The Issue The issue for consideration in this hearing was whether the Agency for Health Care Administration should cancel Petitioner's Medicaid provider number for the reasons set out in its letter of October 1, 1995, as amended.
Findings Of Fact Petitioner, Alpha House of Tampa, Inc., is a provider of community mental health services. Its programs deal with all pregnant women and include several which pertain to drugs, alcohol and mental health. These services provided to pregnant woman at Alpha are unique to Hillsborough County because of Alpha's ability to provide residential programs as opposed to merely the day treatment programs offered at other facilities. In March, 1993, Alpha started billing Medicaid for the services it provided to Medicaid qualified patients. At the time, Francis C. Powers, Alpha's Executive Director, telephonically contacted the Medicaid fiscal agent's office and asked what she needed to do in order for Alpha to be declared eligible for Medicaid reimbursements. She was never told it was necessary for Alpha to have a written contract with the ADM, (alcohol, drug and mental health), office. Because of that, Ms. Powers concluded the routine provider agreement Alpha had with Medicaid, entered into on March 13, 1993, was enough. In that regard, Alpha received two letters, both dated March 13, 1993, from the Department of Health and Rehabilitative Services. One was from Gary Clarke, Assistant Secretary for Medicaid, and the other was from Consultec, Inc., the Medicaid fiscal agent for the Department. Both letters welcomed Alpha House to the Florida Medicaid program and neither indicated any need for additional contracts with ADM in order to bill Medicaid for services rendered. As a result of the income derived from Medicaid services Alpha has provided and for which it has been reimbursed, Alpha was able to employ additional staff to provide more comprehensive programs. In 1995 Alpha received $133,918 in reimbursement funds, which equals approximately 18 percent of its annual budget. As a result of the loss of Medicaid funds proposed as a result of the termination of the instant reimbursement, Alpha will have to eliminate the drug and alcohol residential treatment program for 33 residents who will now have to get their drug and alcohol treatment at day treatment centers. Alpha personnel anticipate that because this treatment may not be sought and received, these residents will have low weight babies with potential medical problems, all at an added dollar cost to the community. Paragraphs 8 and 9 of the Medicaid Provider Agreement Alpha signed on March 13, 1993 provide: The provider and the Department agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The agreement may be terminated upon thirty days written notice by either party. The Department may terminate this agreement in accordance with Chapter 120, Florida Statutes. Petitioner has, in the past, billed Medicaid for mental health services provided and has been paid in response to those billings. It does not now have, nor has it had in the past, a contract with the Department of Health and Rehabilitative Services' Alcohol, Drug Abuse and Mental Health office to provide ADM services to its residents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order in this case cancelling Alpha House of Tampa, Inc.'s Medicaid provider number 0299588-00. DONE and ENTERED this 26th day of April, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 26th day of April, 1996. COPIES FURNISHED: Lynette M. Wenner, Esquire Gillick & Wenner 100 North Tampa Street, Suite 2675 Tampa, Florida 33602 Gordon B. Scott, Esquire Agency for Health Care Administration 2727 Mahan Drive Ft. Knox Building Number 3 Tallahassee, Florida 32308-5403 Sam Power Agency Clerk Agency for Health Care Administration Ft. Knox Building Number 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration Ft. Knox Building Number 3 Tallahassee, Florida 32308
The Issue Whether Petitioner's Medicaid provider number should be cancelled for the reason stated in Respondent's October 1, 1995, letter to Petitioner?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a provider of community mental health services. It provides these services to residents of Palm Beach County and the surrounding areas. Some of the services it provides are unique to the area it serves. Petitioner provides services to Medicaid recipients pursuant to a Medicaid provider agreement dated September 6, 1994, paragraphs 8 and 9 of which provide as follows: The provider and the Department agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The agreement may be terminated upon thirty days written notice by either party. The Depart- ment may terminate this agreement in accordance with Chapter 120, Florida Statutes. Petitioner has attempted to enter into a contract with the Department of Health and Rehabilitative Services' Alcohol, Drug Abuse and Mental Health office (hereinafter referred to as "ADM"), but to date has been unable to do so because ADM has not had the money to fund such a contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered terminating Petitioner's provider agreement and cancelling its provider number on the grounds that it "does not have a contract with the [Department of Health and Rehabilitative Services] ADM [Alcohol, Drug Abuse and Mental Health] office." DONE and ENTERED this 26th day of February, 1996, at Tallahassee, Leon County, Florida. STUART M. LERNER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1996. COPIES FURNISHED: Darlene Silvernail, Esquire Forest Hill Counseling Center 2624 Forest Hill Boulevard West Palm Beach, Florida 33406 Gordon B. Scott, Esquire Agency for Health Care Administration 2727 Mahan Drive, Fort Knox Number 3 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Fort Knox Number 3 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Fort Knox Number 3 Tallahassee, Florida 32308-5403
The Issue The issue is whether Billy H. Davis, on two occasions, sold to undercover detectives of the Miami Police Department the medicinal drug Ampicillin without prescriptions in contravention of Section 465.015(2)(c), Florida Statutes (1985), and is therefore subject to discipline pursuant to Section 465.016(1)(e), Florida Statutes (1985)?
Findings Of Fact Respondent, Billy H. Davis ("Mr. Davis"), at all times relevant herein, has been licensed as a pharmacist in the State of Florida, and has been issued license number 0010622. During the period at issue here, Mr. Davis was prescription manager for Service Drugs, Inc. located at 1304 N.W. 3rd Avenue, Miami, Florida 33136 (Exhibits 1 and 2). On March 27, 1985 Detective Carolyn Clarke of the Miami Police Department purchased thirteen red and gray capsules from Mr. Davis for $8.00 (T. 50, 54). She did not present a prescription during the transaction or represent that she had authorization from a physician to obtain any drugs for which a prescription is required (Tr. 52-3). In March of 1985 Officer Jesse J. Williams purchased twelve red and green capsules from Mr. Davis for $8.00 (Tr. 58- 61). He did not present a prescription or indicate that he had authorization from a physician to receive prescription medication during the transaction (Tr. 60). Upon analysis at the Metro Dade Police Department Crime Laboratory, the capsules purchased by Detectives Clarke and Williams proved to be Ampicillin (Tr. 63-77, Department Exhibits 7 and 8). Ampicillin is a prescription or medicinal drug in the United States (Tr. 96). Mr. Davis has sold or dispensed drugs as defined in Section 465.003(7), Florida Statutes (1985) without first being furnished with a prescription. When the drugs were sold, Mr. Davis had been told by the purchasers that they needed medication either for gonorrhea (Tr. 50) or for an unspecified venereal disease (Tr. 59). Oral antibiotics are not the appropriate treatment for drug-resistant strains of gonorrhea, such as penicillinase- producing neisseria gonorrhea ("PPNG") (Tr. 87). There has recently been a large outbreak of PPNG in Florida, and specifically Dade County and Miami (Tr. 89), with a large portion of the disease occurring in the black community in the Liberty City and Overtown areas (Tr. 90). Self-administration of antibiotics has played a role in the propagation of PPNG, because when there is a drug-resistant strain of venereal disease in a community and patients take antibiotics not appropriate to treat their condition, patients believe that they are getting better when they are still infectious (Tr. 93-94). This may cause those patients, if women, to develop pelvic inflammatory disease which can lead to infertility and occasionally users can develop an infection of the heart valves known as bacterial endocarditis (Tr. 94-95). It is not possible for patients to tell from symptoms or by mere physical examination whether they have been- infected with a drug-resistant strain of PPNG: a patient must have a culture done by a physician to make this determination (Tr. 96).
Recommendation Based on the foregoing, it is recommended that a final order be entered finding Mr. Davis guilty of violating Sections 465.015(2)(c) and 465.016(1)(e), Florida Statutes (1985). In view of the well-intentioned nature of Mr. Davis' actions, the apparent absence of any profit motive, but keeping in mind the potential public health hazard involved in dispensing of medicinal drugs for the relief of venereal disease without prescription, it is recommended that pursuant to Section 465.016(2)(b), Florida Statutes, his license to practice pharmacy be suspended for a period of thirty days; pursuant to Section 465.016(2)(c), Florida Statutes, that he be fined a total of $250.00; and pursuant to Section 465.016(2)(e), Florida Statutes, within one year he be required to attend continuing education courses pertaining or relating to the appropriate use of medicinal drugs in the treatment of venereal disease. DONE AND ORDERED this 17th day of June 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY,JR., Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of June 1986. COPIES FURNISHED: Bruce D. Lamb, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Billy H. Davis 1304 N.W. Third Avenue Miami, Florida 33136 Mr. Rod Presnell Executive Director Board of Pharmacy Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
Findings Of Fact Respondent, Agency for Health Care Administration (Department), is the successor in interest to the Department of Health and Rehabilitative Services as the single state agency responsible for the Florida Medicaid program. Petitioner, Ian L. Garriques, M.D. (Dr. Garriques), is a licensed physician. He is a board certified internist with a subspeciality in infectious diseases. In 1980, he came to Key West, Florida, to practice. In the early 1980's Dr. Garriques and his colleagues began to see patients who were experiencing symptoms resembling mononucleosis syndrome and who were dying from pneumonia for unexplained reasons. These patients were diagnosed with AIDS and thus, began the AIDS epidemic in Key West. Many AIDS patients did not have the resources to pay for medical care. They would go to the emergency room when they needed to see a doctor, resulting in a lack of continuity of care because they would see the doctor who happened to be covering the emergency room on that particular day. The patients would be released to a home health care agency that would continue with the medications prescribed on discharge regardless of whether the medications continued to be effective. Dr. Garriques began to see AIDS patients in his office that were getting worse because of the medications that they were being given. In 1986, AIDS Help, Inc. (AHI), a non-profit organization was formed to help those AIDS victims who were not receiving adequate care because of a lack of financial resources. AHI provides medical services, housing, transportation, case management, counseling, food, utility assistance, and drugs to its clients. At first AHI was funded from private donations. Later, AHI began to receive state general revenue funds and applicable Department of Health and Rehabilitative Services (HRS) funds for its operations pursuant to legislative appropriations. From 1987 to 1991, Dr. Garriques was a member of the board of directors for AHI. DUPLICATE BILLING Because of Dr. Garriques' expertise in treating HIV, AHI contracted with him to provide services to AHI clients in 1991. Dr. Garriques provided services at the Aids Help Clinic under the terms of that contract during the audit period at issue. The contract recited the background of the agreement as follows: AHI has entered into a contract with the State of Florida, Department of Health and Rehabili- tative Services (HRS) to provide certain medical, evaluative, consultative, referral and treatment services to its clients. AHI presently has the need to staff the Health Care Center and provide the services which it has contracted to provide. Discussions have taken place between AHI and the Doctor [Dr. Garriques] in regard to subcontracting the necessary services to him. . . . The contract further provided: AHI hereby retains the Doctor to provide the services, equipment, supplies and personnel described in this Agreement and the Doctor agrees to provide them from the date of the execution of this Agreement by all parties hereto until June 30, 1991 under the terms hereof. In payment therefor AHI agrees to pay the Doctor the sum of $3,000.00 per month, to be paid by AHI in the following manner: The Doctor shall submit to AHI an invoice between the first and the tenth day of each month of this Agreement, beginning March 1, 1991, for the services, supplies and personnel in the amount of $3,000.00. AHI shall then pay to the Doctor the sum billed by the fifteenth day of this month. The amount of $3,000.00 shall be reviewed by the parties hereto at the end of the second month of the term of this Agreement in order to determine whether this amount is fair and adequate to both of the parties in view of the nature and volume of the services provided and also to review whether any other changes are needed in the terms and provisions of this Agreement. The parties agree to discuss these matters in good faith and to attempt to come to a mutually agreeable resolution of their differences, if any. In addition to this amount, the Doctor shall be allowed to bill for his services and to retain such amounts which he may collect from Medicare, Medicaid, private insurers, companies, or other federal or state reimbursement programs. He shall be responsible for the fairness and accuracy of such billing and shall hold AHI harmless from any and all liability or responsibility whatsoever for such billing. He shall look solely and exclusively to patients or to those persons or third party payors who are responsible for services rendered to these patients and not to AHI. The Doctor shall, personally, be present at the Health Center one day each week, presently contemplated to be Wednesday, for a period of approximately eight hours. On each such day he shall be available to provide medical, evaluative, consultative and treatment services which he deems necessary and appropriate to any and all patients referred to the Health Center. He shall act as the primary care physician for all such persons and shall make such referrals to other physician specialists and other health persons (sic) and shall make such referrals to other physician specialists and other health care personnel and he shall admit any such persons to a hospital or such other medical facility as he deems necessary and appropriate in the exercise of his best medical judgment. He will continue to provide such primary care to such persons and shall continue to parti- cipate in the care of such persons as may be necessary in his best medical judgment. The Doctor shall provide on each day of service a Florida licensed registered nurse for approximately eight hours to assist him in the performance of his services hereunder, shall pay the nurse from his own funds and supervise the performance of his/her duties. In addition, the Doctor shall provide the services of a billing clerk and such other personnel as are required to competently carry out his duties hereunder. The Doctor shall also provide, at his own expense such equipment, supplies (medical and office) as may be necessary to carry out his duties hereunder. The Doctor shall provide AHI with such records, summaries, information and reports as AHI may from time to time request pertaining to the rendering of his services hereunder and the oper- ations of the Health Care Center, including but not limited to financial and billing records, medical records and correspondence. The Doctor shall also conduct a monthly case review with the staff/case managers of AHI to discuss with them the medical status of AHI's clients which he has seen. The contract was amended to extend the term through June 30, 1993, to increase the rate of payment to $6,000.00 per month and to increase the time of the nurse practitioner at the clinic to one-and-one-half days per week. Dr. Garriques was an enrolled Medicaid provider during January 1, 1991 through June 30, 1994, the audit period at issue. Dr. Garriques' Medicaid provider number is 036395200. By signing the Medicaid provider agreement, Dr. Garriques agreed to be bound by the applicable law and Medicaid policies and manuals. During the term of the contract, Dr. Garriques sent AHI an invoice each month for a flat fee. AHI also requested Dr. Garriques to send it a production analysis, listing all the transactions for the clinic patients each month. There was no correlation between the number of patient transactions and the amount of money that Dr. Garriques received each month from AHI. Dr. Garriques billed Medicaid for medical services provided to the clinic patients who were Medicaid eligible. Dr. Garriques paid the nurse practitioner, which he was required to provide pursuant to the AHI contract, approximately $1500.00 per month and he paid a nurse approximately $700 to $800 per month to assist in running the clinic. In addition, he paid a secretary to perform clerical duties associated with the clinic. Dr. Garriques spent approximately fifty percent of his time caring for approximately 75 to 100 AHI clinic patients. The Department takes the position that Medicaid made payments to Dr. Garriques for services which were also paid for pursuant to the contract between Dr. Garriques and AHI. Thus, the Department considers the amounts paid by Medicaid for the patients listed below constitute overpayments for which the Department is entitled to be reimbursed. a C.H. (listed as Patient Number 1) b. J.M. (listed as Patient Number 6) c. A.K. (listed as Patient Number 9) d. G.S. (listed as Patient Number 10) e. T.V. (listed as Patient Number 16) f. K.H. (listed as Patient Number 17) g. R.W. (listed as Patient Number 18) h. T.S. (listed as Patient Number 19) i. R.M. (listed as Patient Number 21) j. S.V. (listed as Patient Number 23) k. P.N. (listed as Patient Number 25) l. L.A. (listed as Patient Number 26) m. T.T. (listed as Patient Number 27) n. J.G. (listed as Patient Number 31) o. J.C. (listed as Patient Number 32) p. G.L. (listed as Patient Number 33) Dr. Garriques takes the position that the services provided under the terms of his contract with AHI were different from and not included in the services that he billed Medicaid. Services which Dr. Garriques provided pursuant to the AHI agreement included administrative services associated with the responsibility of running the clinic; 24-hour on-call, seven days a week availability to AHI patients; physician services for which Medicaid does not reimburse; admitting AHI patients to the hospital; answering patient questions by telephone; coordinating the care of AHI patients with their treating providers; reviewing patient labs; billing related to treating AHI patients; seeing patients in the hospital; seeing patients outside the clinic; answering questions from patients and staff; quality assurance; attendance at Board meetings; and meeting with case managers and home health personnel. He claims the services he provided under the AHI agreement were either non-reimbursable Medicaid services or services for clients who were not eligible for Medicaid services. It is AHI's position that the payments made to Dr. Garriques were for services which were not compensable under Medicaid and for services to clients who were not eligible for Medicaid services. The Department of Health and Rehabilitative Services's policy is that the funds which it provided to AHI to subcontract with Dr. Garriques were to be used for services and clients that were not covered by other funding sources. The records from AHI show that Dr. Garriques provided services to C.H. either at the clinic or the hospital on the following dates: 10/16/91, 10/30/91, 11/20/91, 1/8/92, 2/12/92, 4/22/92, 6/24/92, 7/8/92, 7/21/92, 7/22/92, 7/29/92, 8/12/92, 9/2/92, 9/9/92, 10/7/92, 10/21/92, 10/22/92, 10/23/92, 10/24/92, 10/25/92, 10/26/92, 10/27/92, 11/4/92, 12/9/92, 1/13/93, 2/10/93, 3/24/93, 5/12/93, and 5/13/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to C.H. on the dates listed above. The records from AHI show that Dr. Garriques provided services to J.M. at the clinic on September 21, 1991. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to J.M. on that date. The records from AHI show that Dr. Garriques provided services to G.S at the clinic on the following dates: 2/20/91, 2/27/91, 3/13/91, 3/21/91, 4/3/91, 5/8/91, and 8/7/91. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to G.S. on those dates. The records from AHI show that Dr. Garriques provided services to T.V. at the clinic on the following dates: 12/4/91, 12/11/91, 6/3/92, 8/19/92, 12/2/92, 3/3/93, and 6/3/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to T.V. on those dates. The records from AHI show that Dr. Garriques provided services to K.H. at the clinic on the following dates: 1/8/92, 1/15/92, 1/30/92, 2/12/92, 2/26/92, 3/4/92, 3/18/92, 4/1/92, 4/15/92, 4/29/92, 5/27/92, 6/24/92, 7/15/92, 10/7/92, 11/4/92, and 11/25/92. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to K.H. on those dates. The records from AHI show that Dr. Garriques provided services to R.W. at the clinic on the following dates: 5/6/92, 7/1/6/92, 8/3/92, 10/15/92, 1/13/93, and 3/31/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to R.W. on those dates. The records from AHI show that Dr. Garriques provided services to T.S. at the clinic on the following dates: 5/20/92, 6/3/92, 7/1/92, 7/15/92, 7/29/92, 8/19/92, 9/2/92, 9/23/92, 10/21/92, 11/18/92,12/9/92, 1/6/93, 1/20/93, 3/10/93, 3/17/93, 4/48/93, and 5/26/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to T.S. on those dates. The records from AHI show that Dr. Garriques provided services to R.M. at the clinic on the following dates: 3/24/93, 4/7/93, 4/28/93, and 6/16/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to R.M. on those dates. The records from AHI show that Dr. Garriques provided services to S.V. at the clinic on the following dates: 10/7/92, 10/15/92, and 11/9/92. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to S.V. on those dates. The records from AHI show that Dr. Garriques provided services to P.N. at the clinic on 11/9/92, 2/24/92, and 4/21/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to P.N. on those dates. The records from AHI show that Dr. Garriques provided services to L.A. at the clinic on the following dates: 1/6/93, 1/20/93, 2/10/93, 3/10/93, 4/21/93, and 6/2/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to L.A. on those dates. The records from AHI show that Dr. Garriques provided services to T.T. at the clinic on 5/12/93 and 6/2/93. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to T.T. on those dates. The records from AHI show that Dr. Garriques provided services to J.C. either at the clinic or the hospital on the following dates: 2/6/91, 3/6/91, 3/11/91, 3/12/91, 3/13/91, 3/14/91, 3/15/91, 3/17/91, and 3/18/91. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to J.C. on those dates. The records from AHI show that Dr. Garriques provided services to N.S. either at the clinic or the hsopital on the following dates: 5/29/91, 8/7/91, 8/21/91, 9/4/91, 9/5/91, and 9/18/91. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to N.S. on those dates. The records from AHI show that Dr. Garriques provided services to J.F. at the clinic on the following dates: 2/13/91, 3/20/91, 5/1/91, 5/15/91, 5/29/91, and 6/26/91. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to J.F. on those dates. The records from AHI show that Dr. Garriques provided services to W.M. either at the clinic or the hospital on the following dates: 6/5/91, 11/10/91, 11/11/91, 11/12/91, 11/13/91, 11/14/91, 1/3/92, 1/8/92, 1/9/92, 1/10/92, 1/11/92, 1/12/92, 1/13/92, 1/14/92, and 2/19/92. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to W.M. on those dates. The records from AHI show that Dr. Garriques provided services to M.L. either at the clinic or the hospital on the following dates: 4/22/92, 5/13/92, 5/14/92, 5/15/92, 5/16/92, 5/17/92, 5/18/92, 5/19/92, 5/20/92, 5/21/92, 5/22/92, 5/23/92, 5/24/92, and 5/25/92. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to M.L. on those dates. The records from AHI show that Dr. Garriques provided services for D.M. on April 28, 1993, at the clinic. The records from the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to D.M. on that date. The records from AHI show that Dr. Garriques provided services to J.G. either at the clinic or the hospital on the following dates: 9/18/91, 10/23/91, 11/20/91, 1/22/92, 3/11/92, 3/25/92, 4/15/92, 5/20/92, 5/27/92, 6/24/92, 7/15/92, 8/5/92, 9/9/92, 9/18/92, 9/19/92, 9/20/92, 9/21/92, 9/22/92, and 9/23/92. The records for the Department show that Dr. Garriques billed and received payment from Medicaid for services which he provided to J.G. on those dates. DISPUTES OVER LEVEL OF SERVICE Part of the recoupment action deals with the level of service which Dr. Garriques claims to have provided and the level of service which the Department deems to be the appropriate level of service for payment. Payment for services are made in accordance with the level of service provided. The level of service is coded according to Current Procedural Terminology (CPT), which is a compilation of codes by the American Medical Association Committee. For patient D.W., there was a dispute over the level of services provided on June 8, 9, and 10, 1992. For those dates, Dr. Garriques submitted a claim showing a CPT code of 99223, which stands for an initial hospital visit. Patient D.W. had been admitted for HIV and streptococcal meningitis on June 7, 1992. Dr. Sullenberger, who was the expert witness for Respondent concerning level of service, correctly opined that given the seriousness of the patient's disease, the CPT code for services on June 8 and 9 should be 99233. At the hearing the parties stipulated that the appropriate CPT code for June 10 should be 99232. For patient J.G., there was a dispute over the level of services provided on April 24 and 25, 1994. Patient J.G. was admitted to the hospital for an overdose of tylenol. If not treated properly, a patient's liver can be destroyed within 12 hours of taking an overdose of tylenol. The liver damage will not be apparent until approximately a week later when the patient dies. Therefore, it is important that the patient be given the correct medication and that the blood level of the patient be monitored very closely during the first 12 hours after admission to the hospital. Dr. Sullenberger, apparently unaware of the potentially lethal effects of a tylenol overdose, opined that the CPT code for the service provided on April 24 should be 99222, which stands for a moderately complex level of care and that the CPT code for April 25 should be reduced to 99231. However, based on Dr. Garriques' testimony of the seriousness of a tylenol overdose, it is found that Dr. Garriques correctly entered CPT codes of 99291 for April 24 and 25. For patient N.D., there was a dispute over the level of service provided on September 17, 1991, and February 1, 1994. Patient N.D. was seen on September 17 for a physical examination. It took Dr. Garriques time to complete the physical because of communication difficulties stemming from N.D.'s mental retardation. However the level of service has nothing to do with the ability to communicate with the patient. The proper CPT code for the September 17 service was at an intermediate level of service, CPT code 90060. Dr. Garriques referred the patient to an opthamologist at the February 1 visit. The CPT code of 99214 billed by Dr. Garriques was correct. Patient G.M. was admitted to the hospital on October 18, 1991 based on Dr. Garriques' telephone orders. Dr. Garriques saw the patient for the first time during his stay at the hospital on October 19, 1991. There should have been no payment for the telephone order on October 18 because there was no face to face contact with the patient. The CPT code for October 19 should have been 90220. The CPT code for the services provided on October 20 and 21 should have been 90250.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the Medicaid payments at issue for patients C.H., J.M., A.K., G.S., T.V., K.H., R.W., T.S., R.M., S.V., P.N., L.A., T.T., J.G., J.C., and G.L. did not constitute duplicate payments for which Dr. Garriques should reimburse AHCA; that the level of service for D.W. on June 8 and 9, 1992 is 99233 and 99232 on June 10, 1992; that the CPT code for the services provided to J.G. on April 24 and 25, 1994 is 99291; that the CPT code for the services provided to N.D. on September 17, 1991 is 90060 and the CPT code for services on February 1, 1994 is 99214; and that payment for the claim for October 18, 1991 for G.M. should be reimbursed by Dr. Garriques, the CPT code for October 19, 1991 services is 90220, and the CPT code for services on October 20 and 21 is 90250. DONE AND ENTERED this 8th day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 8th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5094 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: The first sentence is accepted in substance. The remaining is rejected as unnecessary. Paragraphs 2-6: Accepted in substance. Paragraph 7: Rejected as irrelevant. The contract between AHI and Dr. Garriques defines what services are to be provided. Paragraphs 8-15: Accepted in substance. Paragraph 16: Rejected as not necessary. Paragraph 17: Accepted in substance. 7 Paragraph 18: Rejected as immaterial. Paragraphs 19-20: Accepted in substance Paragraph 21: Rejected as subordinate to the facts found. Paragraphs 22-23: Accepted in substance. Paragraph 24: Rejected as unnecessary. Paragraph 25-27: Rejected as subordinate to the facts found. Paragraph 28: Accepted in substance. Paragraph 29: Rejected as subordinate to the facts found. Paragraphs 30-31: Accepted in substance. Paragraphs 32-34: Accepted in substance except Patient Number 5 is G.M. not C.M. Paragraphs 35-36: Accepted in substance. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraphs 4-5: Rejected as unnecessary. Paragraph 6: Accepted in substance. Paragraph 7: Rejected as unnecessary. Paragraphs 8-9: Accepted in substance. Paragraph 10: Rejected as unnecessary given the stipulation of the parties that the amount of reimbursement, if any, would not be decided in this proceeding. Paragraph 11: The first sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraphs 12-13: Accepted in substance. Paragraph 14: The first sentence is rejected as unnecessary. The second through the fifth sentences are accepted in substance. The sixth sentence is accepted that that was Dr. Sullenberger's testimony but rejected that the correct CPT code was 99222. Paragraph 15: The first sentence is accepted. The remainder is rejected as not supported by the greater weight of the evidence. Paragraph 16: The first sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraphs 17-18: Accepted in substance. Paragraph 19: The last sentence is rejected as to code 90260. The remainder is accepted in substance. Paragraph 20: Accepted. Paragraph 21: The first sentence is rejected as unnecessary. The remainder is accepted in substance to the extent that the services were rendered at the clinic but not that the services were funded by the AHI contract. Paragraph 22: Rejected as not supported by the greater weight of the evidence that the dates listed were for services which were funded by the AHI contract. The listing merely shows who was served at the clinic and on what dates. Paragraph 23: The first sentence is accepted in substance. Rejected as not supported by the greater weight of the evidence. The evidence is clear that the parties contemplated that non-Medicaid reimbursable services and non- Medicaid eligible clients were funded by the AHI contract. Paragraph 24: The first and last sentences are accepted in substance. The second and third sentences are rejected as not supported by the record. The contract indicated that some services would be funded by AHI and some would be funded by Medicaid. Paragraph 25: Rejected as constituting argument. Paragraph 26: The first sentence is accepted in substance to the extent that Medicaid was billed for the services on that date but not that AHI paid for the same services. The remainder is rejected as not supported by the greater weight of the evidence. 21. Paragraphs 27, 31, 35, 39, 43, 47, 51, 55, 59, 63, 67, 71, 75, 79, 83, 87, 91, and 95: The first sentence is rejected as unnecessary. The remainder is accepted in substance to the extent that Medicaid was billed for the services provided at the clinic but not that AHI funded those services. 22. Paragraphs 28, 32, 36, 40, 44, 48, 52, 56, 60, 64, 68, 72, 76, 80, 84, 88, 92, and 96: Rejected as not supported by the greater weight of the evidence. The contract provided that some of the services would be funded by Medicaid and some of the services would be funded by AHI 23. Paragraph 29, 33, 37, 41, 45, 49, 53, 57, 61, 65, 69, 73, 77, 81, 85, 89, 93, and 97: The first sentence is accepted in substance to the extent that the patients were seen at the clinic but not that the services were funded by the AHI agreement. The remainder is rejected as constituting argument. 24. Paragraph 30, 34, 38, 42, 46, 50, 54, 58, 62, 66, 70, 74, 78, 82, 86, 90, 94, and 98: Accepted in substance to the extent that Medicaid paid for services on those dates but rejected that the Medicaid payment was duplicative of payments from the AHI contract. COPIES FURNISHED: Wayne Mitchell, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Louise T. Jeroslow, Esquire Zack, Sparber, Kosnitzky, Truxton, Spratt and Brooks, P.A. One International Place 100 Southeast Second Street, Suite 2800 Miami, Florida 33131 S. Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403 Jerome W. Hoffman General Counsel Agency For Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
The Issue The issue for determination is whether Petitioner must reimburse Respondent an amount up to $1,676,390.45, which sum Petitioner received from the Florida Medicaid Program in payment of claims arising from Petitioner's dispensing of pharmaceuticals between July 3, 2000 and March 28, 2002. Respondent alleges that the amount in controversy represents an overpayment related to Petitioner's failure to demonstrate the availability of sufficient quantities of drugs to support its billings to the Medicaid program.
Findings Of Fact Respondent Agency for Health Care Administration ("AHCA" or the "Agency") is the state agency responsible for administering the Florida Medicaid Program ("Medicaid"). Petitioner Disney Medical Equipment, Inc., d/b/a Disney Pharmacy Discount ("Disney Pharmacy"), was, at all relevant times, a Medicaid provider authorized, pursuant to contracts it had entered into with the Agency known as Provider Agreements, to receive reimbursement for covered services rendered to Medicaid beneficiaries. Exercising its statutory authority to oversee the integrity of Medicaid, the Agency directed its agent, Heritage Information Systems, Inc. ("Heritage"), to conduct an audit of Disney Pharmacy's records to verify that claims paid by Medicaid during the period from July 3, 2000 to March 28, 2002 (the "Audit Period") had not exceeded authorized amounts. Over the course of four days in May 2002, three of Heritage's auditors reviewed records on-site at Disney Pharmacy's drugstore in Hialeah, Florida; they also interviewed some of the store's personnel. Thereafter, Heritage analyzed the data it had collected using several different approaches. Each approach pointed to the conclusion that Medicaid had paid too much on claims submitted by Disney Pharmacy during the Audit Period. The total amount of the alleged overpayment differed substantially, however, depending on the analytical approach taken. The approach that yielded the largest apparent overpayment was the "prorated purchase invoice" analysis. Generally speaking, under this approach, the volume of pharmaceuticals that the provider maintained in its inventory during the Audit Period is compared to the provider's contemporaneous Medicaid claims to determine whether the provider possessed enough of the relevant pharmaceuticals to support the Medicaid claims presented. If the total amount purportedly dispensed, according to the claims made in connection with a particular drug, exceeds the amount of that drug available at the time for dispensing, then an inference of impropriety arises with regard to those claims for which product was apparently unavailable; the Agency considers amounts paid on such claims to be overpayments. To determine the quantities of certain drugs that Disney Pharmacy had kept on hand during the Audit Period, Heritage tallied up the total number of "units" of selected drugs that Disney Pharmacy had acquired, using as a database the invoices reflecting Disney Pharmacy's purchases of the drugs under review. Heritage then ascertained——again using Disney Pharmacy's records——the utilization rate of Medicaid beneficiaries for each of the pharmaceuticals under consideration. In other words, Heritage determined, for each drug at issue, the relative demand——expressed as a percentage of the total number of units of that drug dispensed to all customers during the Audit Period——attributable to Medicaid beneficiaries. Heritage found, for example, that Medicaid recipients accounted for 55.13% of Disney Pharmacy's total sales of the drug Acetylcysteine-10% solution ("Acetylcysteine") during the Audit Period. Having calculated the total amount of each drug at issue that Disney Pharmacy had acquired during the Audit Period, and having further determined for each such drug the Medicaid utilization rate, Heritage multiplied the total number of available units of each drug by the applicable utilization rate, prorating the entire supply of each drug to reflect the approximate number of units available for dispensing to Medicaid recipients specifically. For example, Disney Pharmacy's records showed that it had purchased a total of 121,440 units of Acetylcysteine during the Audit Period. Disney Pharmacy's records showed, additionally, that this drug was dispensed to Medicaid beneficiaries 55.13% of the time. Thus, the prorated quantity of Acetylcysteine available for Medicaid recipients was approximately 66,950 units (121,440 x 0.5513). The prorated number of available units of each subject drug was compared to the total number of units for which Medicaid had reimbursed Disney Pharmacy during the Audit Period. For Acetylcysteine, these figures were 66,950 and 1,076,070, respectively. If the total number of units for which Medicaid had paid on claims for a particular drug were found to exceed the amount of that drug which Disney Pharmacy apparently had on hand——as it did for Acetylcysteine——then the inventory shortfall——1,009,120 units in the case of Acetylcysteine——was multiplied by the drug's average per-unit cost to Medicaid, producing a drug-specific apparent overcharge. Thus, for example, because the average cost of Acetylcysteine was $0.65 per unit, the apparent overcharge with respect to this drug was $655,928.00. Using the foregoing approach, Heritage identified apparent overcharges in connection with 13 drugs. The sum of these drug-specific overcharges is $1,676,390.45. Two drugs—— Acetylcysteine and Ipratropium Solution ("Ipratropium")——account for nearly 93% of this grand total. Two other drugs——Albuterol- 0.83% ("Albuterol") and Metaproterenol-0.4% ("Metaproterenol")—— account for another 7.0% of the total alleged overcharge. These four drugs——whose individual overcharges, taken together, comprise approximately 99.8% of the total alleged overcharge of $1,676,390.45——are used for treating breathing disorders and typically are inhaled by the patients who use them.i There is no genuine dispute regarding the reason why Disney Pharmacy was unable to document its acquisition of Acetylcysteine, Ipratropium, Albuterol, and Metaproterenol (collectively the "Inhalation Therapy Drugs") in quantities sufficient to support its claims to Medicaid for these pharmaceuticals. During the Audit Period, Disney Pharmacy generally filled prescriptions for the Inhalation Therapy Drugs by "compounding" the prescribed medications. (Compounding is a process whereby the pharmacist mixes or combines ingredients to fashion a tailor-made medication for the patient.) Thus, Disney Pharmacy (for the most part) did not purchase the commercially available versions of the Inhalation Therapy Drugs; rather, it created its own "generic copies" of these medications, purchasing only the raw materials needed to make finished products. Medicaid reimburses for compound drugs under certain conditions, which will be spelled out below. But first: it is undisputed that Disney Pharmacy did not submit claims for compound drugs. Instead, in presenting claims to Medicaid for the Inhalation Therapy Drugs, Disney Pharmacy billed the medications under their respective National Drug Code ("NDC") numbers, as though commercially manufactured drug products had been dispensed. (An NDC is an 11-digit number, unique to each commercially available pharmaceutical, which identifies the manufacturer, product, and package size.) As a result, Medicaid paid Disney Pharmacy for mass produced products when, in fact, the pharmacy actually had dispensed its own homemade copies thereof. According to the Prescribed Drug Coverage, Limitations and Reimbursement Handbook ("Medicaid Handbook"), which authoritatively sets forth the terms and conditions under which Medicaid reimburses providers for dispensing pharmaceuticals, Medicaid may pay for a compound drug if the following criteria are met: At least one pharmaceutical is a reimbursable legend drug; The finished product is not otherwise commercially available; and The finished product is being prepared to treat a specific recipient's condition. Medicaid Handbook at 9-16.ii To present a claim for a compound drug, the provider must adhere to the following instructions: Compound drug codes must be submitted on paper Pharmacy 061 claim forms, because they are reviewed and manually priced by Medicaid. When billing for a compound drug, enter one of the following compound drug codes. More than one code is available so that more than one compound can be dispensed to a recipient on the same day without using the same number. Id. 55555-5555-55 66666-6666-66 77777-7777-77 88888-8888-88 Disney Pharmacy attempts to defend its failure to follow the unambiguous instructions for billing compound drugs by explaining that, before commencing the practice of compounding, the provider's owner, Sara Padron, made a telephone call to AHCA to ask for guidance on submitting claims for drugs created on-site. Ms. Padron testified at hearing that the AHCA employee with whom she spoke had told her to present claims for compound drugs by billing for the manufactured products that they most resembled, using the manufactured products' NDC numbers. Ms. Padron could not identify the person who purportedly gave her this plainly incorrect advice. Ms. Padron's testimony in this regard was not contradicted——although in fairness to the Agency hers was the kind of testimony that resists direct evidential challenge, forcing an opponent to stress the implausibility of the claim as a means of discrediting it. Ms. Padron's account cannot simply be dismissed as incredible, for an AHCA employee undoubtedly could give an incorrect answer to a provider's question. But even assuming that Ms. Padron reached a person whom one reasonably could suppose to be knowledgeable about Medicaid billing procedures, and further assuming Ms. Padron asked a clear question which fairly and accurately described the situation, neither of which was proved or should be taken for granted, the undersigned remains skeptical that Ms. Padron was instructed to bill for compound drugs as if billing for their commercially available counterparts: the advice is just too obviously wrong. It is not necessary, however, to accept or reject Ms. Padron's testimony concerning the "official" answer she says she received because even if Ms. Padron were told to bill for compound drugs as though manufactured products had been dispensed, no reasonable provider could have relied upon such a dubious oral representation. The statement, for starters, is an invitation to commit fraud. Common sense should inform any reasonable provider that a claim for something other than what was actually delivered will, if discovered, almost certainly be viewed as deceptive (or worse) by the payor. Additionally, the alleged statement attributed to AHCA's employee contradicts the plain instructions in the Medicaid Handbook on that very subject. No provider can reasonably rely upon verbal advice, given anonymously (or functionally so, since the advisor's name, if given, was evidently easily forgotten) over the telephone, which contravenes the clear language of the Medicaid Handbook. Disney Pharmacy's other defenses are likewise unpersuasive. Disney Pharmacy maintains that compounding the drugs in question substantially benefited the patients who received them, which is probably true——but certainly beside the point. The problem here is not with the practice of compounding per se; the problem is that Disney Pharmacy sought and received reimbursement from Medicaid for mass produced, commercially available drugs that had not actually been dispensed. For the same reason, it is irrelevant, even if likely true, that the Board of Pharmacy, which periodically inspects Disney Pharmacy, never objected to the compounding that was occurring at the premises. Again, to be clear, the problem is not that the compounding was improper, but that the Medicaid billing was improper.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Disney Pharmacy to repay the Agency the principal amount of $1,676,390.45. DONE AND ENTERED this 11th day of April, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 11th day of April, 2006.
Findings Of Fact At all times relevant hereto, petitioner, Maurice C. Guest, held license number ME0005036 issued by Petitioner, Department of Professional Regulation, Board of Medical Examiners. Said license authorized Guest to practice medicine and surgery in the State of Florida. He has held the license since August 13, 1952. Dr. Guest presently practices medicine at 825 West Linebaugh Avenue, Tampa, Florida. Dorothea Lankford was a patient of Respondent for almost ten years. Among other things, she had suffered from headaches and stomach pains during that period of time. For these ailments, Guest prescribed Nubain and Vistaril, which are used to relieve moderate pain and nausea. A detailed listing of the prescription dates, script, quantity and type of drug, and pharmacy dispensing the drugs is found in Petitioner's Exhibit 17 received into evidence. In 1979 and 1980, Lankford provided midwife services in the Lutz, Florida area. However, she held no licenses from the State to provide any type of medical care. Most of Lankford's clients were members of a local Jehovah's Witness Church. Although the services were to be provided without charge, at least one client paid Lankford a small fee. The prenatal care consisted of weekly meetings at Lankford's mobile home where Lankford discussed all aspects of having a home delivery. The clients were given physical examinations, breathing exercises, suggested diets, and were administered B-12 shots from time to time. On an unknown number of occasions, Lankford administered other drugs, including Nubain and Vistaril, to treat clients suspected of having miscarriages. No doctors were in attendance at these meetings or to supervise the administering of drugs. In May, 1980, Brenda Crall, one of Lankford's clients, visited Dr. Guest for a physical examination. The appointment had been prearranged, although it was not disclosed by whom. There was no discussion between Crall and Guest that Lankford was going to provide a home delivery for Crall, although Guest recommended she not have one. He also made clear that he would provide no care other than the physical examination given that day. In October, 1980, Kathleen Streeter, also a client of Lankford, visited the office of Dr. Guest to have a physical examination. Lankford was in the examination room when the examination was given. However, there was no discussion between them to indicate that Guest was providing oversight care to Lankford's clients to sanction the activities of Lankford. Although the clients were under the impression that medical records of each client had been prepared by Dr. Guest, and that either Guest or some other physician was overseeing the activities of Lankford, there was no competent testimony or documentation to support their belief. Neither was there any evidence to show that Lankford and Guest had entered into some type of agreement whereby she referred patients to Guest on a one-time basis to sanction her unlicensed activities or that Guest delegated professional responsibilities to Lankford. On April 23, 1980, Brenda Crall and Kathleen Montane, another of Lankford's clients, were attending a meeting at Lankford's home when two other women began experiencing premature labor pains. Lankford injected one with Nubain and Vistaril but had nothing to give the other. Crall, Montane and Lankford's son then went to Respondent's office to pick up a prescription for Lankford. They carried an empty vial of Vistaril so that Guest would know the type of drug needed. Guest gave them a new vial of Vistaril which he had in his office and wrote a prescription for Nubain in Lankford's name. The evidence is conflicting as to whether it was explained to Guest that the prescriptions were for two of Lankford's clients. The actual visit took no more than one or two minutes, and both women admitted they were quite excited and in a hurry at the time. They acknowledged that before Guest dispensed the drug and wrote a prescription he asked whether Lankford was suffering from a headache. Accordingly, it is found that Guest believed the drugs were to be used by Lankford, and not to be administered by Lankford to unknown third persons. Crall and Montane then filled the prescription for Nubain and gave both drugs to Lankford. Lankford later used the drugs to treat her client. Mary Ellen Odom was a patient of Dr. Guest between September, 1978 and October, 1980. Among her various ailments were an incarcerated incisional hernia, a previous head injury to the brain which caused recurring pain, hypertensive cardiovascular disease, arthritis and herpes of the vagina. Because Guest wished to alleviate the considerable pain caused by the various ailments, and to keep her in an ambulatory condition, he prescribed a number of drugs while treating her as a patient, including Talwin in an injectable form. An injectable form was used in lieu of a tablet since she had an intolerance to certain oral medications. However, Odom received the drug as an out- patient and was therefore able to inject herself. Between September 27, 1978 and November 21, 1980 Odom obtained approximately 168 prescriptions written or telephoned in by Guest to Boulevard Drugs, located at 227 East Davis Boulevard, Tampa, Florida. A detailed list of the dates, script, drug, quantity and quantity filled is found in Petitioner's Exhibit 16 received into evidence. The druggist at Boulevard Drugs became concerned with Odom's use of Talwin, particularly after Odom administered herself an injection at the drug counter. The druggist talked by telephone with Guest on a number of occasions and told him that he believed Odom was abusing the drug. On May 17, 1980, he made the following notation on the bottom of one of Odom's prescriptions: "Dr. aware of abuse". Despite these warnings Guest continued to give Odom prescriptions for injectable Talwin for at least six more months. He was also aware that Odom had been previously addicted to Demerol, a pain-killing narcotic drug. Dr. Guest "regrets" giving Odom the amount of drugs that he did, but did so because he believed the woman was in constant pain, and because he did not initially believe Talwin to be an addictive drug. He has subsequently changed his opinion on the addictive nature of Talwin based on literature that warns of the addictive characteristics of the drug. A physician-member of the Hillsborough County Utilization Review Committee examined the medical records of Odom, together with the amount of drugs prescribed, and concluded that the amount of injectable Talwin prescribed by Guest to Odom was "excessive", given her medical condition. He also concluded that while her ailments may have justified the use of Talwin in an oral form, there was no basis to prescribe Talwin in an injectable form, particularly on an outpatient basis. In reaching that conclusion, the physician was unaware of any impediment to Odom using Talwin in a tablet form. He acknowledged that Talwin tablets could cause nausea and vomiting while the injectable form does not, and that under certain circumstances the latter form might be preferable, although not in the magnitude prescribed by Guest. Based upon his review of the records, he concluded Guest did not practice medicine with the level of care, skill and treatment recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances acceptable, nor did he conform with generally prevailing standards of the medical community in his care and treatment of Odom. Respondent also treated Bernetha Cunningham as a patient for approximately twenty-two years. In 1976, Cunningham developed symptoms which were consistent with rheumatoid arthritis. After trying several medications which were unsuccessful, he began prescribing Talwin compound to ease her pain. He instructed her to take two tablets every four hours, or a total of twelve per day, which resulted in a daily dosage of 180 milligrams. At that time, he did not consider Talwin compound to be an addictive drug. He also prescribed Valium to relieve Cunningham's anxiety and to relax her muscles. Petitioner's Exhibit 15 received in evidence reflects that during the period between January 13, 1976, and February 5, 1979, Guest wrote prescriptions for 3,460 Valium tablets with authorization for 2500 tablets on refill, and 2,800 Talwin compound tablets with authorization for 2,200 tablets on refill. However, the last time he treated her as a patient was in December, 1977, at which time he advised her that he would not prescribe any more medicine. The evidence is conflicting as to whether Guest continued to telephone in prescriptions after that date, but it is found that Cunningham continued to refill her prescriptions in Dr. Guest's name after December, 1977, without his knowledge and consent. On February 1, 1979, Cunningham was examined by another Tampa physician (now deceased) whose specialty was psychiatry. In a deposition given prior to his death, he diagnosed her as having reactive depression and arthritis. He also concluded she displayed symptoms of being addicted to Talwin vis a vis Talwin compound, and that the drugs had been prescribed in dosages that would tend to addict the patient. In reaching these conclusions, the physician made no distinction between Talwin and Talwin compound, although the latter is a much less profound form of the drug. His examination was also conducted some fourteen months after Mrs. Cunningham had last been treated by Dr. Guest, and been given a prescription for drugs. In December, 1978, the Cunninghams filed a civil action against Respondent alleging that Respondent had been negligent in his treatment of Cunningham by prescribing an excessive level of central nervous system depressants. After being initially dismissed, the suit was refiled in April, 1979, and was ultimately settled out-of-court when Guest paid the Cunninghams $6,200. Guest represented himself in the initial stages of the suit, and only after a default summary final judgment as to the issue of liability was entered did he obtain counsel. Guest settled the case on advice of counsel since he had no malpractice insurance and would have incurred substantial legal fees had the case gone to trial on damages alone and then been appealed on the issues of liability and damages. A physician-member of the Hillsborough County Utilization Review Committee examined the medical records of Cunningham and concluded that Guest prescribed too great an amount of analgesics, sedatives and tranquilizers, and too little medication to counteract Cunningham's arthritic condition. He also concluded Guest failed to conform to generally prevailing standards of the medical community in his care and treatment of Cunningham, and failed to practice medicine with the level of care, skill and treatment recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. Talwin is a controlled substance under Chapter 893, Florida Statutes. It is prescribed for relief of moderate to severe pain and is commonly referred to as an analgesic. The drug comes in various forms, including tablet, injectable and compound form. The latter form contains the least amount of Talwin in terms of milligrams. Its addictive characteristics were not recognized until approximately 1978 when reference to this was made in the Physicians' Desk Reference (PDR). The PDR provides that the maximum daily dosage should not exceed 600 milligrams, although the tolerance level will differ from individual to individual. Valium is also currently classified as a controlled substance pursuant to Chapter 893, Florida Statutes. It is used primarily as a tranquilizer although it has some muscle relaxant qualities. If given in sufficient quantity over time, a user may become addicted to the drug. Respondent was subjected to disciplinary action by the Board of Medical Examiners in 1978. In that action he was placed on probation for three years. Among the conditions of probation was the following: The licensee shall, during this probation period, demonstrate the type of exemplary conduct expected and required of a duly licensed physician in this State. If the licensee fails to meet the moral and professional standards expected of a duly licensed physician, said probationary order will be vacated and the licensee will be subject to further disciplinary action by the Board. In 1981, the probationary period was extended until August, 1982, presumably because of the case at bar. Respondent did not intentionally violate the law. While he wrote or telephoned an unusually large number of prescriptions for Odom and Cunningham, he believed that both patients were experiencing pain, and that the drugs were needed to aid them. However, because the patients were poor, could afford only one Medicaid trip per month to his office, and could not drive, Dr. Guest attempted to authorize a sufficient number of refills between office visits. In this respect, he was lax in failing to control the actual number of drugs obtained by the patients. Nonetheless, there were no monetary rewards or motivation in writing the prescriptions. Dr. Guest was portrayed by character witnesses as a sincere and dedicated practitioner. He has practiced medicine in Tampa, Florida, for almost thirty years. Although he suffered a heart attack in early 1980, he continues to work long hours. He is not motivated by the financial rewards of practicing medicine, for he has frequently accepted patients requiring medical care but who were too poor to pay the bill. There was no evidence that Respondent has any drinking or drug problems.
Recommendation Based on the foregoing findings of fact, and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Counts XIV, XV, XVII, XIX, XX and XXII. All other counts should be dismissed. It is further RECOMMENDED that Respondent's probation be extended for an additional seven years during which time he not be allowed to write prescriptions for scheduled controlled substances without such supervision and approval as the Board may require. DONE and ENTERED this 23rd day of June, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 1982.
