The Issue The issues are whether Petitioner overpaid Medicaid reimbursements to Respondent for inpatient hospital services due to the lack of medical necessity for such services and, if so, the amount of the overpayment.
Findings Of Fact Respondent is a 226-bed community hospital in Sanford. It is an acute-care hospital with an emergency department. At all material times, Respondent has been an authorized Medicaid provider. For inpatient services, Respondent receives, under Medicaid, an all-inclusive per diem rate for all goods and services provided during a 24-hour period, less any third-party payments. Petitioner is the state agency responsible for the regulation of the Medicaid program in Florida. Petitioner is required to perform Medicaid audits of providers and to recover any overpayments. Pursuant to this authority, Petitioner conducted an audit of Respondent for the period from January 1, 2001, through March 31, 2002. Pursuant to its procedures, Petitioner duly informed Respondent of the audit, obtained from Respondent relevant medical and hospital records, issued a Provisional Agency Audit Report on January 24, 2006, obtained additional information from Respondent pertinent to the provisional findings, and issued a Final Agency Audit Report on October 19, 2006, which claimed a total overpayment of $286,357.54 based on Medicaid payments made to Respondent on behalf of 35 different recipients. (The report indicates two separate denials for each of four recipients, so 39 total transactions are listed.) The dispute in this case concerns the medical necessity of the inpatient hospitalization of each recipient. The Florida Medicaid Hospital Services Coverage and Limitations Handbook (Handbook) states that the purpose of the Medicaid program is "to provide medically necessary inpatient and outpatient services to recipients in the hospital." Handbook, page 1-1. This case involves paid claims for inpatient, not outpatient, services. The Handbook defines inpatient services as those services "rendered to recipients who are admitted to a hospital and are expected to stay at least 24 hours and occupy a bed, even though a bed is not actually utilized because the recipient is discharged or transferred to another hospital." Handbook, page 1-1. The Handbook provides that the day of admission is covered, but the day of discharge is not covered, unless it is also the day of admission. Handbook, page 2-22. The Handbook defines "grace days" as non-medically necessary days following the day of formal discharge when the recipient continues to occupy a hospital bed until an outside facility or residence can be found. These days are not reimbursable by Medicaid except for children under 21 years of age on "Department of Children and Families hold . . .." Medicaid will pay up to 48 hours of inpatient stay beyond the formal discharge day for these children while an alternative placement is located. The Handbook incorporates the limitation of medical necessity as follows: Medicaid reimburses for services that are determined medically necessary, do not duplicate another provider's service, and are: individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs; not experimental or investigational; reflective of the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or service medically necessary or a covered service. Note: See Appendix D, Glossary, in the Florida Medicaid Provider Reimbursement Handbook, UB-92, for the definition of medically necessary. Handbook, pages 2-1 to 2-2. The Florida Medicaid Provider Reimbursement Handbook, UB-92, Appendix D, defines "medically necessary" as follows: Means that the medical or allied care, goods, or services furnished or ordered must: Meet the following conditions: Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs; Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational; Be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available; statewide; and Be furnished in a manner that is not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. "Medically necessary" or "medical necessity" for inpatient hospital services requires that those services furnished in a hospital on an inpatient basis could not, consistent with the provisions of appropriate medical care, be effectively furnished more economically on an outpatient basis or in an inpatient facility of a different type. The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a medical necessity or a covered service. The Florida Medicaid Provider Reimbursement Handbook, UB-92, Appendix D, page D-10. E. A. was admitted on January 6, 2001. Petitioner does not contest the medical necessity of inpatient services to treat E. A.'s acute exacerbation of chronic bronchitis from January 6-8. The parties' dispute concerns the medical necessity of the remaining ten days of E. A.'s hospitalization. (All calculations of duration of hospitalizations omit the day of discharge, pursuant to the above-cited provision from the Handbook. In this case, for instance, E. A. was discharged on January 19.) E. A., a 60-year-old male, presented to the emergency department with shortness of breath and a history of chronic obstructive pulmonary disease (COPD), emphysema, and hypertension. He had been unable to eat for the preceding four days due to respiratory distress. At the time of his admission, E. A. had been living for a short while with his sister, who was suffering from cancer. His relevant history included a shotgun wound to the left lung 30 years earlier. Respondent states in its proposed recommended order that E. A.'s chest X-rays showed acute infiltrate demonstrating pneumonia, although the discharge summary reveals that chest X-rays fail to reveal this condition, but acknowledged that sputum grain stains revealed a polymicrobial infection. More to the point, the X-ray reports dated January 6 and 8 note: "no focal infiltrate." However, the discharge summary described E. A.'s prognosis as poor because he was in "end-stage lung disease." In the emergency department, after treatment with bronchodilators, E. A.'s oxygen saturation rate was only 87 percent--not 94-100 percent, as mistakenly stated by Petitioner's expert, Dr. Ellen Silkes, an otolaryngologist whose practice is largely limited to outpatients. This low rate of oxygen saturation evidences hypoxia. E. A.'s arterial blood gases bore a pH of 7.28, evidencing, on the facts of this case respiratory acidosis, which results from excessive retained carbon dioxide due to poor lung function. E. A. was started on Albuterol and Atrovent by nebulizer at four-hour intervals, as well as a corticosteroid intravenously every six hours to relieve the swelling in the lungs. He received oxygen by nasal cannula. On January 10, the physician's notes state that E. A. still suffered from "severe COPD" secondary to smoking with bronchospasms. According to the notes, the first day that E. A. showed any improvement was January 12. On January 14 and 16, E. A. was still retaining excessive carbon dioxide and remained hypoxic, but showed some improvement by January 16 in terms of arterial blood gases. The physician's note for January 17 states that E. A. could be discharged as soon as arrangements for home health care were completed. E. A.'s hospitalization was medically necessary from January 6-17. His hospitalization after January 17 was not medically necessary. Petitioner improperly denied January 9-16, given that the day of discharge is excluded. Thus, for E. A., Petitioner should have denied two days, not all ten days. A. A. was admitted on June 19, 2001. Petitioner does not contest the medical necessity of inpatient services to treat A. A.'s gastrointestinal bleeding from June 19-20. The parties' dispute concerns the medical necessity of the remaining 12 days of A. A.'s hospitalization. (Some of Petitioner's calculations are incorrect. For instance, in this case, Petitioner does not deny July 2-5, even though, undoubtedly, its position as to the lack of medical necessity as to the earlier dates would mandate the same position as to the later dates. This recommended order does not disturb Petitioner's implicit acceptance of the medical necessity of any dates, even when it appears to be in error.) A. A., a 51-year-old male, presented to the emergency department with abdominal pain, diarrhea, and black tarry stools. His recent history included bloody vomit and a diagnosis, a few months earlier, of a pulmonary embolism. A. A. had discontinued taking Coumadin, a blood thinner, due to nosebleeds. A. A. had been diagnosed with AIDS in 1998 and had lost 30 pounds in one month. At admission, A. A.'s hemoglobin and hematocrit levels were critically low at 5.1 and 15.5, respectively, and remained critically low the following day when, after A. A. received transfusions of two units of packed red blood cells, his hemoglobin and hematocrit levels were only 6.8 and 20.0, respectively. Dr. Silkes denied the hospitalization after June 20 because an upper gastrointestinal endoscopy revealed, on June 19, no acute bleeding, and a bleeding scan the following day was negative. However, according to the physician's notes, A. A. was continuing to experience diarrhea on June 20, even though he was starting to feel better. The course of treatment of A. A. was complicated by his recent history of pulmonary embolism and his inability to report an accurate history. By June 21, A. A.'s severe anemia had been corrected, but he was diagnosed with candida, an opportunistic fungal infection common in AIDS patients. This diagnosis would explain the vomiting of blood. Generally, the treatment dilemma posed by A. A. was that efforts to increase his clotting time to stop the bleeding raised the risk of pulmonary embolism. The physicians debated whether to install a Greenfield filter to stop the passage of a blood clot. The filter is introduced under X-ray control through the femoral vein into the inferior vena cava, where it is anchored, so that it allows the passage of blood, but not the passage of a blood clot. But the Greenfield filter is contraindicated in the presence of A. A.'s fever of 101 degrees and elevated white blood counts. Physicians introduced Coumadin to minimize the risk of clots, but A. A.'s low platelet count required the discontinuation of Coumadin on June 30. A. A.'s International Normalization Ratio (INR) was 4.2, which is well above the range of 2.0-3.0 and thus indicative of the fact that A. A.'s blood was taking too long to clot. The standard of care in 2001 precluded safe outpatient management of a complicated patient such as A. A., given his twin risks of pulmonary embolism and bleeding, either of which could result in his death. A. A.'s Coumadin could not safely have been adjusted on an outpatient basis. The physicians restarted the Coumadin on June 24 and doubled its dosage the following day. As they were working on adjusting the blood thinner, though, A. A. continued to suffer nightly fevers of 103 degrees, and the physicians needed to monitor him closely for the next week for this reason too. On June 28, A. A. reported that he was feeling better, but the physicians needed to monitor him for a recent reduction in his Coumadin dosage. A. A. was reported as "alert and comfortable" on July 2. A. A.'s hospitalization was medically necessary from June 19 through at least July 2. Petitioner improperly denied all ten days of this hospitalization. T. B. was admitted on May 15, 2001. Petitioner does not contest the medical necessity of inpatient services to treat T. B.'s esophageal cancer and tuberculosis from May 15-17 and The parties' dispute concerns the medical necessity of the ten days that Dr. Silkes denied of the remaining 14 days of T. B.'s hospitalization. (It is unclear why Petitioner denied only ten days when Dr. Silkes denied May 18-20 and May 22-June 1--a total of 14 days, or 13 days exclusive of the day of discharge. But, as noted above, in cases such as this, the recommended order will consider only whether up to ten days within this period are allowable as medically necessary.) T. B., a 47-year-old male, presented to the emergency department with difficulty swallowing. He had visited a physician in February 2001 with the same complaint, and the physician had recommended an upper gastrointestinal series. Due to financial constraints, T. B. did not undergo this procedure until late April, when he was found to have a high-grade obstruction consistent with a tumor. T. B.'s recent history included the loss of 25 pounds. An endoscopy with biopsy performed on May 16 revealed a high-grade carcinoma of the esophagus. The physician planned to commence preoperative chemotherapy and radiation therapy to shrink the lesion, but, based on sputum collected on May 18, it was discovered that T. B. had mycobacterium tuberculosis. Physicians had suspected the tuberculosis from the time of admission when they placed T. B. in a negative airflow isolation room. Treatment of the tuberculosis necessarily preceded the preoperative chemotherapy recommended for T. B.'s carcinoma. The sputum sample revealed rare acid-fast bacilli, for which the standard of care in 2001 typically required two to three weeks of treatment before isolation precautions could be discontinued. T. B. remained in isolation at least through May 31. In addition, T. B. suffered significant pain from the carcinoma. By May 23, he was on patient-controlled analgesia in the form of a morphine pump, which is not available outside of an acute-care hospital. T. B.'s hospitalization was medically necessary from May 15 through at least June 1. Petitioner improperly denied all ten days of this hospitalization that it denied. R. B. was admitted on December 3, 2001. Petitioner does not contest the medical necessity of inpatient services to treat R. B.'s respiratory failure from December 3, 2001, to January 2, 2002, and January 8, 2002. Based on Petitioner's prehearing stipulation, the dispute concerns only seven days' hospitalization. R. B., a 59-year-old female, presented to the emergency department with acute respiratory distress and respiratory failure. She was immediately intubated. Her family insisted upon aggressive treatment of, among other things, her bilateral pneumonia caused by a virulent staph infection. R. B. required a tracheotomy on December 20 due to the difficulty in weaning her from the ventilator. She required the placement of a percutaneous endoscopic gastrostomy (PEG) tube on January 1. The discharge summary describes R. B. as "very frail and fragile" and her hospitalization as "very prolonged and complicated." On December 23, when R. B. was finally weaned from the ventilator, her family agreed to a do-not-resuscitate (DNR) code for her. The dispute arises from an incident on January 3 when R. B. fell when trying to get out of bed. Her mental status deteriorated, probably due to malignant disease. Physicians ruled out sepsis in the bloodstream, but X-rays revealed multiple nodules in the lung and liver. On January 8, a CT- guided lung biopsy of one of the nodules confirmed malignant disease. Two days later, the physician stated that a consultation with hospice was indicated. Upon the agreement of the family, R. B. was discharged to her home under hospice care on January 12. Dr. Silkes is substantially correct in her opinion. The diagnostic work after January 2 only supported the poor prognosis that had become obvious to R. B.'s family ten days earlier and certainly was not palliative in nature. R. B.'s hospitalization after January 2, 2002, was not medically necessary--except for January 8, which Dr. Silkes initially conceded, and an additional two days, which Petitioner conceded in its prehearing stipulation. Petitioner properly denied seven days of this hospitalization. J. B. was admitted on January 5, 2002. Petitioner does not contest a 23-hour observation on January 5, but this would generate a reimbursement considerably smaller than that sought by Respondent for inpatient services for that day, so Petitioner has essentially denied the entire hospitalization, which consists of 16 days. J. B., a 59-year-old male, presented to the emergency department with shortness of breath and atrial fibrillation with fast ventricular rate. He had been diabetic for 25 years. He had been laid off from construction work in August 2001, and had arthritic knees which prevented his return to work. Since losing his job, J. B. had been feeling poorly and had lost 20 pounds. J. B.'s pulse at the time of his arrival was 165, and it dropped to 105 within his first six hours at the hospital. J. B.'s relevant history included congestive heart failure, edema of the extremities, and nocturnal dyspnea. A chest X-ray on the day of admission revealed a dense mass in the left lobe. Physicians started a calcium channel blocker to regulate J. B.'s rapid heart beat and a diuretic to eliminate his excess fluids and swelling. J. B. was feeling much better by January 7, as the physicians had controlled his rapid heart beat. On that day, J. B. underwent a stress test, which was negative. However, a CT scan performed on January 8 and reported the following day revealed a left hilum mass that proved to be advanced carcinoma. The physicians decided that J. B. needed a bronchoscopy to biopsy the lung mass and a thoracentesis, in which a needle is inserted between the ribs to extract fluid for the purpose of determining the fluid's source. However, J. B.'s atrial fibrillation complicated their plans. On January 8, J. B. remained in atrial fibrillation, and the physicians were considering starting him on Coumadin because patients with atrial fibrillation are at high risk of clotting due to the poor expulsion of blood into the ventricle. Introduction of this blood-thinning agent before other invasive procedures requires first that the physicians stabilize the patient. This dilemma delayed the introduction of the blood- thinning agent and prevented treating J. B. as an outpatient. Once stabilized on Coumadin, J. B. underwent the two diagnostic procedures on January 11. They revealed that he was suffering from stage IV squamous cell carcinoma, according to a physician's report dictated on January 14 and transcribed the following day. The physician ordered additional CT scans to determine the extent of the metastatic disease before deciding on a course of treatment. A whole body bone scan was performed on January 15 and was essentially negative. However, the carcinoma had metastasized to the left hilum and, by report dated January 15, a physician noted that J. B. would not benefit from surgery, chemotherapy, or radiation, although palliative radiation could offer him some relief. An IV port for chemotherapy (not radiation) was placed on January 16--not January 6, as noted by Dr. Silkes in her report. Coumadin had been discontinued in advance of the procedure and resumed on the day of the procedure, but required adjustment for the next several days, as J. B.'s INR was too low, indicative of excessive clotting. Although the administration of the chemotherapy through the IV port could have been done on an outpatient basis, J. B. was comfortable at all times after January 15, and with no effective treatment possible, his hospitalization remained medically necessary until the physicians were able to adjust his Coumadin so that his INR reached the normal range. J. B.'s hospitalization was medically necessary from January 5 through January 22, on which date he was discharged. Petitioner improperly denied the 16 days of inpatient services. N. C. was admitted on February 8, 2002. Petitioner does not contest the medical necessity of inpatient services to treat N. C.'s intracranial hemorrhage from February 8-10. The parties' dispute concerns the medical necessity of the remaining 21 days of N. C.'s hospitalization. N. C., a 40-year-old female, presented to the emergency department with a complaint of passing out and no significant medical history. N. C. was a single mother of a developmentally disabled child. Her father resided in a nursing home and suffered from dementia, so her siblings were her decisionmakers concerning care. At admission, N. C. was already in a vegetative state, suffering from a massive intracranial hemorrhage. Her blood pressure was 213/107. She was immediately intubated and given Mannitol to reduce intracranial pressure and Dilantin to prevent seizures. On February 8, a neurologist evaluated N. C. and found her a poor candidate for surgery to evacuate the intracranial hematoma due to the likelihood of extensive consequent neurological deficits. The neurologist discussed the possibilities and the "extremely poor" prognosis with the siblings, who decided not to pursue surgery and instead allow N. C. to be "managed medically." The physicians asked the siblings to consider a DNR code for N. C. N. C. made no meaningful progress in the following days. Respondent was unable to contact her siblings until February 19, and they asked for two days within which to make the decision whether to place N. C. on a DNR code. On February 22, they decided to place N. C. on a DNR code and withdraw the ventilator. Three days later, the physician discussed with the siblings the possibility of placement in a nursing home. Three days after this discussion, the siblings agreed on inpatient hospice care for N. C. On March 4, IV fluids and medications and the nasogastric feeding tube were withdrawn, and N. C. was transferred to a nursing home under hospice care. N. C.'s hospitalization was medically necessary through February 22 because a nursing home cannot accept a patient on a ventilator, N. C.'s course following the stroke could reasonably be observed for a couple of weeks to determine if improvement--however unlikely--might take place, and the siblings reasonably required this long to make this difficult decision. From February 23 through discharge, the inpatient services provided N. C. were no longer medically necessary, so Petitioner properly denied nine days of the 21 days that it denied for this recipient. N. Ch. was admitted on May 23, 2001. Petitioner does not contest the medical necessity of inpatient services to treat N. Ch.'s cellulitus and osteomyelitis from May 23 to June 24. The parties' dispute concerns the medical necessity of the remaining 46 days of N. Ch.'s hospitalization. N. Ch., a 38-year-old male, presented to the emergency department with wounds to both legs and loss of feeling in both feet and a history of fractures to both tibias 20 years ago followed by osteomyelitis four years ago. Despite considerable hospital treatment to both legs, consisting of antibiotics, hyperbaric oxygen, debridement, and skin grafts, drainage of the wounds persisted. Four grainy wounds on both legs penetrated to the bone, and N. Ch. had suffered some bony damage from the persistence of these infected wounds. A physician performed a surgical debridement of the wounds on May 26, and a vacuum- assisted closure device was applied to the wound on the following day. This device produces negative air pressure to stimulate a chemical change in the tissues to enhance the migration of new blood vessels and granulation tissue over the area of the wound. The pump was changed often. On June 22, N. Ch. underwent a second debridement and a pump was reapplied to the wounds on June 24. The issue in this case involves the use of hyperbaric oxygen treatment on an inpatient basis. On June 7, a physician reasonably recommended 20, 90-minute hyperbaric oxygen treatments. The treatments, which accelerate wound healing, began the next day. Dr. Silkes correctly finds no medical necessity after N. Ch. became stable after the second debridement. Although he later suffered some fever, apparently from his reaction to an antibiotic, and gastroesophagael reflux, as well as some adverse reactions to IV and peripherally inserted central catheter lines, N. Ch. could have been managed as an outpatient after June 24. Nothing suggests that the vacuum-`assisted closure device requires hospitalization, and hyperbaric oxygen treatment clearly does not require hospitalization. Respondent contends that inpatient services remained medically necessary after June 24 because Medicaid would not pay for hyperbaric oxygen treatment on an outpatient basis. Medical necessity is driven by medical, not legal, considerations. If the sole reason for hospitalization is to obtain a medically necessary good or service that Respondent has restricted to the inpatient setting, then the provider community improperly circumvents Petitioner's restriction. If there is no other reason to continue to hospitalize a recipient, such as N. Ch., the decision to do so in order to obtain for him a concededly medically necessary service--that does not otherwise require hospitalization--is unwarranted. Petitioner properly denied the 46 days of inpatient services for N. Ch. after June 24. J. C. was admitted on February 24, 2002. Petitioner does not contest the medical necessity of inpatient services to treat J. C.'s coronary artery disease and lymphoma on February 24 and March 3-8. In its proposed recommended order, Respondent does not contest Petitioner's denial of the "last two days," which apparently are March 9-10. The parties' dispute concerns the medical necessity of the remaining six days of hospitalization from February 25 through March 2. J. C., a 61-year-old female, presented to the emergency department with worsening chest pain over the past two weeks and a history of coronary artery disease. She also had an undiagnosed mass on her neck. She had previously failed outpatient treatment and was admitted to the hospital. Two weeks earlier, J. C. was to have had an outpatient biopsy of the neck mass, but the anesthesiologist declined to administer anesthesia until her unstable angina was addressed. J. C. went to her primary care physician, who referred her to a cardiologist, but, prior to seeing him, J. C. went to the emergency department. On February 25, the physician's notes indicate that J. C. was stable and without chest pain. The cardiologist performed a cardiac catheterization on February 26 and found 100 percent blockage of the left anterior descending artery, 80 percent blockage of the proximal circumflex, and other narrowings that were not amenable to angioplasty and stenting, so he recommended coronary artery bypass grafting. Heart surgery could not proceed until physicians learned the nature of the neck mass. A biopsy was performed on February 28, which revealed B-cell malignant lymphoma. The oncologist preferred to commence chemotherapy after the bypass operation, so this was performed on March 3. J. C. was extubated on March 4, but developed acute respiratory distress on March 5 and required a transfusion the following day. However, Dr. Silkes is correct in finding the hospitalization from February 25 through March 2 medically unnecessary. The procedures performed during this period could have been done on an outpatient basis. The record does not support Respondent's argument that her unstable angina required inpatient management. Petitioner properly denied these six days of inpatient services. R. LaB. was admitted on April 2, 2001. The parties' dispute concerns the medical necessity of the last day of inpatient service on April 12. This is the first case considered in this recommended order handled by Dr. Alan Yesner, an internist whose practice is more evenly divided between inpatients and outpatients than is Dr. Silkes' practice. R. LaB., a 47-year-old female, presented to the emergency department with abdominal pain of two days' duration and a history of COPD, hypertension, and diabetes. She was rushed to abdominal surgery to reduce an incarcerated hernia. The surgery was long. R. LaB. suffered respiratory failure and required intubation. Dr. Yesner is correct in opining that R. LaB.'s hospitalization after April 11 was not medical necessary. She was stable and on appropriate medication, so Petitioner properly denied one day of inpatient service for R. LaB. J. L. was admitted on June 12, 2001. The parties' dispute concerns the medical necessity of the seven days of inpatient services. J. L., a 47-year-old male, presented to the emergency department with complaints of a gradual increase of abdominal girth and was found to have blood in his stool. Lab work indicated an elevated INR, elevated bilirubin, and bacteria in his urine. The physician concluded that J. L. suffered from primary biliary cirrhosis, for which he had been treated since at least 1998. J. L. admitted that he had become noncompliant with his medication after a divorce. A CT scan revealed a probable stone obstructing the right ureter, causing urine to back up and flood the right kidney. A successful laser lithotripsy was performed on June 17 with the complete fragmentation of the stone and the installation of a stent, which would facilitate drainage, to be removed a few days later. J. L. tolerated the procedure well, and on the next day he reported feeling better without any pain in his flank. Dr. Yesner notes the "late schedule" of the lithotripsy, but Respondent did not have a lithotripter in 2001 and had to schedule it for use at the hospital. The hospitalization was medically necessary through June 17 due to the pain, advanced kidney disease, and potential kidney problems presented by the blockage, prior to its surgical fragmentation. Petitioner should have denied two days, not seven days. C. M. was admitted on April 2, 2001. Petitioner does not contest the medical necessity of admission for 23-hour observation only on April 2 for end-stage sarcoidosis, pneumonia, and gastrointestinal bleeding. The parties' dispute concerns the medical necessity of the remaining 31 days of C. M.'s hospitalization, which concluded with her death. C. M., a 55-year-old female, presented to the emergency department with shortness of breath and weakness. She is a Jehovah's Witness, so she declines blood transfusions on religious grounds. By April 4, C. M.'s blood gases, although not within normal ranges, were out of critical ranges. C. M. suffered respiratory failure and required intubation on April 16. Her hemoglobin gradually dropped after this, but treatment was limited to iron and vitamins due to the refusal of the patient to accept a blood transfusion. This treatment was unsuccessful. The family supported C. M.'s decision not to accept a blood transfusion, but insisted on full, aggressive treatment, including CPR. C. M. went into cardiac arrest on May 3 and CPR failed to revive her. Dr. Silkes states that Respondent should have arranged for hospice care during the first day of hospitalization. C. M. was not then on a ventilator, so a hospice would not have objected to taking C. M. on that ground, but her respiration was critically impaired for the first three days of her hospitalization and her prognosis was not such as to render hospital care medically unnecessary. It was medically necessary to stabilize C. M.'s respiration during these first three days, but her hemoglobin issues could have been addressed by home health care for the next 11 days. The medical necessity of inpatient services resumes, though, after C. M.'s respiratory failure of April 16 and continues to the end of her hospitalization. The first three days of inpatient services were medically necessary, the next 11 days of inpatient services were not medically necessary, and the last 17 days of inpatient services were medically necessary, so Petitioner should have denied 11 days, not 31 days. M. M. was admitted on March 3, 2001. Petitioner does not contest the medical necessity of inpatient services to treat acute asthmatic bronchitis with a history of coronary artery bypass graft, asthma, sarcoidosis of the lung, and diabetes from March 3-12, which Petitioner later extended to March 13. The parties' dispute concerns the medical necessity of the remaining three days of M. M.'s hospitalization, which Respondent's expert frankly conceded was difficult to justify. As Dr. Yesner noted, M. M. was stabilized on oral medication by March 11, and he allowed a couple of additional days to monitor her. M. M. experienced hypoglycemia on March 16, but this is a condition that, according to Dr. Yesner, is not unusual with the Prednisone that M. M. was taking, and hypoglycemia is typically managed on an outpatient basis. Petitioner properly denied the last three days of M. M.'s hospitalization. J. P. S. was admitted on January 4, 2001. Petitioner does not contest the medical necessity of inpatient services to treat J. P. S.'s obstruction of the common bile duct. The parties' dispute concerns the medical necessity of the last three days of his hospitalization. J. P. S., a 54-year-old male, presented to the emergency department with severe jaundice and a history of diabetes, congestive heart failure, and triple coronary artery bypass graft performed in 1997, although he displayed no significant cardiac abnormalities during this hospitalization. During the initial examination, J. P. S. went into respiratory arrest and required intubation. The gastroenterologist found J. P. S. ready for discharge, from a gastroenterological perspective, on January 13. but J. P. S. immediately developed COPD symptoms, including shortness of breath and edema. According to the physician notes, J. P. S. was sufficiently stable for discharge on January 15, but a note for the next day says to hold the discharge pending cardiac evaluation. Respondent discharged J. P. S. three days later, after physicians could monitor the level of Digoxin to ensure that J. P. S. was safe for discharge. P. S.'s entire hospitalization was medically necessary. Petitioner improperly denied the last three days of inpatient services. J. P. was admitted on December 8, 2001. Petitioner does not contest the medical necessity of services to treat J. P.'s fever from December 8-12. The parties' dispute concerns the medical necessity of the remaining 14 days of J. P.'s hospitalization. J. P., a 27-year-old male, presented to the emergency department with high-grade fevers and severe headaches and a history of AIDS. Dr. Silkes approved the treatment of the fever until it ended on December 12. The fever was likely caused by J. P.'s toxoplasmosis of the central nervous system. This is an opportunistic condition not unusual in immunocompromised patients. Candida fungal infection likely caused J. P.'s complaints of pain on swallowing, as this too is an opportunistic condition. Additionally, a blood culture revealed a staph infection. Through December 18, J. P. was continuing to experience fevers of up to 101 degrees. At the same time, it was necessary to address the toxoplasmosis before it extended to other organs. This required the sequential administration of IV antibiotics and careful, continual monitoring of the patient for his clinical response to treatment. On December 20, J. P. underwent a bone marrow biopsy to rule out the extension of toxoplasmosis in the bone marrow or the presence of tuberculosis. This test was negative, which was a precondition for discharge. The pathology report was "received" on December 21, but not "printed" until December 27. However, J. P. did not complete his IV administration of Doxycycline until December 23, when the medical necessity for his inpatient services ended. Petitioner should have denied three days, not 14 days. W. P. was admitted on June 18, 2001. Dr. Silkes would allow only a 23-hour observation on the day of admission for the treatment of lung cancer and tuberculosis. The parties' dispute concerns the medical necessity of 13 days of his hospitalization from June 18 through July 1 (even though he was not discharged until July 13). W. P., a 59-year-old male, presented to the emergency department with severe coughing up of blood and a recent loss of 40 pounds. A chest X-ray at admission revealed a large mass in the upper left lobe of the lungs. Lab work suggestive of anemia correlated with a malignancy as its source. Sputum to test for acid fast bacillus was taken, and a consult was immediately arranged with a pulmonary specialist to consider a bronchoscopy and to take a biopsy. A CT scan of the chest on June 18 revealed abnormal soft tissue density filling the right upper lobe, two tumors, and numerous nodes. The bronchoscopy on June 19 revealed 80 percent obstruction of the right main bronchus secondary to an endobronchial lesion and 100 percent obstruction of the right upper lobe. A biopsy of the right mainstem bronchus revealed a squamous cell carcinoma. A physician noted in his consultation report that W. P. was to complete his metastatic survey on the day of the report--June 22--after which they would discuss palliative treatment. The report states that the patient understands that he will unlikely live more than six months. Subsequently, acid fast bacillus, which had originally not been detected, was found, so W. P. was placed in isolation on June 26. He had been experiencing elevated white blood counts and fevers. He was placed on antituberculosis treatment, which, as noted above, typically takes two or three weeks until the patient can be removed from isolation. July 10 was W. P.'s first day without fever. On this date, Respondent sent his records to the Health Department to facilitate a transfer to a tuberculosis hospital. He was discharged on July 13. W. P.'s entire hospitalization was medically necessary. Petitioner should not have denied any of the 13 days that it denied. M. Pr. was admitted on December 18, 2001. Petitioner does not contest the medical necessity of inpatient services to treat M. Pr.'s coronary artery disease from December 18-27. The parties' dispute concerns the medical necessity of the remaining seven days of M. Pr.'s hospitalization. M. Pr., a 58-year-old male, presented to the emergency department with a recent cardiovascular accident while out of state. A cardiac catheterization revealed severe triple vessel coronary artery disease. On December 19, M. Pr. underwent a four-vessel bypass. Post-operatively, however, M. Pr. fell while on the commode. The dispute in this case arises due to the unavailability of rehabilitation facilities that would take M. Pr. after his fall. He was suitable for discharge on December 28, but no facility could be found to receive him. These are "grace days," as noted in the Handbook and are available, on a limited basis, for persons under 21 years of age, but, by negative implication, are unavailable for adults. Thus, medical necessity dictated that Respondent discharge M. Pr. on December 27, so the inpatient services are not reimbursable after December 28, given that the day of discharge is not allowable. Dr. Silkes' determination was correct in this case. Petitioner properly denied seven days' inpatient services for M. Pr. A. R. was admitted on December 30, 2001. Petitioner has denied the entire 14 days of A. R.'s hospitalization, although Dr. Silkes approved one day's inpatient services, on the day of admission, for the treatment of ovarian cancer. A. R., a 63-year-old female, presented to the emergency department with vomiting on the day of admission, progressive abdominal distension, anorexia, weight loss over the past month, and a 15-year history of bronchial asthma. A CT scan of A. R.'s thorax at the time of admission revealed a large collection of fluid in the abdominal cavity. At this time, a physician removed 4.5 liters of fluid from the cavity, and A. R., not surprisingly, began to feel much better. A report on January 3--delayed probably due to the holidays-- indicated the presence of scattered malignant cells in the withdrawn fluid compatible with carcinoma. Metastatic ovarian cancer was subsequently confirmed. A. R.'s case was complicated by the withdrawal of this large volume of fluids, which required continual monitoring of her electrolytes, and the sudden exacerbation of her dementia on January 2, which would impede outpatient services, as well as the initiation of chemotherapy. The dementia, which had been progressive for the past six months, was likely a reaction to the carcinoma. By January 11, a physician recommended hospice placement given A. R.'s incurable tumor. A. R.'s daughter agreed on this day to hospice placement. This is the day that medical necessity for inpatient services ended. Petitioners should have denied three days, not 14 days. The remaining days were medically necessary. E. S. was admitted on May 4, 2001. Petitioner does not contest the medical necessity of inpatient services to treat E. S.'s pancreatitis and multisystem failure from May 4-23. The parties' dispute concerns the medical necessity of the remaining 24 days of her hospitalization, which ended with her death. E. S., a 64-year-old female, presented to the emergency department with nausea and abdominal pain and a history of hypertension and abuse of alcohol and tobacco. She was found to have elevated pancreatic enzymes. On May 8, E. S. underwent a laparoscopic removal of her gallbladder, which she tolerated well, but soon afterwards suffered respiratory failure. E. S. was then placed on a ventilator. Problems with malnourishment and then kidney failure precluded a successful weaning her off the ventilator. On May 23, the family agreed to a DNR code. May 23 marks the last day that Dr. Silkes found that E. S.'s hospitalization was medically necessary. Care after this date was entirely supportive and not medically necessary; however, no hospice or skilled nursing facility would take E. S. because she could not be weaned off the ventilator. The unavailability of an alternative, less costly setting does not automatically render the inpatient care of a recipient medically necessary. The circumstances dictate whether inpatient services to such a patient are medically necessary. Here, it is impossible to find that services after May 23 were medically necessary. Dr. Silkes was correct in her opinion. Petitioner properly denied all 24 days of inpatient services for E. S. D. S. was admitted on March 24, 2001. Petitioner does not contest the medical necessity of inpatient services to treat D. S.'s osteomyelitis of the right foot from March 24-25 and March 30-April 10. (Originally, Dr. Silkes allowed only March 24-25 and March 30-April 6, but, on February 7, 2007, she revised her opinion to allow the additional four days to April 10.) In its prehearing statement, Petitioner conceded that only three of the original ten denied days remained at issue, as it was agreeing that an additional seven days were medically necessary. The parties' dispute concerns the medical necessity of the remaining three days, although it is not clear what three days Petitioner is contesting. D. S., a 57-year-old female, presented at the emergency department with a "hole in the right foot" and a history of diabetes. She dropped a can of juice on her foot on January 1, and the foot had become progressively infected since that time. On the day of admission, she underwent surgery for the removal of fourth and fifth metatarsal bones and toes of the right foot. She did not heal properly and required followup surgery on April 7 to trim some of the necrotic flap, as the physicians considered the possibility of a below-knee amputation. On April 13, the surgeon probed the wound, found no hidden pockets, and discharged D. S. Regardless what three days that Petitioner continues to find were not medically necessary, the entire hospitalization was medically necessary. J. W. was admitted on August 20, 2001. Petitioner does not contest the medical necessity of inpatient services to treat J. W.'s multiple organ failure from August 20 to September 14. The parties' dispute concerns the medical necessity of the remaining two days of J. W.'s hospitalization, at which time he died. J. W., a 48-year-old male, presented to the emergency department with a two or three-day history of progressive congestive heart failure with pulmonary edema, atypical chest pain, and increasing abdominal girth. His history included nonischemic cardiomyopathy with minimal coronary artery disease, chronic alcohol abuse, pulmonary hypertension, chronic atrial fibrillation requiring anticoagulation therapy, hepatitis B and C, chronic renal insufficiency, and chronic congestive heart failure with multiple hospitalizations. On admission, his INR was 6.6, indicative of very slow clotting. Despite the care of numerous consultants, J. W. suffered increased respiratory failure on September 5, at which time he was intubated. He received a Greenfield filter on September 7 to prevent further pulmonary clots. Starting September 10, and continuing everyday thereafter, J. W. required dialysis due to renal failure. J. W. was on total parenteral feeding as of September 14. The family, whose availability had been a problem, agreed to a DNR code on September 17. Respondent claims in its proposed recommended order that a DNR code is a precondition to hospice care, but no competent evidence establishes this fact. Dr. Silkes and Petitioner properly denied the last two days because they were not medically necessary. M. W. was admitted on June 10, 2001. Petitioner does not contest the medical necessity of inpatient services to treat M. W.'s ventricular fibrillation and complications from June 10- The parties' dispute concerns the medical necessity of the remaining seven days of M. W.'s hospitalization. M. W., a 31-year-old male, presented to the emergency department with cardiopulmonary arrest after his wife found him slumped on the sofa, seizing. On arrival, he was found to be in ventricular fibrillation, and he was intubated. Physicians restored a normal rhythm, but M. W. suffered a seizure in the emergency department, so he was given large doses of Dilantin. M. W. had suffered brain damage from cerebral anoxia. M. W. was extubated on June 13, and his breathing remained stable. He remained in normal sinus rhythm. M. W. began to receive Librium on June 13 to sedate him. The cardiologist proposed a cardiac catheterization, but M. W. refused. An EKG on June 15 found a conduction defect in M. W.'s heart that was suggestive of Wolff Parkinson White syndrome. The cardiologist then determined, on June 16, that M. W. required an electrophysiology study to rule out Wolff Parkinson White syndrome. In 2001, Respondent lacked the equipment to perform this study, for which M. W. remained too confused to participate on June 18 anyhow. Physicians continued to monitor M. W.'s cardiac rhythm, and, when a bed opened at Florida Hospital, Orlando, which had the necessary equipment, Respondent promptly transferred M. W. on June 22. During the transfer, the cardiac monitor continued to check M. W.'s rhythm due to the risk of another cardiac incident until the underlying cardiac abnormality was assessed and treated. Petitioner improperly denied the final seven days of M. W.'s hospitalization. M. W. had suffered a serious cardiac event. Physicians had not yet ruled out all possible reasons for the event and needed to address a promising possibility of Wolff Parkinson White syndrome, so M. W. remained at risk for another event. He was confused from the brain damage. All of these factors militate in favor of finding that the remaining seven days of inpatient services were medically necessary. E. A. $1666.62 R. B. $5703.18 N. C. $7332.66 N. Ch. $38,332.26 J. C. $4888.44 R. LaB. $833.31 J. L. $1666.62 C. M. $9166.41 M. M. $2499.93 The total overpayment is $104,309.97, which breaks down as follows: J. P. $2444.22 M. Pr. $5703.18 A. R. $2444.22 E. S. $19,999.44 J. S. $1629.48
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding overpayments totaling $104,309.97 during the audit period and requiring that Respondent repay this amount, imposing an administrative fine of $1000, requiring Respondent to prepare a corrective action plan, and reserving jurisdiction to remand the case to the Division of Administrative Hearing for a determination of Petitioner's entitlement to statutory costs, if any. DONE AND ENTERED this 6th day of June, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 6th day of June, 2007. COPIES FURNISHED: Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building 3116 2727 Mahan Drive Tallahassee, Florida 32308 Richard M. Ellis, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Post Office Box 551 Tallahassee, Florida 32304-0551 William Blocker, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive, Building 3 Tallahassee, Florida 32308 Daniel Lake, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III, Mail Stop 3 Tallahassee, Florida 32308 Tracy Cooper, Esquire Agency for Health Care Administration Fort Knox Building III, Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether the Agency for Health Care Administration (Petitioner) is entitled to recover certain Medicaid payments made to Cape Memorial Hospital, Inc., d/b/a Cape Coral Hospital (Respondent).
Findings Of Fact Title XIX of the Social Security Act establishes Medicaid as a collaborative federal-state program in which the state receives federal funding (also known as “federal financial participation” or “FFP") for services provided to Medicaid- eligible recipients in accordance with federal law. The Florida statutes and rules relevant to this proceeding essentially incorporate federal Medicaid standards. The Petitioner is the state agency charged with administering the Medicaid provisions relevant to this proceeding. Section 409.902, Florida Statutes (2015)1/, states that the Petitioner is the “single state agency authorized to make payments” under the Medicaid program. The referenced statute limits such payments to “services included in the program” and only on “behalf of eligible individuals.” The Respondent is enrolled in the Florida Medicaid Program as a Medicaid Hospital Provider. The Respondent's participation in the Florida Medicaid Program is subject to the terms of a Medicaid Provider Agreement. The Respondent's Medicaid Provider Agreement requires compliance with all state and federal laws governing the Medicaid program, including the state and federal laws limiting Medicaid payments for services provided to undocumented aliens. Eligibility for Medicaid services is restricted to United States citizens, and to specified non-citizens who have been lawfully admitted into the United States. Pursuant to section 409.902(2)(b), Medicaid funds cannot be used to provide medical services to individuals who do not meet the statutory eligibility criteria "unless the services are necessary to treat an emergency medical condition" or are for pregnant women. The cited statute further provides that such services are “authorized only to the extent provided under federal law.” The relevant federal law (42 U.S.C. section 1396b(v)(3)) defines an "emergency medical condition" as: medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in-(A) placing the patient's health in serious jeopardy, (B) serious impairment to bodily functions, or (C) serious dysfunction of any bodily organ or part. The Florida definition of “emergency medical condition” set forth at section 409.901(10)(a) mirrors the federal definition. Pursuant to section 409.904(4), the Petitioner can make payments to a Medicaid provider on behalf of "a low-income person who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services" for “the period of the emergency, in accordance with federal regulations." The Florida Medicaid program requirements relevant to this proceeding were identified in the Florida Hospital Services Coverage and Limitations Handbook (incorporated by reference in Florida Administrative Code Rule 59G-4.160(2),), and in the Florida Medicaid Provider General Handbook (incorporated by reference in Florida Administrative Code Rule 59G-5.020.) The applicable Florida Hospital Services Coverage and Limitations Handbook provided as follows: The Medicaid Hospital Services Program reimburses for emergency services provided to aliens who meet all Medicaid eligibility requirements except for citizenship or alien status. Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated. Similar provisions were contained in the Florida Medicaid Provider General Handbook. Section 409.913 requires that the Petitioner monitor the activities of Medicaid providers and to “recover overpayments.” The Petitioner’s Bureau of Medicaid Program Integrity (BMPI) routinely conducts audits to monitor Medicaid providers. Section 409.913(1)(e) defines “overpayment” to include “any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse, or mistake.” The BMPI conducted a review of the Respondent's claims for services rendered to undocumented aliens during the period January 1 through December 31, 2006. The Respondent provided all documentation requested by the Petitioner necessary to review the claims addressed herein. As to each claim, the designated reviewing physician made a determination, based on the medical records, as to whether the claim was related to an emergency medical condition, and, if so, when the emergency medical condition was alleviated. Based on the evidence, and on the testimony of the physicians identified herein, the determinations of the physicians are fully credited as to the existence of emergency medical conditions and as to when such conditions were alleviated. CLAIM #1 Dr. Thomas Wells reviewed Claim #1, which involved a length of stay from March 31 through April 10, 2006. Based upon his review of the medical records, Dr. Wells determined that an emergency medical condition existed on March 31, 2006, and that it had been alleviated as of April 6, 2006. CLAIM #3 Dr. Michael Phillips reviewed Claim #3, which involved a length of stay from May 27 through June 12, 2006. Based upon his review of the medical records, Dr. Phillips determined that an emergency medical condition existed on May 27, 2006, and that it had been alleviated as of May 28, 2006. CLAIM #4 Dr. Michael Phillips reviewed Claim #4, which involved a length of stay from January 15 through January 20, 2006. Based upon his review of the medical records, Dr. Phillips determined that an emergency medical condition existed on January 15, 2006, and that it had been alleviated as of January 17, 2006. CLAIM #5 Dr. Michael Phillips reviewed Claim #5, which involved a length of stay from March 4 through April 10, 2006. Based upon his review of the medical records, Dr. Phillips determined that an emergency medical condition existed on March 4, 2006, and that it had been alleviated as of March 7, 2006. CLAIM #6 Dr. Steve Beiser reviewed Claim #6, which involved a length of stay from June 15 through June 18, 2006. Based upon his review of the medical records, Dr. Beiser determined that an emergency medical condition existed on June 15, 2006, and that it had been alleviated as of June 16, 2006. CLAIM #7 Dr. Thomas Wells reviewed Claim #7, which involved a length of stay from June 15 through July 6, 2006. Based upon his review of the medical records, Dr. Wells determined that the emergency medical condition existed on June 15, 2006, and that it had been alleviated as of June 28, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding a Medicaid overpayment of $57,350.67 related to the six claims identified herein. Pursuant to section 409.913(23), Florida Statutes, the Petitioner is entitled to recover certain investigative, legal, and expert witness costs. Jurisdiction is retained to determine the amount of appropriate costs if the parties are unable to agree. Within 30 days after entry of the final order, either party may file a request for a hearing on the amount. Failure to request a hearing within 30 days after entry of the final order shall be deemed to indicate that the issue of costs has been resolved. DONE AND ENTERED this 27th day of July, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 27th day of July, 2016.
The Issue Whether Respondent violated Subsections 458.331(1)(q), 458.331(1)(t), 458.331(1)(nn), 458.347(4), and 456.072(1)(o), Florida Statutes (2001), and Florida Administrative Code Rule 64B8-30.008, and, if so, what discipline should be imposed.
Findings Of Fact At all material times relevant to this proceeding, Coker was a licensed physician assistant with an additional qualification as a prescribing physician assistant in the State of Florida, having been issued license number PA3151. A physician assistant is a dependent practitioner, who practices under a supervising physician. A physician assistant acts as a supplement or extension of the supervising physician and is trained to do histories and physicals, to diagnose, and to treat patients. In Florida, a physician assistant is permitted to prescribe certain medications after completion of a prescriptive practice seminar and an application process. Beginning in June 2001, Coker began working as an independent contractor for Dr. Rosetta V. Cannata, an anesthesiologist who practices in pain management. Dr. Cannata was Coker's supervising physician. Dr. Cannata maintained an office in Englewood, Florida, and decided to expand her business to adult entertainment clubs in Tampa, Florida. The purported purpose was to provide medical services to persons who were working in the adult entertainment business. She made arrangements with various clubs to provide space to her at the clubs for use as examining rooms. Dr. Cannata and Coker began seeing patients at adult clubs such as the Pink Pony and Diamond's Men's Club. Patients other than those from the adult entertainment business began to come to the clubs to see Dr. Cannata and Coker. Dr. Cannata opened an office on Martin Luther King, Jr. Boulevard in Tampa to take care of the increased business. Coker saw patients at the new office and also continued to see patients at the adult clubs. In 2001, the Hillsborough Sheriff's Office began an investigation of Coker's activities in Tampa. Jaceson Yandell (Yandell) was the lead investigator. Yandell used a confidential informant (CI) to make contact with Coker. On July 14, 2001, the CI took Detective Dan Mathis (Mathis),1 an undercover officer, to Diamond's Men's Club to see Coker. Mathis and the CI were fitted with either recording or transmitting devices so that their conversations with Coker were recorded. Yandell was stationed in a nearby vehicle, which contained devices that could receive and record the transmission of the conversation between Mathis and Coker. Mathis was introduced to Coker by the CI as Dee Tucker. Coker asked Mathis to fill out a medical history form. Mathis filled out the form, indicated no to all the questions, and stated that he was not currently taking any medication, had no previous surgeries, and was not allergic to any medications. He did not list a name for his medical doctor. After asking Mathis his height and weight and whether he was allergic to any medicine, Coker asked, "What am I seeing you for today, Dee?," and the following conversation took place: Mathis: I ain't got nothing wrong with me. CI: Tell him what you want, shit that's the only way you're gonna get it. Mathis: Some Z's.2 Coker: So you are having some anxiety is what you're telling me? Mathis: Yeah, yeah. CI: Say yes. Mathis: Yes. Coker: Has this been going on long? Mathis: Shit. Well, it's been a long. It's been a while. I've been kinda acting like that. Coker also asked Mathis whether he had ever been in the military, had a car wreck, or been injured in anyway, including any football injuries. Coker also asked him whether he had a family history or had any surgeries. Mathis replied negatively to all of these inquiries. Mathis did advise Coker that his mother, who had smoked for 45 years, had recently died of hypertension and congestive heart failure at the age of 62. Coker did not check Mathis' heart, lungs, ears, nose, throat, or glands. Coker took Mathis' blood pressure and found that it was high, and advised Mathis that he needed to take medication for the high blood pressure. He prescribed hydrochlorothiazide for the high blood pressure and ordered some laboratory work to rule out causes for the elevated blood pressure. Coker also advised Mathis to eat more foods that were high in potassium. Coker had two prescription pads. One pad contained prescription forms that were pre-signed on the physician's signature line, and the other pad contained prescription forms that were not pre-signed. Coker wrote the prescriptions for the hydrochlorothiazide and the laboratory work on the prescription forms that were not pre-signed. Coker prescribed 30 two-milligram bars of Xanax for Mathis for anxiety. The prescription could be refilled two times. The prescription was written on one of the pre-signed prescription forms. During the July 14 office visit, there was no discussion of the possible cause of Mathis' anxiety, no discussion of a plan of treatment for the anxiety, and no discussion of alternative treatments for anxiety, such as counseling. The only discussion of directions of use or warnings concerning Xanax was that taking Xanax in the bar, rather than pill form, could save the patient money, because the bar could be broken into smaller doses and that Coker would prefer that a patient not take a whole bar unless it was necessary. Xanax contains Alprazolam which is a schedule IV controlled substance. Mathis did not see Dr. Cannata during his July 14 office visit. Coker did not leave the examining room or make any telephone calls during Mathis' office visit. Mathis paid Coker $50 for the visit. After leaving the Diamond's Men's Club, Mathis went to the vehicle where Yandell was located and gave Yandell the prescriptions. On August 17, 2001, Mathis returned alone to Diamond's Men's Club to see Coker. Mathis was wired with a transmitting device so that the conversation between Coker and Mathis was recorded. Coker took Mathis' blood pressure and found it to be lower. Other than taking Mathis' blood pressure, Coker did not perform any physical examination of Mathis. Mathis advised Coker that he had an injury due to bench pressing and that he felt some discomfort when he bench-pressed during a work out. Coker did not ask Mathis how often he experienced the pain, nor did he ask Mathis if he was taking any other medication for the pain. Coker and Mathis discussed the use of anabolic steroids, and Coker discouraged the use of steroids. During the August 17, 2001, office visit, Coker did not ask Mathis how the Xanax was working, did not inquire whether Mathis was still experiencing anxiety, did not discuss alternatives to Xanax, did not discuss the causes of anxiety or ways to address the anxiety, did not discuss a medical diagnosis with Mathis, and did not discuss a plan of treatment. On August 17, 2001, Coker wrote Mathis a prescription for 30 two-milligram bars of Xanax, which could be refilled two times, and a prescription for Lortab, which could be refilled one time. Lortab contains Hydrocodone which is a Schedule III controlled substance. Coker wrote the prescriptions on prescription forms which had been pre-signed on the line for the physician's signature. Mathis did not see Dr. Cannata on the August 17, 2001, visit, and Coker did not leave the room. Other than a telephone call to his family, Coker did not talk on the telephone during Mathis' visit. Mathis paid Coker $50 for the office visit and left the adult club. He met Yandell at a predetermined location and turned over the prescriptions to Yandell. On August 21, 2001, Mathis and another undercover officer, Detective Peggy Grow (Grow), met with Coker at an office located on Martin Luther King, Jr. Boulevard in Tampa. Mathis and Grow were outfitted with transmitting and recording devices so that the conversations of Mathis, Coker, and Grow were recorded. Grow was introduced to Coker as Peggy Lane.3 As an undercover officer, Grow played the role of a call girl or escort. Upon meeting Grow, Coker explained that he was a physician assistant and worked with Dr. Cannata, who was an anesthesiologist. He stated that the practice included primary care, pain management, and management of anxiety and depression. He asked Grow to fill out a medical history questionnaire. She checked no to all the questions except for the use of alcohol and tobacco. Grow did not list the name of her medical doctor and told Coker that she had not seen a doctor in a long time. Coker asked Grow the reason for her visit, and the following conversation took place: Grow: I just need something to keep going. I work a lot of hours, you know, sometimes I'm up real late and then you know I get up again and, sometimes, you know, it's hard. Coker: Okay. Define keep me going 'cause I don't prescribe any kind of amphetamines or any speed or anything like Mathis: I told you doc. He, he, he's straight. Tell him you want some Zees. Coker: Tell me . . . Grow: I want some Zees. Coker: Xanax. Okay. Xanax is an anti- anxiety. Okay? Grow: Will that help like stress and stuff like that? Coker: Oh, absolutely. Grow: Okay. I think that keeps . . . Coker: Any time dealing with anxiety. It's actually a wonderful medicine and it works very well. Grow: Okay. Coker: Um, it either can be dosed, you can, like I always prescribe the bars because you can break them into four pieces or you can break them into two pieces or you can take the whole thing. It just depends on what your need is. Grow: Okay. Coker: Okay? And I have folks, you know, I tell them take it as needed. Um, but usually it's just an anxiety kind of thing, so . . . you know, you got to talk English to me otherwise I don't understand. The medical records which Coker generated for Grow contained the following notes, as they related to Grow's anxiety: CHIEF COMPLAINT: Describes being tense, on edge, tremulous, difficulty relaxing, tachycardia-palpitations, dyspnea, symptoms present for "years." * * * PLAN: advised Referral - To therapist of choice for chronic recurring anxiety Advised If hyper-ventilating, then teach "brown paper lunch bag" re-breathing technique. Avoid caffeine and plan for regular physical activity. Practicing a relaxation exercise regularly as well. Discussed stress reduction. Grow did not describe the symptoms listed above, and Coker did not give the advice listed above. Grow told Coker that she had never had any surgeries and that she had taken some of Mathis' Xanax. Coker took Grow's blood pressure, listened to her heart and lungs, and checked the glands on her neck. Coker gave Grow a prescription for Xanax and advised her not to drink, drive, or operate machinery while she was taking the Xanax. He told her the prescription included one refill and not to call him saying that she needed another refill. He told her to "[g]o get some of his (meaning Mathis)." Coker wrote the prescription for Xanax on a prescription form which had been pre-signed on the physician's signature line. During Grow's visit on August 21, 2001, Mathis asked Coker about giving him a prescription for Vicodin. Coker explained that Vicodin was the same medication as the Lortab, which he had prescribed to Mathis on Mathis' last visit. Mathis explained that the Lortab was actually for him, and Coker asked him for whom was the Vicodin. Mathis replied that it was for himself, after which the following conversation took place: Coker: Well, see I can't give them to you then 'cause I gave script for a hundred on the 17th. Grow: How about me? Coker: Yeah, I can give them for her. Mathis: Well, do that. Alright, I get, I get ah Craig hooked up. Coker: For your, your neck pain, huh? Mathis: Yeah. Coker: After the motor vehicle accident two weeks ago. There had been no mention of Grow having any neck pain until Coker stated that it was for her neck pain. There is nothing in the recorded conversation between Grow and Coker from which Coker could make a determination that Grow had neck pain resulting from a motorcycle or motor vehicle accident. Coker invented the symptoms for Grow to give support for a prescription for pain medication. Coker asked Mathis, not Grow, about the Vicodin prescription in the following conversation: Coker: Which Vicodins are we talking about here, Dee? Mathis: A stronger one. Coker: Well, if you want the tens you have to go really with the Lortabs 'cause you're going to get generic anyhow. Mathis: I'm going to get generic? Coker: Right. Mathis: As opposed to what? Coker: Well, if I wrote it for Vicodin HP, which is not generic, then you pay a lot of money. Mathis: I ain't paying it. I ain't worried about that. Coker: What I'm saying somebody's going to pay a lot of money versus . . . the thing about it is it's no difference than the generic. Mathis: Is, I mean, Craig going to be able to take of that, I'm not as far as . . . Based on the recorded conversations between Mathis and Coker, it is clear that Mathis wanted the Vicodin prescription for someone named Craig, and that Coker was going to prescribe the pain medication for Grow in order to get around the problem that it was too soon for Coker to give Mathis another prescription for pain medication. On August 21, 2001, Coker gave Grow a prescription for 50 Lortab, which could be refilled one time. The prescription was written on a prescription form, which was pre-signed on the physician's signature line. During the August 21 office visit, Grow did not see Dr. Cannata; Coker did not leave the room; and Coker did not make any telephone calls. On August 24, 2001, Grow and another undercover officer, Detective Heinz Bachman (Bachman),4 went to Diamond's Men's Club to see Coker. Both Grow and Bachman were outfitted with electronic devices that allowed the conversations during the visit to be monitored and recorded. Grow introduced Bachman to Coker as Hank Richardson. When Coker asked Bachman the reason for the visit, Bachman told him pain. Grow told Coker that Bachman wanted some Vicodin. Coker asked Bachman what kind of pain he had, the cause of the pain, and the duration of the pain. Bachman told Coker that he had injured his back a week ago while throwing a fish net. Coker asked Bachman if he had had any surgeries, was on any medication, was allergic to any medicine, or smoked. Bachman answered all the questions in the negative. Bachman also filled out a medical history questionnaire, indicating no to all the questions. Later, when he told Coker that he had back pain, the form was changed to reflect that condition. Bachman did not list the name of his medical doctor. Coker took Bachman's blood pressure and listened to his lungs and heart with a stethoscope. Bachman was requested to stand up. Coker then palpated Bachman's lower back and asked if that was where he had pain. Bachman replied that it was. Coker told Bachman that he was going to give him a prescription for pain medicine and that Bachman should take an anti-inflammatory, over-the-counter medication and put ice on his back. Coker advised Bachman that if the pain did not go away that Bachman should come back for a shot of cortisone. Coker told him not to drink, drive, operate machinery, or drive a boat while he was taking the medication. During the visit, Grow asked Coker if he could give Bachman some Xanax during the following conversation: Grow: Very cool. While's we're here can, can you give him one for Zees for me and Dee [Mathis] to take? Coker: Ah-yi-yi-yi-yi-yi-yi Grow: Can you give him some Zees? Coker: Maybe. Grow: Okay. Okay. (Laughs.) Coker: (Laughs.) Grow: Well, you gotta ask, right? Coker: Ay-yi-yi-yi-yi-yi Grow: You told me last time to ask. Bachman did not tell Coker that he was experiencing any anxiety or any symptoms of anxiety or stress. Coker did not ask what might be causing Bachman to have anxiety or describe a plan of treatment for anxiety. Coker did tell Bachman that the Xanax was for mild anxiety. It is clear that Bachman was not experiencing anxiety and that the reason for prescribing Xanax was for Grow's use and not Bachman's. Coker wrote a prescription for Bachman for 50 Lortab with no refill, and a prescription for 60 Xanax with one refill. Both of the prescriptions were written on prescription forms which had been pre-signed on the physician's signature line. During the visit, Bachman did not see Dr. Cannata, and Coker did not leave the room or discuss anything with Dr. Cannata. Bachman paid Coker $50 for the visit. On September 27, 2001, Grow went to see Coker and brought along another undercover officer, Anthony Bordonaro (Bordonaro).5 Both Grow and Bordonaro were outfitted with electronic devices that allowed the conversations during the office visit to be recorded. Grow told Coker that she was there for refills of her prescriptions. Coker asked her how her back and neck were, to which she replied the "same." He asked if she were okay with her medications and she said "Love 'em." Coker took Grow's blood pressure and listened to her heart. He felt her neck and palpated her back. Coker found a knot in her back area, and suggested that she have some massage therapy, stating that he was also a massage therapist. He wrote prescriptions for Grow for 45 Xanax with one refill and for 50 Lortab with one refill. Coker asked Bordonaro his height and weight. Bordonaro stated he was not taking any medications and that he was allergic to penicillin. He told Coker that he piloted tug boats, had hurt his arm in a fall on a boat, and had to have surgery on his arm five years ago, resulting in a screw being placed in his arm. Bordonaro stated that he had no other medical problems. He denied smoking, but indicated he did drink alcohol. When Coker asked Bordonaro what was the purpose of the visit, Bordonaro said that he wanted some Vicodin, which he had taken when he had hurt his arm. According to Bordonaro, it was "some good stuff." Coker's computer medical notes for Bordonaro's visit indicate that Bordonaro was currently taking pain medication; however, Bordonaro did not indicate that he was currently taking any pain medications. Coker took Bordonaro's blood pressure and listened to his lungs. Coker told Bordonaro that his blood pressure was high. Bordonaro told Coker that the last time that he had gone to his doctor in Pensacola, his blood pressure was 112/80. Coker told Bordonaro that they would keep an eye on his blood pressure. When Coker asked Bordonaro what he did that caused pain in his arm, Bordonaro replied, "Like all in, all in here." Coker had him lift his wrist up and down, spread his fingers apart and push them together, and touch his thumb and little finger. Coker wrote Bordonaro a prescription for 50 Vicodin with one refill. Vicodin contains Hydrocodone, which is a Schedule III controlled substance. Coker told Bordonaro to avoid doing anything that would exacerbate the pain and not to drink, drive, or operate any machinery while taking the medication. The prescriptions that Coker wrote for Grow and Bordonaro on September 27, 2001, were written on prescription forms which were pre-signed on the physician's signature line. Dr. Cannata was not present during the office visit, and Coker did not leave the room or make any telephone calls during the visit. Coker charged Bordonaro $100 for his and Grow's visit. On November 15, 2001, Grow returned to see Coker and took along undercover officer Donald Bowling.6 Both officers carried electronic devices that allowed the conversations during the visit to be recorded. Grow indicated that she was there because she wanted refills on her Lortab prescription. Coker asked her how she was feeling, to which she replied, "Oh, pretty good." When asked about her neck, Grow told Coker that it was about the same. Coker asked if ever got any better, and she told him it did, but that sometimes she slept funny. Coker took Grow's blood pressure, listened to her heart, and felt her neck. He asked Grow her weight and height. Coker indicated that she could get her medications from him, rather than getting prescriptions and having them filled at a pharmacy. He gave her a bottle of 100 Hydrocodone and a bottle of 180 one-milligram tablets of Alprazolam, the generic name for Xanax. He told her to take two of the Xanax instead of one because the dosage was smaller. When Coker asked Bowling the reason for his visit, Bowling told him that he had injured his knee in high school and that the knee would get really sore every now and then. He said that when he bent his knee he could feel something, but he did not know how to describe it. Bowling said that someone wanted to do a "scope thing" on his knee and that he had refused. Coker took Bowling's blood pressure and listened to his heart. Coker had Bowling lie down on the examination table. While Coker felt around Bowling's knee, he asked where the pain was. Bowling said that he could feel the pain when he was moving in a certain way. Coker had him tighten his muscle and lift his leg. Coker advised Bowling that his condition was early wear and tear on the knee, which was common. The condition, Coker said, would come and go. Coker told Bowling that in addition to taking the pain medication, he should take over-the-counter, anti-inflammatory medications such as Ibuprofen and Aleve. He told Bowling to put ice on the knee and to avoid actions that would tend to make the knee worse, such as squatting on the knee. Coker asked Bowling his height and weight. When asked by Coker, Bowling said that he had not had any major surgery and was not allergic to any medication. He told Coker that his father had recently been diagnosed with colon cancer. Bowling said that he smoked tobacco and drank alcohol. During the visit Grow told Coker that Bowling wanted some Zees. After examining Bowling, Coker asked, "You said you wanted Xanax also?" to which Bowling replied "Yes. Please." There was no other mention of a reason for giving Bowling Xanax. In Bowling's medical records, Coker indicated that Bowling had "Anxiety syndrome (tense or nervous)"; however, Bowling never said that he had anxiety or was tense or nervous. Coker gave Bowling a bottle of Alprazolam and a bottle containing 100 Hydrocodone tablets. Bowling paid Coker $310 for his and Grow's visit and medications. Dr. Cannata was not present during the visit of Grow and Bowling on November 15, 2001. Coker did not leave the room or contact Dr. Cannata during the visit. On December 13, 2001, Bordonaro went to see Coker to get a refill of his pain medication. Bordonaro carried an electronic device which allowed their conversation to be recorded. Even though Coker had told Bordonaro during their last visit that Bordonaro's blood pressure was high, Coker did not examine Bordonaro or take his blood pressure. Coker asked Bordonaro how he was doing, and Bordonaro replied, "Good. Good." After explaining the difference between Vicodin ES and Hydrocodone, Coker gave Bordonaro a bottle of 100 Hydrocodone tablets, and charged Bordonaro $115 for the visit and medication. On January 11, 2002, Bordonaro visited Coker at an adult club to get more medication. Again, Bordonaro wore a device which allowed the conversation to be recorded. He told Coker that he was having to take more of the Vicodin and asked if he could get something stronger. Bordonaro also asked if he could get some Xanax. At first, Coker told him no, but then gave him a form and told him to place a checkmark by everything that applied to him. Bordonaro checked the first three items on the form and gave it back to Coker. Coker did not discuss with Bordonaro any symptoms of anxiety that Bordonaro checked on the form or any plan of treatment for anxiety. Coker did not perform an examination of Bordonaro. Although Coker's computer-generated medical records for Bordonaro's January 11 visit indicate that Bordonaro's blood pressure was taken, it was not. Coker gave Bordonaro a bottle of 100 tablets of Hydrocodone/Acetaminophen, and a bottle of 90 Alprazolam bars for anxiety. Coker did not contact Dr. Cannata during the visit. The total charge for the visit and medications was $155. On February 12, 2002, Bordonaro returned to see Coker to get refills of his pain medication. The undercover officer wore an electronic device which allowed the conversation to be recorded. Bordonaro told Coker that the pain pills he had gotten at the last visit were not working and asked if he could get something stronger. Coker told him that he could write a prescription for Percocet, but that Bordonaro would have to get it filled at a pharmacy. Coker suggested that he get the prescription filled at Wal-Mart or Target because those pharmacies are not computer interconnected as Eckerds and Walgreens are. Coker gave Bordonaro a prescription for 100 Percocet with no refills. Percocet contains Oxycodone, which is a Schedule II controlled substance. Coker wrote the prescription on a prescription form which was pre-signed on the physician's signature line. Coker did not examine Bordonaro during the visit. Although Bordonaro complained that the pain medication that he had been given on his last visit was not working, Coker put in Bordonaro's medical records that Bordonaro was "[d]oing well with current medication and treatment plan." Coker asked Bordonaro if he wanted the Xanax medication refilled, and Bordonaro replied that his girl was out of town so he did not need the Xanax. Bordonaro paid Coker $75 for the visit. On April 25, 2002, Bordonaro again visited Coker for the purpose of getting refills of his medications. Again, Bordonaro wore a device which allowed the conversation to be recorded. Coker gave Bordonaro 120 tablets of Hydrocodone, the generic for Lortab, and 90 bars of two-milligram Alprazolam for anxiety. Bordonaro asked if he could double up on his medication, and the following conversation took place: Coker: No. Bordonaro: No? Coker: That's what I have to tell you. Bordonaro: Okay. Coker: Remember with these don't drink, drive, operate any machinery while you're taking it. Don't mix with other medicines or share them with anyone else. When Coker told Bordonaro that he could not double up on the medication, Coker winked at Bordonaro. Bordonaro was not examined on the April 25 visit. Coker charged Bordonaro $165 for the visit and medications. John Barsa, M.D., a board certified physician in pain medicine, testified as an expert witness on Coker's behalf. Dr. Barsa practices in the Tampa area. Approximately nine or ten years ago, Dr. Barsa employed a physician assistant for about six months to one year. He currently employs three nurse practitioners. Dr. Barsa gave his opinions on the care that Coker provided to the undercover officers. However, his opinions were based in part on the medical records made by Coker. Much of those medical records do not accurately reflect what occurred during the visits of the undercover officers. Herly Ramos, P.A.-C., is a physician assistant and has passed the national board certification examination for general medicine. He is presently employed as a surgical assistant. Previously he practiced for nine years with the Orlando Orthopedic Center, which is primarily an orthopedic practice. While with the Orlando Orthopedic Center, Mr. Ramos routinely took medical histories, performed physical examinations, made assessments, developed treatment plans, did discharge evaluations, and wrote progress reports. A large component of the orthopedic practice involves evaluating patients for complaints of pain. Common orthopedic ailments include back or neck pain, extremity pain from strains, sprains, or fractures. The first line of treatment for such ailments includes nonsteroidal, anti-inflammatory drugs, muscle relaxers, and physical therapy. Patients with fresh fractures or other conditions involving severe pain often require narcotic analgesics or controlled substances. Mr. Ramos credibly opined on the standard of care for a physician assistant in evaluating a patient on the initial visit and follow-up visits. It is his opinion that when performing an initial evaluation of a patient complaining of pain, a detailed medical history should be taken, and a thorough physical examination should be conducted. The medical history should include a personal medical history, social history, family medical history, allergies, surgical history, name of current physician, current medications, review of systems, and any diagnoses. According to Mr. Ramos, the initial physical examination for a patient complaining of pain should include taking the patient's vital signs (blood pressure, pulse, respiration, and temperature), heart and lung examination, assessment for any obvious abnormalities, examination of the abdomen, and a detailed examination of the portion of the body about which the patient is complaining. During the physical examination, the physician assistant should be looking for anything that might indicate a cause for the patient's complaint. A limited examination is a less detailed examination, and it is Mr. Ramos' opinion that a limited examination is indicated when the physician assistant is treating the patient for a recurring complaint and wants to determine if there was any interval change. Dr. Barsa and Mr. Ramos agree that a physician assistant could recommend to the supervising physician that controlled substances be prescribed for a patient, but that a physician assistant could not prescribe controlled substances for a patient. It is the opinion of Dr. Barsa that a physician assistant who prescribes controlled substances is practicing beyond the scope permitted by law for a physician assistant. According to Dr. Barsa, the prescribing of controlled substances should be based upon a clear documentation of unrelieved pain that is unmanageable with simple Tylenol or aspirin. For example, it would be a violation of the standard of care to prescribe a controlled substance for neck pain when the patient has no complaints of neck pain. Mr. Ramos credibly opined that Coker's treatment of the undercover officers fell below the level of care, skill, and treatment which is recognized by a reasonably prudent physician assistant as being acceptable under the conditions and circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding James Coker guilty of violating Subsections 458.331(1)(t), 458.331(1)(q), 459.331(1)(nn), and 456.072(1)(o) and Florida Administrative Code Rule 64B8-30.008, and revoking his license as a physician assistant. DONE AND ENTERED this 31st day of October, 2003, in Tallahassee, Leon County, Florida. S SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 2003.
The Issue The issues in this case are whether Petitioner received Medicaid overpayments, and, if so, what is the aggregate amount of the overpayments.
Findings Of Fact The Parties Respondent, the Agency for Health Care Administration, is the single state agency charged with administration of the Medicaid program in Florida under Section 409.907, Florida Statutes. Petitioner, The Doctor's Office, was a Florida corporation approved by the Agency to provide group Medicaid services. At all times relevant to this matter, Petitioner was owned entirely by non-physicians who employed salaried physicians to provide Medicaid services. Petitioner, at all times relevant to this matter, offered physician services to Medicaid beneficiaries pursuant to a contract with the Agency under provider number 371236P-00. Petitioner, pursuant to the specific terms in the contract with the Agency, agreed to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program, and Federal laws and regulations. Petitioner, pursuant to its contract with the Agency, agreed to only seek reimbursement from the Medicaid program for services that were "medically necessary" and "Medicaid compensable." The Audit In mid-1996, the Agency, pursuant to its statutory responsibility, advised Petitioner that it intended to audit Petitioner's paid Medicaid claims for the alleged medical services it provided between July 1, 1994 and June 30, 1996. In September 1996, the Agency conducted an initial audit site visit, and randomly selected 61 patient files for review. The complete patient files, provided by Petitioner, were reviewed by Sharon Dewey, a registered nurse consultant and Agency employee, as well as Dr. Solenberger, a physician consultant and Agency employee. In accordance with its procedure, the Agency determined that Petitioner had submitted a total of 580 claims for reimbursement relating to the 61 patient files and had received full payment from the Medicaid program for each claim. On March 3, 1997, the Agency issued a Preliminary Agency Audit Report (PAAR), and advised Petitioner that it had over-billed Medicaid and received an overpayment from the program. Shortly thereafter, the Agency auditors, Dr. Solenberger and Ms. Dewey, met with Frank Colavecchio, Petitioner's Corporate Representative, and discussed the Medicaid violations alleged in the review. During the meeting, the Agency requested Mr. Colavecchio to instruct Petitioner's staff physicians to review their records and provide a written rebuttal to the Agency's initial determinations. Within days, and prior to any further action, the Agency placed the audit on indefinite hold. The Agency decided to delay the audit until certain proposed legislation relating to peer review and the integrity of the Medicaid reimbursement program was enacted. Two years later, Section 409.9131, Florida Statutes, was enacted during the 1999 legislative session and became law. Shortly thereafter, in 1999, the Agency hired Dr. Larry Deeb, a board-certified, practicing pediatrician, to perform a peer review of Petitioner's practices and procedures. Dr. Deeb has performed similar medical records reviews for the Medicaid program since 1981 and possesses a thorough understanding of CPT coding and the EPSDT requirements. Dr. Deeb received the medical files provided by Petitioner, and reviewed each patient file in the random sample, including the medical services and Medicaid-related claim records. On November 11, 1999, Dr. Deeb completed his peer review of 564 of the 580 claims provided in the random sample and forwarded his findings to the Agency. Dr. Deeb advised the Agency that 16 reimbursement claims involved adult patients and he therefore did not review them. Utilizing Dr. Deebs findings, the Agency employed appropriate and valid auditing and statistical methods, and calculated the total Medicaid overpayment that Petitioner received during the two year audit period. On July 17, 2000, approximately four years after the original audit notification, the Agency issued its Final Agency Audit Report (FAAR). The Agency advised Petitioner that, based upon its review of the random sample of 61 patients for whom Petitioner submitted 580 claims for payment between 1994 and 1996, Petitioner received $875,261.03 in total overpayment from the Medicaid program during the audit period. Petitioner denied the overpayment and requested a formal administrative hearing. Following the initial commencement of the final hearing in this matter in December 2001, Dr. Deeb, again, reviewed the disputed claims and modified his opinion relating to 6 claims. Thereafter, the Agency recalculated the alleged overpayment and demanded Petitioner to pay $870,748.31. The Allegations The Agency alleges that specific claims submitted by Petitioner, which were paid by the Medicaid program, fail to comply with specific Medicaid requirements and therefore must be reimbursed. Since its inception, the Medicaid program has required providers to meet the Medicaid program's policies and procedures as set forth in federal, state, and local law. To qualify for payment, it is the provider's duty to ensure that all claims "[a]re provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with . . . state . . . law." Section 409.913(5)(e), Florida Statutes (1993). Medicaid manuals are available to all Providers. Petitioner, as a condition of providing Medicaid services pursuant to the Medicaid program, is bound by the requirements and restrictions specified in the manuals, and under the contract, is required to reimburse the Medicaid program for any paid claims found to be in violation of Medicaid policies and procedures. The evidence presented at hearing established that Petitioner frequently violated various Medicaid policies and procedures. First, Petitioner repeatedly failed to comply with Section 10.9 of the Medicaid Physician's Provider Handbook, (MPPH), and Sections 409.905(9), 409.913(5)(e), 409.913(7)(e), and 409.913(7)(f), (1993, 1994 Supp. 1995, and 1996), Florida Statutes, which require all medical services to be rendered by, or supervised by a physician, and attested to by the physician's signature. Medical records reflecting services for paid claims must be physician signature certified and dated, or the services are not defined as physician's services. In addition, Petitioner routinely failed to correctly document the provision of certain physician's assistant (P.A.) Medicaid services that require the personal supervision of a physician or osteopath. See Chapter 1 of the Physician Assistant Coverage and Limitations Handbook, March 1995, and Appendix D (Glossary) in the Medicaid Provider Reimbursement Handbook, HCFA-1500 (HCFA-1500). In addition, Petitioner failed to comply with Medicaid regulations that require an approved physician to be present in the facility when certain P.A. services are delivered and to attest to it by signature within twenty-four hours of service. See Section 11.1 of the MPPH, effective July 1994, and Sections 409.905, and 409.913 (1993, 1994 Supp., 1995, and 1996 Supp.), Florida Statutes. The evidence presented at hearing also demonstrates that Petitioner repeatedly violated specific record keeping requirements located in Section 10.9 of the MPPH, Sections 10.6 and 11.5 of the Medicaid EPSDT Provider Handbook (EPSDT), and Sections 409.913(5)(e), 409.913(7)(e), and 409.913(7)(f), (1993, 1994 Supp., 1995, and 1996), Florida Statutes. In addition, the Agency demonstrated that Petitioner occasionally failed to document support for the necessity of certain services or simply billed for services that were not medically necessary. As indicated, Medicaid policy limits a physician to bill only for services that are medically necessary and defines the circumstances and varying levels of care authorized. In fact, Section 11.1 of the MPPH, effective July 1994, provides in part: The physician services program pays for services performed by a licensed physician or osteopath within the scope of the practice of medicine or osteopathy as defined by state law . . . . The services in this program must be performed for medical necessity for diagnosis and treatment of an illness on an eligible Medicaid recipient. Delivery of all services in this handbook must be done by or under the personal supervision of a physician or osteopath . . . at any place of service . . . . Each service type listed has special policy requirements that apply specifically to it. These must be adhered to for payment. The manual further provides clear guidelines defining authorized services for reimbursement which Petitioner apparently overlooked. For example, the manual defines the four types of medical history exams that Medicaid providers may conduct, the nature of the problems presented, and the appropriate and authorized tests. The manual also identifies the varying degrees of medical decision-making complexity related to Medicaid services and provides instructions relating to the method of selecting the correct evaluation and management code for billing. Petitioner consistently violated coding restrictions. Moreover, the Medicaid policy manual also outlines the specific procedures and billing requirements necessary for seeking payment for medical services including the early periodic screening for diagnosis and treatment (EPSDT) services. Chapter 10 and 11 of the MPPH specifically state that services that do not include all listed components of the EPSDT are not defined as an EPSDT, and upon audit, the Agency re-calculated Petitioner's medical services at the appropriate procedure code. Stipulation Prior to the commencement of the hearing, the parties stipulated that certain paid claims were correctly determined by the Agency to be overpayments. Specifically, the parties agreed that portions of samples 1, 3, 14, 21, 28, 41, 46, 47, 51, 53, and 56 could not be claimed for reimbursement since lab services which are part of an office visit reimbursement and/or lab service fees performed by an independent outside lab are not permitted. In addition, the parties agreed that specific portions of samples 1, 13, 14, 27, 28, 33, 35, 43, 46, 47, 52, 53, and 55 could not be claimed since Modifier 26 billing, the professional component, is only appropriate when the service is rendered in a hospital and Petitioner's services were rendered in an office. Pediatric Sample With regard to the random sample of pediatric files, upon careful review, the evidence presented at hearing sufficiently demonstrates that Petitioner was overpaid the following amounts on the following paid claims for the following reasons: The prolonged physician's services billed to Medicaid were not documented as having been provided or medically necessary. Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 1 1/18/1996 99354 $ 36.64 1 5/14/1996 99354 $ 36.64 13 9/25/1995 99354 $ 36.64 19 9/28/1994 99354 $ 39.50 21 12/18/1995 99354 $ 36.64 28 3/06/1995 99354 $ 36.64 42 6/04/1996 99354 $ 36.64 43 12/19/1994 99354 $ 36.64 47 9/28/1994 99354 $ 39.50 47 10/17/1995 99354 $ 36.64 51 4/05/1995 99354 $ 36.64 53 11/02/1995 99354 $ 36.64 56 5/01/1996 99354 $ 36.64 The level of care billed to and reimbursed by Medicaid at the 99215 office visit procedure code level was improper since the level of care provided was at the 99213 office visit procedure code level. Cluster Number Date of Service Overpayment 1 9/14/1995 $ 34.14 1 1/18/1996 $ 34.14 1 5/14/1996 $ 34.14 33 9/28/1994 $ 20.00 47 10/17/1995 $ 34.14 The level of care billed and paid at the 99215 office visit procedure code level was improper since the level of care that was provided was at the 99214 office visit procedure code level. Cluster Number Date of Service Overpayment 53 5/31/1995 $ 21.69 The level of care billed and paid at the 99205 office visit procedure code level was improper since the level of care that was provided was at the 99204 office visit procedure code level. Cluster Number Date of Service Overpayment 25 7/27/1994 $ 2.00 The level of care that was billed and paid at the 99205 office visit procedure code level was improper since the level of care that was provided was at the 99203 office visit procedure code level. Cluster Number Date of Service Overpayment 35 5/11/1995 $ 37.96 51 12/08/1994 $ 15.00 55 11/21/1995 $ 37.96 58 9/22/1995 $ 37.96 The level of care that was billed and paid at the 99215 office visit procedure code level was improper since the level of care that was provided was at the 99204 office visit procedure code level. Cluster Number Date of Service Overpayment 43 12/11/1994 ($ 3.00) credit The level of care that was billed and paid at the 99205 office visit procedure code level was improper since the medical services provided and documentation supported an EPSDT visit. Cluster Number Date of Service Overpayment 53 2/06/1995 $ 16.53 The required components of the EPSDT were not documented as being performed at the office visit that had been claimed and paid as an EPSDT and therefore, the difference between the EPSDT payment received and the value of the procedure code for the documented level of office visit that occurred (i.e., 99214, 99213, 99212, 99211, or 99203), is deemed an overpayment. Cluster Number Date of Service Level of Visit Overpayment 1 7/28/1995 99213 $ 39.82 3 6/28/1995 99213 $ 39.82 5 3/03/1995 99203 $ 21.43 6 7/07/1994 99213 $ 5.00 10 8/17/1995 99212 $ 43.82 12 1/31/1996 99204 $ 0.00 14 5/31/1995 99213 $ 39.82 18 10/04/1994 99213 $ 5.00 18 1/29/1996 99214 $ 27.37 20 8/25/1994 99213 $ 5.00 21 12/11/1995 99214 $ 27.37 29 8/17/1994 99212 $ 9.00 Cluster Number Date of Service Level of Visit Overpayment 29 9/06/1995 99213 $ 39.82 40 7/25/1994 99203 $ 0.00 41 5/06/1996 99214 $ 27.37 46 9/19/1994 99213 $ 5.00 46 10/19/1995 99213 $ 39.82 47 11/02/1994 99213 $ 5.00 51 9/07/1995 99213 $ 39.82 53 7/10/1995 99213 $ 39.82 53 1/19/1995 99213 $ 39.82 59 5/02/1996 99203 $ 43.39 Adult Samples At hearing, Petitioner disputed all of the Agency's findings relating to patients over the age of 21 and objected to Dr. Deeb, a pediatrician, performing any review of their files. While Dr. Deeb is not the appropriate peer to review adult patient files, the following adult claims did not require substantive peer review and resulted in overpayment due to the stated reason: There were not any medical records in existence to indicate that any medical services were performed. Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 2 2/20/1995 99215 $ 53.00 2 7/11/1995 99215 $ 59.14 2 8/09/1995 99215 $ 57.14 2 9/07/1995 99213 $ 23.00 2 10/11/1995 99213 $ 23.00 2 1/02/1996 99213 $ 23.00 2 3/22/1996 73560/Rad.Ex. $ 16.36 2 4/01/1996 99215 $ 57.14 2 4/05/1996 99213 $ 23.00 2 4/23/1996 99213 $ 23.00 15 2/16/1996 99213 $ 23.00 15 2/19/1996 99215 $ 57.14 16 5/14/1996 Blood Count $ 8.00 Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 16 5/14/1996 UA $ 3.00 16 5/14/1996 99215 $ 57.14 23 7/28/1994 99213 $ 23.00 23 5/09/1995 72069/26 Rad.Ex. $ 6.98 23 5/09/1995 72069/Rad.Ex. $ 17.45 23 10/20/1995 99213 $ 23.00 34 4/24/1996 99214 $ 35.45 57 11/17/1995 99215 $ 59.14 60 4/10/1996 99215 $ 57.14 61 5/22/1995 99213 $ 23.00 The medical records failed to contain the required physician's signature and date authenticating the fact that the services billed were performed by either P.A. Olsen or P.A. Avidon under physician supervision. The services provided by the non-physician employee were reviewed and down-coded by the Agency to the appropriate level physician's office visit code. Cluster Number Date of Service Proc. Code Pd./ P. Code Allowed Overpayment 2 6/30/1995 99215/99212 $ 36.14 2 7/20/1995 99215/99213 $ 34.14 2 7/28/1995 99215/99213 $ 34.14 2 9/05/1995 99215/99212 $ 36.14 8 4/17/1995 99205/99203 $ 35.96 17 3/27/1995 99205/99203 $ 35.96 23 5/09/1995 99215/99213 $ 32.14 23 6/09/1995 99215/99213 $ 32.14 34 4/23/1996 99205/99203 $ 35.96 The medical records failed to contain the required physician signature authenticating the fact that the services were provided by a physician. The services provided were reviewed and down-coded by the Agency to the appropriate level physician's office visit code. Procedure Code Cluster Number Date of Service Billed and Paid Overpayment 2 6/14/1995 99215/99211 $ 45.14 16 5/15/1996 99215/99211 $ 45.14 61 5/05/1995 99205/99204 $ 14.53 The provider improperly sought payment for lab services that were part of the office visit reimbursement and/or lab services performed by an independent outside lab. Cluster Number Date of Service Procedure Billed and Paid Overpayment 2 3/08/1996 UA $ 3.00 2 4/03/1996 UA $ 3.00 15 2/08/1996 UA $ 3.00 16 5/15/1996 Blood Count $ 8.50 16 5/15/1996 Blood Count $ 8.00 The provider improperly sought payment for Modifier 26 billings (professional component) which are only appropriate when the service is rendered in a hospital. Cluster Number Date of Service Procedure Billed and Paid Overpayment 2 2/17/1995 Radiologic exam $ 6.98 2 6/14/1995 Radiologic exam $ 7.20 8 4/17/1995 Tympanometry $ 9.00 16 5/13/1996 Radiologic exam $ 5.45 16 5/15/1996 Radiologic exam $ 6.98 In addition to the policy and procedural violations, Petitioner, in egregious violation of the Medicaid program, admittedly submitted Medicaid claims for the services of specialist physicians (such as an allergist, OB/GYN, podiatrist, psychologists, and ophthalmologists) not within its Provider group, collected Medicaid funds based on those claims, and reimbursed the respective specialist. While Petitioner's corporate representative, Mr. Colavecchio, was admittedly responsible for the coding and billing of the Medicaid services submitted for reimbursement, he was minimally aware of the Medicaid policy requirements and possessed limited working knowledge of CPT coding and EPSDT billing. In addition, Petitioner's employees, Dr. Keith Wintermeyer and Dr. Marcia Malcolm, were only moderately familiar with the CPT coding and EPSDT component requirements. They provided little input to Petitioner regarding CPT coding and the sufficiency of certain physician's services relating to EPSDT billing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency re-calculate the overpayment consistent with the Findings of Fact, and include only those identified violations in the cluster samples of the adult patient files, and issue a Final Order requiring Petitioner to reimburse, within 60 days, the Agency for the Medicaid overpayments plus any interest that may accrue after entry of the Final Order. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 14th day of February, 2003. COPIES FURNISHED: Susan Felker-Little, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 Charles D. Jamieson, Esquire Ward, Damon & Posner, P.A. 4420 Beacon Circle West Palm Beach, Florida 33407 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
Findings Of Fact Respondent immigrated to the United States in 1974. He began practicing medicine in Orlando in 1977, specializing in obstetrics and gynecology. His medical doctor's license issued by the Florida Board of Medical Examiners has been in force at all times relevant. In October, 1977, Respondent began treating Ms. Patricia King for menstrual pain and an infection. In January, 1978, King requested that Respondent prescribe Dilaudid 1/ for pain. He did so, and thereafter through April, 1978, prescribed an approximate total of 333 Dilaudid tablets for King. According to the Physician's Desk Reference, Dilaudid is an opiate which can create psychic and physical dependence. Dilaudid is indicated for the relief of moderate to severe pain such as that due to surgery, cancer, soft tissue and bone trauma, biliary colic, myocardial infarction, burns, or renal colic. None of these conditions was present in regard to King or any other patient discussed herein. During the early months of 1978, Respondent became aware that King was addicted to Dilaudid but continued to prescribe this drug for her on the representation that she would seek therapy for her addiction. She also informed Respondent that she was selling some of the Dilaudid tablets and offered to share the proceeds with him. King usually left 25 or 50 at his office in payment for his cooperation. Respondent denies that he asked for this money, totaling $450 to 500, but admitted that he did not return it. During this period, Mr. Billy Pressley began bringing women to Dr. Agrawal ostensibly for treatment. However, Respondent did little more than write prescriptions for Dilaudid and other controlled substances for these individuals. In some cases Pressley did not even bring the purported patient, but merely came to Respondent's office to pick up prescriptions for controlled substances in the names of third persons. In early 1978, Respondent attempted to discontinue his relationship with Pressley and King. However, he was intimidated by their threats and fear of exposure, and continued to write the prescriptions they demanded. On April 19, 1978, police were summoned to Respondent's home to investigate a broken screen. Subsequently, Pressley and King arrived and were arrested by the police and charged with extortion. As a result of the investigation, Respondent was charged with "Delivery of Dilaudid, A.C.S." and entered a plea of Nolo Contendere in the Circuit Court of Orange County. By order issued on April 13, 1979, Respondent was placed on 12 years probation, adjudication of guilt withheld. He thereafter moved to Okeechobee where he has practiced medicine at the Florida Community Health Center without incident. The investigation of Respondent revealed that during March and early April, 1978, he issued two or more dilaudid prescriptions to a Ms. Lynn Elland or others in the name of Elland. Respondent admitted to police that he gave Billy Pressley a Dilaudid prescription for Lynn Elland on April 2, 1978. According to this statement, Pressley provided Respondent with extra money in order to obtain prescriptions for controlled substances. Between approximately February 3 and 24, 1978, Respondent issued prescriptions to Pressley for Quaalude, 2/ 300 mg., 30 tablets, Dilaudid, 4 mg., 60 tablets and Preludin, 3/ 75 mg., 30 tablets. Further, Respondent provided Pressley with a prescription for Dilaudid in the name of Ms. Kim Taekaberry. Between January and April, 1978, Respondent issued approximately four additional prescriptions for Dilaudid, 4 mg., totaling about 90 tablets, in the name of Kim Taekaberry. Respondent acknowledged to police his awareness that Pressley was using Taekaberry in order to obtain Dilaudid prescriptions. Between late January and mid-February, 1978, Respondent issued two prescriptions for Dilaudid, 4 mg., totaling 45 tablets, in the name of Molly Lynch. Respondent acknowledged to police officers that Pressley was also using Lynch to obtain Dilaudid. Between February and April, 1978, Respondent issued approximately four prescriptions for Dilaudid, 4 mg., totaling about 99 tablets, to Ms. Kimberly Skinner. Respondent could not recall whether Skinner had been a patient or the reason he prescribed this medication for her. Between late January and early February, 1978, Respondent issued approximately two prescriptions for Dilaudid, 4 mg., totaling about 30 tablets to Ms. Linda Cleary. Similarly, the Respondent could not recall why he prescribed this medication for Cleary. Between approximately February 2, 1978, and March 21, 1978, Respondent prescribed Preludin, 75 mg., 60 tablets, and Quaalude, 300 mg., 20 tablets to Mr. Gunter Bachman. The Respondent acknowledged in his initial confession to police that he did not maintain patient records for Bachman. Further, it should be noted that Respondent's practice in obstectrics and gynecology would not have involved the treatment of male patients. Between February 24 and April 11, 1978, Respondent issued five prescriptions for Dilaudid, totaling approximately 70 tablets, to Mr. Robin Connelly. Respondent advised police that Connelly complained of chest pains and informed Respondent that he took Dilaudid. Considering the nature of the Respondent's practice, his claim that he was treating Connelly for chest pains is not credible. Further, Respondent's admission to police that on March 28, 1978, he gave Connelly a prescription in the name of Kathy Hosford without examining Ms. Hosford further discredits his explanation of the Connelly chest pains prescription. Between January 3 and March 3, 1978, Respondent issued approximately twelve prescriptions of Dilaudid, 4 mg., totaling approximately 289 tablets, to Mr. Nick Dearie. Respondent admitted to police that Dearie gave him extra money to provide these prescriptions.
Recommendation From the foregoing, it is RECOMMENDED that Respondent be found guilty of Counts 1, 5, 8, 11, 14, 17, 20, 23, 29, and 32 as charged. It is further RECOMMENDED that all other counts be dismissed. It is further RECOMMENDED that the Board of Medical Examiners issue a reprimand to Respondent based on the findings herein. It is further RECOMMENDED that the Board of Medical Examiners place Respondent on probation, under the supervision of a designated physician, for a period of five years. It is further RECOMMENDED that the Board of Medical Examiners withdraw Respondent's authority to prescribe medication controlled under the provisions of Chapter 893, Florida Statutes, by restriction of his license for a period of five years. It is further RECOMMENDED that Respondent be required to successfully complete a course of study in pharmacology prior to removal of his license restriction. RECOMMENDED this 22nd day of October, 1981, in Tallahassee, Florida. R. T. CARPENTER, 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 22nd day of October, 1981.
The Issue Whether Respondent, a licensed insurance salesperson, committed the offenses alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent has been licensed by Petitioner as a health insurance salesperson. On February 18, 1997, Respondent 5/ visited with Margarita Ors at her home in Miami, Florida, for the purpose of soliciting her enrollment in a Medicare health insurance policy with Foundation Health Plan (FHP), a health plan provider he represented. Ms. Ors testified that the person who visited with her on February 18, 1997, told her that she should enroll in FHP because her existing health plan, Neighborhood Health Partnership (NHP), was going out of business. NHP was not going out of business, and any statement that NHP was going out of business would have been a false statement. Respondent denied under oath that he told Ms. Ors that NHP was going out of business. Ms. Ors testified that she completed the paperwork necessary to enroll in FHP because she believed that NHP was going out of business. Her coverage under FHP was to begin in April 1997. After Respondent left her residence, Ms. Ors called a friend who told her that NHP was not going out of business. Ms. Ors immediately called another friend who helped her cancel her enrollment in FHP and keep her enrollment in NHP. Mr. Ladd died prior to the time of the formal hearing. Petitioner was unable to establish the factual allegations of Count II without Mr. Ladd's testimony. FHP terminated its licensure appointment with Respondent effective June 6, 1997. Following that termination, Respondent became employed by the Acosta Insurance Agency selling certain products, including a product from Blue Cross, Blue Shield that was referred to as Medicaid and More Health Plan Health Options (BCBS). The exact date Respondent started employment with the Acosta Insurance Agency was not established. Lola Brown and Vinetta Davis are neighbors. Respondent enrolled both of these elderly ladies in FHP while he represented FHP. Consequently, he knew that they were enrolled in FHP at the times pertinent to this proceeding. In October 1997 Respondent visited with Ms. Brown for the purpose of enrolling her in BCBS. 6/ Ms. Brown testified repeatedly and without equivocation that Respondent told her that he used to work for FHP, that FHP was no good, and that FHP was going out of business. Respondent denied making those disparaging statements to Ms. Brown. Gilberto Grana trained Respondent on behalf of Acosta Insurance Agency. Mr. Grana testified that he was present during the entire time Respondent made his presentation to Ms. Brown. Mr. Grana testified that Respondent did not represent to Ms. Brown that FHP was no good or that it was going out of business. Respondent visited Ms. Davis in October 1997 for the purpose of enrolling her in BCBS. Ms. Davis testified that she signed the application to enroll in BCBS based on Respondent's presentation. It was after she read one of the pamphlets and learned of the co-payments that would be required by BCBS that she decided she had made a mistake. On July 14, 1997, Respondent executed a form styled "Request for Agent's License and Acknowledgement and Acceptance of Conditions Agreement." This form requested Blue Cross and Blue Shield of Florida, Inc., to make application to Petitioner for the issuance of a life and/or health insurance agent's license authorizing Respondent to solicit applications on behalf of Blue Cross and Blue Shield of Florida, Inc., and reflected that Respondent would be a general agent with the Acosta Insurance Group. There was no evidence as to what happened to this form after Respondent signed it. Petitioner was not timely notified that Respondent had changed his business address from FHP to the Acosta Insurance Agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that dismisses Counts I, II, III, and IV of the Administrative Complaint. It is further recommended that the final order find Respondent guilty of violating the provisions of Section 626.551, Florida Statutes, and, consequently, a violation of Section 626.621(2), Florida Statutes, as alleged in Count V of the Administrative Complaint. It is further recommended that Petitioner suspend Respondent's licensure for a period of three months for that violation. DONE AND ENTERED this 16th day of March, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 16th day of March, 2000.
The Issue The issue in this case is whether the provider, Orietta Medical Equipment, Inc., d/b/a Pharmco Pharmacy (Respondent or Provider) should repay an alleged Medicaid overpayment and, if so, in what amount. The Petitioner’s Final Agency Audit Report (FAAR) claims the Provider must repay $486,879.06.
Findings Of Fact The Petitioner is the state agency charged with the responsibility of administering the Medicaid Program in Florida. As such, the Petitioner monitors payments to Medicaid providers and seeks to recover reimbursements when an overpayment is claimed. At all times material to the allegations of this case, the Respondent was a licensed pharmacy and was designated a “provider” of Medicaid pharmacy services pursuant to its provider agreement with the Petitioner. As a provider of Medicaid pharmacy services, the Respondent was authorized to dispense drugs to Medicaid recipients and to bill the Medicaid Program for the expenses associated with such pharmacy services. The Petitioner may, after-the-fact, seek to verify the claims paid for Medicaid recipients. This “pay and chase” methodology presumes that the Provider will maintain appropriate documentation to support the paid claims. When the Agency audits a provider, records supporting the claims paid must be produced. In this case, the Petitioner elected to perform an “invoice audit” for the audit period June 2, 2003 through May 28, 2004. The Agency sought to review the Provider’s drug acquisition records for the same drugs that were dispensed to Medicaid recipients. The paid claims should compare to the drugs acquired and held in inventory for the subject period of time. After performing a Provisional Agency Audit Report (PAAR) detailing an alleged overpayment, the Provider was notified of the audit results and was provided a spreadsheet of the work papers that detailed the overpayment claim. The Provider was given an opportunity to provide additional documentation to support the Medicaid claims and to establish the inventory to support its claims. After an additional review of the Provider's information, the Agency issued its FAAR dated February 2, 2005, which claimed a Medicaid overpayment in the amount of $486,879.06. This amount has not been repaid to the Petitioner. Instead, the Provider disputed the amount of the overpayment and requested an administrative proceeding. That request was timely submitted. All of the audit results were provided to the Provider at the time of the issuance of the FAAR and were, in fact, attached to the request for hearing submitted by the Provider on or about February 7, 2005. Florida Medicaid providers are required by their agreements with the state to comply with the Florida Medicaid Prescribed Drug Services Coverage, Limitations, and Reimbursement Handbook (the handbook). The handbook is furnished to providers and is also available on-line. The handbook outlines requirements for record keeping, as well as other pertinent information to assist providers. In this case, the Provider was obligated to maintain records to support the Medicaid claims paid by the State. The Agency contracted with Heritage Information Systems, Inc., to conduct the audit in this case. Auditors went to the Provider’s business location in Hialeah, Florida, to analyze the Respondent’s business records. More specifically, the auditors sought the records from the Provider to show that it had acquired sufficient inventory of the specific drugs for which claims had been paid during the audit period. It stands to reason that the drug inventory on hand for the Provider had to exceed the drugs dispensed during the audit period (presumably some of the Provider’s patients were not Medicaid recipients). In fact, in this case, the Provider could not produce inventory records to support the claims paid for the audit period. As the records did not support the claims, the Agency deemed the claims to be overpayments. As such, the Agency maintains the Provider was, under the terms of the guidelines set forth in the handbook, required to reimburse the Petitioner for the overpayment. To compute the overpayment the Agency used a methodology that established the use rate of the product for the audit period. For example, for the drug Acetylcysteine the Medicaid recipient use rate for the audit period was 97.27 percent. Applying this percentage to the units purchased for the audit period would establish the expected claims. Therefore, since the Respondent purchased 16,890 units of this drug, the number of units billed would be expected to be 97.27 percent (the Medicaid use rate) of that amount. Instead, the claims for this drug for the audit period totaled 96,120-- a difference of 79,691 units. The difference (79,691) must then be multiplied by the drug's $.56 cost to show an apparent overcharge in the amount of $44,626.96 for this drug. The Agency applied the same methodology described above for 20 different drugs that were billed during the audit period. The total overcharge for these drugs was $486,879.06. The Respondent presented no evidence to refute the audit findings. No acquisition records were produced to reduce the calculated overpayment. That is to say, no purchase records could demonstrate that the Provider had on hand the number of units of the drugs billed to Medicaid. The Respondent has not disputed that the pharmacy was a provider, was subject to the handbook and pertinent guidelines, was required to maintain records to support the claims, and was paid for claims submitted to the Agency. Moreover, the Respondent does not dispute that the audit, the audit work papers, and the spreadsheets describing the methodology used to compute the overpayment were provided to the Provider more than 14 days prior to the hearing. It claims the trial book of exhibits was not provided 14 days prior to the hearing date. The hearing in this cause was originally scheduled for two days, to commence on August 15, 2006. The Agency provided a trial book of its exhibits to the Respondent on or about 4:00 p.m., August 1, 2006. The Respondent maintains that all evidence presented by the Agency in this cause must be excluded pursuant to Section 409.913(22), Florida Statutes (2005).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order sustaining the Medicaid overpayment in the amount of $486,879.06. DONE AND ENTERED this 1st day of December, 2006, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 1st day of December, 2006. COPIES FURNISHED: Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Christa Calamas, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 David W. Nam, Esquire Agency for Health Care Administration Fort Knox Building, Mail Station 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 William M. Furlow, III, Esquire Akerman Senterfitt Highpoint Center, Suite 1200 106 East College Avenue Tallahassee, Florida 32301
Findings Of Fact The Petitioner is the Department of Professional Regulation, Board of Nursing. The Petitioner regulates the practice of nursing pursuant to section 20.30, and Chapters 455 and 464, Florida Statutes. The Respondent, McDonald Knights, is a registered nurse and holder, at all times pertinent to these proceedings, of license number 1715572. He received his formal training in England and became licensed in the State of Florida by endorsement on or about May 5, 1986. At all times material to these proceedings, the Respondent was employed as a registered nurse assigned to work in the surgical cardiac care unit at Cedars of Lebanon Medical Center in Miami, Florida. Francesco Garofalo was a patient in the coronary care unit of the medical center on March 8, 1987, awaiting cardiac aortic bypass surgery the next morning as a result of acute myocardia infarction. He was being intravenously infused with two medications, lidocaine (for arrhythmia) and nitroglycerin (for pain). The medications were applied through continuous intravenous infusion at separate injection sites and through separate volumetric pumps. At approximately 7:45 p.m., the alarm sounded on the volumetric pump responsible for discharging the nitroglycerin intravenous infusion. The Respondent answered the alarm and noted the container of nitroglycerin was empty. Since the previous shift had not provided a back up container of the medication, it was necessary for Respondent to order a replacement be delivered from the unit's pharmaceutical supply. While awaiting delivery of the medication, the Respondent started a dextrose solution running into the patient to prevent the injection site from closing. At this time, the patient complained of pain at the site of his other intravenous injection for lidocaine. The Respondent determined that this injection site had been infiltrated with the lidocaine solution leaking into the subcutaneous tissue of the patient's arm, resulting in discomfort to the patient. The Respondent decided a new site should be secured. In the process of securing a new site for the lidocaine infusion, the Respondent removed a manual plunger apparatus termed a "cassette" from the volumetric pump. This action effectively discontinued the function of the pump. After inserting the needle in the new venous site, Respondent manually operated the plunger apparatus to insure that the line was open and effectively discharging a smooth flow of lidocaine medication into the patient's body. He did not establish a rate of flow for the medication into the patient's body beyond cutting down the manual flow to an amount equal, in his opinion, to 10 to 20 drops per minute. At this point, the Respondent went to take a telephone call and left the patient's care to another nurse who had entered the room. The time was approximately 7:47 p.m. Cordette Steer is a registered nurse with twenty years experience. When she entered the patient's room to allow the Respondent to take the telephone call, she received no instruction from the Respondent. She did not know the medication being injected was lidocaine. Due to the toxic nature of lidocaine and her observation that the volumetric pump for administering this medication had been effectively bypassed, Steer assumed the Respondent had hung a harmless saline or dextrose solution to keep the vein open for the injection. She proceeded to apply tape to secure the needle at the injection site because, as she testified, "nobody would expect lidocaine to be infusing off of the pump, this is something that is never done." At 7:50 p.m., the patient complained of chest pain. Steer was aware of the exhaustion of the patient's nitroglycerin and that a new bag had not yet arrived from the pharmacy. She stepped from the room and returned almost immediately with nitroglycerin tablets which she gave to the patient to relieve his chest pain. He shortly began to exhibit seizure symptoms commonly associated with lidocaine toxicity. Code Blue was sounded. The Respondent was among those personnel responding. He disconnected the lidocaine infusion, stopping the flow of lidocaine to the patient. The time was 7:55 p.m. Resuscitation attempts failed and the patient subsequently expired at approximately 8:30 p.m. Nancy Cox is a critical care educator employed with the Miami Children's Hospital. She is an expert in the fields of surgical and cardiac critical care. She reviewed the medical records pertinent to this proceeding and her expert testimony establishes that: Lidocaine is an extremely toxic medication which can be fatal if the volume administered to a patient is not closely controlled. The dosage the patient should have been receiving was 15 cubic centimeters per hour or approximately three teaspoons per hour. The volumetric pump sets the rate of delivery of an intravenous drug with a finite, or high, decree of accuracy. When the pump is turned off, with the cassette in place, the flow of medication is stopped. When the cassette is removed from the pump device, an open flow is established and the pump fails to act as a regulator. Finite control of drug administration is not possible manually, as was attempted by the Respondent in this case, without taking considerable time to adjust the rate of flow in concert with timed intervals. Even when this is done, the plunger may spring open and allow a greater than desired drug flow. The Respondent should not have established a smooth flow of lidocaine, but rather a dripping or slow rate of infusion. The Respondent deviated from accepted minimal standards of cardiac or critical care nursing when he used the lidocaine solution to initially infuse at an open, unregulated rate in order to determine if the new injection site was functioning as opposed to establishing a patent intravenous route by either injecting saline via a syringe into the catheter, or connecting a bag of a saline or dextrose solution to the catheter for this purpose and then allowing it to infuse, prior to re-connecting the lidocaine. The Respondent also deviated from accepted minimal standards of acceptable and prevailing nursing practice by not informing Cordette Steer that lidocaine was being administered intravenously to the patient without the use of the volumetric pump.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Nursing enter a final order finding the Respondent guilty of the offense charged in the administrative complaint, suspending his license for a minimum period of one year with probationary reinstatement thereafter conditioned upon 1) a showing by the Respondent that he has enrolled and completed continuing education courses, as deemed appropriate by the Board, in the area of cardiac critical care with an emphasis on intravenous medication applications, and 2) he agrees to comply with reasonable terms and conditions of the Board for a subsequent probationary period of two years. DONE AND RECOMMENDED this 22nd day of April, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 22nd day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5633 The following constitutes my specific rulings, in accordance with requirements of section 120.59 Florida Statutes, on proposed findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Included in finding number 2. Included in finding number 2 Rejected as unnecessary. Including in finding number 2. Included in finding number 3. Included in finding number 4. Rejected as unnecessary. Included in finding number 4. Included in finding number 7. Rejected as unnecessary. Rejected as unnecessary. Included in finding number 4. Included in finding number 4. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Included in finding number 6. Included in finding number 6. Included in finding number 5. Included in finding number 6. Included in finding number 6. Included in finding number 6. Included in finding number 6. Included in finding number 6. Patient was pronounced officially dead at 8:52 p.m., but Respondent testified that death occurred earlier. Included in finding number 7. Included in finding number 7. Included in finding number 5. Included in finding number 7. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Included in finding number 7. Included in finding number 7. Included in finding number 5. Included in finding number 7. Rejected, not supported by the evidence. Included in finding number 7. Rejected as unnecessary. Included in finding number 7. Included in finding number 6. Rejected as a conclusion of law. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William E. Hoey, Esquire 2398 South Dixie Highway Miami, Florida 33133-2399 William O'Neill, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter Executive Director Department of Professional Regulation Room 504, East Coastline Drive Jacksonville, Florida 32201
