Findings Of Fact Americana operates 48 nursing homes in the United States, including three in Florida. It is a wholly-owned subsidiary of CENCO, Inc., a diversified, publicly-owned corporation. Americana's application for the certificate of need was approved by DHRS over the recommended denial of The South Central Florida Health Systems Council (HSA). The HSA has health planning responsibilities for a nine-county area which includes Naples (Collier County). See Sections 381.493(3)(h) and 381.494(6), Florida Statutes (1980). 1/ However, DHRS has the authority to grant or deny. See Section 381.494(7), Florida Statutes (1980). The HSA prepared the Health Systems Plan, which indicated a requirement for 95 additional nursing home beds in Collier County for 1980-81. However, the HSA apparently recommended denial based on a project review committee determination that cost of construction and the resulting charges to patients would be too high. Americana estimates cost of construction at $1.714 million. Financing is to be arranged by the parent corporation at 11 percent annual interest (estimated) . There was no evidence to indicate that excessive charges for patient care would result from these construction and financing costs. Further, Americana, through CENCO, is now seeking to finance the project with tax-exempt bonds to be issued by the Collier County Industrial Development Authority. A $3.5 million bond limit and a 120-bed facility were proposed to the Authority. If these bonds are successfully issued, mortgage interest expense would be substantially below the market rate. Petitioner contends that both the bond request and the proposed 120 beds violate the terms of the certificate of need. However, Americana demonstrated that the $3.5 million represents only a ceiling and that the original $1.7 million estimate remains an operative figure. The testimony of DHRS, the Collier County Development Council and bonding company witnesses established that none of these agencies were misled as to proposed costs. However, the continuing inflation and the questionable construction starting date necessitated a "cushion" to the original estimate. This was not shown to be improper but is, rather, a prudent measure to be taken during an inflationary period. There was no deception involved in the 120-bed facility proposed to the Collier County Development Authority. This plan calls for construction of the 95-bed approved facility with a shelled-in area to provide for future expansion. This plan was made known to the HSA and DHRS during the processing of the application and was accepted by these agencies even though separate certification of the additional 25 beds would be required. There are currently 213 extended care nursing home beds in Collier County. These are provided by Petitioner (99) and by the Gulf Drive Nursing Home (114). Both facilities are about 12 years old. In addition, there are 180 beds currently under construction. These include 120 beds at the Naples Villa, which will be available to the general public, and 60 beds at the Moorings Presbyterian. The latter will initially open its facility to the general public but will eventually restrict access to these who are residents of its affiliated congregate living community. All of these facilities are or will be licensed for skilled and intermediate care and, except for the Moorings, will offer a substantial portion of their beds to Medicare/Medicaid patients. The standard used by the HSA sets the upper limit of need for nursing home beds at 27 per 1,000 persons 65 years of age or older. This standard is used by health planning agencies throughout Florida. It results in a computed requirement for 95 additional beds in Collier County which, in the view of Respondents, supports grant of the Americana application. Petitioner points out that this standard produces a maximum figure, and that other factors must be considered in calculating actual need. Such other factors include projected area growth, utilization of existing nursing homes, the availability of alternate care facilities, any average or deficit in beds in surrounding counties, effect of competition on other facilities, and the cast to patients of the new service. The evidence established that Collier County is a rapidly growing area and one which is attracting a substantial number of new residents age 65 or older. The two existing nursing homes average about 90 percent occupancy and regularly have patients awaiting admission during the winter months. A waiting list of Medicaid applicants, which is increasing each year, is maintained by the local DHRS office. In addition, placement inquiries are frequently received by this office from outside the area but are discouraged due to the lack of assured acceptance. A significant number of patients now residing in Naples nursing homes could be cared for at other facilities such as "foster homes" if they were available. Conversely, some patients who do not require acute care must remain at the hospital due to the lack of nursing home beds. Facilities in neighboring counties are limited and offer no real alternative for Naples residents seeking nursing home care. Petitioner established that a shortage of nursing personnel in the area now exists and asserted that this shortage will become severe if Americana opens a nursing home as planned. Petitioner further contends that Americana will necessarily compete for area nurse, thus driving up wages and, ultimately, the cost of care. Americana views the shortage of nurses as a national problem and has implemented an active nurse recruitment program. It has adequately considered its staffing needs and reasonably believes it will be able to attract the necessary personnel. The evidence was inconclusive as to the impact the proposed facility would have on local wages.
Recommendation From the foregoing, it is RECOMMENDED that the Petition of Greater Naples Care Center, Inc. to revoke Certificate of Need No. 1288 be denied. DONE and ENTERED this 16th day of January, 1981, in Tallahassee, Leon County, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1981.
The Issue Whether Respondent, Agency for Health Care Administration (Agency) should have issued Petitioner, Haverhill Care Center and Beverly Health Care West Palm Beach, Beverly Enterprises-Florida, Inc., d/b/a Beverly Gulf-Coast Florida (Haverhill), a conditional license for the periods October 14, 1998, through January 3, 1999, and December 8, 1999, through February 9, 2000.
Findings Of Fact At all times material hereto, the Agency was the enforcing agency with regard to nursing home licensure law pursuant to Chapter 400, Part II, Florida Statutes. Haverhill is a nursing home located in West Palm Beach, Florida. On October 14, 1998, the Agency surveyed Haverhill and determined that the facility violated 42 CFR Sections 483.13(c), 483.25(h)(2), and 483.75 in its care of B. B., a resident at the facility who had eloped from Haverhill on September 24, 1998. The deficiencies were described by tag numbers F224, F324, and F514. The Agency determined that these deficiencies were Class II deficiencies under the state rating scheme and the Agency also assigned them a severity rating of "G", which is a determination under the federal rating scheme that the deficiency was isolated but caused actual harm to the resident. B. B. was a 78-year-old male who had dementia, congestive heart failure, hypertension, and a history of a pulmonary embolism. He was independent with his daily activities and ambulatory. From the end of 1997 through September 1998, B. B. underwent a series of admissions and discharges from different short-term and long-term care facilities. In late 1997, he went to the hospital with congestive heart failure, and while he was there, his doctor recommended that he be placed in a long-term care setting. After his discharge from the hospital, B. B. went to a nursing home known as IHS Lake Worth, where he remained until May of 1998. In May 1998, B. B. experienced a pulmonary embolism and was sent to the hospital. Staff from IHS Lake Worth sent a transfer form to the hospital that noted that B. B. was a "wanderer" and would "go outside if not monitored." When B. B. was discharged from the hospital in late May 1998, he could not go back to IHS Lake Worth because the Agency had placed a moratorium on admissions to IHS Lake Worth. B. B. was sent to a sister facility, IHS of West Palm Beach, where he remained until July 6, 1998. During his stay at IHS of West Palm Beach, staff at the facility noted that B. B. "wanders at times, needs direction." On July 6, 1998, B. B. was discharged to his home, where he remained until August 5, 1998, when his daughter S. B. determined that she was unable to care for him and readmitted him to IHS Lake Worth. While at IHS Lake Worth, B. B. was given Haldol, an anti-psychotic drug. He was also assessed by the staff on August 6, 1998, as being appropriate for a locked unit due to "wandering and confusion and past history of agitation and combativeness." During the next few days, B. B. exhibited episodes of angry outbursts and agitation, which caused staff to be fearful for others. On August 12, 1998, B. B. was transferred to Four Seasons, an assisted living facility. The record review on August 12, 1998, recorded, "Four Seasons came and evaluated and took resident upon assessment. Daughter agreeable. Doctor agreeable. Locked unit most appropriate place for this resident." Four Seasons was closed by the Agency. While the facility was being closed, B. B. got on a bus. The Delray Beach police found him and returned him to the facility After Four Seasons closed, B. B. returned home. While at home, B. B.'s behavior became erratic. He would get up at 4:00 a.m. and take a shower. B. B. was being given Ativan to calm him down. On September 16, 1998, B. B. was readmitted to IHS West Palm Beach, which had a Wanderguard alarm system designed to notify staff if a patient attempted to leave the facility. However, the Wanderguard system at IHS West Palm was not fully functional. While at IHS West Palm Beach, B. B. wandered around the facility and attempted to get out of the facility. The administrator at IHS West Palm Beach determined that B. B. needed to be transferred to another facility. At approximately two o'clock on Friday afternoon, September 18, 1998, Kit Johnson, the Social Services Director at IHS West Palm Beach, spoke with S. B. and advised her that B. B. needed to be transferred to a more secure facility. Ms. Johnson contacted several facilities in an effort to find a facility which would accept B. B. She spoke to Robb Eason, Haverhill's Admissions Director, concerning placement for B. B. She advised Mr. Eason that IHS West Palm Beach could not keep B. B. because he was a wanderer and could not be maintained safely at IHS West Palm Beach. Mr. Eason agreed to have B. B. transferred to Haverhill. Ms. Johnson called S. B. and advised her that Haverhill was willing to take B. B. S. B. indicated that she could not be there because her mother was ill. At four o'clock, nursing staff at IHS West Palm Beach were notified that B. B. would not be transferred until the next day because S. B. could not come to the facility until the next day. B. B. became very upset because his daughter was not coming and walked off the unit. A security guard had to be called to return B. B. to his room. A decision was made that B. B. would be transferred to Haverhill on September 18, 1998. At 5:00 p.m., the nursing staff at IHS West Palm Beach was notified that B. B. would be transferred. B. B.'s doctor's service was called for a discharge order. At 5:45 p.m. B. B was transferred to Haverhill by a transport service. The documents that were sent to Haverhill to IHS West Palm Beach did not indicate that B. B. was a wanderer or that he could be a candidate for elopement. Between five and six o'clock on the afternoon of September 18, 1998, S. B. telephoned Mr. Eason and advised him that she could not come to Haverhill that Friday because her mother was ill. Mr. Eason told her that he would not be back in the facility until the following Monday and suggested that she come the next day to complete the paperwork with the charge nurse. S. B. did not feel comfortable doing the paperwork with the charge nurse and told Mr. Eason that she would come on Monday. S. B. also asked Mr. Eason if he had spoken to Kit Johnson and whether he was aware that Ms. Johnson had told her that Haverhill was a locked-down facility. S. B. also asked Mr. Eason whether Haverhill could deal with her father's dementia. Eason told her that Haverhill could handle B. B. On B. B.'s first day of admission at Haverhill, September 18, 1998, he was agitated at being placed in a nursing facility. S. B. received a call from one of the nurses at Haverhill during the evening, telling her that B. B. did not know why he was at the nursing home, but that they would take care of him. A care plan was developed for B. B. on September 18, 1998, to deal with his agitation at being placed in a nursing facility. The care plan included the following approaches: Introduce yourself and knock on door prior to entering room. Orient to room and new environment. Encourage to express his feelings about nursing home placement. S/S to visit to promote conversation weekly. Activity to visit & (illegible) to activity of choice daily. Call bell within reach when in room. The care plan did not include measures to deal with B. B.'s wandering of which Mr. Eason had knowledge. On the morning of September 19, 1998, B. B. was alert and oriented to his surroundings. He told the nurse, "I really like this place, you should have seen the hell hole I came from." B. B. called his daughter on September 19, 1998, and told her that he was waiting for her and that he was ready. She explained that her mother was sick and she could not be left at that time. B. B. seemed to accept that explanation. On September 20, 1998, B. B. awoke about 4 a.m. and walked in the hall. He was angry and belligerent when his doctor visited him. He had yelled at other residents and kept asking for a sleeping pill all day. At the beginning of the 7 a.m. to 3 p.m. shift on September 21, 2000, B. B. was standing at the nurses' station and yelling at staff. He said, "I'm getting the hell out of here, they just can’t put me here and leave." He called his daughter and after hanging up, he became more agitated. Later in the morning, S. B. came to Haverhill to complete the admissions paperwork and to see her father. When she arrived B. B. was sitting on a bench outside the facility unsupervised. She took her father back inside the facility and went to find the admissions director so that she could complete the necessary paperwork. While she was completing the paperwork, she did not advise anyone that her father wandered or that he had eloped from Four Seasons. However, given the information that Kit Johnson had told Mr. Eason, he should have asked S. B. about any previous attempts by B. B. to leave home or other facilities and should have requested additional information from IHS West Palm Beach. According to the testimony at final hearing, by Monday, September 21, 1998, Mr. Eason claimed not to know that B. B. had been admitted on September 18 from IHS West Palm Beach. It can only be concluded that between Friday afternoon and Monday morning Mr. Eason had forgotten about B. B. After finishing the necessary admissions paperwork, S. B. went to her father's room to visit with him. When she was leaving the facility, her father thought that he was going to go with her and attempted to follow S. B. Haverhill staff had to intervene. B. B. became verbally and physically abusive, and the Administrator of Haverhill had to be called to assist. B. B. took a swing at the administrator. B. B. was taken back to his room, where he stayed. He told staff that they could not do anything for him and to leave his room. No one at staff notified S. B. of her father's episode. B. B.'s doctor was notified of B. B.'s behavior. The doctor prescribed anti-psychotic and anti-anxiety medications and ordered a psychological evaluation. Staff placed a call to the psychological services provider, requesting an evaluation. Both the Agency's and Haverhill's expert witnesses agreed that B. B.'s attempt to leave with his daughter was a catastrophic event, which is a clinical term used to describe a level of agitation of such sustained duration that it requires intervention by the caregiver. Haverhill did provide intervention by directing B. B. back to his room and informing the doctor. Haverhill had a policy and procedure to deal with residents who displayed mental difficulty. The policy and procedure provided: POLICY To protect the resident and other residents of the facility from harming themselves or others. To ensure that the resident receives appropriate treatment and services to correct the assessed problem. PROCEDURE When a resident exhibits behavior such as trying to elope, aggressive behavior, speaking of suicide or other behaviors relating to signs of distress or depression, nursing is to: calm resident close monitoring of resident call physician call family psychological services complete documentation of incident, and interventions and responses notify social services notify Director of Nursing Haverhill did not notify S. B. of the catastrophic event and did not closely monitor as called for in its policy and procedure. On September 22, 1998, Haverhill developed a care plan to deal with B. B.'s verbal and physical abuse to staff and residents. The care plan included the following: Redirect him when he becomes aggressive. Psy consult per MD order. Medicate per doctor order. Provide quiet area to promote conversations regarding his concerns. On September 22, 1998, B. B. continued to be noticeably anxious and angry and paced the floor. He made a telephone call, and after the call, he slammed his fist on the nurses' desk and expressed anger. He was redirected to his room. His new medication was begun at 9 a.m. By 1 p.m., B. B. was calmer, walking in the hallway to the nurses station and saying, "Hi" to staff when approached. Later in the day, B. B. became drowsy and slightly unsteady on his feet. He was redirected to his room. A care plan was developed to deal with the side effects of his new medications. No one arrived to do a psychological evaluation on B. B. on September 22, 1998. The provider was again called and asked to send someone. S. B. visited B. B. on September 23, 1998. B. B. told her that he was ready to go home. She left the facility around 3 or 4 o'clock in the afternoon. According to B. B.'s roommate, B. B. went to bed around 4 p.m. Around 5 p.m., B. B. was up and his gait was unsteady. The doctor was notified of the side effects of the new medications on September 23, 1998. The doctor ordered Haverhill to withhold B. B.'s scheduled dose of Ativan. As of 6:15 p.m. on September 23, no one had shown up to perform a psychological evaluation. No nurses' notes or social service progress notes indicate that anyone came on September 23 to perform a mental evaluation of B. B. The social services progress notes indicate that on September 23, B. B. was calm and had no behaviors during the day. B. B. asked for snacks around 8 p.m. The charge nurse who admitted him, stated that at 11 p.m., he was lying on his bed fully dressed. D. D., another resident in the building, stated that he saw B. B. up around 1:30 or 2:30 a.m. on September 24, wrapped in a blanket and asking if his daughter had been by to see him. B. B. went back to bed and got up between 3:00 and 3:30 a.m. to get coffee. He walked to the nurses station and was told by staff that it was too early and that he should go back to his room. B. B went back to bed. D. D. saw B. B. get up around 4:45 a.m. and get dressed. At 5:10 a.m., while doing bed checks, the nursing staff noted that B. B. was missing and began a search for him. He could not be found, leading to the conclusion that he had eloped. On November 2, 1998, B. B.'s body was found in a drainage ditch a quarter of a mile from the facility. On October 27, 1998, Haverhill received a report on B. B.'s mental status examination from the psychological services provider. The report was typed except for the signatures and the day on the date. The date of the interview was listed as 09/23/98 with the "23" handwritten. The Agency contends that Haverhill did not provide adequate supervision to B. B. because it did not have sufficient staff on hand when B. B. eloped from the facility on September 24, 1999. The Agency bases this contention on its interpretation of a staffing summary which was prepared by Haverhill that indicated that Haverhill did not have sufficient certified nursing assistant hours to meet minimum state standards on September 24. The summary indicates the number of certified nursing assistant and licensed nursing hours hired at Haverhill for each day between September 20 and 28, 1998. Each 24-hour period represented on the summary begins with the 7:00 a.m. shift on the designated day and runs until the 7:00 a.m. shift on the following day. Accordingly, the staffing levels reflected for September 24, 1998, would be those which began at 7:00 a.m. on that day and ran until 7:00 a.m. on September 25, 1998. B. B. eloped from Haverhill around 5:00 a.m. on September 24, 1998. Since his elopement occurred prior to 7:00 a.m. on September 24, the staffing levels reflected in the summary on September 23, 1998, would cover the time period during which B. B. eloped. On September 23, Haverhill exceeded minimum state requirements for certified nursing assistants by 46.8 hours and for licensed nurses by 40.1 hours. Although Haverhill identified a care plan for B. B. upon admission, Haverhill failed to implement the care plan. Specifically no one assisted in diverting B. B.'s focus on wanting to leave the facility. No evidence was provided that organized activities oriented to meet B. B.'s needs were provided. According to the Agency's expert, B. B.'s frequent ambulating in the halls, as documented in the nurses' notes, demonstrated his lack of participation in organized activities. The Agency charges Haverhill with a violation of 42 CFR Sections 483.35(c)(1) and (2) for failure to treat pressure sores on Residents 1 and 16. The deficiency was identified as Tag F314, determined to be a Class II deficiency, and determined to have a severity rating of "G." Resident 1 was a 75-year-old female admitted to Haverhill's facility on October 6, 1999. She was diagnosed with end-stage Alzheimer's disease. Prior to admission, she had a feeding tube inserted. Upon admission Resident 1 was self-ambulating, and the nurses' notes reflect that Resident was a wanderer and walked on a regular basis. She had no skin breakdown when admitted, but she was assessed at a high risk for pressure sores, due to bowel incontinence. A pressure sore is a lesion that is caused by unrelieved pressure to an area and results in damage to underlying tissue. A care plan was developed on October 6, 1999, to address Resident 1's risk for pressure sores. The care plan included the use of pressure relieving chairs and beds; turning and repositioning with no specific times listed; ulcer care; use of cleansing agent and water to clean skin whenever soiled, and treatment of dry skin with moisturizer. According to the physician's orders on October 6, 1999, Resident 1 was to have a skin assessment with showers weekly, and a skin barrier with lantiseptic ointment applied to her buttocks every shift or three times a day, and intermittently as needed. Another care plan was developed on October 26, 1999, after a comprehensive assessment had been completed. The October 26 care plan did not include turning and repositioning. The standard of care to prevent pressure sores from developing includes regular turning and repositioning every two hours, keeping the skin clean and dry, and adequate nutrition and hydration. When a resident is ambulatory and can move herself in bed, turning and repositioning is less of a factor. According to the nurses' notes for Resident 1, she slept most of the day on October 25, 1999, and continued to be drowsy on October 26. The doctor reduced her dosage of Haldol. Resident 1 was terminally ill and was placed on hospice service on October 27, 1999. On October 29, 1999, she was drowsy but alert and ambulatory. She was walking on October 31, 1999, with a slow, steady gait. On November 2, 1999, Resident 1 had no open sores. On November 8, 1999, the treatment notes indicate no open sores on Resident 1, but there was some redness in the perianal area, which was treated with a cream. On November 8, 1999, the nurses' notes indicate that Resident 1 was ambulating with some difficulty. She was kept clean and dry, and her skin was intact. On November 10, 1999, it was noted that she was alert and turning aimlessly in bed. On November 10, 1999, she showered, and the nurses notes indicated no areas of skin breakdown. On November 14, 1999, Resident 1 was ambulating and was able to turn self. On November 16, 1999, there were no open areas on Resident 1, but she developed hives all over her body. She was given Benedryl for the rash. On November 17, 1999, Resident slept most of the day. On November 23, 1999, there were no open areas on Resident 1. She was lethargic and was turned and repositioned. On November 24 and 25, 1999, Resident 1 remained lethargic and was turned and repositioned. On November 26, 1999, she was lethargic all day. She continued to be lethargic on November 27, 1999. She was kept clean and dry and was turned and repositioned. The nurses' notes indicate that on November 30 and December 3, 1999, Resident 1 continued to be lethargic. The nurses' notes indicate that she was turned and repositioned on December 3, 1999. On December 3, 1999, a nurse noted a pressure sore on Resident 1's coccyx, measuring .5 x .25 centimeters. The initial information regarding the treatment and identification of the pressure sore was documented on the treatment sheet of another patient with a similar name. The error was corrected on December 6, 1999. No evidence showed that the incorrect charting resulted in a failure to treat the pressure sore. The pressure sore was a stage II pressure sore, which means either a blister or a shallow open area in which only the epidermis is affected. The area was cleansed and duoderm was applied. Pressure sores are staged to standardize descriptions. Staging is not a means to describe a progression from one stage to the next. Sores can appear at any stage from a I to a IV. On December 5, 1999, the pressure sore was assessed. The skin was broken, and the area was red and dry. The area was cleaned, and duoderm was applied. Resident 1 was lethargic and unresponsive to verbal stimulus. She was turned and repositioned. During a survey on December 6, 1999, a surveyor from the Agency observed the pressure sore, and described it as a shallow crater over a bony prominence. The nurses' notes on December 6, 1999, at 6:00 a.m., 12:00 p.m., and 7 p.m. indicate that Resident 1 was turned and repositioned. On December 6, 1999, two surveyors from the agency were at Haverhill. According to one surveyor numerous staff went into Resident 1's room from 6:00 a.m. to 9:00 a.m., but when she went into the room Resident 1 did not appear to have been repositioned. However, the other surveyor said that no staff went into Resident 1's room during the same time period. Between 6:00 a.m. and 9:00 a.m. on December 6, 1999, Resident 1 was turned and repositioned. On December 7, 1999, cream was applied to Resident 1's buttock area, and she was turned and repositioned. She was repositioned on December 8 and 9, 1999. By December 10, 1999, the pressure sore had closed and was healing well. On December 17, 1999, it was noted that the pressure sore was healing well and was pink in color. The Agency had cited Haverhill for not adding zinc or vitamin C to Resident 1's nutrition after the pressure sore was noted on December 3, 1999. Haverhill's dietician evaluated Resident 1 on December 5, 1999, to determine whether additional nutrition was necessary. After a thorough review of the resident's condition and history, including Resident 1's husband's concerns, the dietician specifically considered the addition of supplements and concluded that Vitamin C and zinc might be added "if wound not responding to [treatment] x 2 wks." Standard guidelines suggest adding these supplements only for more serious wound concerns. Zinc and Vitamin C did not have to be added to Resident 1's nutrition. The agency alleged that Haverhill should have done a significant change assessment based on Resident 1's decreased physical capabilities that began in October 25, 1999, her bedfast condition since November 22, 1999, and her nutritional deficits since November 22, 2000. The federal guidelines concerning significant change in status assessments are contained in HCFA's RAI Version 2.0 Manual. The guidelines provide: A 'significant change' is defined as a major change in the resident's status that Is not self-limiting; Impacts on more than one area of the resident's health status; and Requires interdisciplinary review or revision of the care plan. A condition is defined as 'self- limiting' when the condition will normally resolve itself without further intervention or by staff implementing standard disease related clinical interventions. * * * The amount of time that would be appropriate for a facility to monitor a resident depends on the clinical situation and severity of symptoms experienced by the resident. Generally, if the condition has not resolved itself within approximately 2 weeks, staff should begin a comprehensive RAI assessment. This time frame is not meant to be prescriptive, but rather should be driven by clinical judgment and the resident's needs. * * * In an end stage disease status, a full reassessment is optional, depending on a clinical determination of whether the resident would benefit from it. The facility is still responsible for providing necessary care and services to assist the resident to achieve his or her highest practicable well- being. However, provided that the facility identifies and responds to problems and needs associated with the terminal condition, a comprehensive reassessment is not necessarily indicated. A significant change assessment was not done. Based on the federal guidelines, it was discretionary for Haverhill to do a significant change assessment because of Resident 1's terminal illness. There was no evidence to link the failure to complete a significant change assessment and the actual care given to Resident 1. Nurses' notes reflect that staff was very aware of Resident 1's condition and took measures to address it. There are frequent notes, which established discussions with the concerned husband, being turned and repositioned, being kept clean and dry, being fed, obtaining lab tests, and changing medications. Resident 1 did develop a pressure sore while at Haverhill, but the treatment and care that she was provided prior to the development of the pressure sore indicate that Haverhill did what it could to prevent the development of the pressure sore and that the development was unavoidable. After the pressure sore developed, Haverhill provided the necessary treatment to promote healing and prevent infection. Resident 16 was a 66-year-old, non-ambulatory female, who was admitted to Haverhill on August 4, 1999, from the hospital where she had undergone surgeries for both a pacemaker and a gastrostomy tube. She had an indwelling catheter and bowel incontinence. Resident 16 was totally dependent on staff for all activities of daily living. When she was admitted to Haverhill, Resident 16 had a stage II pressure sore on her left buttock. She was assessed as being a high risk for pressure sores. Her preliminary care plan developed on August 4, 1999, included turning and repositioning every two hours, weekly skin assessments, cleaning for incontinence, using barrier cream, and dressing the pressure sore as ordered. She was placed on a maxi-float mattress rather than a standard mattress. By August 11, the pressure sore was only pink and had completely healed by August 30, 1999. At 9:00 p.m. on August 20, 1999, it was noted that Resident 16 had a stage II, one centimeter-sized open area at her coccyx. The area was cleaned and dressed. The doctor was notified on August 21, 1999, about the pressure sore to the coccyx. He prescribed duoderm. It was also noted on August 21, 1999, that Resident 16's shoulder blades were red and scraped and needed to be monitored. Cream was applied to the shoulder blades. Resident 16 was kept in bed rather than a geri chair on August 22, 1999, so that she could be turned from side to side every two hours. Cream was applied to the shoulder blades, and the duoderm was intact to the coccyx. Haverhill's dietician described the pressure sore on the coccyx as a stage III, measuring 4.5 cm x 4.7 cm with 35 percent necrosis and 65 percent slough. On August 23, 1999, Resident 16 was sent to physical therapy for wound care, because the physical therapist had special training in this area. The physical therapist described the pressure sore area as having a hematoma and part of the wound being yellow and brown with inherent necrotic tissue. The pressure sore had no depth, the drainage was scant, and there was some breakthrough granulation. This description indicates that the wound was covered with possible necrotic tissue underneath. When the necrotic tissue was removed, such as the physical therapist did with mechanical debridement, an opening was revealed. After the wound was cleaned and debrided, it increased in size. On August 25 and 26, 1999, wound treatment was performed on the pressure sore area at the coccyx. The dietician notes indicate that the pressure sore continued to be a stage III on August 31, 1999, and measured 4.5 cm x 5 cm with 70 percent necrosis, 20 percent slough, and 10 percent granulation. Vitamin C and zinc support was ordered for Resident 16. On September 1, 1999, Resident 16 was placed on a different pressure reduction mattress. A wound culture was sent to the laboratory. By September 2, 1999, the wound had become infected. Antibiotics were administered beginning on September 3, 1999. Wound care treatment was also performed on September 3, 1999. On September 4, 1999, the dressing was changed to the pressure sore. The nurse noted that there was a dark circle on the inner side of the right heel. Heel protectors were put on Resident 16. Resident 16's care plan was revised on September 7, 1999, to change the turning and repositioning time to once every hour. On September 9, 1999, the nurse called the doctor regarding the pressure sore and requested that the wound care center be contacted for evaluation and treatment. A call was placed to the wound care center. On September 10, 1999, the wound care center called and stated they could not treat Resident 16 because of insurance coverage. The same day a call was placed to the hospital to see if Resident 16 could be treated there for wound care. On September 13, 1999, the hospital called and advised that Resident 16 could not be treated there because of insurance coverage. On September 14, 1999, Resident 16 was placed on an air mattress to help relieve the pressure. By September 16, 1999, according to the nurses' notes, the wound consisted of "much unhealthy and necrotic tissue with very foul odor and much purulent discharge." The dietician noted that the wound was still at a stage III. On September 17, 1999, the doctor ordered that Resident 16 be sent to the hospital emergency room for wound treatment and evaluation. At 1:00 p.m. on September 17, 1999, the nurses' notes indicate that complete care was given, including cleaning after an incontinent episode, dressing change, and turning. Resident 16 left for the emergency room by stretcher at 1:30 p.m. When she seen by the doctor at the hospital, he noted that the wound was contaminated with feces. Given the resident's incontinence, this is not an unexpected condition despite her having been cleaned just prior to leaving for the hospital. She could have had an incontinent episode on the way to the hospital or while waiting in the emergency room. No evidence was provided to establish that she was dirty when she left Haverhill. The doctors at the hospital described the pressure sore as a stage IV decubitus ulcer with a 12 to 14 centimeter diameter. The ulcer was grossly contaminated and would require cleaning over the next three to four days. Her laboratory tests showed that she also had a pseudomonas urinary tract infection. It was recommended that a diverting colostomy be considered for Resident 16 to keep "the fecal stream from continually bathing this area and giving rise to a chronic septic condition for the patient." Pseudomonas in the urine is indicative of contamination in the bladder. Such contamination could come from lying in the bed in stool or from improper cleaning related to Resident 16's indwelling catheter. In Resident 16's case, the stool was brought up around the catheter, which carried the bacteria to the bladder. Resident 16 was kept at the hospital from September 17 to September 25, 1999. Based on the dietician's notes, the pressure sore was a stage IV when Resident 16 returned from the hospital. On October 6, 1999, the resident's care plan was amended. On October 9, 1999, the pressure sore was still a stage IV and measured 4.0 x 5.0 x 2.2 cm with undermining. The nutritional assessment for November 15, 1999, showed that the pressure sore was a stage IV. On November 24, 1999, the pressure sore measured 2.8 x 2.2 x 1.5 cm with undermining. At the time of the Agency's survey on December 8, 1999, Resident 16's pressure sore on her coccyx was still a stage IV, and she had developed a pressure sore on her left heel. Turning and repositioning is important in preventing pressure sores. The standard nursing practice for turning and repositioning is a minimum of every two hours. Haverhill's policy for turning was every two hours. Resident 16's care plan showed that she was to be turned every two hours until September 7, 1999, when the care plan was amended to turning every hour. The standard nursing practice for charting records depends on the condition of the patient. Resident 16 should have been charted on every shift throughout the day, based on her high-risk status, her bedfast position, her existing pressure sore, the contractures of her lower extremities, and her medical history. Based on Haverhill's nursing notes, Resident 16 was turned and repositioned 656 times, or less than a third of the total number of times required, 2,320, by Resident 16's care plan between August 4 and December 7, 1999. Based on Haverhill's charting records, Resident 16 was turned and repositioned 356 times, or less than a sixth of the number of times required by the care plan between August 4 and December 7, 1999. Haverhill's records show that the number of times Resident 16 should have been turned and repositioned, consistent with Resident 16's care plan, was significantly higher than the actual number of times that Resident 16 was turned and repositioned. The Agency claims that Haverhill failed to do skin assessments according to physicians orders during the month of September, 1999. The physician ordered a skin assessment once a week with showers. The assessments were done according to the doctor's orders. During part of September, Resident 16 was in the hospital for wound treatment; therefore, Haverhill could not have done a skin assessment at that time. When Resident 16 returned from the hospital there were only five days left in the month; thus, another skin assessment was not due to be conducted in September. Haverhill failed to turn and reposition Resident 16 as required by her care plan. Resident did develop a pressure sore, which was not unavoidable. Haverhill did not provide treatment that would promote healing of the pressure sore due to Haverhill's failure to turn and reposition Resident 16 as required by her care plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Counts VIII and IX of the Administrative Complaint, upholding the conditional license for Petitioner effective October 14, 1998, through January 3, 1999, and December 8, 1999, through February 9, 2000. DONE AND ENTERED this 8th day of November, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 8th day of November, 2000. COPIES FURNISHED: R. Davis Thomas, Jr. Qualified Representative Donna H. Stinson, Esquire 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 Tracy S. Cottle, Esquire Agency for Health Care Administration Regional Service Center Fort Knox Building 3, Suite 3231 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact The Petitioner, Florida Hospital, is a tertiary care hospital located in Orange County, Florida, and consisting of three different campuses, with a total of 1,075 licensed beds. It is the second busiest and biggest hospital in Florida. T2. 9,20. Florida Hospital submitted its original FY 1984 budget to the Hospital Cost Containment Board (HCCB) on October 31, 1983. Petitioner's Exhibit 5. The FY 1984 budget was revised at least once through informal negotiation with HCCB staff before it was considered by the HCCB, and these revisions were accepted by the staff of the HCCB. T1. 54, 104. These changes were not placed in evidence. The HCCB reviewed Petitioner's FY 1984 budget at its meeting on April 19, 1984. T1. 54; Petitioner's Exhibit 4. The budget was accepted and not selected for public hearing, and the HCCB found that Petitioner's hospital had one of the top three highest case mixes in the state. Petitioner's Exhibit 4. Petitioner's 1984 fiscal year ran from January 1, 1984 to December 31, 1984. T1. 52. Although the budget was not considered by the HCCB until April, 1984, the budget was effective for all of fiscal year 1984. T1. 54. By letter dated October 11, 1984, but received October 15, 1984, Florida Hospital submitted an amended FY 1984 budget to the Hospital Cost Containment Board. T1. 54; T2. 51; Petitioner's Exhibit 6. The amendment thus was submitted 289 days after the beginning of Petitioner's 1984 fiscal year, using the date of receipt as the date of submission, and 77 days from the end of the fiscal year. By letter dated February 11, 1985, the HCCB staff notified Florida Hospital that its amended 1984 budget would not be accepted because it was received less than 90 days before the end of Florida Hospital's 1984 fiscal year. T1. 54-55; Petitioner's Exhibit 2. Florida Hospital is not aware of any analysis made by the staff of the HCCB with respect to the merits of the proposed amendment. T1. 56. In the fall of 1984, the HCCB applied the 90 day policy to all hospitals which submitted proposed budget amendments. T1. 7, 13. The policy was initiated in late summer or early fall, 1984. T1. 6,7. The HCCB did not provide the Petitioner with any other reason for the proposed denial of its amendment. T1. 23. The HCCB has now abandoned its policy of refusing to accept budget amendments within the last 90 days of the fiscal year, and that issue is not present in this case because the HCCB does not rely upon it to deny the amendment proposed by the Petitioner. T1. 11, 27. Effective May 18, 1984, the Legislature substantially amended the Health Care Cost Containment Act of 1979, section 395.501, et seq., Fla. Stat. Chapter 84-35, Laws of Florida (1984). Historically, there was no practice or policy of the HCCB or its staff to either encourage or discourage amendment of budgets after submission to the HCCB, and although such amendments were not required by law, amendments were routinely allowed. T1. Under prior law, the HCCB had no regulatory authority over hospital budgets, and could not require a hospital to revise its budget or to abide by its budget. T1. 40. The HCCB only had the power to subject the hospital to a public hearing. Id. It often occurred that hospitals would revise a budget under the former law, after preliminary staff analysis and recommendation, and it is inferred that often such amendments were prompted by the possibility that the unrevised budget would trigger a public hearing. T1. 39. In fiscal year 1984, ninety-nine hospitals submitted amendments or other changes to their budgets after initial budget Submission to the HCCB. Petitioner's Exhibit 1. Sixty-five of those amendments were accepted by the staff of the HCCB or the HCCB and became a part of the hospital's 1984 budget. Id. At least fifteen or twenty of the attempts to amend the FY 1984 budget set forth above were filed after the particular fiscal year had already begun. T1. 70. The majority of these fifteen or twenty were changes or amendments submitted prior to the time that the particular budget was submitted to the board of the HCCB. Id. In most eases, these fifteen or twenty amendments were accepted by the HCCB. T1. 71. Thus, it was common for the HCCB to accept amendments to the FY 1984 budget after the beginning of that fiscal year. There is no evidence, however, that any of these amendments accepted by the HCCB had the effect, under the amended 1984 law, of reducing the variance between a 1984 budget as originally filed and 1984 audited actual experience to diminish or entirely avoid the base year adjustment required by section 395.509(11), Fla. Stat. (1985). On March 6, 1984, Kissimmee Memorial Hospital submitted an amendment to its FY 1984 budget after the beginning of that fiscal year. Its fiscal year was calendar year 1984. This amendment was accepted by the HCCB in April, 1984, and was effective retroactively and prospectively, for the entire fiscal year. T1. 71-77; Petitioner's exhibit 7, worksheets C-3, C-4 and X-4. Of the fifty FY 1984 files reviewed at the HCCB by Scott Miller, witness for the Petitioner, one contained an amendment to a budget which was accepted by the HCCB after the HCCB had approved the budget. T1. 77. That hospital was Central Florida Regional Hospital. Id. The fiscal year for Central Florida Regional Hospital was calendar year 1984. T1. 79. The HCCB accepted the budget during their June, 1984, meeting. T1. 79; Petitioner's Exhibit 8. Subsequently, by letter dated September 21, 1984, Central Florida Regional Hospital submitted a proposed amendment to its FY 1984 budget. T1. 79-80. The proposed amendment was received by the HCCB on September 24, 1984, and sought an amendment due to receipt of favorable prior year Medicare settlements. Petitioner's Exhibit 8, letter of September 21, 1984, and worksheets C-2 and X-4; T1. 81. This was 22 days before the HCCB received the amendment proposed by the Petitioner in this case, and was more than 90 days from the end of the 1984 fiscal year. Apparently the amendment proposed by Central Florida Regional Hospital was subjected to the same 90 day amendment policy as Petitioner's amendment, but since the amendment of Central Florida Regional Hospital was submitted with more than 90 days left in the fiscal year, the amendment was not precluded by application of that policy. T1. 7, 13. The amendment proposed by Central Florida Regional Hospital related to past and future periods, and was proposed to be effective for the entire fiscal year. T1. 136, 81. The amendment was concerned solely with actual experience, the receipt of a Medicare settlement, which was a single unusual revenue event. The HCCB accepted the amendment, T2. 69, and the amendment became effective for the entire 1984 fiscal year. T1. 80-81; T2.69. (Specifically, staff of the HCCB accepted the amendments, the amendments were entered into the HCCB computer, this was deemed to be acceptance by the HCCB itself, and the amendments were averaged on the computer for the entire 12 month period. T2. 67, 69-70.) The effect of the amendment was to increase net revenue per adjusted admission by about $180, and this increase was too small to have any impact upon the issue of whether Central Florida Regional Hospital would be subject to a base year adjustment pursuant to section 395.509(11), Fla. Stat. (1984). T1. 61-62. The policy described in finding of fact 8 above was never promulgated by the HCCB as a rule. T1. 9, 12. No general written notice was given to hospitals potentially affected by the policy. T1. 13. The first notice given to hospitals of the existence of the policy was when staff of the HCCB notified a particular hospital in response to proposed fiscal year 1984 budget amendments. Id. Florida Hospital first learned of the existence of the policy when its attempted budget amendment was rejected by the HCCB staff on February 11, 1985. T1. 54-55. The amendment proposed by the Petitioner to its FY 1984 budget included a reduction of about 21,000 patient days, and a reduction of about 1900 admissions from the original budget. T1. Additionally, the amendment sought to increase revenue amounts which resulted primarily from a change in case mix. Id. Finally, there were increases in expenses for malpractice insurance and data processing software. Id. Revenues respond quite directly to increases or decreases in case mix. T1. 68. Case mix is a mathematical expression of the intensity of services provided to the patient, T2. 16, which correlates to the degree of illness of the patient. Id. The average case mix is 1.0. T2. 17. In the summer and early fall of 1983, when the Petitioner prepared its original budget for 1984, case mix standards did not exist, T1. 61, and the 1984 budget was not based upon a case mix. Id. Case mix data for fiscal years 1982 and 1983 became available in January, 1984. T1. 135. Florida Hospital's case mix, and its revenues, increased in fiscal year 1984 primarily due to the introduction of the Medicare prospective payment system on October 1, 1983. T1. 59, 65, 96. Additionally, in the market served by Florida hospital there was increased activity from health maintenance organizations and preferred provider organizations. T1. 59. The Medicare prospective payment system was a major change in the reimbursement system. T1. 119. These changes in the health care market caused Florida Hospital to experience a decrease in length of stay and an increase in the intensity of services rendered to sicker patients. This occurred because the new Medicare System, as well as HMO's and PPO's, were intended to reduce hospital stays and treat less sick patients outside the hospital. T1. 59. The budget of Florida Hospital was initially prepared and submitted in October, 1983, with virtually no actual experience under the new Medicare prospective payment system. T1. 95-96. See also findings of fact 2 and 19, supra. Florida Hospital hired two consultants to assist it in trying to predict the impact of the new Medicare program. T1. 95. Florida Hospital receives many of its patients on referral from other hospitals which cannot provide services to such patients. T2. 18, 33-34. Thus, Florida Hospital is relied upon by the surrounding area to treat sicker patients. T2. 25. It is hard to predict trends in such referrals, and consequently, it is difficult to predict the impact of other market changes, such as the Medicare changes and the success of health maintenance organizations described above, since Florida Hospital must rely on referrals. Health maintenance organizations in the first year of operation in the surrounding community were able to substantially reduce days of care, and this success was not predictable by Florida Hospital when it formulated its FY 1984 budget. T2. 14- Additionally, the Orlando area in the last two years has experienced significant unpredictable increases in population, which added to the foreseeability problems of Florida Hospital. T2. 18-20. Over the several years preceding fiscal year 1984, Florida Hospital experienced a trend of increasing open heart surgical procedures. T1. 60. In 1984, Florida Hospital originally budgeted for a significant increase over 1983, to its maximum capacity using a 5 day week. Id. But the demand continued, and in 1984, Florida Hospital began doing open heart surgery on weekends. T1. 61. This decision, coupled with a decrease in length of stay per surgery, resulted in an increase in open heart surgeries greater than originally predicted in the 1984 budget. Id; T1. 110-111. Florida Hospital might have anticipated using weekends when it prepared its 1984 budget, but did not do so because weekend work is not a normal practice. T1. 112. In the fall of 1983, the national trend for open heart surgery was showing a decrease in such procedures. T1. 135-36. Additionally, Florida Hospital experienced a shift of less complicated surgeries, such as cataract surgeries, from inpatient to outpatient procedures, resulting in an overall increase in intensity of the remaining surgical procedures. T1. 62-63. The Hospital has no control over this choice, since it is made by physician and patient and is affected by reimbursement policies of insurance and governmental programs. Id. Florida Hospital monitors its budget on a monthly basis, but does not have specific criteria for evaluating the meaning of trends. T1. 86-87. A change of 5 percent would cause concern to Florida Hospital but other circumstances would be evaluated. T1. 87. In the first two months of the first quarter of FY 1984, Florida Hospital experienced a slight increase of admissions over budget estimates. T1. 85-88. In a letter to the HCCB dated March 23, 1984, Florida Hospital noted that the intensity of its case mix for Medicare patients had increased about 50 percent since 1979, and that the length of stay had dropped 0.2 days from 1983 to 1984. Intervenor's Exhibit I. At the time the letter was prepared, the Hospital had no way of knowing if the non-Medicare case mix was the same. T1. 109. The data further showed a trend away from psychiatric patient days, which produce less revenue per day, toward more intense forms of care, which produce more revenue per day. Id. The letter was sent to provide information requested by staff of the HCCB, and to explain changes to the budget as originally submitted. Id.; T1. 104. While March and April of 1984 showed some signs of a change from predictions in the budget, it was not until June, 1984, that Florida Hospital experienced a significant decline in patient days. T1. 97-98. Even then, it was determined that the June, 1984, experience was not a good trend indicator, but was an anomaly. Id. This was shown to be the case when June, 1984, was compared to June, 1985. Id. Moreover, these were only gross trends in patient days and admissions, and were not specific for case mix. T1. 99. In fact, Florida Hospital finished the fiscal year at about the gross revenue level it had predicted in its 1984 budget; the problem was an increase in intensity of case mix, with lower patient days generating higher revenue per adjusted admission. Id. In June, 1984, Florida Hospital received a Medicare settlement for two or three prior years. The settlement was $10 million, and the timing of the receipt of such settlements was not within the control of Florida Hospital. T1. 63, 93. Significant variances were first noticed by Florida Hospital in revenue per adjusted admission in July, 1984. T1. The variances were cumulative from April, 1984. T1. 100. The vice president for finance at Florida Hospital, Scott Miller, was first aware of the amendments to the Hospital Cost Containment law, chapter 84-35, Laws of Florida (1984), establishing a base year adjustment for fiscal year 1984 based upon actual experience in 1984, in June, 1984. T1. 100. Section 395.509(11), Fla. Stat. (1984), requires comparison of the 1984 budget for net revenues per adjusted admission filed with the HCCB with the audited actual experience of each hospital for such revenues. The bulk of the work in preparation of the proposed amendment to its FY 1984 budget, Petitioner's Exhibit 6, was done in August, 1984, based upon data to June 30, 1984. T1. 92, 83. One of the reasons for submitting the amended budget was to diminish the base year adjustment described in finding of fact 30 above. T1. 100. Since the potential loss to Florida Hospital is over $10,000,000, it is likely that this was a major cause for the amendment. Additionally, the proposed amendment was submitted to more honestly reflect changes in the predicted budget. T1. 102. From a purely fiscal point of view, without consideration of regulatory consequences, there is an incentive to underestimate revenues and overestimate expenses. T2. 26-27. During the preparation of the proposed budget amendment, Florida Hospital did not consult the Florida Hospital Reporting System Manual, and did not talk with any employee of the HCCB for advice with respect to the proposed amendments. T1. 130. The proposed budget amendment submitted in October, 1984, dealt with the entire fiscal year 1984, and did not distinguish between portions of the year which already had been completed and the remainder of the fiscal year. T1. 131-132. As set forth in finding of fact 16, the basis of the proposed amendment was actual experience in fiscal year 1984, T1. 139-140, and contained revenues actually received that were substantially greater than originally predicated. With respect to future periods, the budget was a projection. Due to seasonal variances, unpredictable receipt of lump sum payments, and variations in changes in admissions for various types of cases, it is not practicable to prorate the budget of Florida Hospital, as proposed to be amended, in daily, monthly, or quarterly segments, T1. 133, and the proposed amended budget does not contain a method for such proration. A budget can be defined as a projection for a future time of expenditure and revenue, and it reflects anticipated goals. T1. 127, 131. There is no evidence in the record to suggest that Florida Hospital has ever attempted to avoid a public hearing by underestimating revenue, and there is no evidence in the record to suggest that Florida Hospital's original FY 1984 budget contained intentional underestimations of revenue or intentional overestimations of reductions from gross revenue. As found in findings of fact 18 through 31, Florida Hospital's original FY 1984 budget was based upon the best information then available. It took six months to prepare, T. 127, and was reasonable at the time submitted. Florida Hospital submitted amendments to its budgets in FY 1982 and 1983. Petitioner's Exhibit 1. In years prior to 1984, Florida Hospital had submitted amendments to budgets after the beginning of its fiscal year. T1. 134. Florida Hospital has claimed in previous years that it offers services not offered by other hospitals in its group. T2. 72-73. Through discussions with the staff of the HCCB, it was agreed between Florida Hospital and the staff of the HCCB that Florida Hospital could delete from its FY 1984 budget revenues and expenses associated with kidney transplant, employee housing, pathologist laboratory fees, sales of gasoline to employees, and a laundry. T2. 73-74. See Petitioner's Exhibit 10, attachment 2 and 3. The effect of deletion of these items from the FY 1984 budget was to delete a predicted $3,231,000 in revenue. Petitioner's Exhibit 10, attachment 1. When Florida Hospital filed its audited actual experience for 1984, the HCCB had a new staff analyst assigned to review the budget of Florida Hospital, and the new analyst concluded that the items described in finding of fact 40 should be included in the actual report initially, Petitioner's Exhibit 10, attachment 4, but that these items would be "pulled back out" for purposes of analysis later. T2. 75. However, Respondent's Exhibit 1 did not implement this agreement. Instead, the items described above were deleted from the FY 1984 budget but were included in the FY 1984 actual experience figures on this exhibit. Id. The total amount of revenue actually received for these items in FY 1984, which should be deleted from the FY 1984 actual experience of Florida Hospital pursuant to the understanding with staff of the HCCB, is $4,074,415. If this amount is not deleted, Florida Hospital's base year adjustment pursuant to section 395.509(11), Fla. Stat. is larger by nearly $3 million. T2. 76. Respondent's Exhibit 1 computes the FY 1984 net revenue per adjusted admission for Florida Hospital for the following: FY 1984 original budget; FY 1984 budget as proposed to be amended; FY 1984 budget if the proposed amendment is allowed for only the last 77 days of the fiscal year; and the 1984 actual experience. T2. 51-53. As discussed in finding of fact 41, the figure for 1984 actual experience does not delete the items discussed in that finding. Respondent's Exhibit 2 computes the adjustment to base year if the proposed amendment is not accepted, and if the items described above in findings of fact 40 and 41 are not deleted from actual experience. T2. 56-58. The amount of this adjustment would be $13,771,310 which is $344.52 per adjusted admission for FY 1986. Respondent's Exhibit 2. Respondent's Exhibit 3 computes the adjustment to base year if the proposed amendment is accepted for the 77 days remaining in the fiscal year, and if the items described above in findings of fact 40 and 41 are not deleted from actual experience. T2. 59-60. The amount of this adjustment would be $10,476,400, which is $262.09 per adjusted admission for FY 1986. Respondent's Exhibit 3. If the proposed amendment is not accepted, but the items described in findings of fact 40 and 41 are deleted from actual experience, the adjustment to base year would be $10,871,303, which is $271.97 per adjusted admission for FY 1986. Petitioner's Exhibit 9. If the proposed amendment is accepted for the 77 days remaining in the fiscal year, and if the items described in findings of fact 40 and 41 are deleted from actual experience, the adjustment to base year would be $7,760,747, which is $190.15 per adjusted admission for FY 1986. Petitioner's Exhibit 9. If the proposed amendment is accepted by the HCCB to be effective for the entire FY 1984, the budgeted net revenue per adjusted admission for Florida Hospital is $4,008.70. Respondent's Exhibit 1. Assuming that the deductions from actual experience in 1984 are not made (see findings of fact 40 and 41), the net revenue per adjusted admission actually experienced by Florida Hospital in 1984 was $4,346.66. Id. Since the difference between these two figures is less than 10 percent above the budgeted amount, $4,008.70, the base year of Florida Hospital would not be adjusted pursuant to section 395.509(11), Fla. Stat., if the proposed amendment were accepted for the entire fiscal year. This result would occur even though the deductions from revenue described above are not made.
Recommendation It is therefore recommended that the Hospital Cost Containment Board enter its Final Order approving the proposed amendment to the FY 1984 budget of Florida Hospital only for the last 77 days, and, as a result, calculating the adjustment pursuant to section 395.509(11), Fla. Stat. (1985), in the following amounts: subtraction of a total of $7,760,747 net revenues from FY 1986 budget, which is subtraction of $190.15 net revenues per adjusted admission for the FY 1986 budget. DONE and ENTERED this 7th day of February, 1986, in Tallahassee, Florida WILLIAM C. SHERRILL, JR. 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 7th day of February, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-0747H Rulings upon Proposed Findings of Fact. Pursuant to section 120.59(2), Fla. Stat., the following are specific rulings upon all proposed findings of fact submitted by the parties. The numbers herein correspond to the numbers of each proposed finding by party. Findings of fact in this recommended order are indicated by the abbreviation "FF". Findings of Fact Proposed by the PETITIONER, Florida Hospital. Adopted, FF 1. Adopted, FF 2. law. law. Adopted, FF 3. Adopted, FF 4. Adopted, FF 6. Adopted, FF 7. Adopted, FF 8. Adopted, FF 9. Rejected because the proposed finding is a question of Rejected because the proposed finding is a question of Adopted, FF 10. Adopted, FF 11. Adopted, FF 12. Rejected because of insufficiency of evidence that this categorical, all inclusive finding of fact can be mode. There is a marked distinction between amendments submitted by Hospitals before acceptance of the budget by the HCCB, and amendments submitted after the budget has been accepted by the HCCB. See FF 10, 11, 12, 13, and 14. Further, of the ninety-nine instances of amendment, the Petitioner presented only one occasion when an amendment was accepted after the budget had been approved by the HCCB and was accepted for the entire fiscal year, some of which had already been executed. See FF 14. Through 19. Adopted, FF 13. 20. Through 28. Adopted, FF 14. Adopted, FF 8 and 14. Adopted, FF 15. Adopted, FF 8. Adopted, FF 15. Adopted, FF 15. Adopted to the extent found in FF 11 end 12, and the remainder rejected for lack of evidence. Adopted, FF 8. Rejected because irrelevant since the basis for the 90 day incipient policy is not at issue because the policy is not at issue. Adopted, FF 7 and 8. Adopted, FF 8. Adopted, FF 15. Adopted, FF 8. True, but irrelevant and therefore rejected. Rejected because not supported by the evidence. As found in FF 17 through 31, Florida Hospital was aware of the amended law, effective May 18, 1984, that subjected hospitals to a potential base year adjustment resulting from FY 1984 budget data, but as also found in those findings, Florida Hospital could not prepare its proposed amendment any sooner due to lack of data. The delay in filing the amendment, on this record, occurred due to lack of data, not lack of notice concerning the 90 day policy. Adopted, FF 39. Adopted in part, FF 39. However, the purpose of prior year amendments cannot be a portion of this finding of fact because there is insufficient evidence. Without evidence as to the nature of such prior year amendments, and given the reverse incentive in those years to understate revenues to avoid public hearing, it cannot be concluded that the motives for such amendments were to "present a fair document to the HCCB." Adopted, FF 8. and 48. Adopted, FF 16. and 49. through 51. Adopted, FF 17. 52. and 53. Adopted, FF 18. 54. and 55. Adopted, FF 19. 56. and 57. Adopted, FF 20. 58. and 59. Adopted, FF 21. 60. and 61. Adopted, FF 22. Adopted, FF 21. Rejected. It is unclear from the evidence whether volume of patient days and admissions "magnifies" the impact of changes in market conditions. It could be statistically true that a greater volume produces more reliable predictions due to a larger base pool of data, which averages out small anomalies in data. Adopted, FF 19. through 69. Adopted, FF 23. 70. and 71. Adopted, FF 24. Adopted, FF 38. Adopted, FF 29. Adopted, FF 31. Adopted, FF 28. and 77. Adopted to the extent modified in FF 38. To the extent not adopted in the modified language, it is rejected for lack of evidence. Adopted, FF 33. Since there were no other definitions given in the record, adoption of this finding as proposed would be misleading. T1. 127-128. Thus, it is rejected as phrased. Adopted, FF 37, except this is the same definition, not "another" definition. Rejected as phrased. There is not evidence in the record that the budget which is the subject of testimony at T1. 129 was prepared or used in any manner with respect to past time in the budget year. Adopted in the introduction, but not, strictly speaking, a finding of fact. Adopted, FF 42. and 86. Adopted, FF 43. and 87. Adopted, FF 44. 88. and 89. Adopted, FF 14. Adopted to the extent relevant in the introduction. Adopted, FF 40. Rejected as unnecessary and cumulative to FF 40. Adopted, FF 40. through 96. Adopted, FF 41. Adopted, FF 45. Adopted, FF 46. Findings of Fact Proposed by the RESPONDENT, HCCB. The first sentence is adopted, FF 9. The next two sentences are rejected as issues of law, not fact. The next sentence is adopted, FF 7 and 9. The last sentence, also a matter of law, is rejected because not fact. Adopted only to the extent in FF 8, and remainder is rejected as unnecessary and irrelevant since the policy is not used by the HCCB to deny amendment in this ease. Adopted, FF 5 and 7. Adopted, FF 8, except the last sentence, which is not relevant as discussed above. The first two sentences are adopted as modified in FF The next sentence is adopted in FF 16. The next sentence is adopted as modified in FF 26. The last sentence is adopted as modified in FF 27 and 29. The first sentence is adopted in FF 16, the second sentence is adopted in FF 19, the last two sentences are adopted in FF 23. The first sentence is adopted in FF 3. The last sentence is true, T2. 51, but not relevant. Adopted, FF 32 and 34. Adopted, FF 35. Adopted, FF 40. The first sentence is rejected for the reasons stated in FF 40 and 41. The second sentence is rejected as an issue of law, and also rejected because irrelevant: there does not appear to be any statute allowing or prohibiting the HCCB to "disregard" any portion of a budget. But as found in FF 10, there is apparently some discretion afforded the HCCB, discretion that is exercised frequently. Adopted, FF 14 and 8. Findings of Fact Proposed by the INTERVENOR, The Public Counsel. Adopted, FF 1. Adopted, FF 9. Adopted, FF 2. Adopted, FF 2, 3, and 4. Adopted as modified in FF 16. and 7. Adopted as modified in FF 16, but there is not enough evidence to show a "trend." Adopted, FF 3 and 4. Adopted, FF 7. Adopted, FF 16. Adopted, FF 31. Adopted, FF 19. Adopted, as modified in FF 27 and 29. Adopted, FF 30. Adopted, FF 30. Adopted, FF 32. The record contains no evidence that the subject matter of the proposed amendment is incorrect, or false, and thus the motive for such amendment is largely irrelevant. For this reason, this finding is rejected. Adopted, FF 34. Rejected because the record citation does not support the proposed finding. Rejected because misleading. The proposed amendment does not relate to a specific future time, but in fact relates to the remaining days of the fiscal year, since that was all that was left of the budget year when the amendment was filed. Adopted, FF 35. Adopted as modified, FF 35. Adopted as modified, FF 36. Adopted as modified, FF 36. Adopted as modified, FF 35. Adopted, FF 36. Adopted, FF 26 and 36. Adopted as modified, FF 35 and 36. Adopted as modified, FF 35 and 36. Adopted, FF 19 and 20, except the last sentence, which is cumulative and unnecessary. Rejected because irrelevant. Rejected as irrelevant and cumulative to FF 20. Adopted, FF 20. Rejected as irrelevant and cumulative to FF 20. Adopted, FF 19. Rejected as irrelevant. See FF 18 and 20. The record supports only one conclusion regarding the prospective payment system: no one knew what massive changes would occur in the market place prior to actual implementation of that system for a number of months. Awareness that PPS was on the way, without knowing what it would do, is irrelevant. Adopted as modified, FF 30. Rejected as irrelevant. See FF 15 through 31, which conclude that the Petitioner acted in a timely manner to prepare and submit its proposed amendment. Adopted, FF 37. Adopted, FF 38. Adopted, FF 10. Adopted, FF 3 and 10. Adopted, FF 12. Adopted as modified, FF 12. Adopted as modified, FF 12. Further, the point is irrelevant. Rejected because the proposed finding is an issue of law. Rejected because inextricably mixed with the issue of law contained in proposed finding 46. Rejected because inextricably mixed with the issue of law contained in proposed finding 46. COPIES FURNISHED: Curtis Ashley Billingsly, Esquire Hospital Cost Containment Board 325 John Knox Road Building L, Suite 101 Tallahassee, Florida 32303 David Watkins, Esquire Oertel & Hoffman, P.A. 2700 Blairstone Road, Suite C Tallahassee, Florida 32301 Jack Shreve, Public Counsel Office of Public Counsel 202 Blount Street Tallahassee, Florida 32301 T. L. Trimble, Esquire 2400 Bedford Road Orlando, Florida 32803 James Bracher, Executive Director Hospital Cost Containment Board 325 John Knox Road Tallahassee, Florida 32303
The Issue The issues are (1) whether certain medical expenses incurred by petitioners' daughter should be covered under the state group health insurance program, and (2) whether the state is estopped from denying the claim based upon erroneous misrepresentations made by its agent.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Etta Aldridge, is a full-time employee of Sunland Training Center in Marianna, Florida and is a participant in the state group health insurance program (the plan). James Aldridge, her husband and also a petitioner in this cause, and Jerrilyn Aldridge, her daughter, are covered by the plan. On November 3, 1987, Jerrilyn, then around seventeen years of age, was severely injured in an automobile accident near her home in Greenwood, Florida. Among other things, she suffered a skull fracture, abrasions, crushed pelvis and hip, and punctured lungs and stomach. She was initially taken to a Marianna hospital for emergency treatment and then transferred to a Tallahassee hospital for longer-term care. While at the Tallahassee hospital, Jerrilyn was diagnosed by her neurologist as having a closed, diffuse brain injury and brain stem contusions. After Jerrilyn was treated in Tallahassee for two and one-half months, which included one month in the hospital and forty-five days at the hospital's extended care facility, her parents were advised that, due to her poor prognosis, they had a choice of putting her in a nursing facility or taking her to their home. Although Jerrilyn was still in a coma, petitioners decided to take her home and care for her in a bedroom which had been converted into a hospital room setting. After six or seven weeks at home, and contrary to earlier medical expectations, Jerrilyn opened her eyes, made noises and manifested some slight arm movement. Based upon these encouraging signs, petitioners sought further medical advice and were told that, given the foregoing signs of improvement, treatment in a facility that specialized in brain injury rehabilitation would improve their daughter's condition. Petitioners contacted the National Head Injury Foundation and were given a list of health care facilities in the state that provided rehabilitative services for brain injured patients. This list included Manatee Springs Nursing Center, Inc. d/b/a Mediplex Rehab-Bradenton (MRB), a facility licensed by the state as a skilled nursing facility but which specialized in rehabilitating brain injured patients. MRB is the largest brain injury rehabilitation facility in the southeastern united States. Since the Aldridges did not have the financial resources to pay for any additional treatment for Jerrilyn, it was essential that they selected a facility that would be covered by the plan. After James Aldridge spoke with and received information from most of the facilities on the list, and conferred with Jerrilyn's neurologist, he eventually narrowed his choice to several facilities, including MRB, which impressed him because of its good reputation and specialty in head injury rehabilitation. To confirm whether coverage would be provided for further treatment, James Aldridge telephoned the customer service unit of Blue Cross and Blue Shield of Florida, Inc. (BCBS), the plan's administrator. He also contacted MRB and authorized it to make an inquiry with BCBS on his behalf. On March 28, 1989 Aldridge received favorable advice from a BCBS service representative concerning coverage and benefits for Jerrilyn at MRB. This advice was independently confirmed by MBR on the same date, and Jerrilyn was accepted as a patient at the facility effective March 31, 1988. Some three months later, and after some of the bills had been paid, BCBS advised MBR and petitioners that a "computer" error had been made and that the requested benefits applied only when rendered in a licensed hospital and not a skilled nursing facility. BCBS accordingly declined to pay the bills. That prompted petitioners to initiate this proceeding. The bills in question total over $225,000. The Insurance Plan The State has elected to provide a self-insured group health insurance program for its employees and their dependents. The legislature has designated respondent, Department of Administration, Division of Employees' Insurance (Division), as the responsible agency for the administration of the plan. To this end, the Division has entered into an agreement with BCBS to administer the plan. Among other things, BCBS provides verification of coverage and benefits, claims payment services, actuarial and printing services, and medical underwriting of late enrollee applications. Including dependents and retirees, there are almost 300,000 persons who are covered by the plan. Upon enrolling in the plan, all employees, including Etta Aldridge, were routinely given an insurance card with BCBS's telephone number and a brochure entitled "State of Florida Employees Group Health Self Insurance Plan Brochure" (brochure) containing a general description of the plan. The brochure warns the insured that the brochure is not a contract since it does not include all the provisions, definitions, benefits exclusions and limitations of the plan. It also contains advice that if the brochure does not answer an employee's question, he should telephone the Division's customer service section in Tallahassee. In actual practice, however, if an employee contacts the Division number, he is told to telephone BCBS's customer service unit in Jacksonville regarding any questions as to coverage and benefits, claims or other problems concerning the plan. The Division generally becomes involved only when an employee is unable to resolve a claims problem with BCBS. BCBS has established a service unit that deals exclusively with inquiries regarding coverage and benefits under the state group health plan. There are approximately twenty- eight service representatives in that unit. Each representative receives four weeks of training before being certified as a customer service representative. After being certified, a representative's primary responsibility is to respond to inquiries from state employees, health providers and physicians regarding verification of benefits and coverage under the state group policy. It should be noted that a distinction exists between verification of benefits and coverage. To verify coverage means to verify that a person has an active policy at the time services are rendered. To verify benefits means to confirm that a specific service is covered under the policy. In this case, there was an inquiry by the insured and provider regarding both benefits and coverage. In the event a representative is unsure as to the licensing status of a facility or provider, the representative has access to BCBS's master registry department which maintains the provider number and licensure status of every facility in the state. That registry identified MRB as a skilled nursing home. BCBS representatives have the authority to make decisions regarding benefits and coverage. It is only when an inquiry falls within a "grey area" that the final decision is referred from the unit to either the Legal or Medical Division of BCBS. The Division, with the assistance of BCBS, has prepared a seventy-five page benefit document (document) which governs all claims arising under the plan. However, the document is for BCBS in-house use only and is not given to state employees or providers. The document first became effective on May 1, 1978 and has been subsequently amended from time to time. When Jerrilyn was admitted to MRB, the document effective October 1, 1987 was controlling. The document was further amended effective July 1, 1988, which was three months after her admission to MRB. As is pertinent here, the July 1, 1988 amendments increased the deductibles and narrowed the definition of a "hospital". According to the state benefits administrator, the document is "the final word" on any dispute regarding coverage or claims. The BCBS service unit uses this document to verify coverage and benefits. Included in the document are numerous definitions that are used to resolve disputed claims. Relevant to this controversy is the definition of a hospital at the time Jerrilyn was admitted to MRB: "Hospital" means a licensed institution engaged in providing medical care and treatment to a patient as a result of illness or accident on an inpatient/outpatient basis at the patient's expense and which fully meets all the tests set forth in 1., 2., and below: It is a hospital accredited by the Joint Commission on the Accreditation of Hospitals, or the American Osteopathic Association or the Commission on the Accreditation of Rehabilitative Facilities; It maintains diagnostic and therapeutic facilities for surgical or medical diagnosis and treatment of patients under the supervision of a staff of fully licensed physicians; It continuously provides twenty-four (24) hour a day nursing service by or under the supervision of registered graduate nurses. It is undisputed that, while MRB may have provided many services comparable to those rendered by a licensed hospital and is considered to be an atypical nursing home, MRB is still licensed by the state as a skilled nursing facility. Thus, MRB cannot qualify as a hospital under the benefit document. Payment for services in a skilled nursing facility, such as MRB, are much more limited and restrictive than for a hospital. To qualify for payment of benefits in a skilled nursing facility, the insured must have been hospital confined for at least three consecutive days prior to the day of hospital discharge before being transferred, upon a physician's advice, to a skilled nursing facility. Once admitted to such a facility, the insured's room and board reimbursement is limited to a maximum of $76 per day. Further, payment of services and facilities is limited to sixty days of confinement per calendar year. In contrast, benefits for hospital care include, for example, unlimited days of coverage per calendar year and much higher reimbursement rates for room, board and other services. In this case, besides having been admitted to MRB directly from her home, and not a hospital, Jerrilyn had already used up forty- five of the sixty days of annual benefits at the extended care unit of a Tallahassee hospital. BCBS also has a fee schedule that is used in paying all covered claims. However, the schedule was not introduced into evidence. Estoppel Before he made a final decision as to where to send his daughter, James Aldridge spoke by telephone with several BCBS representatives, including Michelle Sahdala and Rhonda Hall, the unit supervisor and considered its most experienced representative. 1/ Aldridge made these telephone calls because he wanted to positively confirm which facilities would be covered by the plan. During one conversation, Sahdala advised Aldridge that the proposed treatment would not be covered in several facilities named by the National Head Injury Foundation, including New Medico Rehabilitation Center of Florida in Wauchula, Florida and Capital Rehabilitation Hospital in Tallahassee. Aldridge advised BCBS that he might want to place his daughter in MRB, but only if such treatment was covered under his wife's insurance plan. He heard nothing further from BCBS until a week later. Aldridge contacted MRB on March 21, 1988 and advised an MRB representative that he wished to place his daughter in the facility if his wife's insurance covered the treatment at MRB. He also gave MRB the BCBS unit supervisor's name (Rhonda Hall) and telephone number. To verify coverage and benefits, MRB's admission coordinator, Patricia Dear, telephoned Hall on March 22, 1988. Such an inquiry is routinely made by the provider on behalf of the insured and before the patient is admitted to the facility. This is to ascertain if the prospective patient is insured, and if so, to verify the amount of benefits. Dear identified herself and advised Hall that she was requesting benefits information on Jerrilyn Aldridge, an insured. She told Hall that MRB was a skilled nursing facility and not a hospital, the nature of services that would be provided to Jerrilyn and her need to determine whether such services would be covered under the plan before Jerrilyn was accepted as a patient. When asked if she would need further information in hand concerning MRB before determining the amount of benefits, Hall responded affirmatively. Accordingly, Dear sent Hall by overnight mail a letter and brochure describing the facility's services. They were received by BCBS the next morning, or March 23. The letter included information concerning MRB, the fact that it was a skilled nursing facility and not a hospital, the type of services that MRB provided, a summary of the expected charges for treating Jerrilyn (from $600 to $850 per day), the average length of stay of a patient (3 to 9 months), and an offer to answer any additional questions that BCBS might have. When Dear heard nothing further from Hall within the next few days, she made a follow-up telephone call to Hall on March 28 to see if Hall had any questions and to verify benefits coverage. Hall acknowledged receiving the letter of March 22 with attachment. After Dear discussed each of the disciplines and types of services to be provided and their expected cost, including physician services, physical therapy, neuropsychology, central supply, pharmacy, laboratory services and a room and board charge of $351 per day, Hall advised Dear that the only policy exclusions on coverage would be occupational and speech/language therapy. She added that all charges would be subject to medical necessity, and ambulance costs to transport Jerrilyn to the facility would be covered. The two also discussed the fact that there were no time limitations under the policy and that almost $475,000 in lifetime coverage still remained. Hall represented that after the Aldridges satisfied their $1500 deductible on which BCBS paid only 80% of the bills, BCBS would thereafter pay 100% of all medically necessary charges. In making that representation, Hall did not disclose the fact that BCBS has a fee schedule and that all payments were subject to the limitations specified in that schedule. After verifying that Hall had cited all policy limitations, and consistent with her longtime experience in verifying benefits with other insurance carriers, Dear properly assumed that if the policy contained a provision which limited payment to something less than 100% of covered services, Hall would have said so. Dear asked Hall if there was any reason not to admit Jerrilyn and Hall replied "no." Dear also asked Hall if she (Hall) was in a position to verify benefits and Hall represented that she was. Dear then told Hall that Jerrilyn would be presented to the admissions committee the next day and, if clinically appropriate, she would be admitted. Dear ended the conversation by advising Hall that a letter confirming their understanding would be sent after Jerrilyn was admitted. After speaking with Hall, Dear had a clear understanding that coverage and benefits had been approved and, except for occupational and speech/language therapy, BCBS would pay 80% of all medically necessary charges until the Aldridge's $1,500 deductible was met, and then to pay 100% of all remaining medically necessary charges. 2/ After receiving the favorable advice, Dear telephoned Aldridge the same day and told him the results of her conversation with Hall. Within a few moments after speaking with Dear, Aldridge received a telephone call from an unidentified female BCBS representative who informed him that BCBS would pay for his daughter's treatment at MRB. Jerrilyn was accepted as a patient by MRB's admissions committee on March 28, 1988. Both the provider and the insured relied upon Hall's representations in admitting Jerrilyn to the facility. Had Jerrilyn not been covered by the plan, the committee would not have approved her admission. Also, if the Aldridges had known that the treatment at MRB was not covered, they would have sent their daughter to another facility covered by the plan. On April 4, 1988, and pursuant to her last telephone conversation with Hall, Dear sent Hall by overnight mail the following letter: This is to confirm the admission of Jerrilyn Aldridge on March 31, 1988, to the specialized head trauma rehabilitation program at Mediplex Rehab-Bradenton, Florida. The following benefits information has been verified by you and Patricia Dear, R. N., Admissions Coordinator on March 28, 1988. Effective date: 10/1/79 Benefits: After $1,500 - out of pocket/yr- 100% coverage Days available: Unlimited days Monies available: $474,533.79 Exclusions: Occupational Therapy, Speech- Language Therapy Limitations: Treatment subject to "Medical Necessity" If I do not hear from you, I will consider you to be in agreement with the above information. Please place this in the client's file. Thank you for your prompt attention to this matter. (Emphasis supplied) Although BCBS's records reflect that Dear's letter was received, Hall did not advise Dear that there were any problems concerning Jerrilyn's coverage and benefits under the plan or that Dear's understanding of the benefits to be paid was inaccurate or in error. Of some note is the fact that Hall is considered one of the most knowledgeable BCBS representatives on state health plan benefits and recognizes that her statements concerning benefits are relied upon by providers. Even though Hall was specifically advised both orally and in writing that MRB was licensed as a nursing home, and she had access to BCBS's master registry to confirm MRB's licensure status, she failed to discern that a nursing home was not a covered facility for the requested services within the meaning of the plan. Indeed, she later acknowledged by deposition that she knew that "the state does not pay for nursing homes" and that she had made a mistake by failing to properly "investigate" the matter more thoroughly. By failing to convey accurate advice to James Aldridge and MRB and to note that the proposed treatment would not be covered if rendered by a nursing home, Hall failed to use reasonable care and competence in responding to the inquiry. Three months after Jerrilyn's admission, James Aldridge received notice that BCBS had changed its position and now asserted it was not going to pay for Jerrilyn's rehabilitation and treatment at MRB. Proposed agency action confirming this decision was later issued by the Division on October 21, 1988. Miscellaneous All medical services received by Jerrilyn were medically necessary within the meaning of the benefit document. The necessity of Jerrilyn's placement in a rehabilitation facility was established by Dr. James D. Geissinger, her Tallahassee neurologist, who based it upon Jerrilyn's improvement after leaving the Tallahassee hospital and made her a candidate for brain rehabilitation. Doctor Geissinger also noted that, as a result of receiving treatment at MRB, Jerrilyn had made "remarkable" improvement and was able to partially regain her language function, use her left arm and hand, and improve her "activities of daily living." There are expectations that she will be able to walk again within a year. Further, based upon the testimony of an MRB staff physician, the services and treatment received by Jerrilyn at MRB were medically necessary to facilitate her neurologic and functional recovery. Given the nature of her injury and MRB's nursing staffing ratios, the required intensive medical rehabilitation and monitoring of Jerrilyn's medical and neurological condition was comparable to care in a hospital intensive care unit. These matters were not contradicted. On April 1, 1988, the Aldridges executed a standard financial agreement with MRB whereby they agreed to indemnify MRB for all charges which were not paid by BCBS. As is normally done, they also authorized MRB to directly bill BCBS for all charges incurred by Jerrilyn while being treated at the facility. Finally, the Aldridges authorized MRB to make inquiries on their behalf with BCBS to verify insurance coverage and benefits for Jerrilyn. MRB submitted to BCBS all bills for services and treatment given to Jerrilyn during her five or six month stay at the facility. A summary of the dates of service, charges, payments made by BCBS and balance due is contained in petitioners' exhibit 17. In all, there are thirty-eight outstanding bills totaling $227,139.27. The parties have stipulated that the bills in exhibit 17 represent services that were actually performed and supplies that were actually received by the patient. As noted in finding of fact 21, all such supplies and services were medically necessary. For the reasons given in the conclusions of law portion of this recommended order, the doctrine of equitable estoppel applies, and petitioners are entitled to be reimbursed for all unpaid bills filed with BCBS in accordance with the representations of agent Hall. These include room and board charges (at the intensive care room rate), physician services, neuropsychology, physical therapy, central supply, pharmacy and laboratory charges as more fully described in petitioners' exhibit 17. Such reimbursement should be not be subject to the limitations prescribed in the fee schedule.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended petition of Etta and James Aldridge be GRANTED, and the Division order Blue Cross and Blue Shield of Florida, Inc. to reimburse petitioners $227,139.27 as reflected in petitioners' exhibit 17. DONE and RECOMMENDED this 7th day of August 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 7th day of August, 1989.
The Issue Whether, based upon a preponderance of the evidence, the Agency for Health Care Administration (AHCA) lawfully assigned conditional licensure status to Harbour Health Center for the period June 17, 2004, to June 29, 2004; whether, based upon clear and convincing evidence, Harbour Health Center violated 42 Code of Federal Regulations (C.F.R.) Section 483.25, as alleged by AHCA; and, if so, the amount of any fine based upon the determination of the scope and severity of the violation, as required by Subsection 400.23(8), Florida Statutes (2004).
Findings Of Fact Based upon stipulations, deposition, oral and documentary evidence presented at the final hearing, and the entire record of the proceeding, the following relevant findings of fact are made: At all times material hereto, AHCA was the state agency charged with licensing of nursing homes in Florida under Subsection 400.021(2), Florida Statutes (2004), and the assignment of a licensure status pursuant to Subsection 400.23(7), Florida Statutes (2004). AHCA is charged with the responsibility of evaluating nursing home facilities to determine their degree of compliance with established rules as a basis for making the required licensure assignment. Additionally, AHCA is responsible for conducting federally mandated surveys of those long-term care facilities receiving Medicare and Medicaid funds for compliance with federal statutory and rule requirements. These federal requirements are made applicable to Florida nursing home facilities pursuant to Florida Administrative Code Rule 59A-4.1288, which states that "[n]ursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 C.F.R. §483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference." The facility is a licensed nursing facility located in Port Charlotte, Charlotte County, Florida. Pursuant to Subsection 400.23(8), Florida Statutes (2004), AHCA must classify deficiencies according to the nature and scope of the deficiency when the criteria established under Subsection 400.23(2), Florida Statutes (2004), are not met. The classification of any deficiencies discovered is, also, determinative of whether the licensure status of a nursing home is "standard" or "conditional" and the amount of administrative fine that may be imposed, if any. Surveyors note their findings on a standard prescribed Center for Medicare and Medicaid Services (CMS) Form 2567, titled "Statement Deficiencies and Plan of Correction" and which is commonly referred to as a "2567" form. During the survey of a facility, if violations of regulations are found, the violations are noted and referred to as "Tags." A "Tag" identifies the applicable regulatory standard that the surveyors believe has been violated, provides a summary of the violation, sets forth specific factual allegations that they believe support the violation, and indicates the federal scope and severity of the noncompliance. To assist in identifying and interpreting deficient practices, surveyors use Guides for Information Analysis Deficiency Determination/Categorization Maps and Matrices. On, or about, June 14 through 17, 2004, AHCA conducted an annual recertification survey of the facility. As to federal compliance requirements, AHCA alleged, as a result of this survey, that the facility was not in compliance with 42 C.F.R. Section 483.25 (Tag F309) for failing to provide necessary care and services for three of 21 sampled residents to attain or maintain their respective highest practicable physical, mental, and psychosocial well-being. As to the state requirements of Subsections 400.23(7) and (8), Florida Statutes (2004), and by operation of Florida Administrative Code Rule 59A-4.1288, AHCA determined that the facility had failed to comply with state requirements and, under the Florida classification system, classified the Federal Tag F309 non-compliance as a state Class II deficiency. Should the facility be found to have committed any of the alleged deficient practices, the period of the conditional licensure status would extend from June 17, 2004, to June 29, 2004. Resident 8 Resident 8's attending physician ordered a protective device to protect the uninjured left ankle and lower leg from injury caused by abrasive contact with the casted right ankle and leg. Resident 8 repeatedly kicked off the protective device, leaving her uninjured ankle and leg exposed. A 2.5 cm abrasion was noted on the unprotected ankle. The surveyors noted finding the protective device in Resident 8's bed but removed from her ankle and leg. Resident 8 was an active patient and had unsupervised visits with her husband who resided in the same facility but who did not suffer from dementia. No direct evidence was received on the cause of the abrasion noted on Resident 8's ankle. Given Resident 8's demonstrated propensity to kick off the protective device, the facility should have utilized a method of affixing the protective device, which would have defeated Resident 8's inclination to remove it. The facility's failure to ensure that Resident 8 could not remove a protective device hardly rises to the level of a failure to maintain a standard of care which compromises the resident's ability to maintain or reach her highest practicable physical, mental or psychosocial well-being. The failure to ensure that the protective device could not be removed would result in no more than minimal discomfort. Resident 10 Resident 10 has terminal diagnoses which include end- stage coronary artery disease and progressive dementia and receives hospice services from a local Hospice and its staff. In the Hospice nurse's notes for Resident 10, on her weekly visit, on May 17, 2004, was the observation that the right eye has drainage consistent with a cold. On May 26, 2004, the same Hospice nurse saw Resident 10 and noted that the cold was gone. No eye drainage was noted. No eye drainage was noted between that date and June 2, 2004. On June 3, 2004, eye drainage was noted and, on June 4, 2004, a culture of the drainage was ordered. On June 7, 2004, the lab report was received and showed that Resident 10 had a bacterial eye infection with Methicillin Resistant Staphylococcus Aureus (MRSA) bacteria. On June 8, 2004, the attending physician, Dr. Brinson, referred the matter to a physician specializing in infectious disease, and Resident 10 was placed in contact isolation. The infectious disease specialist to whom Resident 10 was initially referred was not available, and, as a result, no treatment was undertaken until a second specialist prescribed Bactrim on June 14, 2004. From June 8, 2004, until June 14, 2004, Resident 10 did not demonstrate any outward manifestations of the diagnosed eye infection. A June 9, 2004, quarterly pain assessment failed to note any discomfort, eye drainage or discoloration. In addition to noting that neither infectious control specialist had seen Resident 10, the nurses notes for this period note an absence of symptoms of eye infection. Colonized MRSA is not uncommon in nursing homes. A significant percentage of nursing home employees test positive for MRSA. The lab results for Resident 10 noted "NO WBC'S SEEN," indicating that the infection was colonized or inactive. By placing Resident 10 in contact isolation on June 8, 2004, risk of the spread of the infection was reduced, in fact, no other reports of eye infection were noted during the relevant period. According to Dr. Brinson, Resident 10's attending physician, not treating Resident 10 for MRSA would have been appropriate. The infectious disease specialist, however, treated her with a bacterial static antibiotic. That is, an antibiotic which inhibits further growth, not a bactericide, which actively destroys bacteria. Had this been an active infectious process, a more aggressive treatment regimen would have been appropriate. Ann Sarantos, who testified as an expert witness in nursing, opined that there was a lack of communication and treatment coordination between the facility and Hospice and that the delay in treatment of Resident 10's MRSA presented an unacceptable risk to Resident 10 and the entire resident population. Hospice's Lynn Ann Lima, a registered nurse, testified with specificity as to the level of communication and treatment coordination between the facility and Hospice. She indicated a high level of communication and treatment coordination. Dr. Brinson, who, in addition to being Resident 10's attending physician, was the facility's medical director, opined that Resident 10 was treated appropriately. He pointed out that Resident 10 was a terminally-ill patient, not in acute pain or distress, and that no harm was done to her. The testimony of Hospice Nurse Lima and Dr. Brinson is more credible. Resident 16 Resident 16 was readmitted from the hospital to the facility on May 24, 2004, with a terminal diagnosis of chronic obstructive pulmonary disease and was receiving Hospice care. Roxanol, a morphine pain medication, had been prescribed for Resident 16 for pain on a pro re nata (p.r.n.), or as necessary, basis, based on the judgment of the registered nurse or attending physician. Roxanol was given to Resident 16 in May and on June 1 and 2, 2004. The observations of the surveyor took place on June 17, 2004. On June 17, 2004, at 9:30 a.m., Resident 16 underwent wound care treatment which required the removal of her sweater, transfer from sitting upright in a chair to the bed, and being placed on the left side for treatment. During the transfer and sweater removal, Resident 16 made noises which were variously described as "oohs and aahs" or "ows," depending on the particular witness. The noises were described as typical noises for Resident 16 or evidences of pain, depending on the observer. Nursing staff familiar with Resident 16 described that she would demonstrate pain by fidgeting with a blanket or stuffed animal, or that a tear would come to her eye, and that she would not necessarily have cried out. According to facility employees, Resident 16 did not demonstrate any of her typical behaviors indicating pain on this occasion, and she had never required pain medication for the wound cleansing procedure before. An order for pain medication available "p.r.n.," requires a formalized pain assessment by a registered nurse prior to administration. While pain assessments had been done on previous occasions, no formal pain assessment was done during the wound cleansing procedure. A pain assessment was to be performed in the late afternoon of the same day; however, Resident 16 was sleeping comfortably. The testimony on whether or not inquiry was made during the wound cleansing treatment as to whether Resident 16 was "in pain," "okay," or "comfortable," differs. Resident 16 did not receive any pain medication of any sort during the period of time she was observed by the surveyor. AHCA determined that Resident 16 had not received the requisite pain management, and, as a result, Resident 16’s pain went untreated, resulting in harm characterized as a State Class II deficiency. AHCA's determination is not supported by a preponderance of the evidence. In the context that the surveyor considered what she interpreted as Resident 16's apparent pain, deference should have been given to the caregivers who regularly administered to Resident 16 and were familiar with her observable indications of pain. Their interpretation of Resident 16's conduct and their explanation for not undertaking a formal pain assessment are logical and are credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding: The facility's failure to secure the protective device to Resident 8's lower leg is not a Class II deficiency, but a Class III deficiency. The facility's care and treatment of Residents 10 and 16 did not fall below the requisite standard. The imposition of a conditional license for the period of June 17 to June 29, 2004, is unwarranted. The facility should have its standard licensure status restored for this period. No administrative fine should be levied. DONE AND ENTERED this 3rd day of June, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 3rd day of June, 2005. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Eric Bredemeyer, Esquire Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Florida Hospital Medical Center is entitled to reimbursement in the amount preliminarily determined by the Department of Financial Services, Division of Workers’ Compensation, in a reimbursement dispute regarding bills submitted by Florida Hospital Medical Center to Macy’s Claims Services and Amerisure Mutual Insurance Company for medical services provided to two individuals involved in work-related accidents; and Whether Macy’s Claims Services and Amerisure Mutual Insurance Company properly adjusted those bills of Florida Hospital Medical Center in accordance with the requirements of Florida’s Workers’ Compensation law and applicable rules.
Findings Of Fact Florida Hospital is a full-service, not-for-profit hospital system located in Orlando, Florida, that operates a smaller satellite hospital in Winter Park, Florida. Florida Hospital is a “health care provider” within the meaning of Section 440.13(1)(h), Florida Statutes. Macy’s and Amerisure are “carriers” within the meaning of Sections 440.02(4) and 440.02(38), Florida Statutes. The Department has exclusive jurisdiction to resolve disputes between carriers and health care providers regarding payments for services rendered to injured workers, pursuant to Sections 440.13(7) and 440.13(11)(c), Florida Statutes. Qmedtrix is a medical bill review company.3/ Case No. 09-6871 R. P., an employee of Macy’s, slipped and fell at work on May 20, 2009, and presented to Florida Hospital Winter Park for evaluation and treatment where medical personnel documented vomiting, brain attack, and brain trauma. After evaluation and treatment, patient R. P. was diagnosed with a bruise to the head and released the same day. On September 16, 2009, Florida Hospital submitted its bill for services provided to R. P. totaling $5,547.20 to Macy’s for payment, utilizing Form DFS-F5-DWC-90, also known as UB-04 CMS-1450, identifying the charges billed for each line item by revenue code and HCPS or CPT codes. Macy’s forwarded the bill to its workers’ compensation medical bill review agent, Qmedtrix. Qmedtrix reviewed the bill by comparing the procedure codes and diagnosis codes reported by Florida Hospital with examples in the CPT book for billing of emergency department services. Florida Hospital reported ICD diagnosis code 920, which reads “contusion of face, scalp, or neck.” Use of this code means R. P. presented with a bruise or hematoma, but not a concussion. Florida Hospital also reported ICD diagnosis code 959.01 (“head injury, unspecified”) which also means that R. P. did not present with a concussion, loss of consciousness, or intracranial injuries. Florida Hospital’s bill included a charge of $2,417 with CPT code 99285 for emergency department services. The bill also included separate charges for a head CT, and various lab tests, drugs, and IV solutions. According to Mr. von Sydow, the bill was sent through Qmedtrix’s computer program for review, and was flagged for review by a physician. Mr. von Sydow further testified that one of Qmedtrix’s medical director’s suggested that the CPT code of 99285 be reduced. The medical director, who Mr. von Sydow said reviewed the bill, however, did not testify and no documentation of his recommendation was submitted at the final hearing. Qmedtrix determined that Florida Hospital should have used CPT code 99284 when billing for the emergency services rendered instead of CPT code 99285. Qmedtrix found that, while the hospital billed $2,417 with CPT code 99285, its usual charge for an emergency department visit billed with CPT code 99284 is $1,354. Macy’s paid Florida Hospital a total of $2,683.55, which amount included $1,010.24 for the emergency department visit based on [approximately] 75 percent of Florida Hospital’s usual charge for CPT code 99284. The payment was accompanied by an EOBR. The EOBR Macy’s (or its designated entity)4/ issued to Florida Hospital for services rendered to R. P. identifies the amount billed by Florida Hospital as to each line item in a column designated “Billed,” and has columns designated as “BR Red,” “PPO Red,” “Other Red,” and “Allowance,” each containing an amount for each line item in the “Billed” column. There is also a column entitled “Reason Code” which sets forth codes, as required by Florida Administrative Code Rule 69L-7.602(5)(o)3., that are supposed to explain the reason for adjustment of any line item.5/ The “reason code” set forth adjacent to the $2,417.00 billed by Florida Hospital for emergency department services is “82,” which means “Payment adjusted: payment modified pursuant to carrier charge analysis.” There is also another code, “P506” listed in the “Reason Code” column adjacent to the same line item, which, according to the key provided on the EOBR, means “[a]ny questions regarding this Qmedtrix review, please call (800)-833-1993.” “P506,” however, is not a “reason code” listed in Florida Administrative Code Rule 68L- 7.602(5)(o)3. The EOBR does not advise that the bill was adjusted because of a determination that Florida Hospital should have used CPT code 99284 when billing for the emergency services rendered instead of CPT code 99285 as originally billed. Upon receipt of the payment and the EOBR, Florida Hospital timely filed a Petition for Resolution of Reimbursement Dispute with the Department pursuant to Section 440.13(7)(a), Florida Statutes, and Florida Administrative Rule 69L-31, contending that payment should be at 75 percent of its total charges, and citing the Florida Workers’ Compensation Reimbursement Manual for Hospitals, 2006 Edition (Hospital Manual). Qmedtrix timely filed a response to Florida Hospital’s petition on behalf of Macy’s pursuant to Section 440.13(7)(b), Florida Statutes, and Florida Administrative Code Rule 69L-31, asserting that correct payment should be determined based on, first, whether the hospital in fact billed its usual charge for the services and, second, whether the hospital’s charges are in line with the charges of other hospitals in the same community, citing One Beacon Insurance v. Agency for Health Care Administration, 958 So. 2d 1127 (Fla. 1st DCA 2007) for the proposition that “SB-50 amended section 440.13 . . . [revealing] legislative intent to eliminate calculation of a “usual and customary charge” based on the fees of any one provider in favor of a calculation based on average fees of all providers in a given geographic area.” Qmedtrix’s response on behalf of Macy’s also contended that “upcoding” and “unbundling” were additional grounds for adjustment or disallowance that were not identified on the EOBR. The response explained that “upcoding” refers to billing with a procedure code that exaggerates the complexity of the service actually provided; that CPT codes 99281 through 99285 describe emergency department services; that the CPT book includes examples of proper billing with these codes; that the hospital billed $2,417 with CPT code 99285; and that the CPT book describes an “emergency department visit for a healthy, young adult patient who sustained a blunt head injury with local swelling and bruising without subsequent confusion, loss of consciousness or memory deficit” as an example of proper billing with CPT code 99283. The response requested a determination by the Department that Macy’s payment equaled or exceeded the amount usual and customary for CPT code 99283. On November 13, 2009, the Department, through its Office of Medical Services (OMS) issued a determination (Determination in 09-6871) which found, in pertinent part: The petitioner asserts that services provided by Florida Hospital Medical Center to the above-referenced injured employee on May 20, 2009, were incorrectly reimbursed. Florida Hospital Medical Center billed $5,547.20 and the carrier reimbursed $2,683.55. The petition does not address a contract and does not reflect a contract discount in the calculation of requested reimbursement. The Carrier Response to Petition for Resolution of Reimbursement Dispute disputes the reasonableness of the hospital’s “usual and customary charges”, maintains the petitioners’ charges should be based on the average fee of other hospitals in the same geographic area, references a manual not incorporated by rule, and provides CPT codes that the respondent alleges are correct. There are no rules or regulations within Florida’s Workers’ Compensation program prohibiting a provider from separately billing for individual revenue codes. The carrier did not dispute that the charges listed on the Form DFS-F5-DWC-90 (UB-92) or the charges listed on the itemized statement did not conform to the hospital’s Charge Master. Nor did the carrier submit the hospital’s Charge Master in the response or assert that the carrier performed an audit of the Charge Master to verify the accuracy of the billed charges. Therefore, since no evidence was presented to dispute the accuracy of the Form DFS-F5-DWC-90 or the itemized statement as not being representative of the Charge Master, the OMS finds that the charges billed by the hospital are the hospital’s usual and customary charges. Rule 69L-7.602, F.A.C., stipulates the appropriate EOBR codes that must be utilized when explaining to the provider the carrier’s reasons for disallowance or adjustment. The EOBR submitted with the petition conforms to the EOBR code requirements of Rule 69L-7.602(5)(q), F.A.C. Only through an EOBR is the carrier to communicate to the health care provider the carrier’s reasons for disallowance or adjustment of the provider’s bill. Pursuant to s. 440.13(12), F.S., a three member panel was established to determine statewide reimbursement allowances for treatment and care of injured workers. Rule 69L-7.501, F.A.C., incorporates, by reference, the applicable reimbursement schedule created by the panel. Section 440.13(7)(c), F.S., requires the OMS to utilize this schedule in rendering its determination for this reimbursement dispute. No established authority exists to permit alternative schedules or other methodologies to be utilized for hospital reimbursement other than those adopted by Rule 69L-7.501, F.A.C., unless the provider and the carrier have entered into a mutually agreeable contract. Rule 69L-7.501, F.A.C., incorporates, by reference, the Florida Workers’ Compensation Reimbursement Manual for Hospitals, 2006 Edition (Hospital Manual). Since the carrier failed to indicate any of the services are not medically necessary, the OMS determined proper reimbursement applying the above referenced reimbursement guidelines. Therefore, the OMS has determined that the carrier improperly adjusted reimbursement to Florida Medical Center for services rendered to the above- referenced injured employee on May 20, 2009. Based on the above analysis, the OMS has determined that correct reimbursement equals $4,160.40 ($5,547.20 x 75% [Hospital Manual]=$4,160.40). The carrier shall reimburse Florida Hospital Medical Center $4,160.40 for services rendered to the above-referenced employee; and submit proof of reimbursement of the amount determined by the OMS within thirty days of the date the Determination is received. . . . The difference between what Petitioner Macy’s paid Florida Hospital for services rendered to R. P., and the amount the Department determined that Petitioner Macy’s is required to pay for such services, equals $1,476.85. The Determination in 09-6871 did not directly address Macy’s allegation of the alleged billing error of “upcoding.” The Determination in 09-6871 provided a 21-day notice for request of an administrative hearing and, as noted in the Preliminary Statement above, Macy’s timely requested a hearing. Case No. 09-6872 J. L., an employee of Major League Aluminum, was injured in a work-related accident on the evening of May 3, 2009, and visited the emergency department of Florida Hospital Orlando. After evaluation and treatment, J. L. was diagnosed with a bruise to the knee and released the next morning. On September 23, 2009, Florida Hospital submitted its bill for services provided to J. L. totaling $2,851 to Amerisure, Major League Aluminum’s workers’ compensation insurer, for payment, utilizing Form DFS-F5-DWC-90, also known as UB-04 CMS-1450, identifying the charges billed for each line item by revenue code and HCPS or CPT codes. Amerisure forwarded the hospital bill to its medical bill review agent, Qmedtrix for review. Qmedtrix’s medical bill review in this case, as in the companion case, entailed comparing the procedure codes and diagnosis codes reported by the hospital with examples in the CPT book. The hospital reported ICD diagnosis code 924.11, which reads “contusion of . . . knee.” The hospital also reported ICD diagnosis codes 724.2 (“lumbago”), E888.1 (“fall on or from ladders or scaffolding”) and 959.7 (“injury, other and unspecified . . . knee, leg, ankle, and foot.”). Florida Hospital billed $1,354 with CPT code 9924 for emergency department services and also billed for X-rays and various drugs and IV solutions. Comparing procedure codes and diagnosis codes reported by the hospital with examples in the CPT book, Qmedtrix concluded that billing with CPT code 99284 was not appropriate, but that billing with CPT code 99282 was. Qmedtrix also found that, while the hospital billed $1,354 with CPT code 99284, the average charge in the community for a visit to the emergency department billed with CPT code 99282 is $721. Qmedtrix determined the “usual and customary charge” in the community from its own database compiled by entering all of particular hospital bills into Qmedtrix’s database, along with data from the American Hospital Directory. Qmedtrix derives the average charge in the community based upon zip codes of the hospitals. Amerisure paid Florida Hospital a total of $1,257.15, which amount included $524.70 for the emergency department visit codes based on 75 percent of what Qmedtrix determined to be the average charge in the community for CPT code 99282. The payment was accompanied by an EOBR. The EOBR Petitioner Amerisure (or its designated entity)6/ issued to Florida Hospital for services rendered to J. L. identifies the amount billed by Florida Hospital as to each line item in a column designated “Billed Charges,” and has columns designated as “FS/UCR Reductions,” “Audit Reductions,” “Network Reductions,” and “Allowance,” each containing an amount for each line item in the “Billed Charges” column. There is also a column entitled “Qualify Code” which sets forth reason codes that are supposed to explain the reason for adjustment of any line item.7/ The code set forth adjacent to the $1,354.00 billed by Florida Hospital for emergency department services is “82,” which means “Payment adjusted: payment modified pursuant to carrier charge analysis.” The EOBR does not advise that the bill was adjusted because of a determination that Florida Hospital should have used CPT code 99282 when billing for the emergency services rendered instead of CPT code 99284 as originally billed. Upon receipt of the payment and the EOBR, Florida Hospital timely filed a Petition for Resolution of Reimbursement Dispute with the Department pursuant to Section 440.13(7)(a), Florida Statutes, and Florida Administrative Code Rule 69L-31, contending that payment should be at 75 percent of its total charges, and citing the Hospital Manual. Qmedtrix timely filed a response to Florida Hospital’s petition on behalf of Amerisure pursuant to Section 440.13(7)(b), Florida Statutes, and Florida Administrative Code Rule 69L-31, asserting that correct payment should be determined based on, first, whether the hospital, in fact, billed its usual charge for the services and, second, whether the hospital’s charges are in line with the charges of other hospitals in the same community, citing One Beacon, supra. Qmedtrix’s response on behalf of Amerisure contended “upcoding” as an additional ground for adjustment or disallowance that was not identified on the EOBR. As in the companion case, the response explained “upcoding,” that CPT codes 99281 through 99285 describe emergency department services, and that the CPT book includes examples of proper billing with these codes. The response further stated that the hospital billed $1,354 with CPT code 99284, and that the CPT book describes an “emergency department visit for a patient with a minor traumatic injury of an extremity with localized pain, swelling, and bruising” as an example of proper billing with CPT code 99282. The response requested a determination by the Department that Amerisure’s payment equaled or exceeded the usual and customary charge for CPT code 99282. On October 20, 2009, the Department’s OMS issued a determination (Determination in 09-6872) which found, in pertinent part: The petitioner asserts that services provided by Florida Hospital Medical Center to the above-referenced injured employee on May 3, 2009, and May 4, 2009, were incorrectly reimbursed. Florida Hospital Medical Center billed $2,851.00 and the carrier reimbursed $1,257.15. The petition does not address a contract and does not reflect a contract discount in the calculation of requested reimbursement. The Carrier Response to Petition for Resolution of Reimbursement Dispute disputes the reasonableness of the hospital’s “usual and customary charges”, maintains the petitioners’ charges should be based on the average fee of other hospitals in the same geographic area, and references a manual not incorporated by rule. There are no rules or regulations within Florida’s Workers’ Compensation program prohibiting a provider from separately billing for individual revenue codes. Therefore, the charges, as billed by the hospital, did not constitute billing errors. The carrier did not dispute that the charges listed on the Form DFS-F5- DWC-90 (UB-92) or the charges listed on the itemized statement did not conform to the hospital’s Charge Master. Nor did the carrier submit the hospital’s Charge Master in the response or assert that the carrier performed an audit of the Charge Master to verify the accuracy of the billed charges. Therefore, since no evidence was presented to dispute the accuracy of the Form DFS-F5- DWC-90 or the itemized statement as not being representative of the Charge Master, the OMS finds that the charges billed by the hospital are the hospital’s usual and customary charges. Rule 69L-7.602, F.A.C., stipulates the appropriate EOBR codes that must be utilized when explaining to the provider the carrier’s reasons for disallowance or adjustment. The EOBR submitted with the petition conforms to the EOBR code requirements of Rule 69L-7.602(5)(q), F.A.C. Only through an EOBR is the carrier to communicate to the health care provider the carrier’s reasons for disallowance or adjustment of the provider’s bill. Pursuant to s. 440.13(12), F.S., a three member panel was established to determine statewide reimbursement allowances for treatment and care of injured workers. Rule 69L-7.501, F.A.C., incorporates, by reference, the applicable reimbursement schedule created by the panel. Section 440.13(7)(c), F.S., requires the OMS to utilize this schedule in rendering its determination for this reimbursement dispute. No established authority exists to permit alternative schedules or other methodologies to be utilized for hospital reimbursement other than those adopted by Rule 69L-7.501, F.A.C., unless the provider and the carrier have entered into a mutually agreeable contract. Rule 69L-7.501, F.A.C., incorporates, by reference, the Florida Workers’ Compensation Reimbursement Manual for Hospitals, 2006 Edition (Hospital Manual). Since the carrier failed to indicate any of the services are not medically necessary, the OMS determined proper reimbursement applying the above referenced reimbursement guidelines. Therefore, the OMS has determined that the carrier improperly adjusted reimbursement to Florida Medical Center for services rendered to the above- referenced injured employee on May 3, 2009, and May 4, 2009. Based on the above analysis, the OMS has determined that correct reimbursement equals $2,138.25 ($2,851.00 x 75% [Hospital Manual]=$2,138.25). The carrier shall reimburse Florida Hospital Medical Center $2,138.25 for services rendered to the above-referenced employee; and submit proof of reimbursement of the amount determined by the OMS within thirty days of the date the Determination is received. . . . The difference between what Petitioner Amerisure paid Florida Hospital for services rendered to J. L. and the amount the Department determined that Petitioner Amerisure is required to pay for such services equals $881.10. The Determination in 09-6872 did not directly address Amerisure’s allegation of the alleged billing error of “upcoding.” The Determination in 09-6872 provided a 21-day notice for request of an administrative hearing and, as noted in the Preliminary Statement above, Amerisure timely requested a hearing. Alleged “Upcoding” for Emergency Department Services The Petitioners’ responses in both cases allege that Florida Hospital “upcoded” its bill for emergency department evaluation and management services. Neither EOBR submitted to Florida Hospital, however, reported alleged “upcoding” as an explanation for the Petitioners’ adjustment or disallowance of reimbursement. While the Dispute Determinations by the Department do not directly address the carrier’s allegation of the alleged billing error of “upcoding” raised in the Petitioners’ responses, they found that “Rule 69L-7.602, F.A.C., stipulates the appropriate EOBR codes that must be utilized when explaining to the provider the carrier’s reasons for disallowance or adjustment[, and that] [o]nly through an EOBR is the carrier to communicate to the health care provider the carrier’s reasons for disallowance or adjustment of the provider’s bill.” According to Mr. von Sydow, who was offered by Petitioners as an expert in billing, coding, reimbursement, and payment issues,8/ the “reason codes” that workers’ compensation carriers are to use pursuant to Florida Administrative Code Rule 69L-7.602, do not mention “upcoding,” and therefore an EOBR could not be generated with a reason code explaining reduction or disallowance based on “upcoding.” The following reason codes, however, are included in Florida Administrative Code Rule 69L-7.602: 23 – Payment disallowed: medical necessity: diagnosis does not support the services rendered. – Payment disallowed: insufficient documentation: documentation does not substantiate the service billed was rendered. – Payment disallowed: insufficient documentation: level of evaluation and management service not supported by documentation. Neither EOBR submitted to Florida Hospital includes reason code 23, 40, or 41. And neither EOBR explains or otherwise suggests that that Florida Hospital’s level of billing was not supported by medical necessity, services rendered, or sufficient documentation. In fact, Petitioners did not disallow reimbursement and do not contend that reimbursement should be denied for any services rendered by Florida Hospital to R. P. and J. L. on the grounds that the billed services were not medically necessary for the injured employees’ compensable injuries. In addition, Petitioners did not adjust or disallow payment for any of the billed procedures on the grounds that the procedures were not provided. In sum, the EOBR’s did not give Florida Hospital notice that alleged “upcoding” was an issue. Even if Petitioner’s EOBR’s gave Florida Hospital notice that it was asserting “upcoding” as a reason to reduce or adjust the hospital’s bill, the evidence does not support a finding that Florida Hospital utilized the wrong code in its billing for emergency department evaluation and management services. The CPT® 2009 Current Procedural Terminology Professional Edition, (Copyright 2008), (CPT book), is adopted by reference in Florida Administrative Code Rule 69L-7.602(3)(d) and Florida Administrative Code Rule 60L-7.020(2). The CPT book sets forth the procedure codes for billing and reporting by hospitals and physicians. The CPT book sets forth CPT codes ranging from 99281 through 99285 used to report evaluation and management services provided in a hospital’s emergency department, described as follows: 99281: Emergency department visit for the evaluation and management of a patient, which requires these 3 key components: A problem focused history; A problem focused examination; and Straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies and provided consistent with the nature of the problem(s) and the patient’s and/or family’s needs. Usually, the presenting problem(s) are self limited or minor. 99282: Emergency department visit for the evaluation and management of a patient, which requires these 3 key components: An expanded problem focused history; An expanded problem focused examination; and Medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies and provided consistent with the nature of the problem(s) and the patient’s and/or family’s needs. Usually, the presenting problem(s) are of low to moderate severity. 99283: Emergency department visit for the evaluation and management of a patient, which requires these 3 key components: An expanded problem focused history; An expanded problem focused examination; and Medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies and provided consistent with the nature of the problem(s) and the patient’s and/or family’s needs. Usually, the presenting problem(s) are of moderate severity. 99284: Emergency department visit for the evaluation and management of a patient, which requires these 3 key components: A detailed history; A detailed examination; and Medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies and provided consistent with the nature of the problem(s) and the patient’s and/or family’s needs. Usually, the presenting problem(s) are of high severity, and require urgent evaluation by the physician but do not pose an immediate significant threat to life or physiologic function. 99285: Emergency department visit for the evaluation and management of a patient, which requires these 3 key components: A comprehensive history; A comprehensive examination; and Medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies and provided consistent with the nature of the problem(s) and the patient’s and/or family’s needs. Usually, the presenting problem(s) are of high severity and pose an immediate significant threat to life or physiologic function. Mr. von Sydow testified that a Qmedtrix “medical director,” reviewed Florida Hospital’s bill for services rendered to R. P., but not the medical records, and recommended that the hospital’s charge for emergency department services under CPT 99285 be “re-priced” to Qmedtrix’s determination of the “usual and customary charge” for CPT 99284. Mr. von Sydow acknowledged the need for physician review for some cases (as opposed to review by non-physician coders) by testifying, “The more complicated the medicine, the more likely it is that he [a medical director at Qmedtrix] wants to see it.” Despite Qmedtrix’s original determination to “reprice” the bill from CPT code 99285 to CPT code 99284 (reflected in the reduced payment but not explained in the EOBR), Mr. von Sydow opined that the correct CPT code for emergency department services provided to patient R. P. was 99283, as opposed to 99285 billed by the hospital. Mr. von Sydow testified that his opinion was based upon his own review of the medical records, without the assistance of a medical director or medical expert, and review of examples for the CPT codes for emergency department services from the CPT book, and various provisions of ICD-9 and CPT book coding resources. Aside from the fact that Mr. von Sydow’s opinion differed from the purported recommendation of a Qmedtrix “medical director,” Mr. von Sydow is not a physician. Moreover, Qmedtrix failed to provide the testimony of the medical director, or anyone else with medical expertise to evaluate the medical records and services provided or to validate either the opinion of Mr. von Sydow or the original recommendation to “re- price” Florida Hospital’s use of CPT Code 99285 in its bill for emergency department services rendered to patient R. P. Mr. von Sydow offered similar testimony and examples to explain Qmedtrix’s “re-pricing” of Florida Hospital’s bill from CPT code 99284 to CPT code 99282 for emergency services rendered to patient J. L. on behalf of Amerisure. According to Mr. von Sydow, an internal Qmedtrix coder (not a medical director) reviewed the bill for emergency services rendered to J. L. and determined it should be re-priced to the usual and customary charge, as determined by Qmedtrix, using that CPT code 99282. While knowledgeable of the various codes and their uses, given the manner in which preliminary diagnostics under emergency circumstances drives Florida Hospital’s determination of the appropriate CPT code for billing emergency department services, without the testimony of a medical expert familiar with the medical records generated in these cases in light of the facts and circumstances surrounding the emergency care rendered to patients R. P. and J. L., Mr. von Sydow’s testimony was unpersuasive. Ross Edmundson, M.D., an employee, vice-president, and medical manager for Florida Hospital, explained that, unlike other settings, hospitals generally do not have the medical histories of patients presenting for emergency hospital services. When a patient comes to Florida Hospital for emergency services, they are triaged by a nurse to determine the level of urgency, then a doctor sees the patient, conducts a differential diagnosis to rule out possible causes, obtains the patient’s history, and then performs a physical examination. While emergency room physicians at Florida Hospital do not decide which CPT code is utilized for the evaluation and management services provided by its emergency department, the various tests and procedures they undertake to evaluate and treat emergency department patients do. James English, the director of revenue management for Florida Hospital explained the process through his deposition testimony. Florida Hospital, like over 400 other hospitals, uses the “Lynx System” – a proprietary system for creating and maintaining medical records electronically. The program captures each medical service, supply, and physician order that is inputted into the electronic medical record. The hospital’s emergency evaluation and management CPT code is generated from the electronic record. A “point collection system” in the Lynx System translates physician-ordered services, supplies it to a point system, and then assigns the CPT code that is billed based upon the total number of “points” that are in the system at the time the patient is discharged from the emergency department. The level of the evaluation and management CPT code (99281 to 99285) that is reported on Florida Hospital’s bill is a direct reflection of the number and types of medical services that a patient receives from his or her arrival through discharge. In light of evidence showing the manner in which emergency services are provided and the importance of medical records in generating the appropriate billing code for emergency evaluation and management services, it is found that Petitioners failed to provide an adequate analysis of the medical records of either R. P. or J. L. to show that the appropriate CPT codes were not utilized by Florida Hospital in billing for those services. On the other hand, both Petitions for Resolution of Reimbursement Dispute filed by Florida Hospital with the Department attached appropriately itemized bills utilizing Form DFS-F5-DWC-90, also known as UB-04 CMS-1450, identifying the charges billed for each line item by revenue code and HCPS or CPT codes. In addition, medical records for the evaluation and treatment provided by Florida Hospital for both patients R. B. and J. L. supporting the itemized bills were submitted to the Department. These documents were also received into evidence at the final hearing. Florida Hospital’s bills at issue correctly identified the hospital’s usual charges for each individual and separately chargeable item, service or supply, with the corresponding code assigned to such billable items as maintained in Florida Hospital’s “charge master.” In addition, Petitioners concede the compensability of both patients’ work-related injuries and do not dispute whether any service or supply rendered and billed by Florida Hospital for these two cases were “medically necessary.”9/ Unbundling As noted above, in Case No. 09-6871, Qmedtrix’s response to Florida Hospital’s petition for resolution of reimbursement dispute contended “unbundling” as a ground for adjustment or disallowance of reimbursement. At the final hearing, Arlene Cotton, the nurse who issued the Dispute Determinations, explained that reason code 63 regarding “unbundling” is inapplicable to hospital billing, as there is no rule that requires hospitals to bundle bill for its services. Mr. von Sydow agreed that reason code 63 was inapplicable. In addition, footnote 2 of Petitioners’ Proposed Recommended Order states, “they did not pursue the allegations of unbundling.” Therefore, it is found that Petitioners did not prove and otherwise abandoned their claim of “unbundling” as a ground to adjust or disallow reimbursement to Florida Hospital. Usual and Customary Charges The Dispute Determinations issued by the Department found that correct payment in both cases equaled 75% of billed charges, citing “Rule 69L-7.501, F.A.C., [which] incorporates, by reference, the Florida Workers’ Compensation Reimbursement Manual for Hospitals, 2006 Edition (Hospital Manual). Both Section 440.13(12)(a), Florida Statutes, and the Hospital Manual provide that hospital services provided to patients under the workers’ compensation law “shall be reimbursed at 75 percent of usual and customary charges.” The Department interprets the term “usual and customary charges” as set forth in the Hospital Manual and Section 440.13(12)(a), Florida Statutes, quoted above, to mean a hospital’s usual charges of the hospital, whereas Petitioners contend that “usual and customary charges” means the average fee of all providers in a given geographical area. While apparently not contending that Petitioners failed to raise the issue of “usual and customary” charges in their EOBR’s,10/ at the final hearing, the Department argued that “nowhere in [either Macy’s or Amerisure’s] response is the issue of customary charges raised.” A review of the responses filed by Qmedtrix to Florida Hospital’s reimbursement dispute petitions filed with the Department reveal that both raise the issue of “usual and customary charges.” Paragraphs 3 and 4 of Mr. von Sydow’s letter attached to both responses state: As you may know, the proposed adoption of Medicare’s Outpatient Prospective Payment System as a methodology for reimbursing hospitals 60% and 75% of “usual and customary charges” follows from the decision of the First District Court of Appeals in One Beacon Insurance v. Agency for Health Care Administration, No. 1D05-5459 (Fla. 1st DCA 2007) (SB-50 amended section 440.13 to remove all reference to the charges of any individual service provider; this amendment reveals the legislative intent to eliminate calculation of a “usual and customary charge” based on the fees of any one provider in favor of a calculation based on average fees of all providers in a given geographical area). This court decision requires DFS to define payment rates for out patient service that are uniformly applicable to all hospitals in a given geographic area. In addition, at the final hearing, the Department argued that the petitions for administrative hearing did “not raise as a disputed issue of fact or law whether or not usual and customary charges should apply in this case.” Indeed, a review of the request for relief set forth in the petitions for administrative hearings filed by Petitioners do not mention the issue of “usual and customary charges.” Rather, the relief requested by both petitions for administrative review of the Dispute Determinations, as summarized in the Joint Prehearing Stipulation, is: Petitioner[s] seeks reversal of OMS’ Determination(s) and the matters remanded for the Department to: direct payment based upon the actual treatment required/provided and pursuant to the correct CPT code; find that the hospital upcoded and that Petitioner properly reimbursed (or exceeded amount due); and determine that the hospital has the burden of proof to substantiate its billing and the use of the chosen CPT code. Contrary to the Department’s argument, however, both petitions for administrative hearing raise the issue of “usual and customary charges.” Page 9 of Macy’s petition, in pertinent part states: Petitioner submits that in issuing the above findings OMS failed to consider the holding in One Beacon Insurance v. Agency for Health Care Administration (wherein the Court determined that reimbursement should not be based solely upon a mathematical equation [as found within the Reimbursement Manual] and applying it to the fee charged by a particular provider; and that by eliminating the reference to any one facility’s charges, the legislature intended that the charges be based on average fees of all providers in a geographical area as opposed to the fees of the particular provider in question). Likewise, review of Amerisure’s petition for administrative hearing reveals that the issue of “usual and customary charges” was raised. Pages 7 and 8 of Amerisure’s petition state, in pertinent part: Further, if the Hospital is permitted to utilize incorrect revenue codes it would be impossible to determine whether the charges are consistent with the Hospital’s own [usual and customary] charges for the service, procedure or supplies in question and, further, whether such charges are consistent with charges by other like facilities (in the same geographical area) for the same services, procedures, or supplies. See One Beacon Insurance, supra. In addition, Amerisure’s petition on page 12 states with regard to the Department’s determination: Such finding was issued without consideration of . . . the amounts charged for the same services in the Orlando area where this hospital is located. Petitioners further preserved the issue of “usual and customary charges” in the first paragraph of their statement of position on page 3 of the Joint Prehearing Statement, as follows: Petitioners, Macy’s and Amerisure, take the position that the Determinations must be reversed as the Department has the duty to scrutinize the bills in question in order to determine, first, whether the hospital, in fact, charged its usual charge for the services provided, and second, whether the billed charges are in line with the customary charges of other facilities in the same community (for the same or similar services) and that the Department failed to do so. As such, Petitioners contend that payment for services provided by Florida Hospital should have been based upon 75% of usual and customary charges, not 75% of billed charges. Therefore, it is found that Petitioners have preserved the issue of “usual and customary charges” for consideration in this administrative proceeding. Although preserved, Petitioners failed to demonstrate that their interpretation of “usual and customary charges” should prevail. The Department has consistently interpreted the term “usual and customary charges” as used in the Hospital Manual, Section 440.13(12)(a), Florida Statutes, and rules related to hospital reimbursement under the workers’ compensation law as the “usual and customary charges” of the hospital reflected on the hospital’s “charge master.” The Hospital Manual requires each hospital to maintain a charge master and to produce it “when requested for the purpose of verifying its usual charges. . . .” (Emphasis added). Petitioners did not conduct or request to conduct an audit to verify whether the charges billed by Florida Hospital corresponded with the Florida Hospital’s charge master. In fact, Mr. von Sydow conceded at the final hearing that Florida Hospital’s bills at issue were charged in accordance with Florida Hospital’s charge master. Nor did Petitioners institute rule challenge proceedings against the Department regarding the Hospital Manual, incorporated by reference into Florida Administrative Code Rule 38F-7.501. Instead, Petitioners assert that they should be able to reduce Florida Hospital bills based upon a different interpretation of the phrase “usual and customary charges” to mean the average charge in the community as determined by Qmedtrix. Qmedtrix is not registered with the Florida Department of State, Division of Corporations, and does not employ any Florida-licensed insurance adjuster, physician, or registered nurse. Qmedtrix earns 12 to 15 percent of “savings” realized by carriers utilizing their bill review services. For example, if a bill is reduced by $100, Qmedtrix is paid $12.11/ Qmedtrix uses a proprietary bill review system called “BillChek.” According to Qmedtrix’s website: BillChek reviews out-of-network medical charges for all bill types in all lines of coverage, including group health, auto, medical, and workers’ compensation. BillChek is a unique specialty cost- containment service that determines an accurate and reasonable reimbursement amount for non-network facility and ancillary medical charges. BillChek incorporates historical data to help determine reasonable payment recommendations across all sectors of the health care industry. All BillCheck recommendations are backed by extensive medical and legal expertise, and supported by Qmedtrix’s experienced Provider Relations and Dispute Resolution teams. According to the testimony of Mr. von Sydow, Qmedtrix collects and maintains data from various sources, including Florida’s Agency for Health Care Administration (AHCA), the American Hospital Directory (AHD.com), and HCFA 2552’s (data reported to the Centers of Medicare and Medicaid Services on HCFA 2522) in order to construct a database of health care providers’ usual charges. Mr. von Sydow advised that AHD.com data was a principle source for constructing the database. He also advised that AHCA data was included in the database even though Qmedtrix found the AHCA data defective. Examples of data downloaded from AHD.com for Florida Hospital showing a profile of the facility was received into evidence as P-5. The data did not, however, show usual charges for the CPT codes for emergency department services at issue in this case. Petitioners also introduced into evidence Exhibits P-6 and P-7, which contained AHD.com data showing average charges for Florida Regional Medical Center and Florida Hospital, respectively, for Level 1 through Level 5 emergency room visits (corresponding to CPT codes 99281 through 99285). Mr. von Sydow explained that the data was part of the information Qmedtrix used to construct the average charge in the community. Petitioners failed to provide similar AHD.com data for other hospitals in the area Qmedtrix determined to be the “community.” In addition, Petitioners introduced AHCA’s Florida Health Finder Web-site, as Exhibit P-8, which ostensibly included average charges for all hospitals in Florida for the subject emergency department CPT codes (99281 through 99285). Mr. von Sydow explained, however, “[w]e find that [the AHCA data] is not refreshed very often, unfortunately, and some other defects in the scrubbing of the data by the agency, which they know, I will say. But this is incorporated in our database to a large extent.” The exhibit was received into evidence for the purpose of helping to explain how Qmedtrix constructed its database, with the recognition that it was largely composed of hearsay. In sum, while Petitioners showed their methodology of constructing the database, other than the AHD.com data for Orlando Regional Medical Center and Florida Hospital, Petitioners failed to introduce reliable evidence sufficient to show the “usual and customary charge” of all providers in a given geographical area as determined by Qmedtrix. In addition, the AHCA data, though characterized by Mr. von Sydow as unreliable, indicates that there is a wide range of differences in emergency room charges between hospitals in Florida. Petitioners’ interpretation of “usual and customary charge” to mean the average fee of all providers in a given geographical area does not take into account an individual hospital’s indigent care, cost of labor, overhead, number of beds, size, age, or various other differences between facilities that could affect amounts each hospital charges for emergency department and other services; the Department’s interpretation does.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a Final Order consistent with this Recommended Order that: Directs Macy’s Claims Services to reimburse Florida Hospital Medical Center $4,160.40 for services rendered to patient R. P., and to submit proof of reimbursement of that amount within 30 days from the date the Final Order is received; Directs Amerisure Mutual Insurance Company to reimburse Florida Hospital Medical Center $2,138.25 for services rendered to patient J. L., and submit proof of reimbursement of that amount to the Department within 30 days from the date the Final Order is received. DONE AND ENTERED this 17th day of June, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2010.
The Issue Whether Respondent violated Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), and, if so, what penalty should be imposed.
Findings Of Fact Effective July 1, 1997, Petitioner is the state agency charged with regulating the responsibility for regulation and discipline of the nursing practice within the State of Florida. Respondent is a certified nursing assistant (CNA) holding Florida nursing certificate number CX 0993266675590. In December 2001, Respondent was employed as a CNA at Beverly Health Care, now known as Seacrest Health Care of Largo. Patient F.K. was a dementia patient in her advanced years and was not coherent or responsive. She was a total care patient, which required staff to perform all activities of daily living for her, such as mouth care, showers, feeding, dressing, bathing, and getting her into and out of bed. Patient F.K. did not speak, but did have a tendency to hum loudly and continuously. On December 20, 2001, Respondent was in Patient F.K.'s room following Patient F.K.'s return from lunch. Respondent called another CNA, Sheleta Cunningham-Talley, into Patient F.K.'s room, and Respondent engaged her in conversation. At that time, Patient F.K. was humming, as she often did. Respondent said to Talley, "watch how I shut this bitch up" and then proceeded to strike Patient F.K. on the face and throat. Patient F.K.'s face and neck turned red, and she became visibly upset after being struck. Beverly Health Care has a policy that residents have a right not to be physically abused. CNAs are under a legal or statutory duty not to hit or abuse patients. Striking a patient in the face and throat is a violation of that duty to not physically abuse a patient. Agnes Kelly is a registered nurse who was employed at Beverly Health Care during Respondent's employment there. Kelly has practiced as a registered nurse since 1994. She was a weekend supervisor at Beverly Health Care and supervised approximately 25 nursing employees which included a number of CNAs. Kelly has supervised nursing staff and CNAs for approximately nine years, and, as such, is familiar with the duties and responsibilities of CNAs. It is her opinion that Respondent violated her duty not to physically abuse a patient. Based on the foregoing, the evidence is clear and convincing that Respondent violated Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), by intentionally violating the statutory and legal obligation of CNAs to not physically abuse or hit a patient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order finding Respondent guilty of violating Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), and revoking Respondent's certification and requiring Respondent to pay the costs of investigation and prosecution of this matter. DONE AND ENTERED this 22nd day of July, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 22nd day of July, 2003. COPIES FURNISHED: Kim M. Kluck, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Pearla M. Mixon 4365 Tuna Drive, Southeast St. Petersburg, Florida 33705 Dan Coble, R.N., Ph.D., C.N.A.A. C., B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
