The Issue At issue in this proceeding is whether the proposed amendments set forth in the Notice of Proposed Rule published on May 15, 2013, in the Florida Administrative Register, Vol. 39, No. 95, pages 2609 through 2610 and modified by the Notice of Change, published on March 12, 2015, in the Florida Administrative Register, Vol. 41, No. 49, pages 1236 through 1237, constitute an invalid exercise of delegated legislative authority,1/ and, if so, whether costs and attorney’s fees should be assessed against Respondent and paid to Petitioner.
Findings Of Fact The Petition Petitioners have challenged the Notice of Proposed Rule and Notice of Change as an invalid exercise of delegated legislative authority. The petitions request that a formal hearing be conducted, a final order be entered determining that the proposed rule is an invalid exercise of delegated legislative authority, award petitioners’ costs and attorneys’ fees, and provide such other relief as deemed necessary. The Parties Petitioner Fernandez is a Florida resident and patient with ongoing medical issues that requires him to request and obtain his medical records from his attending or treating physicians from time to time. Petitioner Dax J. Lonetto, Sr., PPLC, is a Florida-based law firm. Dax Lonetto is a Florida-licensed attorney and sole shareholder of the Lonetto PPLC law firm. Eighty-five to 90 percent of Mr. Lonetto’s practice involves social security disability benefits, and the remainder of his practice involves veteran’s benefits and other basic personal injury claims.6/ In order to pursue and obtain social security benefits or veteran’s benefits for clients, Mr. Lonetto must first obtain his clients’ medical records. Petitioner FJA is a statewide, not-for-profit, professional association of approximately 2,500 plaintiff trial attorneys. FJA’s purpose is engaging in advocacy efforts on behalf of its membership, strengthening and upholding Florida’s civil justice system, and protecting the rights of Florida’s citizens and consumers. Paul D. Jess is a Florida-licensed attorney who serves as the general counsel and deputy executive director for FJA. Mr. Jess provided no documentary evidence to support the position that most physician “offices or vendors would charge the maximum [amount] permitted [by the rule].” Mr. Jess admitted that FJA is not “directly injured by this price hike as an association or as a corporation,” because FJA does not order medical records. However, Mr. Jess testified that for the majority of FJA’s members, ordering medical records is a routine practice on behalf of their clients. Further, Mr. Jess believed that a majority of FJA members would be adversely impacted by this proposed rule, based on the increased costs in obtaining their clients’ medical records. Petitioner FCAN is a Florida not-for-profit grassroots organization dedicated to advocating for the rights of Florida consumers. William Newton served as the corporate representative for FCAN. Mr. Newton previously relinquished the full-time executive director’s position and now currently works part-time as FCAN’s deputy director. FCAN currently has about 7,000 individual members. FCAN is a nonpartisan organization which represents Florida consumers in four major issue areas: utilities, insurance, health care, and the environment.7/ With respect to the health care area, FCAN stands for affordable and available health care for everyone, with a focus on trying to improve accessibility, as well as to control the price of health care. Mr. Newton did not know how many of FCAN’s 7,000 members would be affected by the proposed rule change; however, he believed that “almost all of them would be” because they go to the doctor. The Board regulates the practice of medicine in Florida pursuant to chapters 456 and 458, Florida Statutes, and is the agency that is proposing the rule amendments at issue. Intervener BACTES is a release of information (ROI) provider that contracts with physicians in Florida and throughout the country to process and fulfill requests for medical records received by such physicians. William Bailey founded BACTES and served as its CEO from 1991 until July 2013, when he assumed a consultant status with the provider. Mr. Bailey confirmed that BACTES is currently operating in Florida with three offices located in Orlando, Ft. Myers, and Jacksonville. BACTES has no plans to discontinue doing business in Florida.8/ Intervener HealthPort is also an ROI provider that contracts with physicians in Florida and throughout the country to process and fulfill requests for medical records received by such physicians. Kyle Probst, HealthPort’s counsel and director of government relations, confirmed that HealthPort engaged Cynthia Henderson to approach the Board regarding making changes to the rule to “clear up some apparent confusion about how medical records should be billed in the state of Florida.” Intervener FMA is a professional association dedicated to the service and assistance of allopathic and osteopathic physicians in Florida. Approximately 20,000 licensed Florida physicians are members of the FMA. The parties agreed there are approximately 75,000 physicians licensed and regulated by the Board. Not all 75,000 Florida licensed physicians are currently practicing in Florida. The Statute and Current Rule Section 456.057(17), Florida Statutes, provides: A health care practitioner or records owner furnishing copies of reports or records or making the reports or records available for digital scanning pursuant to this section shall charge no more than the actual cost of copying, including reasonable staff time, or the amount specified in administrative rule by the appropriate board, or the department when there is no board. Section 458.309(1) provides in pertinent part: The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. Florida Administrative Code Rule 64B8-10.003 is the Board’s rule governing the costs of reproducing medical records. The rule was first adopted on November 11, 1987, as rule 21M-26.003. It was transferred to rule 61F6-26.003, then to rule 59R-10.003, amended on May 12, 1988, amended on March 9, 2009, and then finally transferred to rule 64B8-10.003. The rule currently provides: Costs of Reproducing Medical Records. Recognizing that patient access to medical records is important and necessary to assure continuity of patient care, the Board of Medicine urges physicians to provide their patients a copy of their medical records, upon request, without cost, especially when the patient is economically disadvantaged. The Board, however, also recognizes that the cost of reproducing voluminous medical records may be financially burdensome to some practitioners. Therefore, the following rule sets forth the permitted costs for the reproduction of medical records. Any person licensed pursuant to Chapter 458, F.S., required to release copies of patient medical records may condition such release upon payment by the requesting party of the reasonable costs of reproducing the records. For patients and governmental entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than the following: For the first 25 pages, the cost shall be $1.00 per page. For each page in excess of 25 pages, the cost shall be 25 cents. For other entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than $1.00 per page. Reasonable costs of reproducing x- rays, and such other special kinds of records shall be the actual costs. The phrase “actual costs” means the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs associated with such duplication. Specific Authority 456.057(18),9/ 458.309 FS. Law Implemented 456.057(18) FS. History-New 11-17-87, Amended 5-12- 88, Formerly 21M-26.003, 61F6-26.003, 59R-10.003, Amended 3-9-09. This rule was first created in 1987 and was effective in May 1988. In pertinent part, that first rule provided that chapter 458 licensees could condition the release of copies of patient medical records “upon payment . . . of reasonable costs of reproducing the records.” The rule then defined “reasonable costs of reproducing copies . . . [should] not be more than” a $1.00 for the first 25 pages and 25 cents per page in excess of 25 pages. In 2009, the rule was revised to allow patients and governmental entities to get copies of medical records at that same rate. For all other entities the “reasonable costs of reproducing copies . . . [should] not be more than $1.00 per page.” Over the course of 26 months, the Board had access to as much information as the Board staff and interested parties could provide it. The Board heard testimony in no fewer than nine public hearings.10/ The proposed rule language was dissected and discussed on multiple levels, and the Board devoted countless hours to listening to and evaluating those comments. Rule Development In June 2012, the Department of Health (Department) and the Board received an email correspondence on behalf of HealthPort requesting clarification on the costs for reproducing electronic medical records. That correspondence, the current rule 64B8-10.003, and the applicable statutes were placed on the agenda for the Board’s August 2012 Rules/Legislative Committee (RLC or Committee) meeting. At the August RLC meeting, the Committee discussed the requested action and heard from an attorney representing HealthPort. The Committee voted to table the item and seek additional information. The Board commenced rulemaking to amend rule 64B8-10.003 in early October 2012. At the RLC meeting on October 11, 2012, the Committee voted unanimously to recommend noticing this proposed change for rule development. The Board’s counsel was to draft language for a proposed rule change to be presented at the next RLC meeting. On October 30, 2012, a Notice of Development of Rulemaking (Notice) was published in the Florida Administrative Register. The Notice listed the “PURPOSE AND EFFECT: [as] The Board proposed the development of rule amendments to address the cost of reproduction of medical records which are stored in an electronic format.” At the November 2012 RLC meeting, the Committee received a draft rule proposal, excerpts of the October RLC meeting report, and materials from the October meeting. The Committee heard from various speakers on the proposed rule language. One Committee member suggested that the RLC would benefit from knowing what other state medical boards allowed physicians to charge. Another suggested the Board staff look at a different charge for paper versus electronic production. Following the discussion, the Committee approved two motions: one to move to one rate (but undecided on what that rate would be); and the second to have then Executive Director, Alison Dudley, “come back to [the RLC] with the aspects of what costs are elsewhere so that [the RLC could] make that decision about what that rate and particular medium” is, in order to move forward. The Board’s staff prepared a survey that was sent to administrators in medicine via a web portal, asking the following specific questions: Does your board have a rule or law that outlines what a physician can charge for medical records? Flat rate or per page? Does that law or rule delineate different charges for paper medical records versus electronic medical records? What are the charges? Does the law or rule delineate different charges for producing the medical records on paper versus on a CD? What are the charges? Does the law or rule contemplate charges for other services such as diagnostic tests or X-rays? What are the charges? Does your law or rule define “electronic medical record?” If so, what is that definition? Can you share your law and/or rule with us? Thank you for your responses. Of the 50 or so administrators contacted, the Board staff received 13 responses. Those responses were provided to the RLC for review. At the January 31, 2013, RLC meeting, the agenda included multiple items for the Committee’s consideration: the transcript from the November 29, 2013, RLC meeting; excerpts of the RLC report dated December 2012; an email from Ms. Henderson; a 2003 White paper; the costs charged by Florida Clerk of Courts, Florida hospitals, and other Florida health care boards; costs charged by other state medical boards; and all the materials presented at the prior meetings. The Committee received testimony from individuals regarding their understanding of how the proposed changes to the rule would or could affect their patient/clients. As a result of those comments and the RLC’s discussion, the Committee voted to have draft language prepared that included one fee for any records release with the following specific language: “stored and delivered in any format or medium.” The draft language was to be presented at the next RLC meeting. At the April 4, 2013, RLC meeting, the Committee agenda included excerpts from its January meeting, draft language, and an article regarding the federal Health Portability and Accountability Act (HIPAA) requirements. The Committee heard from individuals again and considered the various recommendations regarding the appropriate language for the proposed rule. The draft language presented at this RLC meeting, in the underline/strike-through method, provided the following: Costs of Reproducing Medical Records. Recognizing that patient access to medical records is important and necessary to assure continuity of patient care, the Board of Medicine urges physicians to provide their patients a copy of their medical records, upon request, without cost, especially when the patient is economically disadvantaged. The Board, however, also recognizes that the cost of reproducing voluminous medical records may be financially burdensome to some practitioners. Therefore, the following rule sets forth the permitted costs for the reproduction of medical records stored and delivered in any format or medium. Any person licensed pursuant to Chapter 458, F.S., required to release copies of patient medical records may condition such release upon payment by the requesting party of the reasonable costs of reproducing the records. For patients and governmental entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than the following: For the first 25 pages, the cost shall be $1.00 per page. For each page in excess of 25 pages, the cost shall be 25 cents. (2)(3) The For other entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than $1.00 per page. (3)(4) Reasonable costs of reproducing x-rays, and such other special kinds of records shall be the actual costs. The phrase “actual costs” means the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs associated with such duplication. Additionally, the Committee discussed the anticipated financial impact that the proposed changes would have on small businesses, including whether or not a statement of estimated regulatory costs (SERC)11/ was necessary. The Department staff could not say whether the proposed change would increase the Department’s cost in excess of $200,000 a year. Following the discussion, the Committee voted to table the SERC decision until additional information could be brought before the Board and the proposed draft rule language was approved. The full Board met on April 5 and approved the RLC report which included the approval of the draft rule language. Additionally, the Department staff reported that, after conferring with other staff in Tallahassee, the Department did not feel that the cost associated with the draft rule language would exceed $200,000 a year in the aggregate. The Board voted that a SERC was not required. Between the October 2012 Notice and the May 2013 publication of the proposed rule changes, the RLC met in noticed public meetings discussing the potential rule revision. The rule record is clear that the proposed changes were discussed extensively by Committee members with input from attorneys, residents, association representatives and corporate representatives. On May 15, 2013, a Notice of Proposed Rule (using the proposed language found in paragraph 26 above) was published in the Florida Administrative Register, Vol. 39, No. 95. The purpose for the proposed rule was to provide a single fee for reproducing medical records. The Board received a request for a hearing and numerous comments from the public on the proposed changes. The rule hearing was scheduled for the next available Board meeting. On August 2, 2013, the Board held a public hearing on the proposed rule in Deerfield Beach. The Board agenda included: the proposed rule 64B8-10.003; the rule hearing request; the rule hearing notice; a summary of the issue for Board consideration submitted by Ms. Henderson; copies of the notices sent regarding the hearing; meeting reports from the RLC meetings held on August 2, 2012, October 11, 2012, November 29, 2012, January 31, 2013, and April 4, 2013; and over 60 written comments. At the Board meeting over 15 people addressed the Board, expressing either opposition to or support of the proposed changes. As a result of the testimony received, the Board chair directed that the public rule hearing be transcribed and the transcript be sent to the RLC for its consideration and determination. At the Orlando RLC meeting on October 3, 2013, the Committee conducted a rule hearing on the proposed rule language. The RLC’s agenda included: draft proposed language for the rule; a draft RLC meeting report; a transcript from the August 2, 2013, rule hearing; an article regarding Florida doctors and medical records; and additional comments from seven different sources. The Committee was charged to consider the testimony from the August 2013 public rule hearing, as well as the testimony from this rule hearing to make recommendations to the full Board. The Committee heard testimony from individuals who either opposed or supported the proposed rule. The Committee members asked questions of the various presenters, and provided education to those presenters and attendees as to the multiplicity of medical practices, attendant issues, and personal experiences in dealing with medical records requests. The Committee agreed that the rule should be as set forth in the draft rule language. The Committee also agreed that there might be an “adverse impact” on small businesses, and that a SERC should be prepared. In November 2013, Board staff distributed a survey to 1,41912/ Florida-licensed physicians seeking responses to the following questions: Do you handle the copying of your medical records with your own staff? If yes continue to 1a. If no, go to Question 2. Yes. No. 1a. Do you have a designated staff person who only handles the review and copying of medical records? If yes, continue to 1b. If no, continue to 1c. Yes. No. 1b. How much do you pay this person on a monthly basis, including any benefits that are provided? 1c. How much do you spend on special equipment and supplies (copier, paper etc.) for the copying of medical records annually? If you send your medical records for copying by a service, how much do you pay each month for this service? On average, how many requests for copies of medical records do you receive each month? The Board staff received 28 responses from the 1,419 surveys sent out. Of those 28 responses, 27 handled the copying of medical records in-house. Twelve practitioners had a designated staff person to review and copy medical records, while 15 did not. Fifteen declined to provide how much their personnel were paid. There was a wide range of pay for the others. The costs associated for special equipment and supplies to provide copies of medical records ranged from $120 to $20,000 per month. Only one practitioner responded that medical records were sent out to a copying service. The number of medical record requests varied from one to more than 600 per month. The next public hearing was held in Orlando on December 6, 2013. The Board materials included: the hearing notice for December 6, 2013; proposed rule language; the transcript of the October 3, 2013, meeting; section 164.524, Access of Individuals to Protected Health Information; new comments received; the survey results; and material from the previous public hearings and meetings. The Board considered the testimony from the public hearings that had been held on August 2 and October 3. Each speaker was afforded the opportunity to express their position and comments received were either “opposed” or “supported” the proposed rule changes. Following the testimony, the Board voted to change proposed subsection (2) by adding the following language, which is underscored: [t]he reasonable costs of reproducing copies of written or typed documents or reports shall not be more than $1.00 per page, but shall not exceed actual costs. Thereafter, the Board again revisited the question of whether a SERC was necessary. The Board considered whether the newly revised language would adversely affect, or was likely to directly or indirectly increase regulatory costs to any entity in excess of $200,000 in the aggregate in Florida within one year of the implementation of the rule. The Board determined that a SERC was necessary. On February 6, 2014, the RLC met in Kissimmee for another public hearing on the proposed rule amendments. The Committee was to consider changes authorized by the Board during its December meeting. The agenda materials included: draft language of the rule; additional correspondence; and the materials from the prior meetings/hearings. If the draft rule language was approved, two questions had to be addressed: would the proposed rule have an adverse impact on small businesses; and would the proposed rule be likely to directly or indirectly increase regulatory costs to any entity in excess of $200,000 in the aggregate in Florida within one year after its implementation? Testimony was received from several individuals. Following the testimony, the Committee members had a discussion about the terms “actual costs” versus “reasonable costs.” The Committee voted to revise the draft rule language to “reasonable costs” and approved a “Notice of Change” to be published. The Committee also determined that the amendment would not have an adverse impact on small businesses, nor was it likely to directly or indirectly increase regulatory costs in excess of $200,000. On April 3, 2014, the RLC held another public hearing in Deerfield Beach on the proposed rule. There remained some inconsistencies in the changes that were approved and the Committee reconsidered the proposed rule language. The material in the RLC’s agenda included: materials presented at previous meetings including correspondence; draft changes to the rule; the hearing notice; an article regarding electronic records; an excerpt of the February 2014 meeting; and the transcript of the February 2014 meeting. The Committee received testimony from several speakers who pointed out concerns about the proposed rule, and provided alternatives to it. After the testimony, the Committee voted to have new language prepared addressing those concerns and, in some instances, incorporated alternative suggestions. Additionally, the Committee understood that an additional public hearing would be necessary, and that the SERC might need to be revised. On June 5, 2014, the RLC met in Tampa for another public hearing to consider the revised draft rule language. The agenda included: the hearing notice; the proposed draft language; a proposed SERC; multiple written comments; transcripts from prior RLC and Board meetings where the proposed rule was discussed; and RLC meeting reports. The Committee voted to table the discussion of the proposed rule until another hearing could be held in South Florida. On October 9, 2014, the RLC met in Deerfield Beach and held a rule hearing regarding the revised rule language. The Committee received additional testimony from concerned individuals. The Committee voted to accumulate all the comments and present everything to the full Board at the December 2014 meeting. In October 2014, Ms. Dudley was asked to speak at the Capital Medical Society in Tallahassee. Ms. Dudley took the opportunity to hand out the survey (found in paragraph 34) to the participants. Although she received four additional responses to the survey, the audience was not physicians, but staff who primarily handled the medical records for medical offices. On December 4, 2014, the RLC met in St. Petersburg for an additional rule hearing on the proposed rule language. The Committee was to review all the comments submitted. The RLC’s agenda material included: the hearing notice; the suggested changes to the draft proposed rule from March and May 2014; the excerpt of the RLC meeting report in October 2014; multiple correspondence from concerned individuals; survey responses from physician offices (including the four additional surveys); materials from the prior hearings and RLC meetings; and the proposed SERC. At the beginning of this rule hearing, the Board’s executive director provided a suggested revision to the proposed rule by adding a new paragraph: “(4) Accessing medical records through patient portals does not constitute the reproduction of medical records.” Testimony was received from various individuals regarding the proposed rule language. The Committee reviewed all the comments submitted. The Committee determined that a SERC should be prepared. The Board held another rule hearing on the proposed rule language on February 6, 2015, in Stuart. The agenda material included: the hearing notice; the draft changes; the excerpt of the RLC meeting; survey responses from physician offices; newly received written comments; a proposed SERC; and materials presented at the previous hearings and meetings. The Board heard testimony from several individuals who either opposed or supported the proposed rule language. The Board reviewed the changes to the proposed rule and the proposed SERC, and heard testimony from presenters. Based on that testimony, the Board members further discussed the proposed rule language and voted to modify it again. After the proposed rule language discussion, the Board then addressed whether it believed, with the latest revision to the draft rule, that a SERC was necessary. The Board voted to accept the SERC as presented. On February 17, 2015, the Joint Administrative Procedures Committee (JAPC) wrote the Board regarding the SERC and inquired as to whether the draft rule would require legislative ratification. As a result of the JAPC inquiry on March 4, 2015, the Board held a telephonic conference meeting. The Board heard from three individuals regarding whether the proposed rule required legislative ratification and the status of the SERC. The Board determined that the rule would require legislative ratification and the SERC needed to be revised. The Board approved the following changes to the proposed rule (the initial paragraph and sections (1) and (2) are found in paragraph 26 above): (4) Reasonable costs of reproducing x- rays, and such other special kinds of records shall be the actual costs. The phrase “actual costs” means the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs associated with duplication, plus postage. Accessing medical records through patient portals does not constitute the reproduction of medical records. On March 12, 2015, the Notice of Change was published in the Florida Administrative Register, and the four petitions were filed. Following the filing of the petitions at DOAH, the parties requested a continuance to allow the Petitioners the opportunity to present their lower-cost alternatives to the Board. At the April 10, 2015, Board meeting, the Board addressed an allegation that the Board had failed to consider five lower-cost regulatory alternatives (Alternatives). The Board had not considered the Alternatives because they had not been filed for the Board’s consideration. Once the Alternatives were filed, they were placed on the next available Board agenda. The first Alternative was to leave the rule in its current state. After hearing from interested parties, the Board determined that it had evaluated the issues around the rule and the costs during the prior hearings and meetings. The Board agreed that the status quo was not viable for a variety of reasons. The Board voted to reject this Alternative. The second Alternative asked that the medical record holder only be allowed to charge the actual cost of copying, including reasonable staff time consistent with section 457.057(17). The Board discussed that through the multiple public hearings it had determined that it would be impossible to determine the actual charge for copying. The actual cost for an urban multi-partner physician would be different than a solo practitioner’s office in a rural location. The Board voted unanimously to reject this Alternative. The third Alternative asked the Board to conduct an evaluation or study regarding what the actual costs of copying are for medical record holders based on the type of request, type of medical record, the format of the record, and the format of the record to be delivered. The Board discussed what it had heard about in the prior meetings: other states allowed higher levels of reimbursing; and hospitals charged $1.00 per page as authorized by statute. The Board attempted to obtain the data sought but was unsuccessful in obtaining any significant response. Further, the Board does not have the statutory authority to require physicians to respond to any data or survey requests. The Board voted unanimously to reject this Alternative. The fourth Alternative asked the Board to eliminate the per-page price and impose a restriction that the prices could not exceed the maximum price authorized by HIPAA. The Board did not concur that HIPAA set an exact amount, and trying to determine the costs for each practitioner in each type of practice would be frustrating to all involved. The Board voted unanimously to reject this Alternative. The fifth Alternative asked the Board to keep the current rule, but separate the costs for electronic versus digital copies. The Board discussed the movement towards all electronic medical records, but paper records and other records will still exist. The Board determined that there is a need for the proposed rule to address the current circumstance. The Board voted unanimously to reject this Alternative. Those opposed to the alleged increase testified there was no basis for the change, that the proposed change quadrupled the price for patients and governmental entities, and that it was arbitrary and capricious, especially with respect to electronic records. These opponents fail to recognize changes in medicine. HIPAA brought patient confidentiality and the need to maintain that confidentiality into sharp focus. Medical practitioners are required to ensure that confidential patient information is not disseminated to unauthorized persons. Physicians must pay to have medical records copied, whether it is done “in-house” or by an ROI provider. Labor costs have increased and the tedious review to ensure that confidential information remains confidential is time-consuming and costly. Medical practices can be quite varied in type, size, sophistication, location, and much more. Petitioners’ claim that the proposed rule should be the “actual cost” to the practitioner is impracticable. A general practitioner in a rural solo practice, who receives one request for medical records, might be able to ascertain the “actual cost” to produce that one medical record. A specialist in an urban multi-partner practice group, who receives multiple requests for medical records, would find it nearly impossible to ascertain the “actual cost” to produce each requested medical record without extensive business record-keeping. This proposed rule retains the suggestion that physicians “provide their patients with a copy of their medical records, upon request, without cost, especially when the patient is economically disadvantaged.” Physicians provide medical records, free of charge, to subsequent or specialty physicians to ensure care. However, physicians are not in the business of repeatedly producing medical records. Those in favor of the proposed rule testified that the cost to physicians for reproducing medical records has not increased in years. The stringent HIPAA requirements placed an additional requirement on health care providers to ensure that private individual health data is kept confidential. The process to release medical records is not simply to pull a paper, digital or electronic medical record, copy it, and send it out the door. The process, as explained, takes valuable time from practitioners and their staff. In a simplified fashion once the request is made: staff must verify the requester’s identity and right to obtain the copy; the request must be logged into a HIPAA log; staff must locate and retrieve the medical record in whatever format it is in; staff must redact confidential information; staff must review for specific health treatment records (mental health, alcohol or drug treatment, HIV status) that cannot be provided pursuant to statute; a copy may need to be made or a paper copy may need to be scanned to an electronic disc; and the practitioner must review it to make sure it can be provided as requested. It is a time-consuming process.
Findings Of Fact The Respondent is a medical doctor practicing in Green Cove Springs. He has been a "medicaid provider" for a number of years for purposes of this proceeding and the rules related hereto. The review period for medicaid claims submitted by health care providers relates to claims for services rendered submitted to the Petitioner on or after January 1, 1979, and paid by medicaid through October 27, 1980. (See Chapter 10-7, Florida Administrative Code.) The Petitioner presented Mr. Alex Szarto, a Florida Medicaid Program Monitor in the investigatory section of the Medicaid Program Integrity Office of the Petitioner. This witness has had twenty-five years' experience in performing such field auditing for a private insurance company. He established through his testimony, and Exhibit 1, that the Respondent had claimed seven hundred and three initial patient visits for payment from medicaid during the subject review period. The witness demonstrated that three hundred thirty-seven of those patient visits claimed were not initial visits, but were patients who bad already been seen during that same review period. The additional initial patient charge was claimed for these three hundred thirty-seven previously seen patients as well as for the remaining four hundred and two patients involved who were actually seen for the first time. The Respondent thus billed the Petitioner one thousand six hundred seventy-six dollars and ninety-cents for new patient charges for these three hundred thirty-seven patients whom he had seen at a previous time. Upon cross-examination the witness conceded that a hypothetical patient with an "ant bite" two years previously who then comes in with a totally unrelated complaint, such as a back problem, possibly should be considered under the medicaid code contained in the Rule cited below representing comprehensive re-evaluation or reexamination (and so charged for), but the witness opined that medicaid reimbursement payment rules do not consider such contingencies, rather merely allowing additional billing if a patient is a totally new patient, rather than an established one. The Respondent began treating medicaid patients in approximately February, 1979. He stated that at the medical office where he was formerly associated in practice, that the insurance clerk for the office informed him that a new patient means a patient who comes in with a different illness, even if that patient had been seen previously for another problem. Subsequently thereto, the clerk for insurance matters in his present office attended a seminar in August, 1980, and, based upon knowledge she gained there, also informed him that for medicaid purposes a new patient means a patient who comes in with an entirely new condition or complaint than that experienced with a past visit. The doctor believes that this seminar was taught by a representative of the Petitioner, but he was unable to state definitively if that was the case. In billing these patients as new patients, the doctor acted in the reasonable belief that he was entitled to do so based upon these instructions. He established without question that he had no intent to defraud the medicaid program or the Petitioner. He also established that he had in the past saved the medicaid program and the Petitioner a great deal of money in potential claims by not re-checking all medicaid patients a week after he initially saw them, as he is entitled to do. His medicaid claims have never been questioned before this occasion. The doctor genuinely felt that he was following appropriate medicaid procedure codes, relying on the judgment of the experienced insurance clerk in his office, which he in turn felt was predicated on instructions she received from a representative of the Petitioner. The Respondent maintains that a representative of the Petitioner instructed his insurance clerk regarding the processing of medicaid claims and he states he was advised by that instructor that a new illness meant a new patient."
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is therefore RECOMMENDED that the Respondent, Dr. Manuel R. Martinez, be required to refund to the Petitioner the sum of sixteen hundred seventy-six dollars and ninety-nine cents, representing excess new patient charges submitted to the Department, which refund shall be accomplished within sixty (60) days of the date of the final order entered herein. DONE AND ENTERED this 15th day of January, 1982, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1982. COPIES FURNISHED: Robert Weiss, Esquire Medicaid Program Office 1317 Winewood Boulevard Suite 233 Tallahassee, Florida 32301 Manuel R. Martinez, M.D. One Doctors Drive Green Cove Springs, Florida 32043 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact The parties have stipulated that the Respondent is a licensed medical doctor, having been issued license number ME 0029977. He has been licensed in the State of Florida for approximately seven years and is a board eligible urologist. The Respondent practices in the field of general practice and urology. The Petitioner is an agency of the State of Florida charged with administering and enforcing the licensure standards and practice standards set forth in Chapter 458, Florida Statutes, and related rules. The Respondent's wife has a medical condition which causes her to be chronically drowsy and to be difficult to awaken or even to remain awake sometimes, even while conversing with other people. On or about April 18, 1980, the Respondent prescribed a total of 60 Ritalin tablets, a Scheduled II controlled substance, for Mrs. Tandon. The Respondent established that these were prescribed for a medically justifiable purpose, to enable his wife to remain awake and alert, and that the Respondent, in all prescriptions to family members, including his wife, was extremely conservative. Although he prescribed his wife Ritalin from time to time, he sometimes withheld it in order to avoid any chance of a dependency developing. In any event, because of her (unnamed) medical condition, the Ritalin was prescribed for a medically justifiable purpose. The Respondent did not prescribe Ritalin for his own use on this occasion. More than two years later, on November 23, 1982, the Respondent executed a similar prescription for 60 Ritalin tablets. Once again these were not for the Respondent's own use. On December 13, 1979, however, the Respondent prescribed a total of 50 Ritalin tablets to himself, as indicated on the prescription. These Ritalin were in reality for his wife's use. On November 4, 1980, and on July 5, 1981, the Respondent on each of those occasions prescribed 30 Nembutal tablets for himself and his wife. This Nembutal was prescribed by the Respondent to himself because of a condition he had experienced of late involving difficulty in sleeping. The difficulty in sleeping was caused by anguish that he, as well as his wife, suffered related to their daughter's divorce which occurred not long after her carefully arranged marriage and elaborate East Indian wedding ceremony. In the East Indian culture such a divorce is a very traumatic experience for a family such as Dr. Tandon's, and it was sufficiently upsetting to Dr. Tandon and his wife to cause both of them to seek medical care. Indeed, Mrs. Tandon developed a hypertension condition during this period of family turmoil. The doctor freely admitted that on these occasions he prescribed the Nembutal for himself and on the December 13, 1979 occasion, prescribed the Ritalin not for himself, but in reality for his wife's use. The Respondent had no knowledge that such a pattern of prescribing for himself or for himself on behalf of his wife or a family member is legally proscribed under Chapter 458, Florida Statutes (1981) . . . Indeed, in India, as well as in Britain and parts of Europe, it is traditionally and legally acceptable for physicians to prescribe for themselves and their family members. The Respondent established, as corroborated by Respondent's Exhibit D, that he is indeed a stable and sober person and a competent and caring physician. He openly prescribed the medication for his wife during a period of great stress and sadness on her part and could have easily have asked a colleague to write a prescription for her. He wrote the prescription in an open, honest manner, which he freely disclosed to the Petitioner when questioned, because he simply felt there was no reason to have a colleague issue the prescription since he was unaware that it was illegal for him to do so. Indeed, by Dr. David Honey, whose corroborative testimony appears in Exhibit D, it was shown that he could have given his wife sample medications which doctors characteristically have on hand in their offices, but preferred instead to forthrightly write a prescription for it, thus creating a record of that medication's prescription and use. In short, the Respondent established that he is a competent physician who is not given to misprescribing or overprescribing or otherwise misusing drugs at all. Indeed he currently, and before the subject prosecution, devoted approximately two days a week to a drug rehabilitation center and has donated his time for television appearances in his work combatting drug abuse. His practice has never been characterized by anything other than conservative prescription and administering of drugs and medications. He excels in his practice in the field of urology and indeed earned one of the highest scores on the examination when he was admitted to practice in Florida. Near the conclusion of the proceeding, counsel for the Petitioner forthrightly agreed to dismiss the majority of the counts of the administrative complaint inasmuch as the evidence did not support them. Thus, the Petitioner continues to proceed with regard to the alleged violation of Section 458.331(1)(r), Florida Statutes (1981), related to the Respondent's prescribing of medication to himself. Thus, Counts I, II, V, VI, I, XI, and XII remain at issue at whole or in part in this proceeding.
Recommendation Having considered the foregoing findings of fact, conclusions of law and the evidence of record, it is, therefore RECOMMENDED: That Dr. Prem Narain Tandon be found guilty of violating Section 458.331(1)(r), Florida Statutes (1981), and that he be fined $200 and that his license to practice medicine be subjected to a one month probationary status and that the administrative complaint, in all other particulars, be dismissed. DONE and ENTERED this 30th day of November, 1983, in Tallahassee, Florida. P. MICHAEL RUFF, 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 30th day of November, 1983. COPIES FURNISHED: Barbara K. Hobbs, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Prem Narain Tandon, M.D. 15 West Columbia Street Suite "J" Orlando, Florida 32806 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred M. Roche, Secretary Department or Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether respondent's license as a registered nurse should be disciplined on charges that she improperly recorded the administration and disposal of controlled substances in violation of Section 464.018(1)(d) and (f), Florida Statutes (1981).
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be administratively fined $500.00 and reprimanded for violating Section 464.018(1)(f) on three separate occasions. DONE and RECOMMENDED this 6th day of May, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire 119 North Monroe Street Tallahassee, Florida 32301 Betty Bowman Fulk, pro se Apartment 1221 1500 N.W. 12th Avenue Miami, Florida 33136 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Department of Professional Regulation Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32202
Conclusions Having reviewed the Administrative Complaint and Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: lL. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $2,375.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. Any check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, FL 32308 Filed July 7, 2014 1:52 PM Division of Administrative Hearings Hteno_ , 2014. ORDERED at Tallahassee, Florida, on this _/ / day of A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 CERTIFY that a true and correct-capy of this Ffnal/Order was served on the below-named persons by the method designated on this/ vi day of a= , 2014. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, FL. 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Nick Lynn, Executive Director Thomas Valdez, Esq. Spring Hills Lake Mary Quintairos, Prieto, Wood & Boyer, P.A. 3655 W. Lake Mary Blvd Lake Mary, FL 32746 | (U.S. Mail) 4905 W. Laurel St— Ste 200 Tampa, FL 33607 (U.S. Mail) David Selby, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail)
Conclusions Having reviewed the Amended Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint with an Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1, The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $750.00 in administrative fines. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 1 Filed May 9, 2012 10:23 AM Division of Administrative Hearings Tallahassee, Florida 32308 ORDERED at Tallahassee, Florida, on this 3 day of Mey. , 2012. ss, If Elizabeth Dudek, ere ary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct_capy of this Final Order was served on the below-named persons by the method designated on this_ "day of aa , 2012. Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas J. Walsh IT Jessica C. LaManna, Esq. Office of the General Counsel United Health Services, Inc. Agency for Health Care Administration 367 South Gulph Road (Electronic Mail) King of Prussia, Pennsylvania 19406-0958 (U.S. Mail) Elizabeth W. McArthur Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
