and was an approved Medicaid treating provider assigned Treating Provider number 065767102.

   
   

3. The respondent entered into a Noninstitutional Professional and Technical Medicaid Provider Agreement on October 14, 1981, in which he agreed to "abide by the provisions of the Florida Administrative Rules, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations," as provided in paragraph 7 of the agreement. The Medicaid Physician Provider Handbook provides in the introduction to section 11.1 that "[t]he services in this program must be performed for medical necessity for diagnosis and treatment of an illness for an eligible Medicaid recipient." The provider agreement also requires in paragraph 2 that the provider "keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance under the State Plan."

   
   

4. The Agency audited a random sample of medical records of Medicaid recipients for whom payments were made to Dade Health Services for medical services provided from August 3, 1992 through October 31, 1993. The respondent's name appeared frequently in these records as a treating provider. As a result, the Agency extended its investigation to the respondent.

5. The respondent provided medical services at Dade Health Services from the beginning of the audit period until February 9, 1993, when he terminated his association with the clinic. The medical records of seven Medicaid recipients treated by the respondent were among the Dade Health Services's medical records audited by the Agency. In order to ensure that the Agency had all the medical records relevant to these patients, a letter was sent to the respondent requesting any additional medical records he might have in his possession. The respondent notified the Agency through his attorney that he did not have any medical records relating to the seven patients.

   
   

6. The medical records of the seven Medicaid recipients treated by the respondent were reviewed by Dr. John Sullenberger, Chief Medical Consultant for the State of Florida Medicaid Group, to determine if the services provided and billed to Medicaid were medically necessary. Dr. Sullenberger evaluated the medical records in accordance with generally-accepted practices and using generally-accepted tools such as the Current Physician Terminology Handbook. He concluded that certain of the tests and treatments ordered by the respondent were not medically necessary

   
   

7. Patient Q.M. was seen by the respondent in an office visit on September 16, 1992. The patient's main complaint was shortness of breath. The respondent ordered spirometry, a test which measures lung function. Shortness of breath can have many causes, among them heart problems. There is no indication in the medical records that a chest x-ray was taken, and nothing in the records supports the medical necessity for a test measuring lung function for shortness of breath alone.

   
   

8. Patient J.U. was seen by the respondent in an office visit on January 30, 1993. The patient complained of a dry cough and shortness of breath. The respondent noted that the patient wheezed when he blew air out of his lungs, and he ordered spirometry. Spirometry is contraindicated for wheezing, and there is nothing in the records to support the medical necessity for the test for shortness of breath alone.

   
   

9. Patient M.V. was treated on November 11, 13, 16, 18, 20, 23, 25, 27, and 29, 1992, and on December 2 and 7, 1992, with aerosol treatments ordered by the respondent. An aerosol treatment consists of the patient's breathing in a vaporized mist to moisten the nose and the bronchial tubes, and it provides relief for approximately three hours. Aerosol treatments are properly administered every four to six hours, usually to patients who are hospitalized. There is nothing in M.V.'s medical records to support the medical necessity for aerosol treatments, and there is no medical justification for administering these tests every two to three days.

   
   

10. Patient D.S. was seen by the respondent in an office visit on January 23, 1993. The medical record of this visit is largely illegible, but it appears that the patient's main complaint was a cough. The respondent ordered spirometry, an electrocardiogram, and radiologic testing. There is nothing in the medical records to support the medical necessity for spirometry, especially since the respondent noted in the records that an examination of the lungs showed that they were within normal limits. There was no legible entry in the medical records to support the medical necessity for an electrocardiogram, which measures, among other things, the rhythm of the heart beat, the rate of the beat, and any blockage of blood passing through the heart. The radiologic testing consisted of a chest x-ray, but there is nothing in the medical records to support the medical necessity for this test.

11. Patient E.R. was seen by the respondent in an office visit on November 2, 1992. The entry in the medical records of this visit for the patient's chief complaint is illegible. The respondent ordered two non-invasive tests, one to measure the blood flow through the arteries of the patient's legs and one to measure the blood flow through the veins of the legs. The respondent also ordered echography to test the patient's peripheral vascular system. Echography uses sound waves to construct a picture or photographic plate of the area being tested. There is no indication in the medical records that the respondent observed any abnormality of the patient's legs or feet or that he took the pulse in the feet to determine if the tests were necessary. The two non- invasive tests and the echography were not justified as medically necessary by the information contained in the medical record of E.R.'s November 2 office visit.

    
    

12. Patient E.R. was also seen by the respondent in an office visit on December 19, 1992. The respondent ordered a duplex scan, which is a sonogram of the arteries in the neck that go to the brain. It is unusual to perform such a test on a 45-year-old woman, and there is nothing in the medical records to support the medical necessity for this test.

    
    

13. Based on his examination of patient E.R. on December 19, the respondent also ordered aerosol treatments, which were administered on December 21, 23, 26, 28, and 30, 1992, and on January 4, 1993. There is nothing in the medical records to support the medical necessity for aerosol treatments, and there is no medical justification for administering the treatments every two to five days.

    
    

14. Patient W.L. was seen by the respondent in an office visit on November 23, 1992. The patient's chief complaint was pain in the legs. There is nothing in the medical records indicating that the respondent examined the patient's legs or took the pulses in the feet, behind the knees, or in the groin. Nevertheless, the respondent diagnosed the patient as having peripheral vascular disease and ordered two non-invasive tests and echography of the peripheral vascular system. There is nothing in the medical record to support a diagnosis of peripheral vascular disease or the medical necessity for the three tests.

    
    

15. Patient A.A. was seen by the respondent in an office

    visit on October 19, 1992. The patient's chief complaint was hemorrhoids, and the respondent noted in the medical records that the patient's lungs were clear. Nevertheless, he ordered aerosol treatments, which were administered October 19, 21, 22, 23, 26, 28, and 30, 1992, and November 2, 4, 6, and 9, 1992. There is nothing in the medical records to support the medical necessity for these treatments, and there is no medical justification for administering the treatments on the prescribed schedule.

    
    

16. The evidence is clear and convincing that the respondent administered or ordered administered forty-seven tests and treatments for these seven Medicaid recipients, that Medicaid claims were submitted for these tests and treatments, and that no medical necessity was shown in their respective medical records for these tests and treatments.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. 120.57(1), Fla. Stat.

    
    

18. Section 409.913(5), Florida Statutes, provides in pertinent part

    When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty . . . to present a claim . . . that is for goods and services which:

    * * *

    (b) [a]re necessary.

    
    

19. Rule 59G-1.010(167), Florida Administrative Code, defines medical necessity as care which must

    
    

    1. Meet the following conditions:

       1. Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain;

       2. Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs.

       
       

20. Pursuant to section 409.913(8), Florida Statutes, the Agency has the authority to

    
    

    "impose administrative sanctions against a Medicaid provider if:

    * * *

    (i) The provider has furnished or ordered the furnishing to a recipient of goods or services that are inappropriate, unnecessary, excessive, or harmful to the recipient or are of inferior quality. Such determinations must be based on competent peer judgments and evaluations.

    
    

21. Because the Agency seeks to impose an administrative sanction against the respondent, it has the burden of proving the allegations in the Final Agency Audit Report by clear and convincing evidence. Osborne Stern & Co. v. Department of Banking & Finance, 647 So. 2d 245 (Fla. 1st DCA 1994); see also McDonald v. Department of Professional Regulation, 582 So. 2d 660 (Fla. 1st DCA 1991). The evidence is clear and convincing that the medical necessity for the tests and treatments itemized in the findings of fact was not supported by the information contained in the medical records.

    
    

22. Section 409.913(9)(c), Florida Statutes, provides that the Agency can impose "a fine of up to $1,000 for each violation not exceeding a total fine of

$25,000 in connection with any one audit or investigation." The investigation of services provided by the respondent at Dade Health Services revealed at least forty- seven separate violations of Medicaid rules and regulations.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final

Order finding that, from August 3, 1992, until February 9, 1993, Jaime Vergel, M.D., committed forty-seven violations of Medicaid rules and regulations and imposing an administrative fine in the amount of $25,000.

DONE AND ENTERED at Tallahassee, Leon County, Florida, this 14th day of November 1995.

PATRICIA HART MALONO, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of November 1995.

ENDNOTES

1/ At hearing, the parties were realigned to reflect that the burden of proof in this case rests with the Agency. The style of the case and the references in this Recommended Order are consistent with the realignment.

2/ Subsequent to the hearing, it became apparent that the Agency's evidence does not relate to the allegations in the Final Agency Audit Report at issue in this case. It appears that the Agency transposed the DOAH case numbers assigned to the reports issued with respect to Dr. Vergel. The report at issue in the instant case, DOAH case number 94-5043, deals with services provided by the respondent at Comprehensive Guidance Center. The Agency filed a Motion to Dismiss based on its withdrawal of the Final Agency Audit Report for Comprehensive Guidance Center, but it inadvertently filed the motion in DOAH case number 94-5044, which was closed on January 5, 1995. The evidence presented at the final hearing relates to the Final Agency Audit Report dealing with services provided by the respondent at Dade Health Services, Inc.; the report for Dade Health Services was assigned DOAH case number 94-5044.

Even so, the respondent will not be prejudiced by entry of a Recommended Order on the evidence presented at the final hearing. The respondent failed to appear to present a defense even though he was provided notice of the hearing. The respondent knew that the Agency intended to impose fines with respect to the services he provided both at Comprehensive Guidance Center and at Dade Health Services. The allegations contained in the two Final Agency Audit Reports are identical except for the name of the facility at which the services were provided and the Medicaid recipients who received the services. The respondent knew that the Agency had withdrawn Final Agency Audit Report number 94-0981-000- G, dealing with services he provided at Comprehensive Guidance Center. Under these circumstances, it is not necessary to rule on the Agency's Motion to Amend or in the Alternative Motion to Conform the Pleading to the Evidence.

APPENDIX

The following are my specific rulings on petitioner's Proposed Findings of Fact.

Paragraphs 1 through 6, 8, 9, 10, and 12 through 21: These proposed findings of fact are adopted in material part in the Recommended Order or are subordinate to the findings of fact included therein.

Paragraphs 7 and 11: These proposed findings of fact are rejected as unnecessary.

COPIES FURNISHED:

Gordon B. Scott, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox, Building 1 Tallahassee, Florida 32308

Jaime Vergel, M.D.

5860 Southwest 8th Street Miami, Florida 33144

Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Douglas M. Cook, Director

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 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.

================================================================= AGENCY FINAL ORDER

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

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION,

Petitioner, CASE NO: 94-5043

RENDITION NO: AHCA-95-1745-FOF-MDT

vs.

JAIME VERGEL,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Agency for Health Care Administration (AHCA). The Recommended Order entered November 14,1995, by Hearing Officer Patricia Malono is incorporated by reference.

FINDINGS OF FACT

The agency hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The agency hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order excepts as follows:

The requirement of evidence satisfying the `clear and convincing"standard of proof is applicable to proceedings wherein an agency seeks the revocation of a professional license, Ferris vs. Turlington, 510 So2d 292 (Fla. 1987). The correct standard of proof when lesser sanctions are sought is the "preponderance" standard. Allen vs. School Board, 571 So2d 568 (Fla. 3rd DCA 1990).

Based upon the foregoing, it is

ADJUDGED, that a fine of $25,000.00 is imposed on the Respondent, Jaime Vergel. The fine shall be paid in full within 30 days of the date of rendition of this Final Order. Payment shall be made by check or money order payable to the Treasurer, State of Florida.

DONE and ORDERED this 13th day of December, 1995, in Tallahassee, Florida.

STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION

Douglas M. Cook, Director

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

Gordon Scott, Esquire Senior Attorney, Agency for

Health Care Administration 2727 Mahan Drive

Fort Knox 3, Suite 3431

Tallahassee, Florida 32308-5403

Patricia Malono Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Jaime Vergel, M. D.

5860 Southwest 8th Street Miami, Florida 33144

Jose L. Fernandez, Esquire 2665 South Bayshore Drive Suite 606

Miami, Florida 33133

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addresses by U.S. Mail this 15th day of December, 1995.

R. S. Power, Agency Clerk State of Florida, Agency for

Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

(904)922-3808

Docket for Case No: 94-005043

Orders for Case No: 94-005043