Findings Of Fact The application of Petitioner, John David Young, M.D., for licensure by endorsement initially was filed on March 13, 1991. The initial application was not completed within one year and, under F.A.C. Rule 61F6-22.016, was not acted upon by the Board of Medicine. The Petitioner reapplied on September 1, 1992, and his application was denied by Respondent's Order rendered on November 4, 1993. The basis of denial stated in the November 4, 1993, Order is: You failed to show a medical education as that term is used in Chapter 458 in Sections 458.313(1)(a) and 458.311(1)(f) and have failed to show medical practice as required by Section 458.313(1)(c). Additionally, you have misrepresented your education. Sections 458.313(1)(a) and (7); 458.311(1)(c) and (d); 458.331(1)(a) and (gg), F.S. Medical Education Dr. Young received his Doctorate of Medicine Degree from Grace University School of Medicine, St. Kitts, Nevis, West Indies, June 4, 1986. Grace University is registered with the World Health Organization. Dr. Young began his medical education on May 5, 1981, at the Universidad de Mundial, Dominican Republic, where he completed one year as reflected by the transcripts found at Joint Exhibit 1, page 195. Dr. Young transferred to CETEC, Dominican Republic, because of his concerns that Universidad de Mundial would close within a few years. The transfer to CETEC occurred in late December, 1981. CETEC allowed Dr. Young to take pathology and physiology at the University of Southern California on the condition that CETEC would administer exams on those subjects before they would give him credit. The University of Southern California did not give credit for the courses, which was not a concern to Dr. Young because he was seeking credit from CETEC upon taking the CETEC examination. CETEC attempted to establish a liaison with Orange State University School of Medicine in Southern California whereby students could take courses at Orange State and receive credit by CETEC. Dr. Young completed his basic science course work at Orange State as reflected by the transcript at Joint Exhibit 1, page 193, for which CETEC gave him credit. Melvin A. Shiffman, M.D., was temporary dean at Orange State University and submitted a letter to the Board of Medicine confirming Dr. Young's attendance from May through August, 1982, and that Dr. Young took the CETEC final examinations on all the subjects taught at Orange State for which they gave credit. Dr. Young began his clinical rotations upon completion of his basic sciences as follows: Basic Medicine at Pine Ridge Indian Health Hospital, Pine Ridge, South Dakota, from August 31, 1982 to September 30, 1982; surgery at Oral Roberts University School of Medicine from October 4, 1982 to December 22, 1982; surgery at Fitkin Hospital, Swaziliand, South Africa, in 1983; basic medicine at Pine Ridge Indian Hospital, Pine Ridge, South Dakota, from April 18, 1983 to May 29, 1983. While at Pine Ridge Indian Hospital the second time, Dr. Young was asked to leave by the acting hospital administrator, on the allegation that he was attending CETEC, which was not an approved school, which in fact it was. In shock at being asked to leave based on those allegations, Dr. Young travelled to Kansas City to stay with relatives to study for the Educational Commission for Foreign Medical Graduates (ECFMG) examination required for all foreign medical graduates. The Petitioner took and passed the ECFMG examination on July 27, 1983. Upon completion of the examination, Dr. Young continued his clinical rotations as follows: Psychiatry at Bay Front Medical Center, University of South Florida, St. Petersburg, Florida; medicine at University of Natal, Republic of South Africa, from September 26, 1983 to January 1, 1984; obstetrics/gynecology at Addington Hospital, University of Natal, Republic of South Africa, from January 3, 1984 to March 4, 1984; pediatrics from March 12 to May 13, 1984 at Addington Hospital; University of Natal; and surgery from May 13, 1984 to July 16, 1984 at Addington Hospital, University of Natal. In late May or early June, 1984, while Dr. Young was in the surgery rotation, he learned, upon calling home and speaking to his mother, that CETEC closed as of March 4, 1984. Dr. Young was shocked at learning of the closing, but decided to complete the surgery rotation, since he was working with a well known professor, and to return to the U.S. after that to try to find another medical school. Dr. Young registered at the University of Health Science in Antigua in September, 1984. The University of Health Science required Dr. Young to take their exams for credit of his basic sciences course work, which he took in December, 1984. Because the transcripts from CETEC were not available, Dr. Young produced to the University of Health Sciences cancelled checks showing payment for his tuition, which was accepted. The University of Health Sciences, therefore, required Dr. Young to pass their examinations for the basic science courses in lieu of the CETEC transcript. Dr. Young found the exams to be suspicious in that they seemed to be random photocopies of medical text book pages. Accordingly, Dr. Young went to the U.S. Embassy at Antigua to discuss the medical school and was advised to change schools because of problems they were having with the school. Dr. Young learned later that 30 former students filed suit in federal court against the school for the irregularities. Upon completion of the examinations, Dr. Young continued his rotations. He did a rotation in cardiology at Bay Pines Veterans Hospital, St. Petersburg, Florida from December 18, 1984 to January 31, 1985. He did a rotation in internal medicine at Metropolitan General Hospital, Pinellas Park, Florida from February 1, 1985 to April 30, 1985. He did a rotation in pediatrics with Dr. DeGall at All Childrens Office in St. Petersburg, Florida from May 1 to July 29, 1985. Dr. Young then enrolled in Grace University Medical School, St. Kitts, Nevis, West Indies, in December, 1985. Grace University gave Dr. Young credit for course work done for previous medical schools approved by the World Health Organization, but told him that he would be required to take validation exams for that course work and would probably need to take some additional clerkships. This was explained to the Board of Medicine by the Vice President and CEO of Grace University, J.P. McNaughton-Louden, M.D., by letter dated February 20, 1991, found at Joint Exhibit 1, page 103. In that letter, Dr. Louden also confirms that CETEC was approved by the World Health Organization, that CETEC closed while Dr. Young was taking rotations in South Africa, that students at University of Health Sciences in Antigua were advised by the U.S. Consul authorities to transfer because of problems, that Dr. Young would be given credit for studies done at medical schools approved by the World Health Organizations co-validated by examinations at Grace University, and that Dr. Young's clerkships had been accepted and that he graduated on June 4, 1986. The transcripts of Grace University found at Joint Exhibit 1, page 104, shows that Dr. Young was admitted in March, 1984, even though his actual enrollment was December, 1985, because the school dated the admission retroactively to the date that CETEC closed. Dr. Young listed what he considered to be his accurate date of enrollment on his application for licensure as December 21, 1985. Dr. Young did the following additional rotations for Grace University: pediatrics with Dr. DeGall in St. Petersburg, from December 29, 1985 to February 26, 1985; and general medicine and emergency medicine at a refugee camp under the auspices of the United States and Christian Missionary Life from March 3 to April 30, 1985. FLEX Exam Dr. Young took and passed the Federation of State Medical Boards' Licensing Examination (known as "FLEX") on the first attempt in December, 1988. Residency 21 Dr. Young completed one year of residency in internal medicine at Marshall University on January 31, 1989. Maurice A. Mufson, M.D., Dr. Young's professor and Chairman of the Department of Internal Medicine, submitted an evaluation of the residency to the Board of Medicine recommending him as qualified and competent. After completion of the one year residency in internal medicine, Dr. Young realized that in order to fulfill his desire to practice missionary medicine, he would need a broader education. Accordingly, he changed his residency to family practice. Marshall University gave Dr. Young seven months credit from his one year of internal medicine residency towards his family practice residency which was completed in June, 1991. Robert B. Walker, M.D., Dr. Young's professor and Chairman of the Department of Family and Community Health, submitted to the Board of Medicine and evaluation of Dr. Young's family practice residency recommending him as qualified and competent. The AMA physician profile on Dr. Young, submitted to the Board of Medicine by the AMA, shows that Dr. Young completed the family practice residency and one year of internal medicine residency. However, the AMA profile mistakenly shows Dr. Young's internal medicine residency as from 2/87 to 1/88, instead of the accurate dates of 2/88 to 1/89. Dr. Young brought this error to the attention of the AMA which did not correct it. Letters recommending Dr. Young for licensure were sent to the Board of Medicine by: Stephen Petrany, M.D., Dr. Young's former Director of the Family Medicine Residency at Marshall University; and Jack Ditty, M.D., a Board certified dermatologist in Kentucky who was adjunct professor at University of Kentucky and Marshall University (who writes that Dr. Young is of high moral character and has knowledge and experience which would be necessary to practice medicine in Florida.) Post-Residency After completion of his residency in 1991, Dr. Young became licensed to practice medicine in West Virginia. Since his licensure, there have been no complaints or probable cause determinations made against his license, and no malpractice claims have been filed against him. Since completion of his residency, he has served as Assistant Professor of Clinical Medicine at the University of West Virginia and as Adjunct Professor of Medicine at Marshall University School of Medicine. He also has worked as a ship's doctor for a cruise line, worked as Assistant Professor of Medicine at University of West Virginia, moonlighted as an emergency room doctor in Beckley, West Virginia, lectured extensively in the Republic of South Africa on sexually transmitted diseases, and has worked as an emergency room doctor for the U.S. Military in Arizona. ECFMG Certification The Educational Commission for Foreign Medical Graduates (ECFMG) verifies the medical education of each person to whom it awards a certificate following passage of its examination. The ECFMG's investigation of Dr. Young's medical education took several years, because of allegations involving a Mr. Pedro de Mesones falsifying information from some medical schools in the Dominican Republic, including CETEC, on behalf of some applicants to various state medical boards. Dr. Young never met nor spoke with Pedro de Mesones nor was he involved with him in any way. The ECFMG advised Dr. Young of this investigation by letter dated June 7, 1984, found at Joint Exhibit 1, page 167. Further complicating the ECFMG investigation of Dr. Young's medical education was the closing of CETEC. The Dominican Republic government established an agency known as CONES to assist in getting transcripts of students who attended CETEC. Dr. Young wrote to CONES in an attempt to obtain his CETEC transcript from CONES. Even though Dr. Young was unable to obtain transcripts of CETEC from CONES, ECFMG verified all of Dr. Young's medical education, clinical rotations, and residency. The ECFMG investigation of Dr. Young's medical education concluded with no irregularities in his credentials having been found. The ECFMG issued its certificate to Dr. Young on October 13, 1987; it is valid indefinitely. Specialty Board Certification Dr. Young is certified as a diplomate of the American Board of Family Practice for the period of 1992 - 1999. The certificate from the American Board of Family Practice indicates: that Dr. Young met the requirements to be certified as a Diplomate of the Board; that he has completed a 3-year residency; and that the American Board verified Dr. Young's medical education and found it to be authentic. Board of Medicine Investigation As part of the routine investigation of Dr. Young's application for licensure filed with the Board of Medicine, the Board staff wrote to CONES requesting confirmation of the CETEC education and received a response dated March 6, 1992, by letter found at Joint Exhibit 1, page 87, stating that Dr. Young was not found on their lists and that they could not process the Board's request until they had Dr. Young's student registration number. However, an earlier certification by CONES dated May 12, 1987, found at Joint Exhibit 1, pages 9 and 10, shows that CONES did have Dr. Young's student identification number and had a file on him. Paul L. Allyn, M.D. also confirmed to the Board of Medicine by letter dated June 30, 1993, found at Joint Exhibit 1, page 88, that Dr. Young did attend CETEC. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on the March 6, 1992, letter rather than the May 12, 1987, letter. The Board staff contacted the University of Health Sciences to confirm Dr. Young's attendance and received a letter from its President dated October 21, 1991, found at Joint Exhibit 1, page 99. That letter states that Dr. Young did not receive credit for his previous medical education, that he attended the institution from September 19, 1984 to July 11, 1985, that he did not leave the institution in good standing, and that he was dismissed because he was unable to provide the school with official transcripts from the previous medical school he attended. Dr. Young had not seen that letter until a few months before hearing while reviewing the Board's file on him in preparation for the hearing. Dr. Young takes issue with the statements in the letter because the school did give him credit for the rotations he completed while enrolled at Universidad de Mundial and because he never had been told that he left the institution in poor standing. Dr. Young left the University upon advice of the U.S. Consulate in Antigua. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on this letter rather than Dr. Young's affidavits submitted with his application which contradict the letter. The Board obtained and reviewed the ECFMG file on Dr. Young in considering his application. In the ECFMG file at Joint Exhibit 1, page 230, is a letter to the ECFMG from John Casken, Quality Assurance Coordinator, Department of Health, Education, and Welfare, dated May 15, 1985, relating to Dr. Young's second clinical rotation at Pine Ridge Indian Health Hospital in 1983. In the letter, Mr. Casken states: that a closer look at Dr. Young's credentials after he presented himself for the second time showed that he had basically no medical education; that Dr. Young was asked to leave; and that, had they known in 1982 when he appeared for his first rotation what they knew in 1983, they would not have taken on Dr. Young as a m edical student. Dr. Young first saw that letter a few months before the hearing while preparing for trial. Dr. Young disagrees with that letter in that the schools he was attending, Universidad de Mundial, and after that, CETEC, were both approved by the World Health Organization. Further, a letter written on April 18, 1985, by Leonard L. Finger, Hospital Administrative Officer, Department of Health, Education, and Welfare, to the ECFMG, found at Joint Exhibit 1, page 231 , verifies Dr. Young's rotation without adverse comment. Further, the ECFMG found no problem with Dr. Young's education or with the rotations at Pine Ridge. The transcript of the Credentials Committee Meeting at Joint Exhibit 2 shows that the committee focused on Dr. Caskin's letter rather than Mr. Finger's letter and the fact that all of Dr. Young's medical schools were approved by the World Health Organization. Board of Medicine Practice and Policy The Board of Medicine has licensed individuals who have attended CETEC. The Board of Medicine and its staff rely upon the ECFMG certifications of applicants as verification of their education. The certification by the American Board of Family Practice complies with the requirement of Rule 61F6-22.004(2) and 61F6-22.018(3)(d). The ECFMG certificate complies with the requirements of Section 458.311(1)(f), (2), and (3), Florida Statutes; There is nothing in the rules of the Board or Chapter 458, and no Board policy or practice, which prohibits an applicant from going to more than one university or medical school, from going to more than one medical school and failing out of one, or from going to a school that later goes out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration, Board of Medicine, enter a final order granting the Petitioner's application for licensure by endorsement. RECOMMENDED this 30th day of September, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 30th day of September, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7146 To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Accepted but subordinate and unnecessary. 5.-15. Accepted and incorporated. 16. The pediatrics rotation at Addington Hospital, University of Natal was from March 12 to May 13, 1984, and the surgery rotation was from May 13, 1984 to July 16, 1984. Otherwise, accepted and incorporated. 17.-30. Accepted and incorporated. 31.-37. Accepted but subordinate and unnecessary. 38. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. 1.-4. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. First sentence, rejected as being contrary to the greater weight of the evidence. Second sentence, accepted but subordinate and unnecessary. 7.-8. Accepted and incorporated to the extent not subordinate or unnecessary. 9.-10. Accepted and incorporated to the extent not subordinate or unnecessary. However, the lack of a credible Orange State transcript to support the Petitioner's testimony is more a reflection on Orange State's credibility than on the Petitioner's. Orange State was in existence for a short period of time, never was recognized by the State of California, and has been defunct for about ten years. It is understandable why the Petitioner has had difficulty getting a credible response from Orange State. The irregularities in the response from Orange State do not impugn the Petitioner's truthfulness in attempting to describe his unorthodox and circuitous medical education in his application for licensure. Last sentence, rejected as contrary to the greater weight of the evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. However, it is even more understandable why the Petitioner has had difficulty getting a credible response from CETEC. As with Orange State, CETEC was closed about ten years ago. In the case of CETEC, which was in the Dominican Republic, the closing was under allegations of misconduct and fraud. Records were unavailable for a period of time while the government of the Dominican Republic investigated. Later, records were destroyed. As with Orange State, the irregularities in the response from CETEC do not impugn the Petitioner's truthfulness in attempting to describe his unorthodox and circuitous medical education in his application for licensure. Rejected as contrary to the greater weight of the evidence that the Respondent did not leave UHSA in good standing. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted but subordinate and unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. Second sentence, rejected as contrary to the greater weight of the evidence. First sentence, accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. Third and fourth sentences, rejected as contrary to the greater weight of the evidence. First two sentences, accepted and incorporated to the extent not subordinate or unnecessary. 20.-21. Accepted and incorporated to the extent not subordinate or unnecessary. The city in South Africa was Durban, not Durham. CETEC was the affiliate until it closed in March, 1994. The rest is accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted. The rest is rejected as being contrary to the greater weight of the evidence. 24.-25. Accepted and incorporated. 25. Accepted but unnecessary. (No such finding was made.) COPIES FURNISHED: Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C Tallahassee, Florida 32308-3749 Gregory A. Chaires Assistant Attorney General Department of Legal Affairs Administrative Law Section PL-01, The Capitol Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact General Discussion Petitioner is a licensed physician who practices pediatric medicine in Florida. Her practice has been located in St. Augustine, Florida, for 23 years. She has been board-certified in pediatrics since 1972. On November 2, 1982, Petitioner executed a Medicaid Provider Agreement with the State of Florida, Department of Health and Rehabilitative Services, Respondent's predecessor agency. At all times relevant to the inquiry the state agency conducting the Medicaid function in Florida was referred to as the Florida Medicaid Program. The executed Provider Agreement was accepted by the Florida Medicaid Program on December 10, 1982, enrolling Petitioner in the program. In pertinent part, the Provider Agreement states: * * * The provider agrees to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance under the State Plan and agrees to furnish the State Agency upon request such information regarding any payments claimed for providing these services. Access to these pertinent records and facilities by authorized Medicaid Program representatives will be permitted upon a reasonable request. The provider agrees that claims submitted must be for services rendered to eligible recipients of the Florida Medicaid Program and that payment by the program for services rendered will be based on the payment methodo- logy in the applicable Administrative Rule. The Provider also agrees to submit requests for payment in accordance with program policies. * * * 7. The provider and the Department agree to abide by the provisions of the Florida Administrative Rules, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. * * * After being accepted as a Medicaid provider, Petitioner was assigned provider number 052775100. As successor agency to the Department of Health and Rehabilitative Services, Respondent is responsible for the administration of the Florida Medicaid Program. Among Respondent's responsibilities is the operation of a program to oversee the activities of Medicaid providers, to include recovery of overpayments for services given by Medicaid providers to Medicaid recipients. In accordance with its authority, Respondent reviewed information concerning Petitioner's service activities as a Medicaid provider for the period of January 1, 1990 through December 31, 1991. To arrive at the amount claimed as overpayment, Respondent used a representative sampling of randomly-selected recipients for whom Petitioner had requested reimbursement for services provided during the relevant period. The number of recipients utilized in the sample was From its review, and by imposition of a formula and methodology which inferred the overall experience for all recipients who received Medicaid services during the relevant period, Respondent calculated the alleged overpayment. By extending the information found in the audit concerning the 30 recipients for the period of January 1, 1990 through December 31, 1991, Respondent determined that $27,384.82 was owed for overpayment. The results of this preliminary determination (provisional audit report) were made known to the Petitioner through correspondence dated November 4, 1994. Further review of the sample medical records was conducted between persons representing Respondent, counsel for Petitioner, and Petitioner. This meeting took place on February 9, 1995. As a consequence, the overall amount of claimed overpayment was reduced from $27,384.82 to $19,404.89 for the subject time period. From that experience, a final agency audit report was completed. On March 24, 1995, this report was sent to Petitioner. Petitioner contested the proposed final disposition, leading to the hearing conducted to resolve the dispute between the parties over the amount claimed as overpayment. At issue in the present proceeding is the question of whether the records maintained by Respondent are adequate to justify the reimbursement claims made in the instances where the sample group was provided medical services by Respondent. A related question is also raised concerning Petitioner's records, as they pertain to the level of service for which Petitioner claims reimbursement. There is no contention by Respondent that Petitioner has committed fraud or acted dishonestly in submitting the requests for reimbursement for services rendered to Medicaid recipients. In all instances under discussion, where Petitioner sought reimbursement for services rendered, recipients were seen in an office visit. To assist Petitioner in maintaining necessary records to identify the nature of services provided to Medicaid recipients, to identify levels of services provided, and to invoice Respondent for those services, Petitioner had been made aware of the pertinent Florida Statutes and rules, together with Medicaid Provider Handbooks and claims forms. That information was available to Petitioner when submitting claims for reimbursement for services provided for the 30 recipients in the sample for the period of January 1, 1990 through December 31, 1991. Two categories of services by Petitioner are at issue. The first category concerns recipients who present with complaints which are addressed by the provider. The second category concerns EPSDT recipients. This category is a preventive health screening examination for Medicaid-eligible children and young people under the age of 21. Examples of both categories were found within the recipient sample audited by Respondent for the questioned period. The Medicaid Physician Provider Handbook describes Petitioner's record-keeping responsibilities and the opportunity to review the records, wherein it states: Record Keeping You must retain physician records on services provided to each Medicaid recipient. . . . Examples of the type of Medicaid records that must be retained are: Medicaid claim forms and any documents that are attached, treatment plans, prior authorization information, any third party claim information, x-rays, fiscal records, and * * * Medical records must contain the extent of services provided. The following is a list of minimum requirements: history, physical examination, chief complaint on each visit, diagnostic tests and results, diagnosis, a dated, signed physician order for each service rendered, treatment plan, including prescriptions for medications, supplies, scheduling frequency for follow-up or other services, signature of physician on each visit, date of service, anesthesia records, surgery records, copies of hospital and/or emergency records that fully disclose services, and referrals to other services. * * * Authorized state and federal staff or their authorized representatives may audit your Medicaid records. . . . The Medicaid EPSDT Provider Handbook describes the components for the health screening examination. Those components are health and developmental history, unclothed physical assessment or examination, nutritional assessment, updating of routine immunizations, laboratory tests, developmental assessment, vision screening, and hearing screening. EPSDT services also include possible referrals for medical treatment, visual, dental and hearing services. As to immunizations, there is a requirement for accountability for each vaccine administered. This means that the provider must maintain a record when vaccines are administered. In this case Petitioner met this requirement. When a child appears for EPSDT screening the provider must always perform a health and developmental history, physical examination, vision screening, including a check of the eyes, hearing screening, including a check of the ears, developmental assessment and nutritional assessment. This process contemplates the necessity for noting the results obtained in the screenings, normal or abnormal, as a means to track the child's health and development. According to the Medicaid EPSDT Provider Handbook, the record keeping associated with the EPSDT screening process includes the need to be mindful of: The purpose of a health and developmental history is to gather information about those diseases and health problems for which no standard screening test has been developed and to compile historical information about the child and the child's family. The health and developmental history should also provide information on the child's brothers and sisters; growth history; conditions suffered by blood relatives; previous medications; immunizations or allergies; and developmental history of the child and other family members. Unclothed physical examination The physical examination includes specific screening elements as appropriate for the child's age and health history, including: General appearance. Body measurements. Skin examination. Blood pressure. Heart sounds. Ausculation of lungs. Pulse. Palpation of abdomen of musculature, organs, masses. Inspection of genitalia. Vocalization and speech appropriate for age. Facial features. Chest configurations and respiratory movements. Muscle tone. Gross/fine motor coordination. Inspection for scoliosis. Ears, nose, and throat inspection. The Department of Health and Human Services, Health Care Financing Administration, defines a developmental assessment as the range of activities surrounding the exami- nation of the child, adolescent, and young adult in order to determine whether they fall within the normal range of achievement for the child's age group and cultural background. The developmental assessment is performed at the time of screening for all ages. Infor- mation from the parent or other person who has knowledge of the individual, observation, and talking with the individual are utilized in assessing the individual's behavior. The following elements are recommended to be included in the developmental assessment of children of all ages: Gross motor development, focusing on strength, balance, locomotion. Fine motor development, focusing on eye-hand coordination. Communication skills or language development, focusing on expression, comprehension, and speech articulation. Self-help and self-care skills. Social-emotional development, focusing on the ability to engage in social inter- action with other children/adolescents, parents, and other adults. Cognitive skills, focusing on problem solving or reasoning. The assessment of the child's nutritional status, eating habits, including the use of alcohol and tobacco, is taken at the time of the physical examination. The guidelines for visual screening are listed below: Birth through one year. General external examination and evaluation of ocular motility. Gross visual acuity examination with fixation test. Testing light sense with pupillary light reflex test. Intraocular examinations with ophthalmo- scope. Two to five years. Visual acuity for distance should be tested separately for each eye. The illiterate E test, the STYCAR (Screening Test for Young Children and Retardates) or the Lippman Matching Symbol Chart - HOTV may be utilized. Children from two to five years of age should be tested at 10 to 15 feet. To determine muscle balance, a cover test and the Hirschberg test (corneal light reflex) should be given. Parents should be asked whether they notice the child's eyes ever turning in or out. All individuals ages 5 through 20 years should be evaluated for distance visual acuity utilizing the illiterate E or the Snellen letters for a linear fashion. The testing should be at 20 feet. Individuals who wear glasses should be tested while wearing their glasses. Children should be tested using an appropri- ate test such as the Hear Kit, Weber, Rinne, or puretone along with history from the parent or guardian. Beyond the instructions set forth in the Medicaid EPSDT Provider Handbook, which have been referenced, Petitioner has not received additional instructions from Respondent concerning the manner in which records should be maintained related to EPSDT screens performed. In this case, Respondent does not question Petitioner's EPSDT screenings performed, as to the frequency and interval between screening examinations. Respondent has challenged the request for reimbursement for the EPSDT screens in the sample based upon the assertion that inadequate documentation exists to justify reimbursement for the screenings. Having in mind the need to maintain adequate records to justify the treatment and claim for reimbursement for services, the Medicaid Physician Provider Handbook describes the basis for reimbursement for services provided to recipients. That reimbursement scheme is associated with six levels of service. Those levels of service are identified by procedure codes established in the underlying Physician's Current Procedural Terminology, Fourth Edition. The levels of service in contest are limited, intermediate, extended, and comprehensive. The levels of service are defined as follows: Limited is a level of service used to evaluate a circumscribed acute illness or to periodically reevaluate a problem in- cluding a history and examination, review of effectiveness of past medical management, the ordering and evaluation of appropriate diagnostic tests, the adjustments of therapeutic management as indicated and discussion of findings. Intermediate level of service pertains to the evaluation of a new or existing cond- ition complicated with a new diagnostic or management problem, not necessarily related to the primary diagnosis, that necessitates the obtaining of pertinent history and physical or mental status findings, diagnostic tests and procedures, and ordering appropriate therapeutic management; or a formal patient, family or a hospital staff conference regarding the patient's medical management and progress. Extended level of service requires an unusual amount of effort or judgement including a detailed history, review of medical records, examination, and a formal conference with the patient, family, or staff; or a compar- able medical diagnostic and/or therapeutic service. Comprehensive level of service provides for an in-depth evaluation of a patient with a new or existing problem requiring the development or complete reevaluation of medical data. This service includes the recording of a chief complaint, present illness, family history, past medical history, personal history, system review, complete physical examination, and ordering appropriate tests and procedures. The billing number codes set out in the Physician's Current Procedural Terminology, Fourth Edition, are related to new patients and established patients and the coding for the level of service is equated as: New patient: 90010 limited service 90015 intermediate service 90017 extended service 90020 comprehensive service Established patient: 90050 limited service 90060 intermediate service 90070 extended service 90080 comprehensive service To be reimbursed for services provided, consistent with the Medicaid Physician Provider Handbook, Petitioner utilized the Illustration 4-1.VHCFA-1500 Claim Form. To be reimbursed for Medicaid EPSDT screening performed, Petitioner utilized the Illustration 4-1.EPSDT Claim Form. Respondent has not challenged the manner in which Petitioner prepared and submitted the claim forms in its sample audit. For the period of January 1, 1990 through December 31, 1991, in the sample group for 30 recipients, Respondent did not disallow claims for reimbursement for services performed for recipients 6, 8, 20, 22, 23, 24, 27 and 28. In addition, at hearing, Respondent agreed that the payment for services performed for Recipient No. 3, on August 17, 1991, should remain as claimed. Similarly, the payment for services performed for Recipient No. 15, on December 14, 1990, should remain as claimed. The payment for services performed for Recipient No. 21, on December 12, 1990, should remain as claimed. Finally, the payment for services performed for Recipient No. 19, on May 25, 1990, should remain as claimed. At hearing, Petitioner agreed with Respondent that the services provided to Recipient No. 2, on August 17, 1991, should have been billed as a limited level of service. Petitioner conceded that the claim for reimbursement for services to Recipient No. 21 rendered on February 10, 1990 should be as a limited level of service as Respondent contended. Other contested payments must be resolved. In the instance where Respondent has agreed to allow the claims for reimbursement to be honored, this would cause the ultimate claim for overpayment pursuant to the formula and methodology to be adjusted. That adjustment is not made on this occasion based upon the agreement by the parties to bifurcate consideration of the propriety of using the formula and methodology and the need to recalculate the overpayment claim by employing the formula and methodology. Dr. John Sullenberger testified concerning the medical services provided to recipients. He identified the nature of the services. He is an expert in medicine. His practice had been as a board-certified thoracic- cardiovascular surgeon. He has not practiced as a general practitioner or pediatrician. Dr. Sullenberger had reviewed the records in the sample group and assisted Respondent in its determination concerning the appropriate level of service for payment and the adequacy of Petitioner's records. Dr. Sullenberger offered his opinion concerning the care rendered and the records kept, as that would influence assigning the proper level of care for reimbursement purposes and payment for EPSDT screening. Petitioner testified concerning her records and the care provided to the recipients, as a means to address record keeping, assignment of levels of care and payment. She placed emphasis on the fact that in some instances a greater effort was made to attend the recipients due to their age and inability to cooperate in their care. As described in the Medicaid Physicians' Provider Handbook, the levels of care ". . . require varying skills, effort, responsibility and medical knowledge to complete the examination, evaluation, diagnosis, treatment, and conference with the recipient about his illness or promotion of optimal health". In deciding the facts, the physician's insights have been relied upon in determining the extent to which Petitioner exercised these criteria. However, the ultimate determination concerning the proper assignment of level of care has been made by the fact finder, as a means to resolve the factual dispute between the parties and offer recommendations concerning the appropriate legal outcome in this case. Contested Claims Recipient No. 1 (K.H.): K.H. was born August 1, 1981. Petitioner provided services to K.H. on August 28, 1990. The services were billed at an extended level. Respondent asserts that the services should be compensated at an intermediate level. Petitioner's medical records reflect that recipient's height, weight, and temperature, together with blood pressure were observed. The presenting complaint was a stomachache and fever. The temperature was 103 degrees Fahrenheit. According to the medical records, the recipient's ears, throat, neck glands, chest, and cardiovascular system were examined, and a complete blood count was done, with a SMA6 test to check kidney function. A mono spot was done. The recipient was checked for strep. The throat was inflamed. The strep culture revealed a positive result. Consequently, Petitioner prescribed an antibiotic to treat the condition. The child was observed to be somewhat obese. As would be expected, Petitioner explained the child's condition to the parent and the procedures to be followed in dealing with the problems. A urine culture was conducted to rule out possible urinary tract infection, which might be responsible for abdominal pain. The proper billing for this visit was an intermediate level of service. Petitioner rendered services to Recipient No. 1 on October 23, 1991. Her height and weight were recorded. Her blood pressure was taken. The visit was for a checkup based upon trouble which the child was having in school related to her behavior. The clinical examination results in the medical records reflect negative results. However, the records reflect that the child was obese and difficult to evaluate in her abdomen. The medical note refers to difficulty in feeling the liver and spleen and identifying any possible masses. A SMA24 was ordered as a means to address the behavioral problem. A thyroid profile was ordered to exclude the possibility of hyperthyroid condition, which can make the child hyper. The child's urine was checked to see if a urinary tract infection had cleared up from a prior occasion. The SMA24 was a complete examination of the liver function to check lipids and cholesterol, among other things. This test was principally designed to check the child's liver. The clinical examination and tests that were ordered were designed to address possible physical causes for the child's behavior. The medical record reflects that dietary instructions were also given. This was a counseling session with the parent to explain what would be advantageous in the diet and what would not be. At the same time, discussion was given concerning the advantage of exercise in dealing with the obesity. As was customary, the parent or guardian was made aware of the purposes of the tests that were ordered. For these services, the visit was billed as a comprehensive level. Respondent asserts that the level should have been a limited visit. The proper billing for this visit is a limited level of service. Recipient No. 2 (T.S.): This recipient was born on July 7, 1977. On January 17, 1990, Petitioner rendered services to the recipient. Petitioner mistakenly filed a claim for reimbursement for venipuncture, based upon confusion concerning the appropriate code number to be assigned. In fact, a throat culture had been performed, not a blood test. Eventually, this problem was rectified. On January 17, 1990, Petitioner billed under a code related to venipuncture, which was a $2.00 charge. In fact, venipuncture was not performed on the recipient. In addition, the charge for a quick strep test performed on the recipient was miscoded. Instead of a quick strep test, it was coded for a bacterial culture. The bacterial culture code only paid $8.00. The quick strep test code, had it been utilized in requesting reimbursement, paid $11.00. Having used the wrong codes, Petitioner was paid $2.00, to which she was not entitled, for venipuncture. Petitioner was paid $8.00 for the quick strep test, less than the normal $11.00. On the same date, the child was seen by Petitioner complaining of right neck pain, spreading to his right ear. His blood pressure was taken. The reading was 140/85. By history, the recipient was known to have high blood pressure. The child's ears, nose, throat, glands, chest, and heart were checked. A throat culture was performed based upon inflammation which was observed in his throat. He had enlarged lymph nodes in his neck on one side. A strep culture was performed. Antibiotics were prescribed pending the results of the strep test. The blood pressure was considered elevated. Petitioner billed this visit as an intermediate level. Respondent asserts that the level of service is a limited visit. The proper billing for this visit is a limited level of service. Recipient No. 3 (P.J.): The recipient was born on March 15, 1981. Petitioner rendered services to P.J. on April 13, 1991. When the child was seen, she presented a complaint that bumps were on her tongue for a week. This was the first time that the recipient had been seen by Petitioner. Her weight, height, and blood pressure were taken and recorded. The recipient was given a thorough clinical examination. The clinical examination had no findings other than a small one-eighth-inch lesion on the tip of the recipient's tongue. At that time, it was assumed that the child may have bitten her tongue. The child was not believed to have infection, but her gums, tongue, and throat were examined. As part of the physical examination, the chest, heart, and cardiovascular system were also examined. The child's abdomen and genitalia were examined. Petitioner billed the visit as a comprehensive visit based upon the fact that this was the initial visit for the recipient, not based upon the observations concerning the lesion on the tongue, which were not found to be a significant medical problem. Patient history to include a list of illnesses, immunizations, and allergies for the recipient is set forth in a history and immunization record kept by Petitioner. Respondent asserts that the level of service performed on April 13, 1991 was a limited level. The proper billing for this visit was a limited level. Recipient No. 4 (V.K.): V.K. was born on September 25, 1983. Petitioner rendered services to V.K. on March 8, 1990. The child's weight and height were taken. She presented with a low-grade fever and a headache. Her bodily systems were examined. In the examination, Petitioner noted that her tonsils were covered with exudate. Otherwise, her condition was normal based upon a physical examination. A strep screen was performed, which revealed negative results. Petitioner prescribed an antibiotic based upon the appearance of the recipient's tonsils. Petitioner considered recipient's presenting complaints to be vague. The problem with fever could have been based upon problems anywhere in the system. The child did not have a cold and the headache necessitated a good examination. The only findings by Petitioner related to the inflamed tonsils. As was customary, the recipient's condition was discussed with the parent. The services were billed as a comprehensive visit. Respondent asserts that the services should have been billed as a limited visit. The proper billing for this visit was a limited level of service. V.K. was seen on February 6, 1991. Her height and weight were taken. It was noted in the patient records that the presenting complaint was a cold with a lot of coughing. The recipient was also due to have surgery on February 20, 1991. Upon examination, the recipient had inflamed tonsils and nasal congestion. No other significant physical findings were observed. Petitioner prescribed medication for the congestion and an antibiotic for the child's throat condition. The February 6, 1991 visit was billed as an extended service. Respondent asserts that the visit should be billed as a limited service. The proper billing for this visit is a limited level of service. V.K. was seen again on April 13, 1991. As noted in the medical records, the child presented with a cold, low-grade fever, and severe coughing all of the time. A physical examination was made of all systems, and the recipient was found to have an inflamed throat. Otherwise, the physical examination revealed no significant findings. Petitioner prescribed an antibiotic for six days and a cough decongestant to attend the symptoms. Petitioner billed this service as an intermediate visit. Respondent asserts that the proper billing is a limited service. The proper billing for this service is a limited level of service. Recipient No. 5 (L.D.): L.D. was born on May 25, 1983. Petitioner saw the recipient for the first time on September 8, 1990. The recipient's height, weight, and blood pressure were recorded. The child had been sent home from school with inflammation in his eyes. The child's mother also reported that the child was hyperactive. A clinical examination was performed. No significant findings were made concerning the child's eyes. They were not observed to be inflamed. While attending the child, Petitioner did not observe any signs of hyperactivity. Nonetheless, an appointment was made for the child to be seen at the behavior clinic at Nemour's Hospital in Jacksonville, Florida. To perform the examination and observe the child's activities would take approximately 30 minutes. Petitioner billed the visit as a comprehensive service. Respondent asserts that the visit should be billed as an intermediate service. The proper billing for the visit is an intermediate level of service. Recipient No. 7 (T.R.): T.R. was born on September 9, 1984. On March 24, 1990, petitioner rendered services to T.R. The services were billed as an EPSDT screen. In particular, the child was brought to Petitioner to perform a school physical. The child's weight and height and blood pressure were taken and recorded. The child was examined physically and found to be normal. It was also noted that the child was a "healthy boy". On this visit a student health examination form was filled out but not maintained. A copy of that form was retrieved noting the date of examination and information about the physical examination, to include the results of an eye examination. The results of that eye examination are also shown in the Petitioner's medical records for T.R. No information is recorded in the health history portion to the student health examination form. The form notes that T.R. was a "healthy boy". Petitioner contends that the student health examination form, which was executed for T.R., sufficiently responds to the need to address all mandatory screens. The student health examination form is insufficient to meet the requirements for mandatory screens. Information was found in the records maintained by Petitioner related to circumstances at birth, family history, birth and development, feeding history, immunization and skin testing. Growth charts were also in evidence. Rather than completely deny Petitioner reimbursement, Respondent converted the visit to a limited service visit. Sufficient services were provided to justify payment as a limited service visit. On October 18, 1990, Petitioner provided medical services to T.R. At that time, the child's weight and height were taken. As reflected in the records, the child presented with an earache for the past two nights and a fever. A physical examination was performed on the child on this date. The ears were not found to be inflamed. The ears did have wax in them. The throat was inflamed. The child had a postnasal drip causing pressure in the ears, leading to an earache. The child was treated with antibiotics. Petitioner billed for the visit as an extended service. Respondent asserts that the billing should be as a limited level of service. The proper billing for this visit is a limited service. Petitioner saw T.R. on October 22, 1991. At that time, the child's weight and height were taken. He was being seen for a checkup. He was also having a problem holding his urine and had wet his bed the night before. A physical examination was made, with normal findings. The child was subject to a routine urinalysis to rule out bladder or kidney infection. There might be other explanations for the bed-wetting, to include nervousness. Upon examination, there were no obvious explanations for the problem. Petitioner billed for this visit as an extended level of service. Respondent asserts that the level of service was a limited visit. The proper billing for this visit was a limited level of service. Recipient No. 9 (A.N.): A.N. was born on April 27, 1987. Petitioner saw the recipient on February 23, 1990. A.N. was measured and weighed. The presenting complaint was congestion and a cough for a week. A physical examination was performed. His throat showed a little irritation but no inflammation. The nostrils appeared congested. No other significant findings were made concerning the child's condition. Petitioner prescribed medications for the cough and congestion. The child was also given vitamins. As in all cases discussed, the parent was informed of the findings and future treatment. Petitioner billed the visit as a comprehensive service. Respondent asserts that the service was a limited service. The proper billing for this visit was a limited level of service. On November 12, 1990, the child was provided medical services by Petitioner. The child was weighed and his height recorded. The presenting complaint was vomiting and diarrhea for six to seven days. A physical examination was performed. Some tinea infection was found on the skin. Medications were prescribed and the parent instructed concerning those medications as a means to address the vomiting and diarrhea. In addition, a prescription was given for a fungus infection on the face. The parent was instructed concerning the contagious nature of the fungus and its consequences. Petitioner billed this visit as an extended level. Respondent asserts that the service is an intermediate level. The proper billing for this visit is an intermediate level of service. On May 24, 1991, the child was seen by Petitioner for a school physical. The child was also seen for complaints that he had problems with bed- wetting and that his legs hurt. A school physical examination was performed. The child appeared to be healthy. Because the child complained of his legs hurting, Petitioner sent the child for laboratory work to rule out problems with anemia and to also examine his kidney function. A urine culture was also ordered for the child to rule out urinary tract infection. Petitioner filled out the student health examination form but did not maintain it for her records and has not retrieved it for hearing purposes. No other notations were made concerning the examinations for the school physical. Growth charts were maintained. Petitioner billed for an EPSDT screening. Petitioner did not bill for treatments associated with the physical complaints by the child. Respondent asserts that the billing should be for a limited service. For reasons described in discussing the screening for Recipient Number 7, as well as the unavailability of the student health examination form for audit purposes, the billing for an EPSDT screening should not be allowed. In this connection results from vision screening were not available. For reasons that Respondent had allowed a claim for a limited service in substitution for the EPSDT screening reimbursement; and based upon the services provided in addressing the physical complaints, the proper billing is for a limited service. Recipient No. 10 (K.L.): K.L. was born on November 13, 1986. Petitioner provided medical services to K.L. on March 18, 1991. The child was weighed and the height was recorded. In the visit it was indicated the child had been sent home last week from school with a fever. A physical examination was performed. The child was not especially cooperative and was difficult to examine. Significant findings in the examination were inflammation in the ears and throat. Petitioner prescribed antibiotics for the throat condition. Petitioner billed the visit as a comprehensive service. Respondents asserts that the service is an intermediate level. The proper billing is an intermediate level of service. Recipient No. 11 (R.H.): R.H. was born September 21, 1989. Petitioner saw R.H. on January 19, 1990. At that time, the child was weighed, her height and head circumference were also noted. The checkup that was being performed on R.H. was in the series envisioned by the EPSDT screening program. The physical examination conducted on the child indicated that this was a "healthy baby". The information that was recorded concerning the child's height and weight and head circumference was for purpose of charting her growth compared to the expected growth. A document was found with the child's records which related to information concerning her birth date, family history, early birth and development, and feeding history. Growth charts were maintained. The child was seen again on March 19, 1990 for a checkup and shots associated with the EPSDT program. The weight, height and head circumference were recorded. It was noted that the child was not sitting up yet. The physical examination was normal, notwithstanding the observation that the child was not yet sitting. Petitioner billed the January 19, 1990 and March 13, 1990 visits through the EPSDT screening program. Respondent asserts that the billings should not be allowed. The billings were deficient in that necessary information was not provided for the health and developmental history, vision screening, hearing screening, developmental assessments and nutritional assessment. For the January 19, 1990 and March 13, 1990 Respondent asserts that the proper reimbursement is as a limited level of service visit. That position is accepted. Petitioner provided medical services to R. H. on June 6, 1990. At that time there was a complaint concerning the child having diarrhea lasting a week. The diarrhea cleared up and then reoccurred on the date the visit was made. The child was also congested. The physical examination revealed an offensive odor and loose stool in the child's diaper. The chest revealed bilateral rales, meaning there was mucus present. The child had thoracobronchi. Her throat was inflamed. The mother was instructed to take a stool specimen to the laboratory. Medication was prescribed for diarrhea and instructions given concerning its use. The child was provided a bronchodialator. The child was given a cough congestion medication. There was a suspicion the child had bowel infection as well as upper respiratory infection. The visit was billed as an extended service. Respondent asserts that the proper classification is an intermediate service. The proper classification is an intermediate level of service. Recipient No. 12 (F.W.): F.W. was born on February 26, 1990. She was seen by Petitioner on April 17, 1990. At that time the child's weight, height and head circumference were noted. It was noted that the child was receiving a soy formula. The child seemed to have elephant ears. A mild diaper rash was observed, otherwise, the child's physical examination revealed normal results. It was noted that the child was born at University Hospital in Jacksonville and was overdue at birth; however, the child was "ok" at birth. The elephant ears would need treatment at a later date. Medication was prescribed for the diaper rash. The parent was told about the problems with the child's ears and the treatment for diaper rash. Petitioner billed this visit as a comprehensive service. Respondent asserts that the appropriate level of service was limited. The proper billing for the visit was a limited level of service. On May 11, 1990 the child was seen for an EPSDT checkup. The child's weight, height and head circumference were recorded. At that time the child was two months old. A physical examination was performed. It only revealed two lesions on the lower left abdomen which looked like infected bumps or possible scabies. An antibiotic cream was prescribed for this condition and its use was explained to the parent. A document in the records maintained by the Petitioner entitled, Patient History Chart, contains information about the child's date of birth, birth history, family history, nutritional history and illness history. The document describes developmental history at age 16 weeks. A growth chart was also maintained. On June 29, 1990, Petitioner saw the child again and weight, height and head circumference were noted. This was a routine check under the EPSDT program. It was noted that the child was doing well and that there was "no more spitting up". The physical examination revealed "an alert happy baby". There was some reference to the need to repeat a CBC study for blood count. The reason for repeating laboratory tests was based upon laboratory results received by Petitioner for laboratory work done on June 19, 1990. The parent was instructed to bring the child back for follow-up on July 30, 1990. That appointment was not kept. On August 20, 1990, the child was seen for a checkup and to fill out information for referral to the WIC program to qualify for participation in that program. There is a form which is utilized to apply for participation in the WIC program. It concerns an assessment of nutritional risk factors as a means to gain participation in the WIC program. Petitioner indicates that the form was filled out, but it was not maintained by Petitioner in her records. Thus it was not available for examination as part of the audit process involved in this case. On this date the physical examination revealed raised lateral lesions on the upper arm, abdomen and chest. These were reported to be mosquito bites. As noted the parent was advised to keep "an eye" on the condition for a week. It was noted that the physical examination did not reveal any other findings. Petitioner submitted bills under the EPSDT program for the visits on May 11, 1990, June 29, 1990 and August 20, 1990. Inadequate documentation was maintained to qualify for reimbursement for those charges for screens other than the physical examination. It is appropriate for Respondent to have paid for those visits as a limited level of service. On November 21, 1990, Petitioner provided medical services to F.W. The weight of the child was noted. The child presented as having a cold for 2 days. A physical examination was conducted. The throat was found to be inflamed, the nostrils evidence nasal congestion. A yeast diaper rash was found. Antibiotics were prescribed for her throat together with decongestion drops. This visit was billed as an intermediate level visit. Respondent asserted that the proper billing is as a limited level of service. The proper billing is as a limited service. The child was seen again on February 16, 1991. She came for the visit because she had a cold for 2 - 3 days. She was throwing up the formula which she was receiving. Upon physical examination the child was found to have "pus" on her throat surface. A strep screen was conducted and the results were positive. Antibiotics were prescribed together with a decongestant for cough and congestion. Petitioner billed this as an intermediate level service. Respondent asserts that the level of service is a limited level of service. The proper billing is as a limited level of service. On July 24, 1991, a further EPSDT visit was made, together with an examination for WIC qualification. The WIC referral form was not maintained for review. Upon the physical examination, the weight and height were recorded. The physical examination performed showed a mild diaper rash. Otherwise the child was found to be in acceptable health. The child was sent for a hemoglobin hematocrit for the purposes of the WIC qualification. The Petitioner billed this as a EPSDT screening. Petitioner is not entitled to reimbursement for that screening in that the records maintained were insufficient to document the assessment process other than the physical examination. It was appropriate for Respondent to reimburse this visit as a limited level of service. Recipient No. 13 (S.S.): S.S. was born on July 2, 1991. On July 5, 1991 Petitioner provided medical services to the child. The child's weight, length and head circumference were taken. The visit was the first checkup performed by Petitioner. The baby had been delivered at term through a normal delivery. The infant was found to have mild to moderate jaundice. Otherwise the physical examination did not reveal any significant findings. The cord clamp was removed. A test was ordered to determine the level of jaundice in the blood. The results of that test were recorded and discussed with the mother. It was noted that the mother was breast feeding the infant and using formula as well. This visit was billed as a comprehensive service. Respondent asserts that the service was an extended service. The proper billing for the visit was an extended level of service. On July 16, 1991 the baby was brought in for a checkup. The checkup was in accordance with the EPSDT screening program. The child's weight, length and head circumference were taken. A physical examination was made. At that time the child was on formula. It was noted that the weight gain for the child was good. Medication was prescribed for thrush. Thrush is a fungus growth inside the mouth of babies. Within the records maintained by Petitioner is a history and immunization document which reflects the date of birth and limited family history. Information related to the child's condition at birth is noted. In addition, there are growth charts. Given the child's age relating to birth, information contained in the records satisfies the requirement to document information gained in the screens that were conducted on July 16, 1991. Therefore, the EPSDT reimbursement claim should be allowed. Respondent has authorized payment for this visit as a limited service. That is an inappropriate payment for the visit. On August 2, 1991, a further visit was made. This visit was billed as an EPSDT screen. Petitioner believes that the visit was related to problems with the infant not tolerating her formula. This is born out by an office note which describes a change in the formula. That note also reflects the child's weight. The physical examination revealed normal circumstances with good weight gain. Petitioner conceded that the process engaged in addressing the child's needs on this visit might not have been done in the manner in which the July 16, 1991 examination was performed as to comprehensiveness. The August 2, 1991 visit which was billed as an EPSDT screen should not be paid for under that billing code. The emphasis placed in the care rendered by Petitioner does not correspond to the EPSDT screening process. The decision by Respondent to pay for this visit as a limited service is acceptable. On September 3, 1991 the child was brought in for a checkup and shots. The weight, height and head circumference were recorded. The physical examination was noted as normal and the child was described as "a healthy baby". This visit was billed under the EPSDT screening program. There is insufficient documentation to justify reimbursement as an EPSDT screening concerning all screens other than the physical examination. The decision by the Respondent to pay for this visit as a limited service visit is acceptable. On November 4, 1991, the child was seen for a checkup and shots. This visit was billed as an EPSDT screen. At the visit, the weight, height and head circumference were noted. The physical examination was noted as normal. As noted the child was cutting her lower incisors. It was noted that the baby was big for her age. There is insufficient documentation to justify reimbursing Petitioner under the EPSDT program for the visit on November 4, 1991. The decision by Respondent to pay for the visit as a limited service is acceptable. On December 11, 1991 the infant was seen again because she was experiencing a cough and runny nose. She was weighed and a physical exam was performed. It was noted that nostrils were irritated and the throat was irritated. It was noted that the child was drooling and teething. A decongestant was prescribed, together with nose drops and ear drops. This visit was billed as an intermediate service. Respondents asserts that the visit should be billed as a limited service. The proper billing for this visit is as a limited level of service. Recipient No. 14 (B.L.): B.L. was born on August 25, 1987. Petitioner provided medical services to the child on June 18, 1990. At the visit, the child's weight and height were taken. The presenting complaint was fever for 3 or 4 days and sand sores. The physical examination revealed that the child's tonsils were inflamed. Impetigo lesions were also found on the child's legs which corresponded to the description "sand sores". The child was provided an antibiotic by mouth and an antibiotic for the skin lesions. She was also provided vitamin drops. The oral antibiotic was given for inflamed tonsils. The infection on the skin and in the throat was possibly caused by the same process of infection. Explanation was provided to the parent concerning treatment of the impetigo. This visit was billed as an extended service. Respondent asserts that these visits should be reimbursed as an intermediate service. The proper billing for this service is as an intermediate level of service. The child was seen again on August 13, 1990. Her weight and height were recorded. On this visit the mother was worried about the child possibly being deaf. In addition, there was concern about the child being hyperactive based upon the child's discharge from day care for reason that the daycare staff could not control her. The physical examination revealed normal results. However the child was observed to be very hyperactive. The child was referred for a hearing examination and a short course of Ritalin was prescribed to address the hyperactivity. This visit was billed as an extended service. Respondent asserts that the visit should be billed as an intermediate service. The proper billing is as an intermediate level of service. On December 6, 1991, the child was seen again. Her weight and height were recorded. The presenting complaint was a fever since yesterday and a bad cough. Upon physical examination the throat and tonsils were found to be inflamed. A strep screen was performed and the results were negative. Antibiotics were prescribed for the inflammation of the throat and tonsils. A decongestant cough medicine was prescribed. Medication was prescribed for the fever. Petitioner billed this visit as an intermediate service. Respondent asserts that it should be reimbursed as a limited service. The proper billing is as a limited level of service. Recipient No. 15 (D.T.): D.T. was born on November 27, 1990. On December 1, 1990, Petitioner provided services to D.T. This was the first visit for the infant. The weight, height and head circumference were taken. As reported, things went well at birth. The mother was breast feeding the child. Upon physical examination the child was found to be mildly jaundiced Inquiry was made concerning the blood group for the mother and infant. The results did not to prove to be significant. The clamp was removed from the cord. Information was maintained concerning the family history, birth and development and feeding history. This information was recorded on a sheet which related the date of birth that had been mentioned and had space provided for information concerning immunizations. This visit was billed as a comprehensive service. Respondent asserts that it should have been billed as an intermediate service. The proper billing is as an intermediate level of service. On December 11, 1990, the infant was seen again for a checkup. This visit was billed through the EPSDT screening program. The weight, height and head circumference were recorded. It was noted that the mother was still breast feeding the child. It was noted that the child had good weight gain. It was noted that the infant was a "healthy baby". Vitamins were given to the mother in view of her breast feeding. Given the child's age in proximity to birth the documentation provided justifies reimbursement as an EPSDT screening. The decision by the Respondent to reimburse as a limited service was unacceptable. On February 11, 1991, the infant was seen again for a checkup. The basis for the checkup was related to the EPSDT screening program. The weight, height and head circumference were recorded. The mother was still breast feeding the infant. The physical examination revealed that the eyes were matting. Otherwise, the examination revealed no significant findings. Eye drops were prescribed for the problem with the eyes. A growth chart was maintained. The visit was billed as a EPSDT service. That billing is not justified in the documentation was not maintained related to developmental assessment, vision screening, and hearing screening. The decision by Respondent to pay for the services as a limited service is acceptable. Recipient No. 16 (J.M.): J.M. was born on February 13, 1990. On May 26, 1990, Petitioner provided medical services to J.M. At that time the weight, height and head circumference were recorded. The child was experiencing bleeding from his circumcision. The child also had a cold. The circumcision was checked by Petitioner. It appeared well healed with no bleeding. Petitioner prescribed antibiotic cream for the condition. The left eye was found to be crusty upon physical examination. Neosporin was administered for the eye. Nasal congestion drops were provided. This visit was billed as a comprehensive service. Respondent asserts that the service was an intermediate service. The proper billing for this for the visit is an intermediate level of service. Recipient No. 17 (T.V.): T.V. was born on June 23, 1979. Petitioner provided medical services to T.V. on December 18, 1990. This was a visit following hospitalization for acute asthma. It was reported that the child was still having an occasional cough. A physical examination was performed. The mother was instructed concerning the need to continue Ventalin tablets as a bronchial dilator for asthma. Medication was prescribed for the cough. This visit was billed as an extended service. Respondent asserts that the visit was a limited service. The proper billing is as a limited level of service. On October 14, 1991 the child was seen for a school physical. This was billed as an EPSDT screening. At the time the child was seen the blood pressure was recorded. A student health form was filled out, but not maintained in Petitioner's records. At this visit it was reported that the child was having an acute asthma attack for the last 2 or 3 days with symptoms being worse at night. Following the physical examination, Petitioner determined to prescribe Ventalin and cough medicine to address the asthma. Petitioner billed this service as an EPSDT screen. Inadequate documentation was maintained to justify reimbursement as an EPSDT screen other than the physical examination. Respondent's decision to reimburse the visit as a limited level of service is acceptable. Recipient No. 18 (B.K.): B.K. was born on March 23, 1989. On November 22, 1991, Petitioner provided medical services to B.K. The presenting complaints were a cold and ear ache, off and on for a period of 2 months. The child was weighed and measured. The physical examination revealed that the throat was inflamed and the nasal mucus membrane was inflamed. A prescription was given to addresses the child's condition. The visit was billed as a comprehensive service. Respondent asserts that the visit was an intermediate service. The proper billing is as an intermediate level of service. Recipient No. 19 (T.S.): T.S. was born on July 16, 1989. On January 19, 1990, the child was seen for a checkup. This visit was treated as an EPSDT screening. The infant was still on formula. The physical examination revealed no significant findings. The child was described as "healthy baby". It was noted that the child was not sitting up yet. The records contain a document with information related to the date of birth, family history, birth and development information when the child was born and feeding history. Petitioner's records also contain growth charts. The bill for EPSDT screening should not be paid based upon the failure to maintain the records justifying the request, other than the physical examination. The Respondent's choice to reimburse the visit as a limited service is acceptable. On April 23, 1990 the child was seen for a further checkup. This visit was billed under the EPSDT screening. The growth charts that have been described revealed that the child was "under the curve". The chart had been plotted more frequently because the baby had been born premature. On this visit the child was weighed, his height and head circumference were noted. The formula he was receiving was noted. The physical examination was normal. It was noted that the child was a "healthy baby". It was noted that the child would take weight on his feet and was playful. The request to reimburse for this visit as an EPSDT screening is not appropriate in that inadequate records were maintained to justify that billing for the mandated screens, other than the physical examination. The decision by Respondent to pay for this visit as a limited service is acceptable. On May 7, 1990 the child was seen. The presenting complaint was a cold, and his nose would bleed when wiped. During the physical examination the nostrils were checked and found to be irritated but no bleeding was noted. The child's throat was inflamed. Antibiotics was prescribed for the inflamed throat and a decongestant was prescribed for cough. This visit was billed as an intermediate service. Respondent asserts that it was a limited service. The proper billing is a limited level of service. On June 25, 1990, the child was seen for a checkup. The visit was billed as an EPSDT screen. When the child was seen the height, weight and head circumference were recorded. The physical examination revealed normal findings with the exception that it was noted that the child had "not gained adequate weight". A blood test was made. A TB test was administered. These tests were noted in the office notes. The TB test was also noted in the immunization record. The billing as an EPSDT screen is unacceptable based upon inadequate documentation maintained to justify the billing, other than the physical examination. Respondent's decision to reimburse Petitioner for a limited service is acceptable. On October 15, 1990, the child was seen for a checkup. The weight, height and head circumference were recorded. The physical examination showed that the left ear was inflamed. Otherwise no findings were made. The child was described as a "healthy baby". An antibiotic was prescribed for the ear infection as noted. The visit was billed as a EPSDT screen. Inadequate documentation was maintained to justify the billing as an EPSDT screens, other than the physical examination. Respondent's decision to reimburse the visit as a limited service is acceptable. On January 15, 1991, the child was seen for a checkup and shots. The weight, height and head circumference were recorded. Upon physical examination, the left ear was noted to be inflamed, "mild to moderate". Otherwise the examination was normal. This visit was billed as an EPSDT screen. Inadequate records were maintained to justify reimbursement for the mandated EPSDT screens, other than the physical examination. Respondent's decision to reimburse the visit as a limited service is acceptable. Recipient No. 21 (M.C.): M.C. was born on January 17, 1985. On February 2, 1990, Petitioner provided medical services to M.C. The child was weighed and measured. The child was seen because she had been coughing a lot off and on. When the physical examination was made her ears were found inflamed. She had rales in her right chest with poor air expansion of the lung. The left chest showed bronchial breathing which indicated that there was not full expansion when breathing. The child was sent for an x-ray to rule out the presence of pneumonia. The child was prescribed an antibiotic and cough medication and a ventalin elixir to assist in breathing and to open the airways. The antibiotic was for the problem with the ear. Petitioner explained the child's condition to the mother. This visit was billed as a comprehensive service. Respondent asserts that the service was an intermediate service. The proper billing is as an intermediate level of service. On February 6, 1990, the child was seen again as a follow-up. The ears were improved. The throat had improved. The chest still showed bronchial breathing and bilateral wheezing. Therefore, the condition had not completely cleared up. Consequently, the antibiotic was changed. This visit was billed as an extended service. Respondent asserts that it was an intermediate service. The proper billing was as an intermediate level of service. The child had been seen in the emergency room on March 11, 1990 for problems with strep throat. On March 16, 1990 Petitioner provided medical services to the child as a follow-up to the condition observed in the emergency room. At the office visit the mother reported that she had difficulty giving the antibiotic to the child orally. Petitioner observed that the throat appeared improved, but some blisters still were present. Because the child would not take the oral medication Petitioner gave the child an inter-muscular injection of penicillin. This visit was billed as an intermediate level service. Respondent asserts that the service is a limited service. That proper billing for the service is as a limited level of service. The child was seen on July 13, 1990. At that time her height and weight were taken. Her presenting complaint was a cough. The child's throat appeared inflamed. Otherwise the physical findings were unremarkable. The child was given an antibiotic to treat the throat condition as well as a decongestant for the cough. This visit was billed as an intermediate service. Respondent asserts that the service was a limited service. The proper billing was as a limited level of service. The child was seen on November 12, 1990. Her height and weight were recorded. The basis for the visit was a reported cough. The physical examination revealed mild inflammation in her throat. Otherwise the findings were unremarkable. The child was given a decongestant and cough medicine. Petitioner billed this visit as an intermediate service. Respondent asserts that it was a limited service. The proper billing is as a limited level of service. Recipient No. 25 (L.N.): L.N. was born on November 19, 1985. On October 15, 1991, Petitioner provided medical services to the child. The weight, height and blood pressure were recorded. The child presented with a complaint of a sore throat for 2 - 3 days with a fever. When the physical examination was made the throat was found to be inflamed, the tonsils were inflamed and enlarged. The nostrils were congested. A strep screen was performed and found to be negative. Because the throat was quite inflamed and lymph nodes were swollen, indicating severe infection unrelated to strep, a prescription for penicillin was prescribed. This visit was billed as an extended service. Respondent asserts that the service was a limited service. The proper billing was as a limited level of service. The child was seen on December 9, 1991, the presenting complaint was a fever the day before. There was no report of sore throat or cough. Upon the physical examination the tonsils were found to be inflamed, the lymph nodes were markedly enlarged. A strep screen was performed. On this occasion it proved positive. The patient was prescribed an antibiotic. Petitioner billed this visit as an extended service. Respondent asserts that the visit was a limited service. The proper billing was as a limited level service. On December 23, 1991, the child was seen by Petitioner. At this time a complaint was a fever of 24 hours duration with a cough. The tonsils were inflamed. Petitioner prescribed an antibiotic and cough medicine. Petitioner billed for the visit as an intermediate service. Respondent asserts that it was a limited service. The proper billing was as a limited level of service. Recipient No. 26 (Baby Boy T): Baby Boy T was born July 31, 1991. On December 23, 1991 the child was seen for a check up and shots. This visit was an EPSDT screen. The weight, height and head circumference were recorded. A physical examination was conducted. This child had been born premature, at thirty-five weeks gestation. A document concerning the birth, family history and feeding history was maintained. It spoke of the child's condition within the first week. The child had weighed 5 pounds 11 ounces when born. Separate from the document recording birth information, family history, early birth and development, and early feeding history, Petitioner recorded that on December 23, 1991 that the examination was normal with the exception that the child had gained weight, but still not sufficient weight since birth. Another abnormality was a hernia. The child was referred for surgery to address the hernia. A growth chart was maintained in the Petitioner's records. Petitioner billed this visit as an EPSDT screen. Petitioner did not maintain sufficient records to justify payment for the mandated screens, other than the physical examination. Respondent's decision to pay for this visit as a limited service is acceptable. Recipient No. 29 (M.M.): M.M. was born on September 17, 1986. On December 2, 1991, Petitioner provided medical services to M.M. On that date the child's temperature, weight and height were recorded. The presenting complaint was a fever, an earache. A physical examination revealed wax in the ears. The throat and tonsils were inflamed. A strep screen was performed and found to be negative. The child was prescribed an antibiotic for the inflammation and a medication for possible fever. Petitioner billed for this visit as a comprehensive service. Respondent asserts that it is an intermediate service. The proper billing as an intermediate level of service. Recipient No. 30 (R.C.): R.C. was born on March 26, 1970. On August 8, 1990, Petitioner provided medical services to R.C. The reason for seeing R.C. was to perform a college physical. The recipient was blind. She was weighed, her height recorded and blood pressure taken. The physical examination was normal, except for her blindness. During the visit R.C. reported that she had been having headaches behind her eyes. MMR immunization was given to assist in meeting college entry requirements. R.C. was sent to a laboratory for CBC and Differential SMA-25. Petitioner billed this visit as a comprehensive service. Respondent asserts that it was an intermediate service. The proper billing was as an intermediate level of service.
Recommendation Based upon the findings of fact and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered confirming the alleged overpayments described, subject to the adjustments. DONE and ENTERED this 26th day of July, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1996.
Findings Of Fact Petitioner is licensed by the State of Florida as a Clinical Laboratory Technician. Petitioner applied to the Respondent for licensure as a Clinical Laboratory Technologist with specialties in microbiology, serology, clinical chemistry, hematology, immunohematology and chemistry. On February 11, 1980, Respondent denied Petitioner's application for a technologist's license for the reason that Petitioner does not have the sixty semester hours or HEW exam required under Section 10D-41.25(9) or (10), Florida Administrative Code. Petitioner holds a high school equivalency diploma. Petitioner attended the Manhattan Medical Assistants' School in 1960-1961 and graduated from that school, receiving a diploma as a Laboratory Technologist. When Petitioner attempted to obtain a transcript of his studies at that school, he discovered that the school is no longer in business; and, accordingly, he is unable to obtain a transcript reflecting his studies there. Petitioner does not have a bachelor's degree from an a"credited college or university. Through the years, Petitioner has taken a number of continuing education courses, but these courses have not been affiliated with an accredited college or university. Prior to moving to Florida, petitioner was employed for seventeen years as a Laboratory Technologist at the New Rochelle Hospital Medical Center and was a supervisor of the evening and night shifts at that Center. Petitioner's witnesses testified as to the quality of Petitioner's work as an employee of the Department of Pathology at South Miami Hospital. Petitioner has taken the U. S. Public Health Service proficiency examination in clinical laboratory technology. A satisfactory score on all sections of that examination must be obtained in order to Pass the examination. Petitioner passed each section of the examination except for the hematology section. He attempted to retake the examination but was advised that the March 30, 1979, examination was the last test scheduled by HEW. That examination has been administered on five different occasions between the years 1975 and 1979. There is no information available as to whether the HEW examination will or will not ever be administered again. That examination is not the same as the licensure examination given by the Respondent but can act as a prerequisite, if satisfactorily completed, to the state licensure examination. An approved course of study is available to Petitioner at Miami-Dade Community College. Personnel at that school have advised him that he would receive thirty-two credits for his life's work and that he would be required to take six or seven examinations plus approximately a year's worth of courses. Petitioner does not desire to attend that college even on a part-time basis several times a week, since he is employed at two full-time jobs at this time.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered denying Petitioner's application for a technologist's license pursuant to the provisions of The Florida Clinical Laboratory Law. RECOMMENDED this 10th day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1980. COPIES FURNISHED: Richard N. Krinzian, Esquire 8585 Sunset Drive, Suite 190 Miami, Florida 33143 Morton Laitner, Esquire Dade County Department of Public Health 1350 N.W. 14th Street Miami, Florida 33125 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that petitioner's application for a clinical laboratory technologist's license be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of September, 1978. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-99775 COPIES FURNISHED: Terry L. Bennett Route 6, Box 249 Lake City, FL 32055 Also mailed to Ms. Bennett at the following address: 1461 Cedar Bay Road Jacksonville, FL 32218 Robert M. Eisenberg District IV Counsel Post Office Box 2417F Jacksonville, FL 32231 William J. Page, Jr. Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, FL 32301
The Issue The issue is whether Respondent properly denied Petitioner’s application for a license to practice veterinary medicine.
Findings Of Fact Petitioner is a graduate of a foreign school of veterinary medicine. He received a doctorate in veterinary medicine from the National Pedro Henriquez Urenta University, Santo Domingo, Dominican Republic, in 1987. Petitioner filed his first application to take the National Board of Veterinary Medicine Examination (National Board), the Clinical Competency Test (CCT), and the Florida Laws and Rules Examination (Florida Laws and Rules) on February 22, 1988. On or about March 14, 1988, Respondent notified Petitioner that his application was complete. Respondent subsequently certified Petitioner as eligible to take the three tests on May 10-11, 1988. On or about June 29, 1988, Respondent advised Petitioner that he had failed all three tests. On or about July 5, 1990, Petitioner filed a second application to retake the examinations in Florida. Respondent advised Petitioner that his application was outdated on or about July 16, 1990. Respondent directed Petitioner to resubmit his application on the current forms. On or about August 14, 1990, Petitioner filed his application to retake the examinations on the current forms. Respondent notified Petitioner that his application was complete. By notice dated August 17, 1990, Respondent advised Petitioner that he was eligible to take the examinations on December 9-10, 1990. Respondent subsequently informed Petitioner of a change in the dates of examination to December 11-12, 1990. Petitioner took the examinations on December 11-12, 1990 in Florida. On or about February 2, 1991, Petitioner received notice that he had not passed any of the examinations. Petitioner subsequently became aware of a change in Florida law which would prohibit him from becoming licensed to practice veterinary medicine without a certificate from the ECFVG if he failed to pass the examinations three times after October 1, 1989. He decided to apply to take the examinations in Georgia. Petitioner took and failed the National Board in Georgia on the following dates: (a) December, 1992; (b) April, 1993; (c) December, 1993; (d) April, 1994; (e) December, 1994; (f) April; 1995; and (g) December, 1995. He took and passed this test in Georgia in April of 1996. Petitioner took and failed the CCT in Georgia on the following dates: (a) December, 1992; (b) April, 1993; and (c) December, 1993. He took and passed this test in Georgia in April of 1994. Petitioner filed an application for licensure with Respondent on or about August 1, 1996. Item six of this application asks: Have you ever taken the National Board Examination, Clinical Competency Test or Florida Laws and Rules Examination? If yes, list below the name(s) of the exam(s), the date(s) of the exam(s) and the state(s) in which the examination was taken. In response to item six of the application, Petitioner answered as follows: National Board - December, 1990, Florida; April, 1996. Clinical Competency Test - December, 1990, Florida; April, 1994, Georgia. Laws and Rules - December, 1990. On or about August 26, 1996, Respondent informed Petitioner that his application was complete. However, Petitioner was advised that Respondent might deny the application unless Petitioner had completed the ECFVG program because Petitioner had taken the National Board and the CCT more than three times since October of 1989. By letter dated August 28, 1996, Respondent requested the Georgia State Board of Veterinary Medicine to provide written confirmation of Petitioner's examination record in that state. On or about October 28, 1996, the Georgia State Board of Veterinary Medicine certified in writing that Petitioner had taken the National Board a total of eight times and the CCT a total of four times. The Georgia certification listed the dates that the examinations were attempted and finally passed. That same day, Respondent gave Petitioner preliminary notice that his application would be denied. Petitioner had not completed the ECFVG program. Therefore, Respondent issued an Order of Intent to Deny Petitioner's application on or about December 5, 1996. According to his testimony, Petitioner was not aware that he needed to disclose information related to his 1988 Florida exams and his failed exams in Georgia. He was aware that the law, which limited the number of times he could take the exams without earning an ECFVG certificate, would not count exams taken before October 1, 1989. He also asserted a belief that the law would not apply to the number of times he took the exams in another state. Petitioner's testimony is contrary to more persuasive evidence. Petitioner admitted that he read the license application instructions before he filed his 1996 application. These instructions clearly require an applicant to provide Respondent with an examination history including the following information: (a) the name of every prior examination; (b) the date of every prior examination; and (c) the state in which the applicant took every prior examination. The license application instructions and the application admonish applicants to answer all questions fully and truthfully. They warn applicants that obtaining a license by fraudulent misrepresentation is grounds for denial of an application or revocation of a license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order denying Petitioner's application for a license to practice veterinary medicine. DONE AND ENTERED this 8th day of July, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1997. COPIES FURNISHED: Edwin A. Bayo, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 I. Mark Rubin, Esquire 2107 Hendricks Avenue Jacksonville, Florida 32207 Sue Foster, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On August 7, 1984, the Petitioner, Abraham W. Chames, executed an application for examination for licensure as a medical doctor which was filed with the Florida Department of Professional Regulation on behalf of the Board of Medical Examiners, (now Board of Medicine), on August 9, 1984. Among other information required on the application was a section requesting information regarding the applicant's medical education. That question reads as follows: Be specific. Account for each year. List all universities or colleges where you attended classes and received training as a medical student. In response and on each of four lines which required the name of the medical school and location and the dates of attendance, the applicant listed the names of the appropriate universities. These were: Universidad Del Noreste/Tampico, Mexico, from August, 1978 to June 1979. Universidad Del Noreste/Tampico, Mexico, from August 1978 to June, 1979 [sic] CETEC University/Santo Domingo, Dominican Republic, from June, 1980 to June, 1981. CETEC University/ Santo Domingo, Dominican Republic, from June, 1981 to December 1981. The question immediately preceding the one just described requires the applicant to list all places of residence since initiation of medical training. In response, the applicant listed, Tampico, Tamps, Mexico, from August, 1978 to June, 1980 and on the second line, Miami Beach, Florida from June, 1980 to June, 1982. For the question that requires the applicant to account for all time from date of graduation to present, the Petitioner stated: "Started my residency in family medicine at the University of Miami: June 83 until present." Dr. Chames also indicated on his application that his Doctor of Medicine degree was obtained from CETEC University, Santo Domingo, Dominican Republic from which he graduated on December 12, 1981. As a part of the narrative reports submitted with his application and relating to the period of time spent at CETEC University from June, 1980 through December, 1981, Dr. Chames stated: "During this time, I performed all of my required and elective clinical rotations under the auspices of CETEC University and its New York City based office of C.J. Institute. I lived at 1247 West Avenue, Apt No. 1, Miami Beach, Florida." By so doing, he explained the apparent ambiguity between his place of residence and his medical education during the period, June, 1980 through December, 1981. The rotations taken and the dates thereof were thereafter listed immediately below the above-cited statement. It should be noted that all the rotations were completed at hospitals in the Miami, Florida area. It is not at all unusual for situations like this to happen and it is not improper. Along with the application submitted by Dr. Chames was a certification that he had successfully passed the examination of the Educational Commission for Foreign Medical Graduates, (ECFMG), which he took on July 21, 1982. On August 20, 1984, Dr. Chames was notified by the Board that it had been advised by the ECFMG that as of March, 1984, that body was withholding verification of its certificates for individuals with medical credentials issued in the name of CETEC University because of alleged irregularities with regard to these medical credentials. The Board requested that Dr. Chames waive the 90 days that it had for approval or denial of his application for licensure, which he did. ECFMG subsequently verified Dr. Chames' certification and this information was sent directly to the Board. On September 18, 1984, the Board advised Dr. Chames that he would be required to appear personally before the Foreign medical Graduate Committee, (FMGC), of the Board when notified. Two days later, on September 20, 1984, the Board advised him that his application was considered incomplete because he had failed to submit a copy of his medical school diploma, (notarized and certified as a true and correct copy) and a certified translation thereof. He was further advised that he had failed to submit an accounting for all of the time between December, 1981 and May, 1983, and a FLEX application with Part A completed. On August 23, 1985, Dr. Chames submitted a notarized affidavit in which he attempts to account for all time from December, 1981 through May, 1983 as requested. On August 15, 1985, Ms. Dorothy Faircloth, Executive Director of the Board, notified Petitioner that his application was still considered incomplete because of the failure to submit certain documentation including his diploma and translation thereof, an examination fee, a standard ECFMG certificate, photographs, letters of recommendation, an accounting for all of the time since graduation, and a FLEX application. By letter dated August 23, 1985, Dr. Chames' counsel, Deborah J. Miller, forwarded a notarized copy of the medical school diploma certified by the U.S. Vice-Consul, a notarized copy of the original translation thereof, a notarized copy of the ECFMG clearance, a notarized copy of the original standard ECFMG certificate, an accounting of Dr. Chames' time since graduation, and a comment that the addition application fee requested had been forwarded previously. The two photographs requested were forwarded by counsel on September 3, 1985. In her September 3, 1985 letter, Ms. Miller indicated she understood the ECFMG would contact the Board directly in the event that written verification had not been received by the time Dr. Chames was to appear before the FMGC. On September 27, 1955, the Board, by letter, advised Dr. Chames, (the salutation refers to Dr. Eaton) that he was required to appear personally before the FMGC at Sarasota on October 4, 1985. Dr. Chames appeared as required and was examined verbally by committee members, primarily Dr. Robert Katims, Chairman, on his credentials as a graduate of CETEC. His answers apparently raised some further questions and an extract of the minutes of that committee meeting reflects that Dr. Chames, a candidate for licensure by examination and a graduate of CETEC University, received a... unanimous vote to recommend unfavorably for examination based upon a total lack of credibility, deliberately failed to tell the truth in the application process. It cannot be determined in whose handwriting this notation was made. Dr. Katims, who was Chairman of the FMGC since its founding until just prior to the hearing, examined Dr. Chames from the file maintained by the Committee on foreign medical graduates. The Petitioner's testimony was not of a nature to inspire confidence in his credibility. He was hesitant in his answers and those which he gave were, if not evasive, at least not definitive. While acknowledging he made several mis-statements of fact on his application, Petitioner contended these were made through honest error rather than through design. He was obviously not believed by any committee member. No doubt this antipathy toward the applicant, manifested by the blatant hostility and outrage evidenced by Dr. Katims during his questioning and his threats to carry the matter further, even to the pressing of criminal charges if available, indicates that no matter what Dr. Chames would have said, the likelihood of his being voted upon favorably was remote. The file examined by Dr. Katims and the committee consisted of the application, letters of reference, test scores and other matters relevant to the candidate's suitability for licensure. This file documentation is knows as the Agenda Book. The Agenda Book maintained on Dr. Chames was reviewed by Dr. Katims prior to Petitioner's appearance. In his evaluation of this file, Dr. Katims looked primarily at Petitioner's application to take the ECFMG exam and his attention was drawn to the sites of medical education listed thereon. The file contained several different applications which, when reviewed, reflected that on two, Dr. Chames listed his medical schools as Del Noreste and Dominica and on a third he listed CETEC and Del Noreste. Dr. Katims also noted a different listing for undergraduate education. He did not look so much at the dates listed, though dates are important. At that time, his policy as Chairman and that of the committee, was to look closely at CETEC graduates because of that institution's reputation for fraud in the issuance of diplomas. It was his understanding that several people associated with CETEC, including some applicants, had been jailed in the United States and as a result, CETEC graduates got a lot of scrutiny. In fact, Dr. Katims threatened to "...pursue this beyond the actions of this Board, if it seems appropriate, along the lines indicated by Board Counsel...." The Board's counsel had just previously noted a change in the Florida law to make it a criminal offense to obtain or attempt to obtain a license by knowing misrepresentation. Dr. Katims categorically denies that he felt all CETEC students were trained by this "stink of corruption". In fact, he recalls many CETEC graduates have been voted upon favorably after they had been afforded an opportunity to prove their credentials and discuss their applications before the committee. As a result, Dr. Katims felt he did not prejudge the Petitioner. Dr. Katims has interviewed many applicants during his term in office and this includes many CETEC graduates. Consequently, he looked closely at Dr. Chames' application but it was the discrepancy in the applications and the applicant's failure to clarify it satisfactorily that was the problem here, not the fact that he was a CETEC graduate. Dr. Chames was called before the FMGC because it was felt necessary to have him amplify his file and give greater information on his actual scholastic residence. This was because several applicants had told Dr. Katims their only visit to the CETEC campus was to get their diploma. This is exactly what Dr. Chames stated in his interview. Though enrolled at both (Dominica) Ross and CETEC at the same time, he says he did not attend any classes at either campus, did not ever visit the (Dominica) Ross campus, and in fact visited the CETEC campus only once, in December, 1981, to get his diploma. In short, it appears that neither school required regular on-site educational activities. In substance, the Board considered that Dr. Chames' attendance at CETEC raised a question that required a more detailed examination. However, Dr. Katims, on behalf of the committee, clearly contends that CETEC graduates were held to no more strict standards of qualifications than other graduates of foreign medical schools. With regard to this Petitioner, the Board only looked at the educational discrepancies. Nothing else was looked into by the committee before it's report the next day to the full Board. Dr. Katims felt that Petitioner's story was "incredible." He could not accept Petitioner's story that he simultaneously applied to and attended both CETEC and Dominica (Ross) and concluded that Dr. Chames deliberately falsified his application. The discrepancies regarding the schools attended were not consistent with his explanation, and to this date, Dr. Katims feels the same way. He concludes that Petitioner lied in his applications and may have conspired with unknown others to do so but he has no proof of a conspiracy. The important issue to Dr. Katims was initially the caliber of education available at both (Dominica) Ross and CETEC. It was only when Petitioner testified and his testimony was felt to be "incredible" that the issue became his credibility. Dr. Chames graduated from Miami-Dade Community College with an AA degree; then from Yeshive University in New York with a BA degree and thereafter from Florida International University with a BS degree. He then entered Universidad Del Noreste medical school in Tampico, Mexico where he actually attended classes for two years. At his hearing before the FMGC, he stated that during his fourth semester there, he decided to transfer and looked into two medical schools both located in the Caribbean. They were the University of Dominica (Ross) and CETEC. He contends that he applied to both, took some entrance exams for Dominica which he passed and paid some initial fees to that school. He states, however, that it was CETEC that he stayed with and from which he got his degree. According to Dr. Chames, this was a tumultuous time for foreign medical schools. Many students of these institutions wanted to come back to do their obligatory rotations in the United States. As a result, he enrolled in both schools, though he felt affiliated with Dominica (Ross) and paid it only. CETEC indicated he could pay later. In the fall of 1981, he switched to CETEC because a number of states were determining that students of proprietary foreign medical schools could not do U.S. residencies. CETEC was considered to be a higher quality school and had a greater legitimacy in the Dominican Republic. It was a viable school in disciplines other than medicine and was not categorized as an "offshore" medical school. Dr. Chames was expelled from Dominica (Ross) on July 12, 1982, because he failed to pay for the fourth year of medical school. He had, by this time, transferred his credits to CETEC and had graduated from there in December, 1981. Neither school had a requirement for on-campus participation. Students paid their money and turned in the paperwork, and the rotations--the learning periods spent in active hospitals--which constitute the greatest part of the last two years of medical school, were done in the United States. In reality, Dr. Chames arranged his clerkships and rotations by himself. When asked by the various hospitals to which he applied where he was in school, he would say either Del Noreste, Dominica (Ross), or CETEC depending on the time in question. He claims he considered himself to be a student at both Dominica (Ross) and CETEC at the same time. He gave his clerkship evaluations, however, only to Dominica (Ross) until the end of the fourth year of training, when he also gave one to CETEC. He first started paying fees to CETEC and provided a clerkship evaluation there in the fall of 1981, even though he says he considered himself a student there from the beginning. He intended to graduate in December, 1981. This date was established in the fall of 1981 when he started sending CETEC the evaluations of clerkships he had completed almost two years previously which had already been sent to Dominica (Ross). Dominica (Ross) required the taking of a basic second examination upon starting and a final examination prior to graduation unless one took and passed the ECFMG examination. Petitioner admittedly failed the final at Dominica (Ross). CETEC required no examinations. He took and passed the ECFMG exam long after he graduated from CETEC. Petitioner applied to CJ Institute, CETEC's U.S. affiliate, in November, 1981. He contends that he had applied to CETEC previous to that time, but paid no money to CETEC until approximately two weeks prior to graduation, and he got credit from CETEC for rotations/clerkships performed while enrolled at Dominica (Ross). In reality, what appears to be the fact, and it is so found, is that Dr. Chames was enrolled for by far the greatest majority of the last two years of his medical training at Dominica (Ross). Having failed the final examination and being concerned over the ECFMG examination, he looked around and found another medical school that would grant him a diploma based on work done at his former institution, Dominica (Ross). This he found in CETEC which had no requirements and was willing to give him full credit for all work performed at or under the auspices of Dominica (Ross). It would graduate him, awarding him a medical degree upon payment of the required fees, even though no work was done either in the classroom or in rotations while enrolled at that university. When the applicant subsequently filled out the forms for admission to licensure in Florida, he unfortunately listed only CETEC and not Dominica (Ross) as his medical school, even though the application form instructed him to list all schools and omit nothing. He admits that since he did his rotations, and since CETEC granted him credit for them even though he did them while enrolled at another school, he didn't feel it necessary to list Dominica (Ross) as one of his schools. Notwithstanding the apparent lapse as defined above, Respondent's reputation for honesty is generally good. His wife for almost nine years, who has known him since he was fifteen, considers him a most honorable man who makes no distinction between his personal and business ethics which are high in both categories. Though she is an attorney and notarized at least one of the applications he filled out, she did not discuss them with him. She has no reason to believe that they were not accurate and knows no reason that Petitioner would falsify them as she knows he dearly wants to be a doctor. When he filled out his applications, he did them based on his recollection and not on files or documents. She knows he has a terrible memory for dates and numbers and this may have contributed to his mistake. Mrs. Chames' testimony is not credited highly as to her failure to discuss the applications with her husband, however. Dr. Lynn Carmichael, Chairman of the Department of Family Medicine at the University of Miami Medical School, supervised the Petitioner in the Family Practice service at Jackson Memorial Hospital when Petitioner was a resident there. Petitioner's employment file contains all materials received regarding him including evaluations, letters, applications, etc., and a review of this file reveals that all evaluations rendered on Petitioner over the three years of his residency were above average. At the time Petitioner applied for the residency program in October, 1982, he listed his medical school as CETEC University. While he was in the residency program, Petitioner consistently performed in an outstanding manner in all six criteria considered and his reputation for truth and veracity, a highly important factor in evaluation, is good. Dr. Carmichael became aware of the denial of Petitioner's application for licensure after the fact and is aware now of the reasons therefor. Based on his knowledge of the Petitioner, he does not feel that Dr. Chames is a perjurer, or a liar, or would deliberately falsify an application. He was very surprised at the result of the committee hearing because the facts discussed there did not fit in with his evaluation of Petitioner. In fact, his peers at the University Hospital thought so highly of Dr. Chames, that if he had been licensed, the hospital was going to ask him to stay on for a fellowship, for which a license is required. Dr. Carmichael does not consider the listing of the medical school on the application for as a particularly important factor in evaluating foreign medical graduates for the simple reason that these graduates are required to show ECFMG certification which, in fact, the Petitioner was able to do. Ms. Deborah Miller, an attorney specializing in administrative and governmental law, represented Petitioner in his efforts to apply for licensure in Florida. He was concerned that foreign medical graduates were being unduly scrutinized and discriminated against in the licensing process. In this case, the Board of Medicine had asked Petitioner to waive the 90 days they had to rule one way or another on his application and she looked into this for him. In doing so, she procured the Petitioner's application file and went over it item by item with a representative of the Board. It was after this that Dr. Chames was notified of his requirement to appear before the FMGC, as were most foreign medical graduates and all CETEC graduates. Ms. Miller wrote to the Board just before the meeting to see if there was anything else in Petitioner's file than that of what she had been notified and was told that there was not. However, an AMA profile on Petitioner was in the file which listed both CETEC and Dominica (Ross) medical schools and this document may not have come to her. In the past, it has been Ms. Miller's experience that the Board does not always give a "full" file upon request, at times holding matters back. Based on what she knew, Ms. Miller had no reason to believe Dr. Chames had concealed anything regarding his application. Had Petitioner told her that he had applied to both CETEC and Dominica (Ross), she would have advised him to amend his application to correctly reflect the situation which could have been done at that time. On cross examination, Ms. Miller indicated that Petitioner told her that he applied to CETEC and Dominica (Ross) because he had heard of CETEC and was impressed by its good reputation. When he was accepted at CETEC, he dropped all further dealings with Dominica (Ross). He felt the board was concerned more with the courses and rotations not with which school was listed on the application form. This third story regarding Dr. Chames' reasons for switching from Dominica (Ross) to CETEC, clearly establishes that his application forms were consciously filled out; that he knew what he was doing; that his omission was more-than mere oversight; and that he was not particularly concerned with the accuracy of his application and the requirements for forthrightness contained on the face of it. On all of the reports of rotations and clerkships submitted to Dominica (Ross) during the time he was enrolled there and performing them, Dr. Chames was always highly rated and no adverse comments about his ability, his sensitivity, his patient relationships or his integrity was ever raised. There is no doubt that Dr. Chames possesses the clinical and technical skills necessary to be an excellent physician. He also apparently possesses the sensitivity to patients which separates a healer from a technician. In substance, then, it is found that Dr. Chames was enrolled for the last two years of his medical education at Dominica (Ross) and completed the course work/rotation/clerkships satisfactorily. Unfortunately for him, Dominica (Ross) required the passing of an examination prior to the award of the medical diploma, which Dr. Chames failed once and chose not to taken again. He found another school, CETEC, that would award him his medical degree upon payment of the required fees on the basis of the work done while a student at Dominica and without any work being done under the auspices or supervision of CETEC at all. Thereafter, when he applied for licensure in Florida, notwithstanding the fact that the application form clearly required a listing of all medical schools attended, Dr. Chames neglected to list his enrollment at Dominica (Ross), choosing instead, to list only his graduation from CETEC. It is this failure to list Dominica, coupled with the apparently false listing of the true term of the CETEC enrollment which constitutes the discrepancy of such grave concern to the Board and, the ultimate basis for its denial of Petitioner's application. Notwithstanding the apparent hostility of the Chairman of the FMGC and his predisposition to vote unfavorably on this Petitioner's application, it would appear that the unfavorable vote was justified and appropriate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, therefore, RECOMMENDED that Petitioner's current application for examination as a physician in Florida be denied. RECOMMENDED this 14th day of April, 1987, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 14th day of April, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1438 The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By Petitioner Petitioner failed to number his proposed Findings of Fact. To facilitate identifying them for ruling, I have numbered them consecutively as they appear in the Proposed Recommended Order. Accepted. Accepted. Accepted. Accepted except for the reason for changing schools which is contrary to the better evidence. Accepted. Accepted. Accepted. Accepted. Accepted as to date of filing and schools listed. Rejected as to his reason for failing to list Dominica, Petitioner's different stories as to the point make it impossible to determine why he failed to list Dominica. Accepted. Accepted. Accepted. Accepted except for words "sting of corruption" which should be "stink of corruption." Accepted. Accepted. Accepted. Accepted. Sentence 1 rejected as comment and not a Finding of Fact. Sentence 2 accepted. Sentence 3 & 4 rejected as speculation. Sentence 5 accepted. Sentence 6 rejected as argument. Sentence 7 accepted. Sentence 8 rejected as argument or contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as irrelevant except for the last sentence which is argument, not Finding of Fact. Sentences 1-3 rejected as argument. Sentence 4 et seq. accepted. By Respondent Accepted. Accepted. Accepted. Accepted. First sentence accepted, Second sentence rejected as irrelevant. Accepted. Accepted. Accepted. Sentences 1 & 2 accepted. Sentences 1 & 2 rejected as recitations of the evidence. Sentence 3 rejected as contrary to the better evidence. Sentence 4 et seq. are recitations of the evidence and not Finding of Fact. Rejected as a recitation of the evidence. Accepted. No numbered paragraph. Accepted. COPIES FURNISHED: Dorothy Faircloth, Executive Director Florida Board of Medicine 130 North Monroe Street Tallahassee, Florida 32301 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold M. Braxtone Esquire Suite 406, Datran Center 9100 South Dadeland Blvd. Miami, Florida 33156 Catherine Lannon, Esquire Department of Legal Affairs Room 1601, The Capitol Tallahassee, Florida 32399-1050 =================================================================
