STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CNA INSURANCE COMPANIES,
Petitioner,
vs.
AGENCY FOR HEALTH CARE ADMINISTRATION,
Respondent.
)
)
)
)
) Case No. 01-4147
)
)
)
)
)
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on May 14 and 15, 2002, in Tallahassee, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Mark S. Spangler, Esquire
Law Office of Mark S. Spangler, P.A. 1061 Maitland Center Commons Maitland, Florida 32751
For Respondent: Gerald L. Pickett, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Sebring Building Suite 310H St. Petersburg, Florida 33701
STATEMENT OF THE ISSUES
The issues are (1) whether Petitioner improperly disallowed payment for the dates of service set forth in the notices of disallowance sent by Petitioner to the provider, Clay O.
Selley, D.C., and (2) whether Petitioner is required to pay the fees of the expert medical advisors utilized by the Agency for Health Care Administration in conducting its review of
Dr. Selley's challenge to the notices of disallowance.
PRELIMINARY STATEMENT
In February and March 2001, Petitioner sent three separate notices of disallowance to Clay O. Selley, D.C., pursuant to Section 440.13(6), Florida Statutes. Each notice of disallowance identified specific dates of service for which Petitioner refused to pay Dr. Selley.
Dr. Selley contested the disallowances, and pursuant to Section 440.13(7), Florida Statutes, he "petitioned" the Department of Labor and Employment Security, Division of Workers' Compensation -- now the Agency for Health Care Administration (Agency or Respondent)1 -- to resolve the dispute between him and Petitioner.
By letter dated June 18, 2001, Petitioner "petitioned" the Agency for a determination that Dr. Selley engaged in a "pattern or practice of overutilization" pursuant to Section 440.13(8)(a), Florida Statutes. In the letter, Petitioner requested that the Agency impose penalties against Dr. Selley pursuant to Section 440.13(8)(b), Florida Statutes.
The Agency referred Dr. Selley's "petitions" to two expert medical advisors (EMAs) for their review pursuant to Section
440.13(9)(b), Florida Statutes. Based upon the reports submitted by the EMAs, the Agency determined that "there is not a pattern or practice of overutilization," and also determined that Petitioner "has disallowed payment [to Dr. Selley] improperly." Those determinations were set forth in a letter from the Agency to Petitioner and Dr. Selley dated August 24, 2001.
The August 24, 2001, letter directed Petitioner to reimburse Dr. Selley for the dates of service that it had disallowed, and stated that "a party substantially affected by this determination has a right to request a hearing" in accordance with the Administrative Procedure Act and the Uniform Rules of Procedure. Accordingly, on or about September 17, 2001, Petitioner timely filed with the Agency a document titled "Petition to the Division of Workers' Compensation Regarding a Reimbursement Dispute and Disallowance of Payments by CNA Insurance Companies to Clay O. Selley, D.C., and Request for Hearing" (Petition).
The Petition alleged that the "petitions" filed with the Agency by Dr. Selley failed to comply with Section 440.13(7)(a), Florida Statutes, and therefore the Agency should have dismissed them. The Petition further alleged that the Agency's determinations that Petitioner improperly denied payment to
Dr. Selley and that Dr. Selley did not engage in a pattern or
practice of overutilization were wrong. Finally, the Petition alleged that Petitioner should not have been required to pay the fees of the EMAs used by the Agency.
On October 24, 2001, the Agency referred the Petition to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct the hearing requested by Petitioner. The referral included a motion to dismiss filed by Respondent on October 1, 2001, in which Respondent argued that DOAH lacks subject-matter jurisdiction over this case. Respondent "renewed and amended" that motion on January 4, 2002, and, after a hearing, the motion was denied through detailed Orders dated February 1, 2002 (original Order), and February 21, 2002 (Order denying Respondent's motion for reconsideration).
On January 22, 2002, Petitioner "withdrew" that portion of its Petition which alleged that Dr. Selley's "petitions" failed to comply with Section 440.13(7)(a), Florida Statutes.
Accordingly, that issue is no longer involved in this proceeding.
By Order dated January 22, 2002, the Agency was directed to provide notice to Dr. Selley that this proceeding may affect his substantial interests and that he may have a right to intervene. See Rule 28-106.109, Florida Administrative Code. The Agency provided said notice to Dr. Selley on January 23, 2002.
However, as noted below, Dr. Selley made no effort to intervene in this case until May 10, 2002.
On May 9, 2002, Petitioner "withdrew" that portion of its Petition challenging the Agency's determination that Dr. Selley did not engage in a "pattern or practice of overutilization." Accordingly, that issue and the potential that Dr. Selley will be subject to the penalties described in Section 440.13(8)(b), Florida Statutes, are no longer involved in this proceeding.
On May 10, 2002, Dr. Selley filed a motion to intervene and a motion for a continuance of the final hearing. That motion was denied through a detailed Order dated May 13, 2002, because Dr. Selley failed to show "good cause" for his delay in seeking to intervene in this proceeding and failed to show "good cause" or an "emergency" which would justify a continuance of the hearing just days before it was scheduled to commence. See Rules 28-106.205 and 28-106.210, Florida Administrative Code.
The hearing was held on May 14 and 15, 2002. At the hearing, Petitioner presented the testimony of Ronald Harris, D.C., who was accepted as an expert in chiropractic medicine, utilization review, quality assurance, and as an
expert medical advisor; Anna Ohlson, R.N., an employee of the Agency's reimbursement dispute resolution section; Donna Reynolds, R.N., the Agency employee who issued the August 24, 2001, determination letter; and Mollie Frawley, R.N., who was
accepted as an expert in utilization review and quality assurance. Petitioner also presented the deposition testimony of Gene Jenkins, Jr., D.C. (Exhibit P11); Joseph Costello, Jr., D.C. (Exhibit P12); and James Barringer, D.C. (Exhibit P13). Petitioner's Exhibits P1 through P13 were received into evidence. The undersigned sustained Respondent's relevance
objection to Petitioner's Exhibit P14, the deposition testimony of Robert A. Buchholz, M.D.; that exhibit was not received into evidence, but it is included as part of the record which is being transmitted to the Agency with this Recommended Order.
At the hearing, Respondent presented the testimony of Paul Vogel, D.C., and Randolph Harding, D.C., the EMAs used by the Agency in this case. Dr. Vogel was accepted as an expert in chiropractic medicine, and Dr. Harding was accepted as an expert in chiropractic medicine and as an expert medical advisor.
Respondent also presented the testimony of Dr. Selley and Donna Reynolds, R.N. Ms. Reynolds was accepted as an expert in utilization review and quality assurance management.
Respondent's Exhibits R1 through R19 were received into evidence.
Over Respondent's objection, the undersigned took official recognition of a September 1993 report prepared by the Senate Select Committee on Commerce and the Senate Select Committee on
Workers' Compensation Reform entitled "Florida Workers' Compensation Reform" (Select Committee Report).
The Transcript of the hearing was filed on July 10, 2002.
At the conclusion of the hearing, the parties agreed to file their proposed recommended orders within 10 days after the transcript was filed. See Rule 28-106.216, Florida Administrative Code. However, the Agency subsequently requested, and the parties were granted an extension of time to August 2, 2002, to file their proposed recommended orders.
Petitioner timely filed its Proposed Recommended Order on that date. Respondent did not file its Proposed Recommended Order until August 5, 2002. The parties' Proposed Recommended Orders were considered by the undersigned in preparing this Recommended Order.
FINDINGS OF FACT
Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made:
Background
On May 23, 1990, M. H. (hereafter "Claimant")2 suffered an injury to his lower back while moving a compressor at the construction site where he was working. The nature of the injury was a lumbosacral strain.
The Claimant sought workers' compensation benefits for the injury, and on January 8, 1991, the judge of compensation claims (JCC) approved a stipulated settlement of the Claimant's workers' compensation claim. The settlement released the employer and the carrier from liability for future payments of compensation "other than future medical expenses."
The settlement agreement stated that the Claimant attained maximum medical improvement (MMI) on August 31, 1990, "as per Dr. Phillip Appleton," a chiropractor. The settlement agreement further stated that "[f]or purposes of this Stipulation and Joint Petition, it is stipulated that the Claimant has a qualifying permanent partial impairment of the body as a whole of approximately 5%."
The Claimant subsequently sought care from another chiropractor, Dr. Lana Perkins. Dr. Perkins first treated the Claimant in October 1990. Dr. Perkins placed the Claimant at MMI on March 12, 1991, with a zero percent permanent partial impairment rating. Nevertheless, the Claimant continued to seek (and Petitioner apparently continued to pay for) chiropractic care from Dr. Perkins through September 1992.
After Dr. Perkins, the Claimant received (and Petitioner apparently paid for) treatment from another chiropractor, Dr. Dale Turner. Dr. Turner treated the Claimant from November 1992 to June 1995.
When Dr. Turner retired in 1996, Dr. Selley took over the chiropractic treatment of the Claimant. By that time, the Claimant had received more than 80 chiropractic treatments from his previous chiropractors.
Treatment of the Claimant by Dr. Selley
On March 12, 1996, Dr. Selley received formal authorization from Petitioner to treat the Claimant. As of the date of the hearing, Dr. Selley was still authorized to treat the Claimant. He has never been de-authorized by Petitioner.
"Authorization" requires Petitioner to reimburse
Dr. Selley for his treatment of the Claimant, but only if such treatment is medically necessary.
Dr. Selley first saw the Claimant on March 20, 1996, at which time he conducted a physical examination of the Claimant and reviewed x-rays taken by Dr. Turner in June 1995.
Dr. Selley diagnosed the cause of the Claimant's ongoing back pain as muscle inflammation in conjunction with dysfunctional joints or, more specifically, "chronic joint dysfunction subluxation complex of L5 and lumbar myofascitis associated with lumbalgia [sic]."
Dr. Selley attributed this condition to the Claimant's 1990 accident, and identified the following treatment plan for the Claimant:
I will treat this patient utilizing chiropractic adjustments and physical therapy on an as needed (prn) basis. I will instruct the patient to call for an appointment if he experiences an episode of pain that does not resolve within a couple of days of home care. I will instruct him to continue with his home exercises.
Dr. Selley treated the Claimant very infrequently between 1996 and 1999. Specifically, he saw the Claimant on seven occasions in 1996, one occasion in 1997, three occasions in 1998, and seven occasions in 1999.
The frequency of treatment increased dramatically in 2000 and 2001. Dr. Selley saw the patient 47 times in 2000 and
28 times in 2001.
Dr. Selley's office notes do not include any objective findings to explain the dramatic increase in treatment. Nor do the office notes identify any particular event that may have triggered the Claimant's need for greatly increased treatment.
Each of Dr. Selley's office notes include the notation PRN, which means that the Claimant should return on an "as needed" basis. That plan is consistent with the concept of palliative care, which is treatment intended to mitigate the conditions, effects, or pain of an injury, rather than treatment intended to rehabilitate the patient.
The treatment rendered by Dr. Selley between 1996 and 1999 is consistent with a PRN plan. During that period,
Dr. Selley often did not see the Claimant for months at a time.
By contrast, the chronology of treatment reflected in Dr. Selley's office notes for 2000 and 2001 strongly suggests that despite the PRN notations, the Claimant was actually being scheduled for follow-up appointments rather than being seen on an "as needed" basis. For example, the Claimant saw Dr. Selley on the same day(s) of the week -- i.e., Monday and Wednesday, or Tuesday and Thursday – for weeks at a time.
Regularly scheduled appointments are not consistent with the concept of palliative care.
At each appointment (including the specific dates of service at issue in this proceeding), the treatment rendered by Dr. Selley was "lumbar, lumbosacral and sacropelvic adjustments and joint mobilization along with EMS to the lumbar musculature and pulsed ultrasound to the lower back." Dr. Selley continued this same course of treatment throughout 2000 and 2001 despite the fact that the Claimant's symptoms did not show any significant improvement as evidenced by the increasing frequency of the treatments.
The Agency's August 24, 2001, determination letter (discussed below) concluded that the course of treatment rendered by Dr. Selley was not medically necessary after
March 28, 2001, because of its ineffectiveness. However, the weight of the evidence presented at the hearing demonstrates that Dr. Selley should have, in the words of one of the EMAs (Randolph Harding, D.C.), "thrown in the towel" on this course of treatment much sooner than that date.
The burden is on Dr. Selley to demonstrate, through objective findings in his records, the reason that he continued to provide the same treatment to the Claimant despite its ineffectiveness. Dr. Selley's records failed to include such objective findings and, hence, failed to demonstrate medical necessity of the treatment he provided, including the treatment provided on the disputed dates of service.
Objective findings are particularly important where, as here, the Claimant has reached MMI because MMI is the point at which additional remedial care is of no benefit to the patient. In order to justify additional remedial care, the provider would have to objectively find that the patient has had some type of exacerbation or injury that necessitates additional treatment to return the patient to the level he or she had attained at MMI. No such findings appear in Dr. Selley's records for 2000 and 2001.
Objective findings are also important in the context of palliative care, which is how Dr. Selley and the Agency characterize the disputed services. Where, as here, the
treatments are not achieving the goals of palliative care, objective findings are necessary to justify continuing the ineffective care in lieu of pursuing another course of treatment. As Dr. Harris testified (paraphrasing Dr. Harding), if the patient is not benefiting from the course of treatment in a palliative care situation yet the doctor continues to treat, "the doctor is the one being helped not the patient."
Petitioner's Utilization Review
Utilization review is an evaluation of the appropriateness of both the level and quality of health care rendered to a patient. The primary purpose of utilization review, both generally and in the workers' compensation context, is to contain health care costs.
In the workers' compensation context, insurance companies such as Petitioner are statutorily required to review all bills, invoices, and other claims for payment submitted by health care providers to identify overutilization and billing errors. Such utilization review can be characterized as either retrospective review (because the treatment has already been rendered) or concurrent review (because payment has not yet been made).
Utilization review is conducted through a review of the provider's clinical records. That is what occurred in both Petitioner's internal review pursuant to Section 440.13(6),
Florida Statutes, and the review by the EMAs selected by the Agency in connection with the dispute under Section 440.13(7), Florida Statutes.
When performing a utilization review, it is critical that the reviewers have all of the pertinent records. A review of inadequate or incomplete records is an inadequate or incomplete review.
Petitioner first conducted a utilization review of Dr. Selley's treatment of the Claimant in 1998.
The utilization review was conducted through an independent medical examination and clinical record review by James Barringer, D.C., and a clinical record review by
Dr. Harris. Petitioner provided all of the Claimant's medical records (including the records of the chiropractors who treated the Claimant prior to Dr. Selley) to Dr. Barringer and
Dr. Harris.
Dr. Barringer concluded that the Claimant's continuing back pain was not related to the 1990 accident. Instead,
Dr. Barringer was of the opinion that "the patient's problems are solely related to the arthritis and due to the multiple other injuries that he has had." Accordingly, in his report dated February 24, 1998, Dr. Barringer stated "I don't feel that any further treatment is clinically necessary or related to the work accident of 5/23/90."
By contrast, Dr. Harris concluded that although the Claimant could have strained his back in a new injury,
Dr. Selley had provided the minimal objective documentation to support his continued treatment of the Claimant as being related to the accident. In his April 10, 1998, report, Dr. Harris stated that the treatment rendered by Dr. Selley in 1996 and 1997 "was both reasonable and medically necessary in relation to the 5/23/90 accident."
Despite Dr. Barringer's opinion, Petitioner continued to allow Dr. Selley to treat the Claimant.
In late 2000 or early 2001, Petitioner initiated another utilization review of Dr. Selley's treatment of the Claimant.
The utilization review consisted of a clinical record review by Dr. Harris and Joseph Costello, D.C. Petitioner provided all of the Claimant's medical records (including the records of the chiropractors who treated the Claimant prior to Dr. Selley) to Dr. Harris and Dr. Costello.
In his report dated January 23, 2001, Dr. Costello concluded:
Based upon my review of the records provided, it is my opinion that initially the chiropractic care furnished to this patient by Dr. Selley appears to have been provided on a rather conservative and isolated basis through 1999. I must, however, state that his complaints evidently
changed, as per the records of Dr. Selley beginning on Monday, March 31, 1997. Since that time, there are complaints indicating radiation into his left lower extremity. It is my opinion after reviewing all records provided, that these new complaints do not appear to be directly, nor causally attributed to his original work comp [sic] injury of May 23, 1990. It is therefore my opinion that the aggressive treatment furnished to this patient in the year 2000 does not appear to be necessary, reasonable, nor related in connection to the work comp [sic] injury of May 23, 1990. It is therefore my conclusion that this treatment would be construed to be excessive and not medically necessary, nor reasonable in connection to the work comp [sic] injury of May 23, 1990.
In his report dated February 16, 2001, Dr. Harris reached the opposite conclusion than he reached in his 1998 report. He concluded that Dr. Selley provided insufficient objective evidence to support his continued course of treatment for the Claimant. Accordingly, Dr. Harris opined:
Dr. Selley has failed to demonstrate the causal relationship between the ongoing symptoms and the accident of 5-23-90. More importantly, he has failed to demonstrate there is a medical need for his care based upon objective evidence which causes the findings to be greater than the 5% [impairment rating] ascribed to this patient previously. Therefore, . . . all the treatment in the calendar year 2000 is both unreasonable and medically not necessary as it relates to the accident of May 23, 1990.
By letter dated February 9, 2001, Petitioner informed Dr. Selley of the results of its utilization review. Specifically, the letter informed Dr. Selley that:
Based upon the [Petitioner's] utilization review investigation and the peer review reports, [Petitioner] has a reasonable basis to conclude overutilization and improper utilization as it relates to your treatment of this claimant. Based upon the reports, it appears your treatment has been provided at inappropriate levels of service and the prolonged period of treatment that you have provided was not medically necessary as it relates to [the] industrial accident.
Additionally, some of the bills submitted may not have been submitted in a timely fashion.
The letter emphasized that Dr. Selley was not de- authorized, but it informed him that Petitioner intended to "review [his] medical bills and disallow specific bills based upon [Petitioner's] investigation . . . ." The letter offered Dr. Selley the opportunity to resolve the dispute through negotiation with Petitioner. The record does not reflect whether Petitioner and Dr. Selley attempted to negotiate a resolution of this matter, but if they did their efforts were
not successful.
Notices of Disallowance
On February 12, 2001, Petitioner sent Dr. Selley a Notice of Disallowance (First Notice), which Dr. Selley received on February 19, 2001. The First Notice informed Dr. Selley that
Petitioner disallowed and would not pay for the service rendered by Dr. Selley to the Claimant on the following dates:
November 7, 14, and 16, 2000; and January 23, 2001. However, Petitioner subsequently reimbursed Dr. Selley for all of those dates of service except January 23, 2001.
The First Notice also informed Dr. Selley that Petitioner would reimburse him for the services rendered to the Claimant on January 19, 2001, despite Petitioner's belief that the treatment rendered on that date was excessive, unreasonable, and not medically necessary. However, as of the date of the hearing, Petitioner had not reimbursed Dr. Selley for that date of service.
On March 6, 2001, Petitioner sent Dr. Selley a second Notice of Disallowance (Second Notice), which Dr. Selley received on March 9, 2001. The Second Notice informed
Dr. Selley that Petitioner disallowed and would not pay for the service rendered by Dr. Selley to the Claimant on the following dates: January 29, 2001, and February 20, 2001.
The Second Notice also informed Dr. Selley that Petitioner would reimburse him for the services rendered to the Claimant on February 2, 2001, despite Petitioner's belief that the treatment rendered on that date was excessive, unreasonable, and not medically necessary. However, as of the date of the
hearing, Petitioner had not reimbursed Dr. Selley for that date of service.
On March 15, 2001, Petitioner sent Dr. Selley a third Notice of Disallowance (Third Notice), which Dr. Selley received on March 20, 2001. The Third Notice informed Dr. Selley that Petitioner disallowed and would not pay for the service rendered by Dr. Selley to the Claimant on the following dates:
November 28, 2000, and December 14, 2000.
The Third Notice also informed Dr. Selley that Petitioner would reimburse him for the services rendered to the Claimant on December 5, 2000, despite Petitioner's belief that the treatment rendered on that date was excessive, unreasonable, and not medically necessary. Petitioner subsequently reimbursed Dr. Selley for that date of service.
The treatment provided on each of the dates of service in dispute, as set forth in Dr. Selley's office notes, was "lumbar, lumbosacral and sacropelvic adjustments and joint mobilization along with EMS to the lumbar musculature and pulsed ultrasound to the lower back." Except for the December 14, 2000, date of service, the amount billed by Dr. Selley on each date was $82.00. The maximum reimbursement allowed under the workers' compensation fee schedule for those services is $41.60.
The amount billed on December 14, 2000, was $100.00 because another service (procedure code 99070 EM) was
purportedly rendered on that date in addition to those services which were rendered on the other dates in dispute. The amount billed for the additional service was $18.00. The record does not reflect what procedure code 99070 EM means, nor does it reflect the maximum reimbursement amount for that service under the workers' compensation fee schedule.
Dr. Selley's office note for December 14, 2000, does not describe the additional service. The description of the treatment rendered on that date is identical to the description of the treatment rendered on the other dates of service in dispute. Accordingly, there is insufficient evidence to justify the additional $18.00 charge for the December 14, 2000, date of service.
At the hearing, Dr. Selley testified that he had not been reimbursed by Petitioner for the following additional dates of service: February 27, 2001; March 15 and 28, 2001; April 10, 2001; May 3 and 29, 2001; June 13, 19, 21, and 25, 2001; and July 13, 2001. However, the parties stipulated (and Dr. Selley acknowledged) that the dates beyond March 28, 2001, are not at issue in this proceeding. The record does not include any evidence relating to the dates of service after March 28, 2001.
To summarize, the dates of service and amounts still in dispute in this proceeding are:
Date | Amount Billed | Maximum Reimbursement | |||
Nov. | 28, | 2000 | $ 82.00 | $ 41.60 | |
Dec. | 14, | 2000 | $ 100.00 | $ 41.60 | |
Jan. | 19, | 2001 | $ 82.00 | $ 41.60 | |
Jan. | 23, | 2001 | $ 82.00 | $ 41.60 | |
Jan. | 29, | 2001 | $ 82.00 | $ 41.60 | |
Feb. | 2, 2001 | $ 82.00 | $ 41.60 | ||
Feb. | 20, | 2001 | $ 82.00 | $ 41.60 | |
Feb. | 27, | 2001 | $ 82.00 | $ 41.60 | |
Mar. | 15, | 2001 | $ 82.00 | $ 41.60 | |
Mar. | 28, | 2001 | $ 82.00 | $ 41.60 | |
$838.00 | $416.00 | ||||
49. | The | record | does not include | any | evidence to explain |
why Petitioner disallowed payment for these dates, but not others during this same time period. Nor does the evidence explain why Petitioner agreed to pay for certain dates of service despite its affirmative determination that the services rendered were unreasonable and not medically necessary.
Dr. Selley "Petitions" the Agency Under Section 440.13(7)
Dr. Selley responded to the First Notice by letter dated March 16, 2001, and responded to the Second and Third Notices by letter dated April 3, 2001.
Both letters were addressed to Petitioner. Copies of the letters were sent to Petitioner's attorney and the Agency.
The March 16, 2001, letter was sent by certified mail to all of the recipients. The record does not reflect whether the April 3, 2001, letter was sent by certified mail.
The March 16, 2001, letter included the office notes prepared by Dr. Selley relating to the treatment rendered on each occasion that he saw the Claimant between March 20, 1996, and February 27, 2001.
The April 3, 2001, letter included copies of
Dr. Selley's office notes through March 15, 2001, and also included copies of the HCFA forms and billing information related to the disputed dates of service.
The Agency treated Dr. Selley's letters as "petitions" under Section 440.13(7), Florida Statutes. Petitioner sent several letters to the Agency in which it asserted that the "petitions" failed to meet the requirements of Section 440.13(7)(a), Florida Statutes, and therefore should be dismissed. The Agency did not formally respond to those letters, nor did the Agency notify Petitioner of its determination that Dr. Shelley's "petitions" were valid.
After learning that the Agency had accepted
Dr. Selley's "petitions" as valid and that it had referred them to EMAs for review, Petitioner sent the Agency a notebook
containing the records of the chiropractors who treated the Claimant prior to Dr. Selley as well as the peer review reports obtained by Petitioner in the course of its utilization review. The Agency did not forward those materials to the EMAs.
Referral to the EMAs
When the Agency determines that a medical opinion is necessary to assist in resolving a reimbursement dispute, it initially refers the matter to two EMAs. If the opinions of those EMAs are inconsistent with each other, the Agency refers the matter to a third EMA who serves as a "tie-breaker." A third EMA was not used in this case.
The Agency (through Donna Reynolds) determined that it was necessary to refer this matter to EMAs in order to assess the adequacy of Dr. Selley's records in light of Petitioner's claim of overutilization.
Ms. Reynolds did not consider using a peer review committee because she considered this case to be a reimbursement dispute, albeit a reimbursement dispute involving a claim of overutilization.
At the request of Ms. Reynolds, Agency employee Sharon Ringo searched the Agency's computer database of EMAs for chiropractors with similar specialties as Dr. Selley. Through that search, Ms. Ringo identified Paul Vogel, D.C., and
Dr. Harris as potential EMAs.
Ms. Reynolds contacted Dr. Vogel and Dr. Harris to determine whether they would be willing to serve as EMAs in this case.
Dr. Vogel accepted, and on May 17, 2001, Ms. Reynolds forwarded him copies of the records submitted to the Agency by Dr. Selley as well as the stipulation approved by the JCC in 1991, a copy of Section 440.13, Florida Statutes, and a copy of the Agency's EMA rules. The materials provided to Dr. Vogel by the Agency did not include any records from the Claimant's prior chiropractors except Dr. Turner.
Dr. Harris declined to serve as an EMA because of his prior review of Dr. Selley's records for Petitioner.
Accordingly, Ms. Reynolds asked Ms. Ringo to search the Agency's computer database for another potential EMA. Through that search, Ms. Ringo identified Randolph Harding, D.C.
Ms. Reynolds then contacted Dr. Harding to determine whether he would be willing to serve as an EMA in this case.
Dr. Harding accepted, and on June 19, 2001,
Ms. Reynolds forwarded him copies of the records submitted to the Agency by Dr. Selley as well as the stipulation approved by the JCC in 1991, a copy of Section 440.13, Florida Statutes, and a copy of the Agency's EMA rules. The materials provided to Dr. Harding by the Agency did not include any records from the Claimant's prior chiropractors except Dr. Turner.
The Agency notified Petitioner of its selection of the EMAs on the same date that it sent the records to the EMAs. (The substance of the letters sent to Petitioner is more fully discussed below.)
The letters sent to Dr. Vogel and Dr. Harding by the Agency explained the scope of their review as follows:
The review of the Expert Medical Advisor should focus on answering the question of whether the treatment that was rendered by Dr. Selley to this injured worker is consistent with the accepted standard of medically necessary treatment and delivered in a manner that would be consistent with the Workers' Compensation Law. If the treatment is not judged to be consistent with the definition, the date after which treatment is not deemed to be medically necessary. [sic]
Petitioner "Petitions" Agency Under Section 440.13(8)
By letter dated June 18, 2001, Petitioner requested the Agency to "address a pattern and practice of overutilization" by Dr. Selley in connection with his treatment of the Claimant. The letter summarized the conclusions of the peer review reports obtained by Petitioner from Dr. Barringer, Dr. Harris, and Dr. Costello. The letter requested that the Agency "make a final determination in accordance with Section 440.13(8)(a), and requests penalties as provided by [Section] 440.13(8)(b), Florida Statutes."
The letter was accompanied by the notebook referenced above which contained the records from the Claimant's prior chiropractors as well as the peer review reports prepared for Petitioner as part of its utilization review process. As noted above, the Agency did not forward this information to the EMAs.
Dr. Selley responded by letter dated July 17, 2001.
In that letter, he detailed his treatment of the Claimant and expressed a desire to file a complaint with the Agency against Petitioner based upon "the arbitrary and unreasonable manner in which the carrier has been acting."
The record does not reflect what action, if any, the Division took on Petitioner's letter and Dr. Selley's response. The wording of the Agency's August 24, 2001, determination letter (set forth below) and the fact that the Agency did not forward the notebook provided by Petitioner to the EMAs suggests that the Agency resolved the Section 440.13(8) issue without the input of the EMAs.
The EMAs' Reports
Dr. Vogel submitted his report to the Agency on June 11, 2001 (25 days after he was sent the materials by the Agency). The report provides in pertinent part:
A review of [Dr. Selley's] medical report and daily treatment (patient care notes) would indicate that he rendered treatment which was consistent with Florida Workers' Compensation Law. The services appeared to
be documented by the data presented. The diagnosis appeared to conform to the back complaints presented and examination performed. His patient care notes are proper, utilizing the accepted S.O.A.P. procedure and further indicating that the patient previously received a PPI rating of 5% and additionally he was being treated PRN with no scheduled appointments.
Accordingly, Dr. Vogel was of the opinion that
"Dr. Selley rendered treatment within the parameters consistent with the Florida [Workers'] Compensation Law." Dr. Vogel reaffirmed his opinion through his testimony at the hearing.
Also on June 11, 2001, Dr. Vogel submitted an "addendum" to his report to the Agency. The "addendum" was provided for "informational purposes only" and addresses issues well beyond the scope of this proceeding (e.g., the wisdom of Petitioner's decision to enter into the settlement in the first instance). Accordingly, no weight is given to the "addendum."
At some point thereafter, Petitioner directly provided Dr. Vogel a more comprehensive set of the Claimant's medical records, including the clinical records from all of the Claimant's prior chiropractors as well as the peer review reports from Dr. Barringer, Dr. Harris, and Dr. Costello.
Dr. Vogel testified at the hearing that those records did not change the opinion he provided in his June 11, 2001, report to the Agency. In his view, the Claimant's prior treatment history was not relevant; instead, the relevant
consideration is simply whether the treatment rendered by Dr. Selley was appropriate to the complaint presented by the Claimant on each occasion. As discussed elsewhere in this Recommended Order, Dr. Vogel's view is both legally and factually too narrow and is therefore rejected.
Dr. Harding submitted his report to the Agency on July 20, 2001 (32 days after he was sent the materials by the Agency). The report provides in pertinent part:
The initial examination of 3/20/96 performed by Dr. Selley does not reflect any significant positive physical findings to suggest progressive injury or active disease process. Review of the daily clinical notes does not record any positive neurological findings to indicate sensory or motor loss or other physical findings to indicate progressive injury. The visit on 2/20/01 appears to be an exacerbation of increased severity, however no significant neurological findings are reported. The physical findings at the follow up visits are typical of previous visits. Typically this patient presented with findings of tightness and tenderness upon palpation of the lumbar spine.
It is my opinion, based on the clinical records reviewed, this patient is no longer responding to chiropractic treatment. [The Claimant] has continued to treat approximately once a week for over 15 months and there is no significant change in the overall symptom pattern or subjective complaints. No significant objective findings are present to explain the patient's ongoing subjective complaints.
Continued failure of this patient to respond to chiropractic treatment for exacerbation of his symptoms after 15 months of care
should result in patient discharge and other forms of treatment or management should be considered.
(emphasis supplied).
Despite those comments, Dr. Harding's report concludes with the following opinion:
[T]he care rendered through 3/28/01 was medically necessary . . . . The treatment rendered through 3/28/01 appears to be consistent with the accepted standard of medically necessary treatment and delivered in an appropriate manner consistent with Florida's Worker's Compensation Law.
Treatment beyond 3/28/01, in my opinion, is not reasonable or medically necessary and is not consistent with the accepted standards.
Dr. Harding reaffirmed his opinion through his testimony at the hearing. However, neither his report nor his testimony (nor the testimony of the other chiropractic experts) established a medical or chiropractic basis of the March 28, 2001, date he chose as the cut-off for medical necessity.
Unlike Dr. Vogel, Dr. Harding conceded at the hearing that the Claimant's prior chiropractic treatment – both its type and its frequency -- is "significant" information which could have affected his opinion. The importance of reviewing the Claimant's complete treatment history in evaluating the disputed dates of service was reaffirmed through the testimony of
Dr. Harris, Dr. Costello, Dr. Barringer, and Gene Jenkins, D.C.
(from a chiropractic perspective), and by Mollie Frawley (from a utilization review perspective).
Petitioner provided Dr. Harding the same set of records that it provided Dr. Vogel (and its expert witnesses), but Dr. Harding did not review those records in formulating his report. In light of Dr. Harding's concession about the potential significance of the Claimant's treatment history, his failure to consider those records undermines the credibility of the opinions expressed in his report and his testimony at the hearing.
Neither the EMAs nor the Agency provided copies of the reports to Petitioner after their preparation. The record does not reflect how or when Petitioner received copies of the EMAs' reports.
The EMAs did not collaborate with each other in their review of the Dr. Selley's records or the preparation of their reports. In this regard, the EMAs functioned differently than a "peer review committee" and (contrary to a legal argument made by Respondent at the outset of this proceeding) the Agency witnesses who testified at the hearing did not consider the EMAs to be such a committee.
Peer review committees were used by the Agency prior to 1994 to resolve disputes involving medical necessity of treatment in the workers' compensation context. The committee
consisted of three to five doctors with similar licenses and specialties as the doctor under review. The committee would hear cases and develop a consensus recommendation to the Agency based upon the discussion and debate amongst the members of the committee. This process allowed for resolution of divergent opinions of the reviewers and resulted in a uniform opinion and report upon which the Agency could act. The Agency, not the carrier, was responsible for the fees of the doctors who served on the peer review committee.
Agency's Determination Letter
After receiving the EMAs' reports, Ms. Reynolds reviewed them for consistency. She determined that they were consistent even though Dr. Harding identified a date after which continued treatment was not medically necessary and Dr. Vogel did not identify such a date.
Thereafter, Ms. Reynolds prepared the Agency's determination letter based upon her synthesis of the EMAs' reports. The determination letter, dated August 24, 2001, provided in pertinent part:
Based upon the review of the peer review opinions, the [Agency] finds that the documentation of care rendered by Dr. Selley for these cited dates and through March 28, 2001 was medically necessary and related to the workers' compensation accident of
May 23, 1990.
Therefore, the [Agency] has determined that there is not a pattern or practice of overutilization and finds that the insurer has disallowed payment improperly. The insurer shall reimburse Dr. Selley for the treatment previously cited as disallowed within thirty (30) days of receipt of this notification and shall report the date and amount of the payments made.
Treatment beyond March 28, 2001, however, does not appear to be reasonable or medically necessary and is not consistent with the accepted standards as documentation supports that this patient is no longer responding to the chiropractic treatment offered. There is no significant change in the overall symptom pattern or subjective complaints. Additionally, there are no objective findings present to explain the patient's ongoing subjective complaints.
Continued failure of the patient to respond to chiropractic treatment for exacerbations of his symptoms after 15 months of care should result in consideration of other forms of treatment or management.
(emphasis supplied).
The letter was sent by certified mail to Petitioner and Dr. Selley, and it was received by each of them on
August 27, 2001.
The August 24, 2001, letter included the notice required by Chapter 120, Florida Statutes, and the Uniform Rules Procedure that "a party substantially affected by this determination has a right to request a hearing."
Payment of EMAs
As noted above, the Agency informed Petitioner by letters dated May 17, 2001, and June 19, 2001, that it had referred Dr. Selley's "petitions" to Dr. Vogel and Dr. Harding, respectively, to "perform a peer record review" as EMAs pursuant to Section 440.13(9), Florida Statutes.
The letters informed Petitioner that it would be required to pay the EMAs' fees. With respect to the timing of that payment, the letters stated:
Upon receipt of the EMA invoices and copies of the reports, the carrier shall reimburse the EMAs within 45 days pursuant to rule 38F-54.008, Florida Administrative Code (F.A.C.). Reimbursement by the carrier for EMA services shall not exceed $200 per hour or a maximum reimbursement of $1600 per case. Pursuant to s. 440.13(9)(f), Florida Statutes (F.S.), the division may assess a penalty not to exceed $500.00 against any carrier that fails to timely compensate an EMA. No further action is required until you receive the division's final determination letter regarding the reimbursement dispute.
(emphasis supplied).
Thus, Petitioner's obligation to pay the EMAs' fees did not mature until the Agency issued its determination letter on August 24, 2001.
The record does not include the EMAs' invoices, nor does it reflect whether Petitioner has paid the EMAs.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings (DOAH) has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), 440.13(11)(c), and 440.44(8), Florida Statutes. (All references to Sections and Chapters are to the Florida Statutes (2001), as amended by Chapters 2002-194 and 2002-236, Laws of Florida. All references to Rules are to the Florida Administrative Code.).
Respondent argued at the outset of this proceeding that DOAH lacks jurisdiction over this dispute. Respondent's jurisdictional argument was rejected in detailed Orders dated February 1, 2002 (original Order), and February 11, 2002 (Order denying Respondent's motion for reconsideration). The substance of those Orders will not be repeated here because Respondent has apparently abandoned its jurisdictional argument. In its pre- hearing statement, and again in its Proposed Recommended Order, Respondent acknowledged that DOAH has jurisdiction.
Respondent's current legal position on this issue is consistent with its Final Order in Wyatt Brothers Construction Co. v. Dept. of Labor & Employment Security,3 and well-settled case law from the First District Court of Appeal. See Beasley
v. M & E Pieco, 678 So. 2d 519 (Fla. 1st DCA 1996) (Division of Workers' Compensation, not the Judge of Compensation Claims, has
jurisdiction to resolve overutilization disputes); Furtick v. William Shults Contractor, 664 So. 2d 288, 290 (Fla. 1st DCA 1995)(same), rev. denied, 673 So. 2d 29 (Fla. 1996), cert. denied, 519 U.S. 863 (1996); Terners of Miami Corp. v.
Freshwater, 599 So. 2d 674 (Fla. 1st DCA 1992)(en banc)(same); Lamounette v. Akins, 547 So. 2d 1001, 1003 (Fla. 1st DCA 1989) ("[W]e find that the statute [governing reimbursement disputes between the employer/carrier and physician] requires proceedings in accordance with chapter 120."). And cf. Section 440.44(8) ("In the exercise of [its] duties and functions requiring administrative hearings, [the Agency] shall proceed in accordance with the Administrative Procedure Act.").
Nature of This Proceeding
This proceeding, like all other proceedings conducted under Section 120.57(1), is de novo in nature. See Section 120.57(1)(k). Contrary to the position advocated by Respondent at the outset of this proceeding, the purpose of this proceeding is to formulate final agency action, not to simply review the preliminary/proposed agency action embodied in the August 24, 2001, determination letter. See, e.g., Dept. of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 785-87 (Fla. 1st DCA 1981) (citing McDonald v. Dept. of Banking & Fin., 346 So. 2d 569 (Fla. 1st DCA 1977)); Wyatt Brothers Recommended Order, at 27- 28.
Burden of Proof
Generally, unless there is a statute which provides otherwise, the party asserting the affirmative of an issue has the burden of proof. See J.W.C. Co., 396 So. 2d at 788; Balino v. Dept. of Health and Rehabilitative Servs., 348 So. 2d 349 (Fla. 1st DCA 1977).
The August 24, 2001, letter included two distinct but closely-related agency actions. The first was the agency action on the reimbursement dispute initiated by Dr. Selley under Section 440.13(7), and the second was the agency action on the letter submitted by the Petitioner under Section 440.13(8) alleging a pattern or practice of overutilization by Dr. Selley. However, on May 9, 2002, Petitioner "withdrew" its challenge to the Agency's determination on the Section 440.13(8) issue, thereby leaving only the Section 440.13(7) issue.
On the Section 440.13(7) issue, it was Dr. Selley who petitioned the Agency for affirmative relief and agency action, i.e., a determination that the Petitioner improperly disallowed payment. See Section 440.13(7)(a), (c). The August 24, 2001, letter reflects the Agency's preliminary determination granting Dr. Selley the relief he requested.
In this regard, Dr. Selley is akin to the permit applicant in J.W.C. Co. and Petitioner is akin to the third- party in J.W.C. Co. that was contesting the notice of intent
issued by the agency in that case. Thus, the following discussion in J.W.C. Co. is instructive and supports the conclusion in Wyatt Brothers that the provider (here,
Dr. Selley4) has the ultimate burden of persuasion in this proceeding:
[W]here a notice of intent has been issued, we can conceive of no more orderly way for a formal hearing to be conducted than to have the applicant (who has the ultimate burden of persuasion) first present a "prima facie case." The hearing officer is not required to commence hearing the petitioning objector's evidence in such a proceeding with a blank record. We think it is essential, both for the benefit of the hearing officer and the petitioning objectors (to say nothing of the agency, and the appellate court) to have on record a basic foundation of evidence pertaining to the application so that the issues can be understood, and so that evidence directed to these issues by the petitioning objectors can be properly evaluated. At the very minimum, this preliminary showing should include the application, and the accompanying documentation and information relied upon by the agency as a basis for the issuance of its notice of intent. To what extent it would be advisable or necessary for this preliminary presentation by the applicant to be further expanded would depend, to a large extent, on the nature of the objections raised by the petitioners requesting a hearing.
* * *
Being somewhat more specific, as a general proposition a party should be able to anticipate that when agency employees or officials having special knowledge or expertise in the field accept data and
information supplied by the applicant, the same data and information, when properly identified and authenticated as accurate and reliable by agency or other witnesses, will be readily accepted by the hearing officer, in the absence of evidence showing its inaccuracy or unreliability. We emphasize again, however, that once a formal hearing is requested, there is no "presumption of correctness" in the mere fact that in preliminary proceedings the Department has issued its "notice of intent" to issue the permit that would relieve the applicant of carrying the "ultimate burden of persuasion."
* * *
[N]o third party, "merely by filing a petition," should be permitted to require the applicant to "completely prove anew" all items in a permit application down to the last detail. The petitioner must identify the areas of controversy and allege a factual basis for the contention that the facts relied upon by the applicant fall short of carrying the "reasonable assurances" burden cast upon the applicant. The "burden of proof" is upon the petitioner to go forward with evidence to prove the truth of the facts asserted in his petition. If the petitioner fails to present evidence, or fails to carry the burden of proof as to the controverted facts asserted assuming that the applicant's preliminary showing before the hearing officer warrants a finding of "reasonable assurances" then the permit must be approved. In making this preliminary showing of "reasonable assurances" before the hearing officer, the applicant is required to provide credible and credited evidence of his entitlement to the permit. This having been done, the hearing officer would not be authorized to deny the permit unless contrary evidence of equivalent quality is presented by the opponent of the permit.
J.W.C. Co., 396 So. 2d at 788-89. And see Wyatt Brothers Recommended Order, at 33.
Applying those standards in the context of a dispute under Section 440.13(7), the carrier has the initial burden (of pleading) to allege a factual basis for its contention that the information relied upon by the Agency in reaching its preliminary determination is insufficient to demonstrate that the disputed services did not constitute overutilization. Once that burden is met (and it was in this case), the burden of production is on the provider or, in his or her absence, the Agency to demonstrate that the information relied upon by the Agency in reaching its preliminary determination is accurate, reliable, credible, and credited evidence that the disputed services did not constitute overutilization. Such information will be sufficient to establish the provider's prima facie case in the absence of evidence showing its inaccuracy or unreliability.
If a prima facie case is established, the burden of production then shifts to the carrier to prove the truth of the facts asserted in its petition, and unless contrary evidence of equivalent quality is presented by the carrier demonstrating that the disputed services constitute overutilization, then it will be concluded that the provider met its ultimate burden of persuasion.
The standard of proof is a preponderance of the evidence. See Section 120.57(1)(j).
Dr. Selley (through the Agency) failed to establish a prima facie case. The EMA reports relied upon by the Agency in reaching its preliminary decision were shown to be unreliable because the Agency failed to provide the EMAs all of the Claimant's chiropractic records, despite receiving that information from Petitioner. Accordingly, the EMAs had an incomplete view of the Claimant's treatment history which resulted in an incomplete review, as acknowledged by Dr. Harding and confirmed by the other expert witnesses.
Even if it was determined that a prima facie case was established, Dr. Selley (through the Agency) failed to meet his ultimate burden to show that the disputed services do not constitute overutilization. Specifically, the peer review reports and testimony of Dr. Harris, Dr. Barringer, Dr. Costello, and Dr. Jenkins, which were based upon a complete review of the Claimant's chiropractic treatment history, are more persuasive than the reports and testimony of the EMAs which were based upon incomplete records.
Moreover, as more fully discussed below, the weight of the evidence fails to demonstrate the medical necessity for the disputed dates of service. To the extent that the service rendered on those dates is considered remedial care,
Dr. Selley's records fail to include any objective findings to justify the treatment in light of the fact that the Claimant had previously reached MMI. To the extent that those services are considered palliative care, Dr. Selley's records fail to include any objective findings to justify the treatment rendered in light of its ineffectiveness.
Section 440.13(7) Dispute
Petitioner is required by Section 440.13(6) to "review all bills, invoices, and other claims for payment submitted by health care providers in order to identify overutilization and billing errors[.]" And cf. Rule 38F-7.523 (requiring carriers to have in-house utilization review plans to "identify utilization issues and initiate corrective action as early as possible")(repealed July 10, 2001). In compliance with the statutory mandate, Petitioner obtained peer review reports from Dr. Harris and Dr. Costello.
Based upon those reports, Petitioner was required to "disallow or adjust payment for such services [involving overutilization]." See Section 440.13(6). Petitioner did so through the three notices of disallowance,5 which Dr. Selley timely contested.6
Section 440.13(7) sets forth the policies and procedures for resolution of the dispute between Petitioner and Dr. Selley. Section 440.13(7) provides:
UTILIZATION AND REIMBURSEMENT DISPUTES.–
Any health care provider, carrier, or employer who elects to contest the disallowance or adjustment of payment by a carrier under subsection (6) must, within 30 days after receipt of notice of disallowance or adjustment of payment, petition the agency to resolve the dispute. The petitioner must serve a copy of the petition on the carrier and on all affected parties by certified mail. The petition must be accompanied by all documents and records that support the allegations contained in the petition. Failure of a petitioner to submit such documentation to the agency results in dismissal of the petition.
The carrier must submit to the agency within 10 days after receipt of the petition all documentation substantiating the carrier's disallowance or adjustment. Failure of the carrier to submit the requested documentation to the agency within
10 days constitutes a waiver of all objections to the petition.
Within 60 days after receipt of all documentation, the agency must provide to the petitioner, the carrier, and the affected parties a written determination of whether the carrier properly adjusted or disallowed payment. The agency must be guided by standards and policies set forth in this chapter, including all applicable reimbursement schedules, in rendering its determination.
If the agency finds an improper disallowance or improper adjustment of payment by an insurer, the insurer shall reimburse the health care provider, facility, insurer, or employer within 30 days, subject to the penalties provided in this subsection.
The agency shall adopt rules to carry out this subsection. The rules may include provisions for consolidating petitions filed by a petitioner and expanding the timetable for rendering a determination upon a consolidated petition.
Any carrier that engages in a pattern or practice of arbitrarily or unreasonably disallowing or reducing payments to health care providers may be subject to one or more of the following penalties imposed by the agency:
Repayment of the appropriate amount to the health care provider.
An administrative fine assessed by the agency in an amount not to exceed $5,000 per instance of improperly disallowing or reducing payments.
Award of the health care provider's costs, including a reasonable attorney's fee, for prosecuting the petition.
Petitioner originally alleged that the "petitions" filed by Dr. Selley with the Agency to contest the notices of disallowance failed to comply with Section 440.13(7)(a) in several respects. Subsequently, Petitioner "withdrew" its challenge to the validity of Dr. Selley's "petitions" on that ground.
Accordingly, it is unnecessary to determine whether Dr. Selley's "petitions" complied with Section 440.13(7)(a), and it is also unnecessary to determine whether the failure to comply with the requirements of that paragraph is a jurisdictional defect which precludes the Agency from
considering the provider's petition. See Section 440.13(7)(a) ("Failure of a petitioner to submit such documentation to the agency results in dismissal of the petition.") (emphasis supplied).
Similarly, the Agency stipulated at the hearing that it was not contesting Petitioner's compliance (or not) with Section 440.13(7)(b). Accordingly, it is unnecessary to determine whether Petitioner complied with that paragraph and it is also unnecessary to determine the consequences of the failure to comply. See Section 440.13(7)(b) ("Failure of the carrier to submit the requested documentation to the agency within 10 days constitutes a waiver of all objections to the petition.") (emphasis supplied).
In light of these stipulations, it is also unnecessary to determine whether the Agency is required to notify Petitioner of its decision to accept the provider's petition as valid. It would appear, however, that where the carrier timely objects to the sufficiency of the provider's petition, the Agency should formally address those objections and inform the parties (i.e., the provider and the carrier) of its decision. That notification would then trigger the carrier's obligation under Section 440.13(7)(b) to submit the documentation supporting the disallowance. Of course, if the carrier does not object to the sufficiency of the provider's
petition, the statute dictates the timeframe within which the carrier must submit its documentation.
Thus, this proceeding is limited to determining whether Petitioner "properly adjusted or disallowed payment." See Section 440.13(7)(c). In making that determination, the Agency and, hence, the undersigned "must be guided by standards and policies set forth in [Chapter 440], including all applicable reimbursement schedules . . . ." Id.
The legislative intent underlying Chapter 440 is that the workers' compensation system should be "efficient and self- executing" and that it should not be "an economic or administrative burden." See Section 440.015. Indeed, the Agency is specifically directed to "administer the Workers' Compensation Law in a manner which facilitates the self- execution of the system and the process of ensuring a prompt and cost-effective delivery of payments." Id. And see Section 440.44(2) ("It is the intent of the Legislature that [the Agency] assume an active and forceful role in its administration of [Chapter 440], so as to ensure that the system operates efficiently and with maximum benefit to both employers and employees."). The legislative intent in Sections 440.015 and 440.44(2) must be viewed in pari materia with the requirements of Section 440.13 which authorizes the Agency and mandates carriers to identify and take steps to prevent overutilization
in order to help contain costs in the workers' compensation system. See Section 440.13(6) and (11)(a). And cf. Rule 38F-
7.523 (repealed July 10, 2001); Select Committee Report, at 11-15, 112-13.
The basis upon which Petitioner disallowed payment was its determination that the bills at issue reflected overutilization and that the services rendered on the dates in dispute were not medically necessary. Those two concepts -- "overutilization" and "medically necessary" -- are closely related. See Wyatt Brothers Recommended Order, at 30-31.
"Utilization review" is the process used to determine whether overutilization exists; the process involves:
the evaluation of the appropriateness of both the level and the quality of health care and health services provided to a patient, including, but not limited to, evaluation of the appropriateness of treatment, hospitalization, or office visits based on medically accepted standards. Such evaluation must be accomplished by means of a system that identifies the utilization of medical services based on medically accepted standards as established by medical consultants with qualifications similar to those providing the care under review, and that refers patterns and practices of overutilization to the agency.
Section 440.13(1)(u) (emphasis supplied). And see Section 440.13(1)(l) (defining "instance of overutilization" to mean "a specific inappropriate service or level of service provided to an injured employee").
Similarly, "medically necessary" is defined as follows:
any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient's diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe. The service must not be of an experimental, investigative, or research nature, except in those instances in which prior approval of the Agency for Health Care Administration has been obtained.
Section 440.13(1)(m).
In Furtick, the Court explained that "[a]ny inquiry into medical necessity in this context [i.e., a reimbursement dispute under Section 440.13(7)] is generally limited to whether the care is appropriate to the diagnosis as within the range of reasonable practice parameters accepted by the doctor's peers." Furtick, 664 So. 2d at 291 (citing the definition of "medically necessary" in Section 440.13(1)(d) (1993)). The current definition of "medically necessary" (and hence the scope of this proceeding) is slightly more expansive than it was in 1993. The definition now requires the treatment to be appropriate to the patient's diagnosis and "status of recovery." See Section 440.13(1)(m).
The parties are in sharp disagreement regarding the records that are relevant and necessary to resolve this issue. The Agency argues that the only information necessary to determine whether a particular bill reflects overutilization is the provider's explanation of his or her evaluation of the Claimant and the provider's explanation of the treatment provided based upon that evaluation. By contrast, Petitioner argues that it is necessary to consider the Claimant's entire treatment history to understand the patient's status of recovery and to determine whether the treatment rendered on a particular date is appropriate for the patient. Petitioner's view is more consistent with the current definition of "medical necessity" (which now includes "appropriate to the . . . status of recovery"), and it is also supported by the weight of the expert testimony and other evidence in the record.
Specifically, Dr. Harris (an expert in chiropractic medicine and utilization review) testified that it is "essential" to know the patient's treatment history leading up to the specific dates of service at issue because "if you don't know where you have been . . . you are not going to have a good idea where you are going." He further testified that he would be at a disadvantage in conducting a utilization review with incomplete medical records. The deposition testimony
Dr. Jenkins (another expert chiropractor) was in accord.
Similarly, Ms. Frawley (an expert in utilization review) testified that it is "critical" and "essential" that the reviewing physician receive all of the relevant records because "a review of inadequate records is an inadequate review." Even one of the EMAs, Dr. Harding, testified that it is "significant" and "important" to know the patient's past history when performing a utilization review and that full knowledge of the Claimant's chiropractic treatment history may have affected his opinion.
In Wyatt Brothers, overutilization was found where the claimant's diagnosis was a head injury but the services provided by the provider included marriage counseling and other matters unrelated to the cognitive and intellectual deficits caused by the head injury. See Wyatt Brothers Recommended Order, at 18-24. In this case, the Claimant was diagnosed with a back problem,7 and the disputed services involve chiropractic treatment of the back. While Dr. Harris and Dr. Jenkins identified some concerns with the documentation provided by
Dr. Selley to justify the particular services rendered to the Claimant, the weight of the evidence establishes that the treatment provided on the disputed dates of service was appropriate to the diagnosis.
However, the weight of the evidence fails to establish that the treatment provided by Dr. Selley is
appropriate to the Claimant's status of recovery. In this regard, Dr. Selley's records fail to include any objective findings regarding the status of the Claimant's condition which would justify additional remedial care despite the fact that the Claimant was determined to have reached MMI on two separate occasions, the last of which was in 1992.
Even if the treatment rendered by Dr. Selley was considered to be palliative care (and the evidence weighs against such a characterization, e.g., Findings of Fact 16 and 17), the appropriateness of that treatment was not established. The purpose of palliative care is to mitigate the conditions, effects, or pain of an injury. See Section 440.13(1)(o). The evidence establishes that the treatment rendered by Dr. Selley did not achieve those purposes because the Claimant's subjective complaints of pain continued and the frequency of the Claimant's visits increased during this course of treatment in 2000 and 2001. In this regard, Dr. Selley's records fail to justify through objective findings why he continued this course of treatment despite its ineffectiveness instead of pursuing another treatment plan.
While there is some merit to the Agency's argument that Petitioner should have disallowed additional bills, its failure to do so does not undermine the conclusion that
Dr. Selley's records (and the record evidence) fails to
demonstrate the medical necessity of the services rendered on the disputed dates of service.
In sum, the weight of the evidence fails to establish that the treatment rendered by Dr. Selley on the disputed dates of service was appropriate to the Claimant's status of recovery. Accordingly, those services were not medically necessary and constitute overutilization.
Petitioner's Obligation to Pay the EMAs' Fees
Section 440.13(9) provides in relevant part:
The agency shall certify expert medical advisors in each specialty to assist the agency and the judges of compensation claims within the advisors area of expertise as provided in this section. . . . .
The agency shall contract with or employ expert medical advisors to provide peer review or medical consultation . . .
resolving disputes relating to reimbursement . . . .
If there is disagreement in the opinions of the health care providers, if two health care providers disagree on medical evidence supporting the employee's complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work, the agency may, and the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor. The opinion of the expert medical advisor is presumed to be correct unless there is clear and convincing evidence to the contrary as
determined by the judge of compensation claims. The expert medical advisor appointed to conduct the evaluation shall have free and complete access to the medical records of the employee. An employee who fails to report to and cooperate with such evaluation forfeits entitlement to compensation during the period of failure to report or cooperate.
The expert medical advisor must complete his or her evaluation and issue his or her report to the agency or to the judge of compensation claims within 45 days after receipt of all medical records. The expert medical advisor must furnish a copy of the report to the carrier and to the employee.
* * *
(f) If the Agency or a judge of compensation claims determines that the services of a certified expert medical advisor are required to resolve a dispute under this section, the carrier must compensate the advisor for his or her time in accordance with a schedule adopted by the agency. . . . .
(emphasis supplied). And cf. Rules 59A-30.003 to –30.005,
-30.007 to -30.008 (formerly codified in Rule Chapter 38F-54) (prescribing the criteria for certification, assignment, and payment of EMAs).
Despite the statutory language quoted above, Petitioner argues that it should not be required to pay the fees of the EMAs for essentially four reasons: (1) the Agency and the EMAs failed to comply with certain procedural aspects of the Agency's rules and Section 440.13(9); (2) the requirements of
Section 440.13(9), which became effective on July 1, 1994, are substantive in nature and may not be retroactively applied in this case which involves a 1990 accident; (3) the Agency is not authorized to use EMAs in cases involving overutilization; and
(4) as a policy matter, it is inequitable to require carriers to pay the EMAs' fees. Each argument will be addressed in turn.
Procedural Issues
Petitioner argues that the Agency failed to comply with its rules regarding the selection of the EMAs. The evidence fails to establish any material impropriety in the method used by the Agency to select the EMAs, and the Agency notified Petitioner of its selection on the same date that it sent Dr. Selley's records to the EMAs. See Rule 59A-30.005 (formerly Rule 38F-54.005).
Petitioner also argues that the Agency failed to comply with Section 440.13(9)(c) which requires the EMAs to have "free and complete access to the medical records of the employee." The evidence establishes that the Agency failed to provide the EMAs with the prior chiropractic records of the Claimant despite the fact that Petitioner provided those records to the Agency upon learning that the Agency had accepted
Dr. Selley's "petitions" as valid. As discussed elsewhere in this Recommended Order, the Agency's decision to not forward the
additional records to the EMAs ultimately affected the weight given to the EMAs' reports.
Petitioner also argues that the EMAs failed to comply with Section 440.13(9)(d) because they failed to complete their reports in 45 days and failed to provide a copy of the report to Petitioner. The evidence shows that the EMAs completed their reports within 45 days of the date they were assigned, but they failed to provide a copy of their report to Petitioner.
Finally, Petitioner argues that it was charged more than the maximum amount allowed by Rule 59A-30.007 for the EMAs' services to the Agency. The record does not reflect the amount of the fees charged by the EMAs, nor does it reflect whether Petitioner has paid those fees. In any event, it appears that the $1,600 maximum in Rule 59A-30.007 is a per case maximum for each EMA, not a per case maximum for all EMAs.
Petitioner has failed to show any prejudice resulting from the minor procedural violations described above, and they do not relieve Petitioner of its statutory obligation to pay the EMAs' fees.
Retroactive Application of Section 440.13(9)(f)
Prior to January 1, 1994, when the language now found in Section 440.13(9)(f) became effective, there was no statutory or rule authority to require the carrier to pay the cost of the experts used by the Agency in resolving a reimbursement dispute
between the carrier and a provider. Any such costs -- whether attributable to a peer review committee or medical consultant (see Section 440.13(2)(j)1., Florida Statutes (1993)) -- were paid by the Agency.
Because the accident which gave rise to the Claimant's injury occurred in May 1990, Petitioner argues that the post-1994 version of Section 440.13(9)(f) cannot be retroactively applied in this case. In support of its argument, Petitioner relies exclusively on Southern Bakeries v. Cooper, 659 So. 2d 339, 340 (Fla. 1st DCA 1995).
In Southern Bakeries, the court noted that "the Workers' Compensation law imposes a contractual obligation between the parties, and that their substantive rights are thus fixed at time of the accident and injury." Id. at 340 (emphasis supplied). The court further noted that a change in the law involving "entitlement to a service and the source of payment therefor [sic]" is a substantive change which cannot be applied retroactively. Id. at 341.
Southern Bakeries involved a proceeding before a judge of compensation clams on the merits of a workers' compensation claim. Id. at 339. Thus, "the parties" referred to by the court in that case were the claimant and the employee/carrier. Here, the parties are the carrier and the provider. See Furtick, 664 So. 2d at 290.
Unlike the merits of the workers' compensation claim where the underlying event is the accident or injury, the underlying event in a proceeding under Section 440.13(7) is the service rendered by the provider. Thus, the date of the service is the point at which the parties' substantive rights are fixed, not the date of the workers' compensation accident. The dates of service at issue in this case were in 2000 and 2001, well after the January 1, 1994, effective date of Section 440.13(9)(f). Accordingly, the statute is not being retroactively applied in this case, and Southern Bakeries is therefore distinguishable.
Agency's Authority to Utilize EMAs in Reimbursement Disputes Involving Overutilization
Petitioner next argues that EMAs were only intended to be used in resolving conflicting medical opinions in cases before a JCC. Therefore, Petitioner argues, the Agency is not authorized to use EMAs in lieu of a peer review committee in cases involving overutilization. In support of its position, Petitioner quotes extensively (and somewhat persuasively) from the legislative history in the Select Committee Report.
Petitioner's legislative history argument is inconsistent with the unambiguous language of Section 440.13(9)(b) which provides "[t]he [A]gency shall contract with or employ medical advisors to provide peer review or medical
consultation to the [A]gency . . . in connection with resolving disputes relating to reimbursement . . . ." Where, as here, statutory language is clear and unambiguous, it is unnecessary and inappropriate to resort to legislative intent. See, e.g., Dept. of Revenue v. Florida Municipal Power Agency, 789 So. 2d 320 (Fla. 2001).
As a corollary to this argument, Petitioner contends that Section 440.13(9)(b) in inapplicable because this is an overutilization case, not a reimbursement dispute. Contrary to Petitioner's argument, the Section 440.13(7) dispute framed by the Petition is a reimbursement dispute. That the Petitioner alleged overutilization as the basis for its refusal to reimburse Dr. Selley does not change the nature of this case. Thus, it is unnecessary to determine whether Section 440.13(9)(b) authorizes the use of EMAs in lieu of a peer review committee in other types of cases under Section 440.13, such as a proceeding initiated under Section 440.13(8) alleging a "pattern or practice of overutilization."
While there may be some benefit to the Agency in utilizing a peer review committee rather than EMAs in connection with reimbursement disputes, see, e.g., Section 440.13(11)(d) (exempting the referral to and report of the peer review committee from review under Chapter 120, but providing no similar exemption for referrals to and reports of EMAs), there
is no statutory requirement for peer review committees to be used. To the contrary, there is a statutory mandate that the Agency use EMAs "in connection with resolving disputes relating to reimbursement," and reimbursement disputes involving claims of overutilization are not excepted from that mandate. See Section 440.13(9)(b).
Policy Argument
There is merit to Petitioner's argument that it should not be required to pay the costs of the review conducted by the Agency's EMAs in addition to the costs of its internal utilization review mandated by Section 440.13(6). Indeed, in a case such as this where the amount of the services in dispute is less than $500.00 (after taking into account the reimbursement schedule), the cost of the various peer reviews will certainly far exceed the amount in dispute, without even taking into account the costs to prosecute or defend the case in an administrative hearing.
These cost issues raise legitimate questions about the entire dispute resolution process under Section 440.13(7), particularly in light of the legislative intent expressed in Sections 440.015 and 440.44(2). However, any inequities or inefficiencies inherent in the current statutory scheme -- including the carrier's obligation to pay the EMAs' fees -- must be resolved by the Legislature, not the undersigned.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Agency for Health Care Administration issue a final order that:
Directs Petitioner to reimburse Dr. Selley for the January 19, 2001, and February 2, 2001, dates of service as it agreed to do in the first and second notices of disallowance;
Denies Dr. Selley's "petitions" with respect to all of the other dates of service set forth in the notices of disallowance; and
Directs Petitioner to reimburse the expert medical advisors in accordance with Section 440.13(9)(f), Florida Statutes, and the Agency's rules.
DONE AND ENTERED this 26th day of August, 2002, in Tallahassee, Leon County, Florida.
T. KENT WETHERELL, II Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 2002.
ENDNOTES
1/ At the time Dr. Selley filed his "petitions" and at all times prior to July 1, 2002, the Department of Labor and Employment Security, Division of Workers' Compensation was the state agency responsible for administering Section 440.13(7), Florida Statutes. That agency was abolished by Chapter 2002- 194, Laws of Florida, and its powers, duties, and functions under Section 440.13(7), Florida Statutes, were transferred to the Agency for Health Care Administration effective July 1, 2002. See Chapter 2002-194, Sections 1(9), 25, 71, Laws of Florida. By Order dated July 15, 2002, the Agency for Health Care Administration was substituted as the Respondent in this case, and for purposes of consistency, the terms "Agency" and "Respondent" are used in this Recommended Order when referring to the predecessor agency as well as the present agency.
2/ Consistent with Section 440.125, Florida Statutes, references to the identity of the Claimant were redacted from the exhibits and the Transcript, and the Claimant will not be referred to by name in this Recommended Order.
3/ DOAH Case No. 00-2572 (Recommended Order dated May 10, 2001) (concluding that the Division of Administrative Hearings has jurisdiction over cases arising under Section 440.13(7) which involve disputed issues of material fact), adopted in toto, Case No. 01-25-DWC (Final Order dated June 11, 2001.
4/ Dr. Selley was not a party to this case despite the fact that he and Petitioner are the "parties with the legal interest affected by utilization review." See Furtick, 664 So. 2d at
290. In Dr. Selley's absence, the Agency chose to assume the burden of proof with respect to the Section 440.13(7) dispute.
5/ The Agency did not contest the timing of notices of disallowance in relation to the dates of service set forth therein. However, Rule 4L-7.602(3)(b)1. (formerly Rule 38F- 7.602(3)(b)1.), which requires the carrier to pay or deny medical bills within 45 days of receipt, suggests that a notice of disallowance may not be used to contest a date of service which occurred more than 45 days prior to the notice.
6/ Dr. Selley's first "petition," dated March 16, 2002, was within 30 days of his receipt of the First Notice; his second "petition, dated April 3, 2002, was within 30 days of his receipt of the Second and Third Notices. See Section 440.13(7)(a).
7/ Questions as to the diagnosis itself are beyond the scope of this proceeding, see Furtick, 664 So. 2d at 290-91; and so are issues involving compensability, causal relation, and potential de-authorization of Dr. Selley. See Wolk v. Jaylen Homes, 593 So. 2d 1058 (Fla. 1st DCA 1992). Those issues are within the jurisdiction of the JCC and are expressly not determined by this Recommended Order.
COPIES FURNISHED:
Gerald L. Pickett, Esquire
Agency for Health Care Administration
525 Mirror Lake Drive, North Sebring Building Suite 310H St. Petersburg, Florida 33701
Mark S. Spangler, Esquire
Law Office of Mark S. Spangler, P.A. 1061 Maitland Center Commons Maitland, Florida 32751
Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive
Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
Anthony Conticello, Esquire Anderson, Culliton & Sullivan 1584 Metropolitan Boulevard
Tallahassee, Florida 32308
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 04, 2003 | Agency Final Order | |
| Aug. 26, 2002 | Recommended Order | Petitioner properly disallowed payments to chiropractor because evidence failed to show services were medically necessary as required by Workers` Compensation Law. Petitioner required to pay fees of expert advisors used by Agency in review of this case. |
