The Issue The issue for consideration in this hearing is whether Respondent's license as a chiropractor in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Chiropractors, was the state agency responsible for the licensing of chiropractic physicians and the regulation of the chiropractic profession in Florida. Respondent was a licensed chiropractic physician holding license number CH-0004760, issued on January 2, 1985. Shortly after beginning his licensed practice, Respondent requested a provider number under both the Medicare and the Blue Cross/Blue Shield insurance programs, and was assigned provider number 70616. Application for a Blue Cross/Blue Shield provider number does not automatically result in the issuance of a Medicare provider number. That requires a separate request. However, Blue Cross/Blue Shield is the contract manager for the Medicare Part B program in Florida and is responsible for issuing provider numbers to physicians submitting claims to either or both programs, and the number for both may be the same, modified with a PIN number for one of them. On or about September 26, 1985, Respondent entered into an agreement with Medicare Part B to be a participating physician or supplier, as well as with Blue Cross/Blue Shield. A participating physician is a provider of medical services who agrees by contract to file claims directly with the carrier for the Medicare Part B program and agrees to accept no more than the Medicare approved charge for service of treatment rendered to a patient within the program. The participation agreement is automatically renewed on an annual basis until the provider requests, in writing, to be disenrolled. Respondent did not submit such a request, and, therefore, from January 1, 1986 through such time in 1995 as his status was terminated, he was a participating physician under the Medicare Part B program. In mid-September, 1992, S.M., a 70 year old woman, needed chiropractic treatment. Since she had just moved into the Winter Haven area, she contacted a referral service from which she obtained Respondent's name, among others. Because she knew where his office was, she called him to make an appointment, After asking her over the phone if she had Medicare and supplemental insurance coverage, (she did not ask him if he took Medicare patients), he made an appointment with her for an examination. S.M. contends that prior to providing any treatment, Respondent had her fill out a case history form which bears some notations which she did not put there. The Confidential Patient Case History form filled out by the patient on July 18, 1992, in the section entitled "Insurance Information", specifically asks for the name of the patient's insurance carrier and if the patient is covered by Medicare, to each of which questions the patient answered affirmatively and gave the pertinent coverage information. She also gave Respondent's staff her insurance cards for copying in support of the information noted on the form. The same form also has a provision in it which states in part, just above the patient's signature line: .... I understand that this Chiropractic Office will prepare any necessary reports and forms to assist me in making collection from the insurance company and that any amount authorized to be paid directly to this Chiropractic office will be credited to my account on receipt. However, I clearly understand and agree that all services rendered me are charged directly to me and that I am personally responsible for payment. Respondent took two x-rays of the patient's back and then treated her. She visited Respondent's office for treatment on at least two occasions and he wanted her to come back for further visits. However, because she felt better she did not do so. Respondent's records reflect that S.M. was treated by the Respondent with spinal adjustment or manipulation on both September 21 and September 28, 1992, and according to the Board's expert, Dr. Lucido, he also performed spinal acupressure trigger therapy on her. Spinal adjustment is covered by Medicare. Spinal acupressure trigger therapy is not. After each visit, S.M. was requested to pay in full in cash for all services provided and was given a receipt for the payments made. S.M. paid Respondent $170.00 for the first visit and paid $30.00 for each succeeding visit. According to Dr. Lucido, if Respondent performed services covered by private insurance, the filling out of the form for the patient would be a courtesy. If, however, the patient were covered by Medicare for the service rendered, it would be mandatory. If a chiropractor is going to perform a therapy which, as here, is not covered by Medicare, he is required to notify the patient of this in advance. Since in this case Respondent was performing a service not covered by Medicare, he was obliged to so advise the patient prior to doing the treatment, and this advice should have been reduced to writing and acknowledged by the patient. If a non-covered service was to be the exclusive service provided, Respondent would not have been required to file for Medicare coverage for the patient unless it were necessary in order to get a denial of coverage by Medicare prior to payment by private insurance. This is the standard in the community, according to Dr. Lucido. Respondent claims to recall vividly the treatment he rendered to S.M. and asserts he did only non-covered therapy which did not require him to fill out a Medicare claim form. He also claims that at the time in issue he was no longer a Medicare provider, asserting that one of the memoranda in the Blue Cross/Blue Shield personnel files relative to his status bears a signature thereon that is not his. Nonetheless, this testimony must be considered in light of Respondent's admission that he was once convicted of a crime involving dishonesty or the making of a false statement. Respondent admits signing up with Medicare early on and there is no evidence that he ever initiated his disenrollment from the program in a manner consistent with the procedure outlined by Ms. Esposito, the agency's enrollment official. The testimony of Respondent's office assistant, Ms. Miller, suggests that the receipts in this case are inaccurate and based on the medical records and her mistaken supposition of what happened in the treatment room. Respondent agrees and claims that when he discovered what had happened and how S.M. had been billed, he tried to retract the incorrect receipts which Ms. Miller had mistakenly issued. Notwithstanding all the above, in Dr. Lucido's opinion, S.M. was given both covered and non-covered treatment, and in this case, he contends, Respondent was obliged to file the Medicare claims form for S.M. After an evaluation of the testimony given by both Respondent and his assistant, it is found that Dr. Lucido's analysis of the situation is more credible and is adopted here. Ordinarily, S.M. would wait for the Medicare Explanation of Benefits form which she would then use to seek reimbursement from her supplemental carrier. The physician providing Medicare covered treatment is required to submit the Medicare claims form, and some physicians, as a courtesy, will prepare and submit the supplemental insurance claim form as well. After the last visit with Respondent, S.M. requested that he submit her insurance claim form to Medicare on her behalf so that she could be reimbursed for the money paid by her to him. Respondent told her he didn't go to school for five years to learn to fill out forms, but if she would get the forms, he would help her fill them out. When she went to the Social Security office to get the forms, at first she could not get them. S.M. was told it was up to the doctor to obtain and fill them out. However, she finally prevailed and got the forms which she filled out as best she could, except for the diagnosis. She then took them to Respondent. He not only refused to file the claim form with Medicare for S.M., he also refused to complete the diagnosis portion of the form. As a result, S.M. was required to submit the claims forms to Medicare herself, but payment for the services rendered her was denied by Medicare because the claims forms were not filed by Respondent directly with the carrier. When S.M. called Respondent's office to report that, he was not in and she left word for him to call back. He has never done so. Respondent's assistant, Ms. Miller, claims that on none of the three visits did S.M. indicate she was on Medicare nor did she ever present a Medicare card. Her testimony is not considered reliable, however, and S.M.'s account of the relationship is more credible. Federal law, at 42 U.S.C. 1395 provides that for services rendered after September 1, 1990, and within one year after the date on which the service is rendered for which payment is sought, a physician or provider: ... shall complete and submit a claim for such service on a standard claim form specified by the Secretary to the carrier on behalf of a beneficiary, and ...may not impose any charge relating to completing and submitting such a form.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Board of Chiropractic enter a Final Order in this case placing Respondent, Jerald M. Jervis', license to practice chiropracty in Florida on probation for six months, assessing an administrative fine of $500.00, and issuing a reprimand. RECOMMENDED this 7th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1995. COPIES FURNISHED: Jon M. Pellett, Esquire Agency for Health Care Administration Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerald M. Jervis, D.C. 1100 East Lake Silver Drive, N.E. Winter Haven, Florida 33881-4155 Sam Power Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Diane Orcutt Executive Director Board of Chiropractors 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Respondent, Arnaldo Carmouze, P.A., committed violations of Chapter 458, Florida Statutes (2001), alleged in an Administrative Complaint filed with Petitioner on February 25, 2004, in DOH Case Number 2002- 16502, as amended; and, if so, what disciplinary action should be taken against his license to practice as a physician assistant in Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians and physician’s assistants licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. Respondent, Arnaldo Carmouze, P.A., is, and was at the times material to this matter, a physician's assistant licensed to practice in Florida, having been issued license number PA 9100713. Mr. Carmouze's address of record at all times relevant to this matter is 6545 Southwest 95th Avenue, Miami, Florida 33173. No evidence that Mr. Carmouze has previously been the subject of a license disciplinary proceeding was offered. Mr. Carmouze's Supervising Physician. At the times relevant Mr. Carmouze worked under the supervision of Dr. Manuel Fernandez-Gonzalez, a physician licensed to practice medicine in Florida. Dr. Fernandez-Gonzalez, who has practiced emergency medicine, holds Florida medical license number ME 17907. Dr. Fernandez-Gonzalez currently practices family medicine at 9600 Southwest 8th Street, Miami, Florida. Prior to April 2002, Dr. Fernandez-Gonzalez and Mr. Carmouze worked together in Miami, providing emergency room care and seeing patients at a nursing home. The emergency room services were provided pursuant to employment contracts that both had entered into with a company providing emergency room services at the hospital in south Florida where Dr. Fernandez- Gonzalez and Mr. Carmouze provided services. Mr. Carmouze's Assignment to Weems Memorial Hospital. The company for which Mr. Carmouze was employed also provided emergency room services for Weems Memorial Hospital (hereinafter referred to as "Weems"). Weems is located in Apalachicola, Florida, located in the Florida Panhandle, approximately 520 miles from Miami. Weems is a rural hospital, licensed under Chapter 395, Florida Statutes. It does not have 24-hour, on-site ancillary services such as X-ray, laboratory, and respiratory therapy. These services are available to the emergency room on an on-call basis after business hours. At the times relevant, Malvinder Ajit, M.D., a Florida licensed physician, was the Director of the Emergency Department at Weems. Dr. Ajit has not provided any documentation to the Department indicating that he has ever acted as supervising physician of record for Mr. Carmouze. Mr. Carmouze was assigned by the company by which he was employed to work in the emergency room at Weems in April 2002 and again in June 2002. He worked in the emergency room at Weems as a physician's assistant for part of April 2002, and part of June 2002. While at Weems, Mr. Carmouze provided emergency room medical services to more than 100 patients. While working at Weems, Dr. Fernandez-Gonzalez, who remained in Miami, continued to act as Mr. Carmouze's supervising physician. Mr. Carmouze did not notify the Department that he was practicing as a physician's assistant at Weems in April or June 2002. The evidence, however, failed to prove that Mr. Carmouze was working for, and thus "employed," by anyone different from the employer that he worked for in Miami. The only evidence on this issue proved that Mr. Carmouze continued throughout the relevant period to work for Dr. Fernandez-Gonzalez and the company that provided emergency room services at Weems. Dr. Carmouze's Treatment of Patient A.M. On June 7, 2002, Patient A.M., an 84-year-old female, was brought to the emergency room (hereinafter referred to as the "ER"), at Weems by ambulance. She arrived at approximately 23:24 hours (11:24 p.m.). A.M.'s medical history included congestive heart failure, coronary artery disease, and atrial fibrillation. She presented to Mr. Carmouze in apparent respiratory distress (respiratory rate of 36 to 40), had no measurable blood pressure, and a pulse rate of 100 to 108. While being transported to the ER from her home, A.M. was given oxygen by rebreather mask. During her transport, her oxygen saturation level improved from 68% to 91%. Mr. Carmouze assessed A.M.'s condition, obtained her medical history, ordered lab work and other tests, and ordered and initiated nebulizer treatments for her. She was alert, oriented and had a Glasgow score of 15/15, indicating she was responding to verbal and pain stimuli. Mr. Carmouze ordered nebulizer treatments with albuterol and atrovent to assist her breathing. Additionally, A.M. received 100% oxygen through a nonrebreather mask. Mr. Carmouze also determined that A.M. was "dry," meaning that her fluid volume was depleted and, therefore, she was dehydrated. As a result, her blood pressure was low. In an effort to treat this condition, Mr. Carmouze ordered an I.V. with 0.9 normal saline. He also ordered a Dopamine drip to increase A.M.'s heart rate in an effort to increase her blood pressure. Mr. Carmouze appropriately denied a request from a nurse to administer Lasix to A.M., because A.M. was "dry." Lasix is a diuretic used to decrease fluid volume. It opens the arteries and reduces fluids, thereby lowering blood pressure. Lasix was contraindicated for A.M. and contrary to the appropriate efforts initiated by Mr. Carmouze to treat A.M.'s low blood pressure. Despite Mr. Carmouze's treatment of A.M., her condition continued to deteriorate. At or near 23:50 hours (11:50 p.m.), approximately 25 minutes after A.M. had arrived at the ER, an ER nurse contacted A.M.'s primary physician by telephone and obtained an order to administer Lasix to A.M. The Lasix was administered immediately. A.M.'s oxygen saturation level was 81%, down 10 points since her arrival, when the Lasix was administered. Within half an hour, at 0:18 hours (18 minutes after midnight) on June 8, 2002, A.M.'s oxygen saturation level had dropped another 10 points, to 71%. A.M. then "crashed and coded." Mr. Carmouze initiated appropriate emergency measures when A.M. coded, including initiating Cardio Pulmonary Recitation and endotracheal intubation. A.M. was given epinephrine, atropine, and a CVP line was placed. These actions by Mr. Carmouze were appropriate. Mr. Carmouze did not attempt or order that A.M. be intubated prior to 0:18 hours when she coded. A.M.'s primary physician, Dr. Sanaullah, arrived at the ER. Shortly after she coded, Dr. Sanaullah continued the same efforts initiated by Mr. Carmouze. A.M., however, did not recover, expiring at 01:00. The "Standard of Care" for Treating A.M. Four expert witnesses testified in this matter, rendering opinions as to whether Mr. Carmouze's treatment of A.M. was consistent with "that level of care, skill, and treatment which is recognized by a reasonably prudent similar [physician assistant] as being acceptable under similar conditions and circumstances. . . " (hereinafter referred to as the "Standard of Care"). The expert witnesses who testified were Dr. Fernandez-Gonzalez, Dr. Julio Lora, Dr. Harry W. Lee, and James L. Cary, P.A. Dr. Fernandez-Gonzalez's testimony as to whether Mr. Carmouze treated A.M. within the Standard of Care is rejected for lack of credibility. Dr. Fernandez-Gonzalez's testimony has been found to lack credibility for the reasons explained by Petitioner in paragraph 25 of Petitioner's Proposed Recommended Order. That paragraph, except for the last two sentences, is hereby adopted. Additionally, Dr. Fernandez- Gonzalez's testimony is rejected because, in the undersigned's judgment, he made too much of an effort to give the answers that he appeared to conclude that Mr. Carmouze wanted him to give. The testimony of Dr. Lora on the other hand is found to be credible. Dr. Lora, testifying as an expert in cardiology and internal medicine, offered convincing explanations as to why Mr. Carmouze did not violate the Standard of Care in his overall treatment of A.M. and, in particular, in not attempting to intubate A.M. earlier than he did. Dr. Lee's testimony, while corroborating Dr. Lora's testimony, was cumulative and of little weight. A.M. was reported to be awake, alert, and oriented. She was breathing, albeit with difficulty, on her own. Therefore, it was appropriate for Mr. Carmouze to attempt the other measures to assist her breathing he instituted. Mr. Cary's testimony, while credible, was not convincing, especially given Dr. Lora's expert opinions. Mr. Cary's testimony was taken during a discovery deposition by Respondent and, as a result, the benefit of his testimony to Petitioner's case was limited. The evidence failed to prove that Mr. Carmouze violated the standard of care: In his treatment of A.M.; By failing "to contact his supervising physician, the ED director, and/or Patient A.M.'s primary physician for assistance in treating Patient A.M."; By failing "to identify a treatment plan for Patient A.M."; and By failing "to consult his supervising physician prior to ordering Demerol, a controlled substance, for Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M." Mr. Carmouze's Treatment Plan and Medical Records for Patient A.M. Mr. Carmouze, as the Department has conceded in Petitioner's Proposed Recommended Order, paragraph 13, page 20, did identify a treatment plan for Patient A.M. Having found that Mr. Carmouze did not err when he did not initiate intubation of A.M. earlier than he did, the evidence failed to prove that "he failed to maintain medical records that justified the course of treatment in that he failed to record a reason for not intubating sooner in an attempt to address Patient A.M.'s respiratory distress." There is no indication in Mr. Carmouze's medical records for A.M. that Mr. Carmouze attempted to contact Dr. Ajit or Dr. Fernandez-Gonzalez. The medical records do indicate, however, that A.M.'s primary physician, Dr. Sanaullah, was "notified and arrived for code." While the evidence did not prove who notified Dr. Sanaullah, Petitioner failed to prove that Mr. Carmouze was not responsible for Dr. Sanaullah's notification. Mr. Carmouze failed to identify himself by name or professional title in A.M.'s medical records. He also failed to include Dr. Fernandez-Gonzalez's name and title in A.M.'s medical records. Mr. Carmouze did not ensure that either the signature of his supervising physician or Dr. Ajit was included on A.M.'s medical records. While the quality of Mr. Carmouze's medical records for A.M. was correctly characterized as "minimally acceptable" by Mr. Cary, the evidence failed to prove clearly and convincingly that those medical records were not adequate. This finding is based upon the lack of an unequivocal opinion from Mr. Cary concerning the adequacy of the medical records and a comparison of Mr. Cary's opinions with those of Dr. Lee in support of Mr. Carmouze's medical records for Patient A.M. Mr. Cary, on the one hand, made the following negative comments about Mr. Carmouze's medical records for A.M: "[T]he record isn't really clear on what did happen because he did not write down any times on intervention of what he did." Petitioner's Exhibit numbered 1, page 14; "[W]hen you look at this face sheet here you don't get a picture of what happened and at what time, there's no real times there, no progression of the treatment." Petitioner's Exhibit numbered 1, page 67. Mr. Cary stated that there was no time noted in Patient A.M.'s history/physical section, and that a portion of that section was illegible. Petitioner's Exhibit numbered 1, page 21 and 25. On the other hand, Mr. Cary stated that "[the medical record for A.M.] is minimally acceptable, it just doesn't give a good clear picture of the sequence of events." Petitioner's Exhibit numbered 1, page 68. Mr. Cary also stated the following when asked if he thought Mr. Carmouze maintained medical records that justified the course of his treatment regarding Patient A.M.: "There were medical records that were there, I think they could have been more complete and more detailed . . . ." These statements, taking into account the fact that Mr. Cary was able to read almost all of Mr. Carmouze's medical record pertaining to A.M. on direct examination by counsel for Mr. Carmouze, reduces the effectiveness of his other opinions. Finally, it is noted that all of Mr. Carmouze's experts, along with Mr. Cary, were able to read Mr. Carmouze's notes, other than a word or two. Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M. Patient C.M. On April 23, 2002, Patient C.M., a 20-year-old male presented to Mr. Carmouze at Weems' ER. C.M. complained of a server headache. In pertinent part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril. Patient J.S. On April 24, 2002, Patient J.S., a 37-year-old female presented to Mr. Carmouze at Weems' ER. J.S. complained of a burn. In pertinent part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril. Patient B.M. On April 24, 2002, Patient B.M., a 46-year-old female, presented to Mr. Carmouze at Weems' ER. B.M. complained of a headache of two-days' duration. In pertinent part, Mr. Carmouze ordered 25 milligrams of Demerol administered to B.M. at the ER. Mr. Carmouze noted in the medical record for B.M. a diagnosis of scabies/headache cluster, severe. This is the only diagnosis made at Weems' ER for B.M. Patient R.M. On April 24, 2002, Patient R.M., a 73-year-old male, presented to Mr. Carmouze at Weems' ER. R.M. complained of abdominal pain and constipation of several days’ duration. In patient part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril administered to R.M. at the ER. Mr. Carmouze noted in the medical record for R.M. a diagnosis of abdominal pain, impaction. This is the only diagnosis made at Weems' ER for R.M. Patient M.F. On April 25, 2002, Patient M.F., a 34-year-old female, presented to Mr. Carmouze at Weems' ER. M.F. complained of left-flank pain. In relevant part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril administered to M.F. at the ER. Mr. Carmouze noted in the medical record for M.F. a diagnosis of left-flank pain, left nephrolithiasis. Patient G.C. On June 7, 2002, Patient G.C., a 20-year-old male, presented to Mr. Carmouze at Weems' ER. G.C. complained of right-flank pain. In relevant part, Mr. Carmouze ordered two separate doses of Demerol, 50 milligrams each, and Vistaril, 50 milligrams each. Patient G.B. On June 7, 2002, Patient G.B., an 83-year-old female, presented to Mr. Carmouze at Weems' ER. G.B. complained of wrist, knee, and leg pain, secondary to a fall. In relevant part, Mr. Carmouze ordered two separate doses of Demerol, 50 milligrams each, and Vistaril, 50 milligrams each. Mr. Carmouze noted in the medical record for G.B. a diagnosis of chest contusion, leg edema, and right Colles' fracture. This is the only diagnosis made at Weems' ER for G.B. Patient K.S. On June 8, 2002, Patient K.S., an 18-year-old female, presented to Mr. Carmouze at Weems' ER. K.S. complained of lower back pain secondary to a fall. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for K.S. a diagnosis of intractable back pain, trauma to spine. This is the only diagnosis made at Weems' ER for K.S. Patient C.W. On June 8, 2002, Patient C.W., a 46-year-old female, presented to Mr. Carmouze at Weems' ER. C.W. complained of headache and dizziness. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for C.W. a diagnosis of headache and anemia. This is the only diagnosis made at Weems' ER for C.W. Patient M.A.C. On June 9, 2002, Patient M.A.C., a 49-year-old female, presented to Mr. Carmouze at Weems' ER. M.A.C. complained of pain in the lower right abdomen and back. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for M.A.C. a diagnosis of diabetes mellitus and abdominal pain. This is the only diagnosis made at Weems' ER for M.A.C. Patient R.S. On June 9, 2002, Patient R.S., a 34-year-old male, presented to Mr. Carmouze at Weems' ER. R.S. complained of shoulder pain. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for R.S. a diagnosis of right shoulder tendon tear. This is the only diagnosis made at Weems' ER for R.S. Patient K.M. On June 11, 2002, Patient K.M., a 52-year-old male, presented to Mr. Carmouze at Weems' ER. R.S. complained of wrist pain secondary to a fall. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for K.M. a diagnosis of a Colles' fracture. This is the only diagnosis made at Weems' ER for K.S. Facts Common to Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M. Mr. Carmouze did not note in his medical records for Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M. (hereinafter referred to jointly as the "Pain Patients "), that he had consulted with Dr. Fernandez- Gonzalez or Dr. Ajit prior to ordering Demerol for the Pain Patients. Demerol is a controlled substance. Dr. Fernandez-Gonzalez' testimony regarding alleged consultations he had with Mr. Carmouze concerning the Pain Patients and other patients seen by Mr. Carmouze while at Weems is rejected as lacking credibility for the reasons explained, supra. Mr. Carmouze also failed to note in the medical records for the Pain Patients his name and professional title. His name was stamped on the Emergency Room Record he completed for Patients M.A.C., G.M., and R.S. His name was also written into the space under "Time/Initials" on the Emergency Room Record for Patients M.A.C., C.W., R.M., and J.S. None of these records, however, included his title of "physician assistant." Mr. Carmouze failed to identify Dr. Fernandez-Gonzalez or Dr. Ajit by name and professional title in the medical records of the Pain Patients. Mr. Carmouze failed to ensure that the signature of Dr. Fernandez-Gonzalez or Dr. Ajit was included in the medical records of the Pain Patients. The Other "106 Patients". While at Weems ER, Mr. Carmouze provided medical services, in addition to A.M. and Pain Patients, to 106 other patients at issue in this case (hereinafter referred to as the "106 Patients"). Petitioner's Exhibit numbered 4 is a composite exhibit of medical records for the 106 Patients. There are approximately two patients for whom more than one medical record has been included in Petitioner's Exhibit numbered 4. The foregoing findings relate to the 108 medical records for the 106 Patients. Mr. Carmouze failed to note in most of the medical records for the 106 Patients his name and professional title. Of the approximately 108 records, Mr. Carmouze's name does not appear in any fashion on 48 of them. The rest either include his name (but not title) either stamped on the record or written into the box titled "Time/Initials." On two of the medical records both Mr. Carmouze's name and "P.A." have been written into the box titled "Time/Initials." Mr. Carmouze failed to identify Dr. Fernandez-Gonzalez or Dr. Ajit by name and professional title in the medical records of the 106 Patients. Mr. Carmouze did not ensure that either the signature of his supervising physician or Dr. Ajit was included on the medical records of the 106 Patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that, Arnaldo Carmouze, P.A., has violated Subsections 458.331(1)(m) and (v), Florida Statutes, as described in this Recommended Order; issuing a reprimand; placing Mr. Carmouze's license on probation for one year; requiring that he pay an administrative fine of $5,000.00; requiring that he perform five hours of CME in a subject(s) determined appropriate by the Board; and suspending his license for six months (with the suspension stayed provided he complies with probation). DONE AND ENTERED this 13th day of December, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2006. COPIES FURNISHED: Irving Levine Matthew Casey Assistants General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Julie Gallagher, Esquire Greenberg Taurig, P.A. 101 East College Avenue Tallahassee, Florida 32301 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. M. Rony François, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact At all times, material hereto, Respondent Antonio J. Maniglia, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in December, 1962. He came to the United States in 1963, and has practiced from then until the present date. He was licensed as a medical doctor by the State of Florida in 1971. On or about February 11, 1976, Maury Braga appeared at Respondent's office requesting to see him. Respondent had never before met Braga and had never heard of him. Braga brought with him a letter of introduction from a processor in Brazil whom Respondent knew. Braga advised Respondent that, he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of, obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: - I, Antonio J. Maniglia, M. D., F.A.C.S., of 1776 NW 10th Ave, Miami, Florida 33136, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Faculdade de Ciencias Medicas de Santos and did lawfully prac- tice the profession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same, profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents, Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. "On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977 No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Dr. Steven D. Shanklin is a Doctor of Osteopathy, maintaining a general practice at 3304 Giddens Street, Tampa, Florida, 33610. During the year 1980, Dr. Shanklin treated numerous Medicaid patients and received payment for these services from the Department of Health and Rehabilitative Services as agent for Medicaid payments in the State of Florida. In 1981 the Department of Health and Rehabilitative Services conducted a routine, computerized assessment of payments made to its Medicaid providers. This assessment identified the respondent for further audit. A level two audit was conducted, which resulted in the Department of Health and Rehabilitative Services requesting 30 specifically identified patient files from Dr. Shanklin. The 30 designated patient files were identified as the result of a disproportionate random sample, which groups by the dollar volume of services rendered. In this method, the total dollar value of Medicaid services is divided by five and the total patient population divided into five subsets in which the value of the services rendered to all the patients in the subset equals 1/5 of the total dollar volume of Medicaid payments. The practical result of the disproportionate random sample is that the subsets become smaller as the dollar value of the services rendered for each individual patient becomes greater. Specifically, in this case, there were 471 patients in subset one, 202 in subset two, 130 in subset three, 78 patients in subset four, and 43 patients in subset five. A sample of six patients was taken from each subset for a total of 30. This is a statistically significant sample of Dr. Shanklin's total Medicaid patient population. Dr. Shanklin transmitted to the Department of Health and Rehabilitative Services 28 of the files specifically identified by the Department of Health and Rehabilitative Services. In addition, Dr. Shanklin provided the Department of Health and Rehabilitative Services two additional files for patients having the same last name as patients whose file had been requested by HRS. The Department of Health and Rehabilitative Services forwarded 30 files to the Peer Review Committee of the Florida Osteopathic Medical Association, which was chaired by Dr. H. Jerome Koser, D.O. The Peer Review Committee consisted of seven Doctors of Osteopathy, five of whom were general practitioners, and two of which were specialists. The Peer Review Committee set aside two of the files furnished them by the Department of Health and Rehabilitative Services, which contained no records. The remaining 28 files were divided among the seven reviewing doctors, each of whom reviewed approximately four files. The individual files were not assessed by the Peer Review Committee acting as a whole, or by a sub-grouping of the Committee. The Peer Review Committee identified seven files in which the reviewing Doctor determined there was over-utilization. In the Peer Review Committee's group discussion, the Committee determined that the over-utilization was minimal. As Chairman of the Committee, Dr. H. Jerome Koser prepared a letter of June 20, 1983 which published the Committee's findings. A copy of Dr. Koser's letter of June 20, 1983 was forwarded to the Department of Health and Rehabilitative Services together with the 30 files which HRS had forwarded to the Peer Review Committee. Upon receipt of the Peer Review Committee's findings, the assigned auditor and Orson Smith, M.D., specializing in Cardiology reviewed the files. Dr. Smith and the Department's auditor determined there was over-utilization in 18 of the 30 cases as indicated in the recoupment determination received as an attachment to petitioner's exhibit nine, the claim letter of October 11, 1983. Based upon the determination of over-utilization by the Department's auditor and Dr. Smith, a percentage of over-utilization in each of the five subsets was determined which was then extended to the total patient population and the amount of recoupment calculated. The recoupment determination form, referenced above, provides as follows: "This form explains how the amount of the recoupment was determined in the peer review process. All of the claims for the sample of recipients were returned to the Medicaid Office by the Florida Osteopathic Medical Association with a cover sheet indicating whether or not there exists misutilization or over-utilization for each recipient. The claims were then reviewed by the Medicaid Medical Consultant to determine the claims that were for services considered to be not medically necessary and that are consequentially being denied in light of the findings of the Peer Review Committee. This first step in the determination is to find the average amount paid, and the average overpayment for the recipients in each stratum of the sample as indicated in this chart:" Based upon the calculations, it was determined that Dr. Shanklin was overpaid $7,808.39.
Recommendation Having found that the amount of recoupment was not based upon the seven specific files identified by the Peer Review Committee as the rules require, it is recommended that the Department not recoup the $7,808.30 originally claimed. DONE and RECOMMENDED this 20th day of September, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1984. COPIES FURNISHED: Robert V. Pierce, Supervisor HRS Medicaid Investigative Services 1317 Winewood Boulevard Building 6, Room 271 Tallahassee, Florida 32301 Ted Mack, Esquire HRS Assistant General Counsel 1323 Winewood Boulevard Building 1, Suite 407 Tallahassee, Florida 32301 S. D. Shanklin, D.O., pro se 3304 East Giddens Avenue Tampa, Florida 33610
The Issue Whether Octavio J. Carreno, M.D. ("Respondent" or "Dr. Carreno"), is liable to the Agency for Health Care Administration ("AHCA," "Agency," or "Petitioner") for an overpayment in the amount of $121,641.42 for certain claims for services during the audit period of January 1, 2012, through December 31, 2014, that in whole or in part were not covered by Medicaid. Whether Respondent is liable to Petitioner for a sanction in the amount of $24,328.28 pursuant to Florida Administrative Code Rule 59G-9.070(7)(e). Whether Respondent is liable to Petitioner for Petitioner's incurred investigative, legal, and expert witness costs, which Petitioner contends it is entitled to recover pursuant to section 409.913(23)(a), Florida Statutes (2014).
Findings Of Fact Based on the evidence presented at the hearing, and the record as a whole, the undersigned makes the following findings of material and relevant facts: Agreed Facts in Parties' Amended Joint Prehearing Stipulation Petitioner is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act. This program of medical assistance is referred to as the "Medicaid program." See § 409.902, Fla. Stat.; JPS ¶ E12. Petitioner has the responsibility for overseeing and administering the Medicaid program for the state of Florida, pursuant to section 409.913. JPS ¶ E13. The Medicaid provider agreement is a voluntary contract between AHCA and Respondent. An enrolled Medicaid provider must comply fully with all state and federal laws pertaining to the Medicaid program, including Medicaid provider handbooks incorporated by reference into rule, as well as all federal, state, and local laws pertaining to licensure to receive payment from the Medicaid program. JPS ¶ E14. During the audit period, Respondent was an enrolled Medicaid provider and had a valid Medicaid provider agreement with AHCA, Medicaid Provider No. 002993600. JPS ¶ E2; Pet. Ex. 1. AHCA's Bureau of Medicaid Program Integrity ("MPI"), pursuant to its statutory authority, conducted an audit of Respondent for Medicaid claims it paid to him for medical services he provided to Medicaid recipients, occurring during the time period from January 1, 2012, through December 31, 2014. JPS ¶¶ E1 and E4. AHCA issued a FAR dated March 15, 2016, MPI Case ID No. 2015-0003243, alleging that Respondent was overpaid $139,250.66 for certain services that are not covered by Medicaid. In addition, the FAR informed Respondent that AHCA was seeking to impose a fine of $27,850.13 as a sanction for violation of rule 59G-9.070(7)(e) and seeking costs pursuant to section 409.913(23). The amounts of the overpayment and the sanction were revised, after the FAR was issued, to $121,641.42 and $24,328.28, respectively. JPS ¶ E5. The FAR, supported by the Agency work papers, constitutes evidence of the overpayment to Respondent pursuant to section 409.913(22). JPS ¶ E15. In the FAR section entitled "Findings," AHCA set forth the bases for the overpayment determinations. JPS ¶ E6. The claims which make up the overpayment alleged by AHCA were filed by and paid to Respondent prior to the initiation of this action. JPS ¶ E7. There is no dispute from Respondent as to the process of the statistical sampling or the statistical methods utilized to establish the validity of the overpayment calculation utilized by AHCA. JPS ¶ E16. Additional Facts Adduced at the Hearing Ms. Robi Olmstead, an administrator of the Practitioner Unit at AHCA, under the Offices of the Inspector General, MPI, testified regarding her experience and role in the audit of Respondent. MPI is required by federal and Florida law to investigate medical providers for fraud, abuse, or overpayments. Olmstead cited section 409.913 as the authority to investigate Medicaid providers, including Respondent. The instant case against Respondent was opened based on a referral from one of the investigators who noticed "a significant portion of Dr. Carreno's office visits" (evaluation and management or "E&M" codes) were billed at high levels. Olmstead also independently confirmed this in her review of the data. Olmstead opened the audit, set the coverage dates of the audit period, and assigned the matter to an AHCA investigator. The investigator obtained a list of claims for 40 random recipients from the Agency's cluster sample program. After the sample was obtained, Petitioner then requested the medical records of the sample recipients from Respondent. Pet. Ex. 2. Petitioner utilized the services of a peer consultant, Ellen D. Silkes, M.D. Dr. Silkes meets the requirements and qualifications of a "peer" as defined in section 409.9131. JPS ¶ E17. Dr. Silkes practices the same specialty or sub-specialty as Respondent and is licensed under the same chapter. Pet. Ex. 6, p. 147. Both Dr. Silkes and Dr. Carreno are otolaryngologists, commonly referred to as ear, nose, and throat ("ENT") doctors. The medical records received from Respondent were reviewed by the AHCA investigator and by an AHCA registered nurse consultant and then sent to the peer reviewer, Dr. Silkes, along with other relevant documents, including the worksheets generated by the claims sample process. When the medical records were returned to the Agency with the peer's comments, the Agency calculated the amount of the overpayments. The peer reviewer's role is to make determinations of medical necessity and levels of service. Decisions as to the lack of documentation are made by a combination of the peer reviewer and the Agency nurse consultant. After the agency and peer review were completed, a Preliminary Audit Report ("PAR")(Pet. Ex. 4) was sent to Respondent on December 14, 2015. After the receipt of the PAR, Respondent had the opportunity to submit additional medical records to the Agency for consideration. This was done by Respondent. The FAR (Pet. Ex. 5) was then issued on March 15, 2016. The FAR made multiple findings delineating the reasons for the overpayments, including improper "consult" claims, reductions for levels of service, insufficient or no documentation to support claims, improper claims for global procedures, errors in coding, and lack of medical necessity for certain procedures. Pet. Ex. 5, pp. 88-90. Subsequent to the FAR and prior to the final hearing, the review of additional information provided to the Agency by Respondent resulted in a reduction of the alleged overpayment to $121,641.42. JPS ¶ A; Pet. Ex. 19. Rule 59G-9.070(7)(e) addresses sanctions for failure to comply with the provisions of the Medicaid laws. For a first offense, there is a $1,000.00 fine per claim found to be in violation. AHCA initially found 86 violations. Pet. Ex. 6. After the state mandated cap of 20 percent was applied, the initial fine was set by the Agency at $27,850.13. Subsequently, based on the allowance of some claims submitted by Respondent with additional documents or clarification, the fine amount was reduced to $24,328.28. Pet. Ex. 19. The Agency considered all of the statutory factors when assessing the sanction. Olmstead considered the violations in this case to be "typical" and "nothing extraordinary" and did not enhance or reduce the sanctions. The Agency incurred costs in its investigation of this matter. However, costs have not yet been fully determined. Pet. Ex. 5, p. 150B. Based on Olmstead's experience, the audit was conducted in a routine and acceptable manner. Identification of the Disputed Claims Notably, in the JPS and again at hearing, the parties agreed that only the following "Disputed Claims" required factual findings and conclusions of law by the undersigned: Recipient #2 Claims 1, 2 and 3 Recipient #3 Claims 5, 11, 12, 13, 17, 18, 20, 21, 22, 24, 26, 28, 35 Recipient #25 Claim 11 Recipient #29 Claim 6 Recipient #30 Claims 1, 2, 4 None of the other audit determinations made by AHCA were challenged by Respondent at the hearing.1/ The parties agreed at the start of the hearing that the downward adjustments made by AHCA to Recipient #2, Claims 1 and 2, were agreed to and would not be disputed. The worksheets, as revised, now showed the peer's determination of those claims as properly payable at Current Procedural Terminology ("CPT") Code 99213. Pet. Ex. 19. Evaluation and Management Claims Many of the "Disputed Claims" are for E&M services, which are office visits, and specifically in this audit, office visits for established patients of Respondent. In order to properly code and bill the appropriate level of E&M services for an encounter with an established patient, the medical records must establish that two of the three key components (i.e., history, examination, and medical decision- making) meet or exceed the stated requirements of that level of service. In some cases, time spent with the patient is considered a key factor as well. Pet. Ex. 13, p. 271. For encounters with established patients, the CPT Code (2012) provides in pertinent part, as follows: 99212 - Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these three key components: A problem focused history;A problem focused examination;A problem focused examination. 99213 - Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these three key components: An expanded problem focused history;An expanded problem focused examination;Medical decision making of low complexity. 99214 - Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these three key components: A detailed history;A detailed examination;Medical decision making of moderate complexity. Pet. Ex. 13, p. 273. There was no evidence to suggest that the CPT codes for these procedures changed at any time during the audit period between 2012 and 2014. As a result, the CPT codes admitted were properly relied upon by the parties. Pet. Ex. 13. As mentioned, the key components of coding an E&M encounter are the examination, the history, and the medical decision-making required of the physician. Pet. Ex. 13. The CPT codes from 99211 to 99215 are also referenced as Levels 1 through 5 with the main difference being the complexity and extent of the visit and examination. Counseling and/or coordination of care with the patient and/or family can be a controlling factor in coding the proper level. However, the CPT code notes provide that the "extent of counseling and/or coordination of care must be documented in the medical record." Pet. Ex. 13, p. 271. The Florida Medicaid Provider General Handbook provides that "[m]edical goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient's medical records." Pet. Ex. 9, pp. 169-173.2/ The undersigned undertook a careful and meticulous review of the record. This included reading Transcript testimony, reviewing manuals and handbooks provided, and comparing and cross-referencing the hearing testimony to the worksheets and handwritten medical notes and other records prepared by Respondent. Findings of Fact on Disputed Claims Recipient #2, Claim 3. Respondent submitted this claim using CPT Code 69200. Pet. Ex. 15-2, p. 376-A. Dr. Silkes testified that there was a myringotomy tube that was placed in the ear by Respondent. The tube is not considered a foreign body, and Medicaid does not pay for its removal when inserted by the original doctor. She concluded that removal of the tubes is not properly billed as CPT Code 69200. This conclusion is also supported by provisions of the Physicians Services Handbook (Pet. Ex. 13, p. 199), which does not permit additional billing under global surgery packages for the removal of "items such as tubes, drains . . . ." (see bullet point 6 entitled "Miscellaneous Services and Supplies). This restriction does not place any time limit when the non-reimbursable "miscellaneous service" is performed, even outside the normal 90- or ten-day time period. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of the tubes fell under the exclusion of miscellaneous services or did not otherwise qualify for reimbursement (Pet. Ex. 13, p. 199). The claim was properly denied. Recipient #3, Claim 5. Respondent submitted a claim using CPT Code 31237 for services on January 30, 2012, Nasal/Sinus Endoscopy Surgery. Pet. Ex. 15, pp. 376 (worksheet) and 387 (medical record). Dr. Silkes denied this claim because she could not find documentation to support the procedure. However, there is documentation at Petitioner's Exhibit 15, page 387, included in a contemporaneous office note for January 30, 2012. It indicates on the fifth line that Respondent performed a nasal endoscopy ("nasal endo") and that he did bilateral debridement of the sinuses. He found crusting on the right, and the right sphenoid sinus was narrow. Dr. Silkes testified that she may have misread the nasal endo reference and that Dr. Carreno may be correct on that point. The undersigned credits and finds more persuasive Respondent's evidence and finds that the claim should have been paid as requested and coded. Recipient #3, Claim 11. Respondent submitted a claim using CPT Code 31231 for services on June 13, 2012, nasal endo. Pet. Ex. 15, pp. 377 (worksheet) and 388 (medical record). Dr. Silkes denied this claim because she did not find anything in the medical record to support billing for this service. The supporting medical note documents a nasal endo in the middle of the notes. Respondent wrote in the assessment and plan ("A/P") "looks good but mucocele of right sphenoid." Also, he testified that if he did not do the endoscopy, he could not have seen the right sphenoid. The undersigned credits and finds more persuasive Respondent's evidence and finds that the claim should have been paid as requested and coded. Recipient #3, Claim 12. This claim was adjusted from CPT Code 99214 to 99212 by Dr. Silkes. She concluded that the medical records failed to properly document an examination and the medical decision-making was straightforward. Pet. Ex. 15-3, p. 377. The undersigned credits and finds more persuasive AHCA's evidence and finds that the code should be reduced to CPT Code 99212. Recipient #3, Claim 13. This claim was denied by AHCA on the basis that the examination of July 30, 2012, was included within a global surgical fee package. The surgery was performed on August 13, 2012, after the decision to perform the surgery was made on July 16, 2012. Pet. Ex. 15-3, pp. 378 and 389. The Physicians Services Coverage and Limitations Handbook (Pet. Ex. 11, p. 199) provides as follows: Evaluation and management services, subsequent to a decision for surgery visit, that are limited and focused to determine the health of the individual prior to surgery are included in the global surgery package and may not be billed separately. The primary purpose of the visit on July 30, 2012, was an examination to determine the health of the individual. The patient visit was limited in scope and should be included in the global surgical package. The surgical decision was made prior to this encounter, and the surgery occurred after it. The undersigned credits and finds more persuasive ACHA's evidence and finds that the claim was properly denied. Recipient #3, Claim 17. Respondent submitted a claim for services performed on January 14, 2013, office outpatient visit. Pet. Ex. 15, pp. 378 (worksheet) and 392 (medical record). Dr. Silkes down-coded this from CPT Code 99214 to 99212, because "only nasal examination was performed with cultures and he [the patient] was told to return for a full examination." She said the history was problem focused, the exam was problem focused, and the decision-making was straight forward. Both Dr. Carreno and his coding witness, Lorraine Molinari, pointed out that the record says that the visit lasted "30 minutes." This factor justifies a claim under CPT Code 99214. Also, the visit involved a more detailed and extensive examination of the nasal areas by Respondent. The undersigned credits and finds more persuasive the evidence presented by Respondent, particularly due to the amount of time devoted to this visit. It was properly coded as CPT Code 99214. Recipient #3, Claim 18. Respondent submitted a claim using CPT Code 99214 for an office outpatient visit on February 13, 2013. Pet. Ex. 15, pp. 378 (worksheet) and 392 (medical record). Dr. Silkes down-coded this to CPT Code 99213, opining that Dr. Carreno only performed an expanded problem focused history, expanded problem focused examination, and the decision- making was of low complexity. Dr. Carreno characterized this patient as one of the most complicated medical cases he has handled. The patient had a myriad of medical problems related to his ENT systems. Dr. Carreno and Molinari stated that the visit included an extensive conversation with the patient and his mother, and he also had to review and consider information from Dr. Ramos (immunologist's) notes. Dr. Carreno documented a left maxillary sinus suctioned under endoscopy. The extent of his note and documentation is reflective of a more extensive and complex examination and visit. Molinari opined that it should be CPT Code 99214. The undersigned credits and finds more persuasive the evidence presented by Respondent, particularly due to the complexity of the examination. It was properly coded as CPT Code 99214. Recipient #3, Claim 20. This claim was adjusted from CPT Code 99214 to 99213 by Dr. Silkes. She opined that the examination was only problem focused ("nasal exam only") and that there were no other records that would support the higher level of services claimed. Pet. Ex. 15-3, pp. 379 and 393. Additionally, there was no documentation to support a higher level claim under CPT Code 99214, nor was the use of an endoscope documented. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and ACHA. The claim was properly reduced to CPT Code 99213. Recipient #3, Claim 21. Respondent submitted this claim using CPT Code 31231, a nasal endo code. Pet. Ex. 15-3, pp. 379 and 393. Dr. Silkes testified she did not find any documentation in the record that would show that an endoscopy was performed on that date, but did allow an office visit for the same date where a nasal exam was performed (Claim 20, adjusted from CPT Code 99214 to 99213). The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The claim was properly reduced to CPT Code 99213 primarily for failure to properly document that an endoscopy was performed. Recipient #3, Claim 22. Respondent submitted a claim using CPT Code 99214 for services on June 17, 2013, office outpatient visit. Pet. Ex. 15, pp. 379 (worksheet) and 393 (medical record). Dr. Silkes testified that she reduced this to CPT Code 99213 because only a nasal examination was done which is a problem focused examination. She concluded that the ear, nose, and throat were not examined. Dr. Carreno testified that it was not only a nasal exam. His contemporaneous notes reference an "endoscopic debridement" on the third line, which means he used an endoscope to see in the nose and clean fungal content out with suction and graspers. Molinari opined that the visit should remain CPT Code 99214 because the medical decision-making reflected in the note was at least moderate complexity. The undersigned credits and finds more persuasive the evidence presented by Respondent. The use of an endoscope and performing the debridement procedure were sufficiently documented. The services performed supported coding as CPT Code 99214. Recipient #3, Claim 24. This claim by Respondent was adjusted from CPT Code 99214 to 99213 by Dr. Silkes. She opined that "only a nasal examination was done" and that the examination and history were both either problem focused or expanded problem focused. Pet. Ex. 15-3, pp. 379 and 394. Respondent's witness, Molinari, agreed with Dr. Silkes' adjustment. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The claim was properly reduced to CPT Code 99213 primarily because the visit only involved a less complicated nasal examination. Recipient #3, Claim 26. Respondent submitted a claim using CPT Code 99214 for services on January 8, 2014, office outpatient visit. Pet. Ex. 15, pp. 380 (worksheet) and 395 (medical record). Dr. Silkes down-coded it to CPT Code 99213 because "only the nose was examined." However, Dr. Carreno testified that he performed a fiberoptic laryngoscopy, using an endoscope, to inspect for any fungal debris. This was sufficiently documented in his contemporaneous office notes. He also used the scope to view the nasopharynx. His notes also reflect that a physical exam (PE) was performed. Molinari felt the claim should remain CPT Code 99214 because the medical decision-making was of moderate complexity. The undersigned credits and finds more persuasive the evidence presented by Respondent. The use of a scope to inspect the nasal passages and nasopharynx were sufficiently documented. The services performed supported his coding as CPT Code 99214. Recipient #3, Claim 28. The claim submitted was adjusted from CPT Code 99214 to 99213 by Dr. Silkes. She opined that "only the nose was examined" and that there were no other records that would support the higher level. Pet. Ex. 15-3, pp. 380 and 395. Further, there was no documentation that an endoscope was used. The undersigned credits and finds more persuasive the evidence from Dr. Silkes and AHCA. The claim was properly reduced to CPT Code 99213, primarily because the visit involved a less complicated nasal examination. Recipient #3, Claim 35. Respondent submitted a claim under CPT Code 31237 for services on April 30, 2014, Nasal/Sinus Endoscopy Surgery. Pet. Ex. 15, pp. 381 (worksheet) and 395 (medical record). Dr. Silkes denied this claim because she felt that this was included in the global surgery package for the septoplasty that was performed on April 21, 2014. A "septoplasty" is where you move the septum in the nose if it is causing problems with sinuses or breathing. In her view, Claim 35 was a normal post- operative visit, namely, to remove the splint. Dr. Carreno testified and conceded that "yes, I did remove the splints, but I also needed to place the endoscope to assess the sinus surgical site. And not only did I assess it, but I cleaned it and debrided it, and it clearly said cleaned, debrided, endo shows." Dr. Carreno acknowledged that a septoplasty procedure has a 90-day global period, but testified that a global surgery package does not apply to a sinus endoscopy and debridement following the sinus surgery. The undersigned credits and finds more persuasive the evidence presented by Respondent. It was medically prudent and necessary to use an endoscope post-operatively for inspection and debridement, and this was sufficiently documented. The services performed supported coding as CPT Code 31237. Recipient #25, Claim 11. Respondent submitted this claim using CPT Code 69200. Pet. Ex. 15-25, p. 782. Dr. Silkes testified that there was a myringotomy tube that was placed in the ear by Respondent. The tube is not considered a "foreign body," and Medicaid does not pay for its removal when inserted by the original doctor. She concluded that removal of the tubes is not properly billed as CPT Code 69200. This conclusion is supported by provisions of the Physicians Services Handbook (Pet. Ex. 13, p. 199), which does not permit additional billing under global surgery packages for the removal of "items such as tubes, drains . . . ." This is found under bullet point 6 entitled "Miscellaneous Services and Supplies." This restriction does not place any time limit on when the non-reimbursable "miscellaneous service" is performed, even outside the normal 90-day time period. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of the tubes fell under the exclusion for miscellaneous services or did not otherwise qualify for reimbursement. Pet. Ex. 13, p. 199. The claim was properly denied. Recipient #29, Claim 6. Respondent submitted this claim using CPT Code 69200. Pet. Ex. 15-29, p. 830. Dr. Silkes testified that there was a myringotomy tube that was placed in the ear by Respondent. The tube is not considered a "foreign body," and Medicaid does not pay for its removal when inserted by the original doctor. She concluded that removal of the tubes is not properly billed as CPT Code 69200. This conclusion is supported by provisions of the Physicians Services Handbook (Pet. Ex. 13, p. 199), which does not permit additional billing under global surgery packages for the removal of "items such as tubes, drains. . . ." (see bullet point 6 entitled "Miscellaneous Services and Supplies"). This restriction does not place any time limit on when the non-reimbursable "miscellaneous service" is performed, even outside the normal 90-day time period. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of the tubes fell under the exclusion for miscellaneous services or did not otherwise qualify for reimbursement. Pet. Ex. 13, p. 199. The claim was properly denied. Recipient #30, Claim 1. This claim was adjusted down from CPT Code 99214 to 99213 by Dr. Silkes. She opined that both the history and examination were problem focused and that the decision-making was straightforward. Pet. Ex. 15-30, pp. 856 and 861. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The claim was properly adjusted to CPT Code 99213. Recipient #30, Claim 2. This was submitted under CPT Code 69210. Dr. Silkes denied the claim citing a lack of documentation to show that any cerumen or ear wax was actually removed. The undersigned credits and finds more persuasive the evidence and conclusions from Dr. Silkes and AHCA. The removal of cerumen was not properly documented, and the claim should be denied. Recipient #30, Claim 4. Respondent submitted a claim for services using CPT Code 99214 for services on May 16, 2012, Office/Outpatient Visit. Pet. Ex. 19 (no Bates stamp numbers, as this was a late submission). After reviewing several late-filed documents from Respondent, Dr. Silkes down-coded this to CPT Code 99213 because there was an expanded problem focused history, there was a problem focused examination, and medical decision- making was of low complexity. Dr. Carreno explained that the claim should be allowed as CPT Code 99214 because he examined four separate body systems or areas. He examined the throat due to enlarged tonsils and enlarged adenoids, he examined the ear for infection, he took the patient's temperature and weight in connection with sleep apnea, and he examined the nose. He also rescheduled the patient for surgery and discussed the risks and benefits of surgery with the parents. Molinari testified that it should be allowed as a CPT Code 99214 because the decision-making was, at least, of moderate complexity, including a detailed examination of pallet, tonsils, and sinuses, as well as explaining the risk and benefits of surgery to the parents. The undersigned credits and finds more persuasive the evidence presented by Respondent. This visit involved a more detailed and extensive examination of the patient and justified a claim using CPT Code 99214.
Recommendation Based on the evidence covering the Disputed Claims during the audit period of January 1, 2012, through December 31, 2014, it has been established by a preponderance of the evidence that Respondent was overpaid for certain services not covered by Medicaid. Those overpayments are listed in paragraph 123 in the Conclusions of Law section. The undersigned recommends that the Agency for Health Care Administration enter a final order ordering Respondent to repay the recalculated amount. Considering the facts proven at the hearing, the Agency has established by clear and convincing evidence that Respondent failed to comply with the provisions of the Medicaid law for certain claims. Those overpayments are also listed in paragraph 123 in the Conclusions of Law section. It is recommended that the Agency recalculate and impose a sanction commensurately lower than the previous sanction, pursuant to rule 59G-9.070(7)(e). Pursuant to section 409.913(23)(a), the Agency's request of an award of reasonable investigative, legal, and expert witness costs as the prevailing party is granted, in part, based on a limited number of violations outlined in paragraph 123. If the amount of the costs cannot be agreed to, then the Agency may request a hearing for the establishment of the costs. DONE AND ENTERED this 22nd day of May, 2017, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 2017.
The Issue The issue in this case is whether Dr. Bala violated Chapter 893, Florida Statutes, and failed to adhere to the professional standards for examination, treatment and prescription for patients as set forth in Counts I through XXIX of the Administrative Complaint and thereby is in violation of Chapters 458 and 893, Florida Statutes.
Findings Of Fact The general Findings of Fact made in Part II above are hereby incorporated and made a part of these findings on Count XXVIII of the Administrative Complaint. Carol Mather first saw the Respondent at his professional office in January of 1979. On her first visit, Mather filled out a personal medical history in which she recorded she was allergic to codeine, and she had her blood pressure taken. She complained of frequent headaches. The Respondent examined Mather and determined she was four to five months pregnant. Mather knew this. Respondent also noted the needle tracks in Mather's arms from injecting drugs. The Respondent advised Mather she should not use drugs if she was pregnant. Mather told the Respondent she was an addict and was going to take drugs no matter where she got them. Respondent wrote two prescriptions for Mather on her first visit, each for 40 Dilaudid 4 mg., but only after she had signed a release for any harm to the baby. Mather had no recollection of her second visit to the Respondent's office, but she went one time in November, 1979, with Detective Sullivan. On this last occasion, Respondent did not prescribe any drugs for her. Expert medical testimony based upon the community standards was received that the prescription of Dilaudid for a patient complaining of migraine headaches, particularly a patient four to five months pregnant, was inappropriate.
Conclusions The Board has charged the Respondent with violation of Sections 893.05 and 893.13, Florida Statutes (1979); Subsection 458.1201(1)(m), Florida Statutes (1978 Supp.); and Subsections 458.331(1)(h), (q) and (t), Florida Statutes (1979). As stated above, Subsections 458.331(1)(h), (q) and (t), supra, were not effective until May 30, 1979. This was after the date Respondent prescribed Dilaudid for Carol Mather. These subsections may not be applied retroactively, and the Respondent may not be charged under them. Sections 893.05 and 893.13, Florida Statutes, as stated previously in this order, remained essentially unchanged in 1977 and 1979. However, Chapter 893, Florida Statutes (1979), does not grant authority to the Board to enforce its provisions. Enforcement of Chapter 893, supra, by the Board must be authorized under the provisions of Chapter 458, Florida Statutes (1978 Supp.). Subsection 458.1201(1)(k), Florida Statutes (1978 Supp.), authorizes the Board to discipline its licensees for violation of the statutes such as Section 893.05, supra. However, the Board has not charged the Respondent under Subsection 458.1201(1)(k) Florida Statutes (1978 Supp.), which was the only statute making a violation of Chapter 893, supra, grounds for discipline at the time these acts occurred. The expert testimony was uncontroverted that prescription of Dilaudid to a patient for migraine headaches, particularly a patient four to five months pregnant, would be inappropriate. The fact that Mather signed a waiver of liability and admitted addiction did not alter this opinion. Treatment of a pregnant woman with narcotic drugs creates a risk to the fetus which, according to the expert testimony, is a fact widely known within the medical profession for many years. The record is clear that Respondent knew Mather was addicted to drugs and was pregnant and gave her two prescriptions, each of which was for 40 Dilaudid 4 mg. The testimony and evidence do show a violation of Subsection 458.1201(1)(m), Florida Statutes (1978 Supp.). Applying the rule applicable to general statutes, if this provision was reenacted substantially in 1979, the prosecution under the repealed provision may be maintained. The conduct prohibited or punishable under Subsection 458.1201(1)(m), supra, is prohibited or punishable under Subsections 458.331(1)(q) and (t), Florida Statutes (1979). The Respondent is guilty of violating Subsection 458.1201(1)(m) , Florida Statutes (1978 Supp.).
Recommendation Having found the Respondent guilty as alleged in Counts IX, XII, XVII and XXVIII of the Administrative Complaint, the Hearing Officer recommends that the Board of Medical Examiners revoke the license of Dr. Clemente C. Bala, Jr., to practice medicine within the State of Florida. DONE and ORDERED this 31st day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 31st day of March, 1982.
Findings Of Fact Petitioner is the prevailing party in charges of medical malpractice initiated against him by Respondent herein. (Stipulation) Petitioner is a small business party as defined in Section 57.111, Florida Statutes. (Stipulation) No special circumstances exist which would make the award of fees and costs unjust. (Stipulation) Reasonable attorney's fees and costs exceed the maximum of $15,000 authorized to be awarded in these proceedings. (Stipulation) The initiation of the proceedings which resulted in an administrative complaint being filed naming Eric Grosch, M.D., as a party respondent followed disciplinary action instituted against Dr. Grosch by the Peer Review Committee at Humana Hospital, St. Petersburg, Florida, following the hospital death of a 74-year old female patient of Dr. Grosch. The investigator assigned to this case interviewed numerous witnesses at Humana Hospital, notified Dr. Grosch of his inquiry, and submitted an investigative report to the Department of Professional Regulation (DPR) with medical records. On the basis of this investigative report and medical records, an administrative complaint was prepared by DPR, and the investigative report with medical records was forwarded to the members of the Probable Cause Panel (PCP) with a recommendation to obtain an expert opinion on the standard of care issue. This panel met on January 19, 1990. At this meeting of the PCP, the panel members voted to refer the records to an expert who would submit his opinion on whether the evidence supported malpractice on the part of Dr. Grosch. By letter dated January 23, 1990, the hospital records and uniform complaint form were forwarded to Dr. Braunstein, who is board certified in the field of internal medicine, for his review and opinion as to whether Dr. Grosch failed to treat the patient with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. By letter dated April 13, 1990, Dr. Braunstein submitted his opinion that in the treatment of the subject patient, Dr. Grosch failed to adhere to the requisite standard of care. The investigative file, medical records and Dr. Braunstein's opinion were referred to a different PCP on June 2, 1991, for a determination if probable cause existed to file an administrative complaint. After having reviewed the evidence presented, this panel voted to proceed with the charges in the administrative complaint. During the meeting of this PCP, one of the members raised the question as to whether the administrative complaint addressed an issue relative to the alteration of some medical records by Dr. Grosch. DPR staff members at the PCP meeting agreed to look into the altering records issue and, if found warranted, to refer this issue back to the PCP. The administrative complaint and records were forwarded to Bruce Lamb, the DPR attorney assigned to prosecute the case. After reading the investigative report and interrogating the various witnesses named in the investigative report, Mr. Lamb found a conflict in the medical records discharge summary and the observations of witnesses regarding the administration of a sedative to the patient during the intubation process. The witnesses recalled the sedative being proposed after the intubation started, while the Respondent's discharge summary stated the sedation was given before the intubation was started. As a result of this discrepancy in the medical records and witnesses' versions of the sequence of events, Mr. Lamb prepared a proposed Amended Administrative Complaint adding factual paragraphs 20 and 21 and Counts 3 and 4 charging the filing of a report known to be false and making deceptive, untrue or false representations related to the practice of medicine. This Amended Administrative Complaint with investigative report, medical records and expert opinion was presented to a third PCP on October 12, 1990, and the panel voted to amend the original administrative complaint to include the additional counts shown in the proposed Amended Administrative Complaint. At the hearing on November 6, 1990, DOAH Case No. 90-4808, Dr. Grosch, Respondent, admitted factual allegations 20 and 21 in the Amended Administrative Complaint, and witnesses to testify to these facts were not called.
