The Issue As stipulated by the parties at the commencement of the hearing, the following cases were settled and are no longer at issue in the proceeding: Case No. 88-0642 Patient - R. G. 88-0643 J. G. 88-1261 L. C. 88-1879 P. C. 88-2327 K. P. The remaining cases and amounts at issue are: AMOUNT RETROACTIVELY AMOUNT PAID DENIED BY PATIENT CASE NO. BY MEDICAID MEDICAID F. C. 88-1154 $ 6,288.49 $ 6,288.49 C. M. 88-1155 $ 2,418.65 $ 2,418.65 D. M. 88-1258 $ 8,707.14 $ 8,707.14 A. J. 88-1259 $ 6,772.22 $ 1,451.19 S. F. 88-1260 $14,511.90 $14,511.90 Lottie C. 88-1379 $14,028.17 $14,028.17 The parties stipulated that all the patients were personally eligible for Medicaid and that the disallowances were not based on lack of quality of care or Orlando General's failure to meet all quality standards. (Prehearing Stipulation, filed August 29, 1988) The issue for determination is whether in the cases above (except for A. J.) the admission and treatment at Orlando General were "medically necessary". For A. J., HRS contests the medical necessity of the last three days only.
Findings Of Fact Orlando General is a state-licensed acute-care hospital in Orange County, Florida. Orlando General participates in the Florida Medicaid program. Randall Greene, D.O., is now, and was at all relevant periods, Director of Orlando Generals 28-day inpatient chemical dependency (CD) program. The program treats both alcohol and drug abuse patients. Dr. Greene is certified as an addictionologist by the American Society of Physicians Treating Alcohol and Chemical Dependencies. Dr. Greene has no pecuniary interest in admitting Medicaid patients to the CD program. He is reimbursed by Medicaid, but only at 10 to 20 percent of his usual and customary fee, an amount which does not cover his administrative costs of the paperwork for Medicaid. In addition, the unit has 26 beds. The acceptance of a Medicaid patient precludes the use of that bed for a commercially insured, more lucrative, patient. In the first 72 hours after admission to Orlando General's CD program, the patient is evaluated to see whether he or she is appropriate for continued hospitalization or whether it is possible to simply complete detoxification and refer the patient to an outpatient program. The evaluation includes the taking of a history, a physical examination and a psychosocial evaluation by a certified counselor. In a staffing after the evaluations the decision is made to retain the patient in the program, or to refer the patient to a residential or outpatient program. The goals of Orlando General's CD program are medical detoxification, medical evaluation and treatment of ancillary medical problems and introduction to the 12-step recovery program called Alcoholics Anonymous (AA) or Narcotics Anonymous (NA). The patient is also introduced to the disease concept of chemical dependency and is provided the tools to lead a chemical-free life style. Upon discharge, the patient is often referred to a non-hospital residential program or to an outpatient program. The patients who are admitted to Orlando General's CD program are "end- state" abusers. This means their disease of alcoholism or drug abuse has progressed to the stage where they have lost control and the alcohol or drug becomes an obsession. Liver disease and other medical problems are prevalent. They are unable to function socially, are morally degraded, and have impaired thinking. They are paranoid and experience hallucinations. If untreated, the next stage is death. F. C. was a 36-year old male patient who was treated at Orlando General for chemical dependency from December 12, 1986, until January 2, 1987. He used heroin, cocaine and marijuana and was spending from $70 to $300 per day on his habit. He was inducing the heroin and cocaine intravenously. He had been involved in criminal activity to support his addiction and had been in prison. Prior outpatient treatments were unsuccessful. In the initial medical work-up he tested positive for AIDS-related complex and for hepatitis. He was placed on detoxification using methadone, but did not tolerate the drug and was switched to Catapres. Catapres must be closely supervised, as it can cause life-threatening low blood pressure. In addition to his detoxification and his counselling, F. C. received symptomatic treatment by a specialist for his infectious diseases. He was maintained on body and fluid precautions. He was progressing and had accepted the fact that he would need additional treatment in a residential setting after discharge from Orlando General; however, he was confronted in a group session with regard to his need to avoid contact with other patients involving exchange of bodily fluids. He then left the hospital against medical advice. (Petitioner'S Exhibit 1, discharge summary). C. M. was a 28-year old female who was treated at Orlando General from October 10, 1986, until October 14, 1986. She was unemployed and spending $200 a day on whisky and free- base cocaine. She had syphilis and gonorrhea and a trichomonas infection. She had blood in her urine and was malnourished. She also had a skin infection. She suffered from organic brain syndrome and experienced memory loss. C. M. was medically detoxed from the alcohol and cocaine. She was treated for the skin disease, venereal disease and the gynecological condition. She resisted change in her thinking and behavior and did not bond with the other patients. She was given a 3-hour pass when she said that she had to go sign some papers for her 2- month old baby. She did not return, and was discharged against medical advice. D. M. was a 27-year old female who was treated at Orlando General for chemical dependency from August 6, 1986, until August 24, 1986. She was addicted to cocaine and reported free-basing. At the time of her admission, D. M. complained of a variety of medical problems, including abdominal pain, pain on urination, constipation, and a vaginal discharge. She gave a history of thyroid disease and a deformed pancreas. She was also malnourished. She was treated for the urinary tract infection and vaginal infections. She did not require "psycho-pharmacological intervention" for her detoxification. The radiology report in her record revealed an unremarkable gall bladder and pancreatic ultrasound. Her progress notes indicate that she frequently was excused from counselling sessions when she complained of illness. A progress note dated 8/23/86 reflects that she was not cooperating: "...seems to feel ill everytime there is a group session or activity. May be reluctant to attend meetings...". (Petitioner's Composite Exhibit #1). D. M. was therapeutically discharged on August 24, 1986. Dr. Green's discharge summary states that she was difficult to deal with and failed to make significant changes. A. J. was a 24-year old male patient who was treated at Orlando General from July 9, 1986, until July 23, 1986. He was dependent on cocaine and used it intravenously and by smoking. He had a $100 to $300 a day habit and was also drinking. He had a history of blackouts. His record does not document the number of medical problems experienced by the other patients. A. J. was defiant and did not cooperate. He slept when he was supposed to be on the unit with a group. He was found in a female patient's room and was admonished. He lied about going to NA meetings. After being warned that further infractions would result in discharge, he immediately violated the rules again. He was therapeutically discharged as medically stable. S. F. was a 21-year old female patient treated at Orlando General from September 6, 1986, until October 6, 1986. She was dependent on free-base cocaine and alcohol. She was malnourished and had significantly low protein and- albumin levels. She also had tachycardia (increased heart rate) and a history of vaginitis and pelvic inflammatory disease. S. F. was referred to Orlando General by HRS, who had taken custody of her children. S. F. was therapeutically discharged when she was found to have used cocaine and alcohol while on a temporary pass. L. C. was a 54-year old female who was treated at Orlando General from December 17, 1986, until January 15, 1987. She was an alcoholic and schizophrenic. She was referred to Orlando General by Lake Sumpter Mental Health Clinic. At the time of her admission, she had a variety of medical complaints including headaches, chest pains, and abdominal pains. It was difficult to predict what complications would arise during her treatment because her mental-problems made her a poor historian. She had problems with fluctuating blood pressure and required a cardiology work-up. Her treatment was complicated by her need for medication for her schizophrenia at the same time that she needed withdrawal from chemical dependency. L. C. was discharged when she was determined to be medically stable. The plan, according to her discharge summary, was for her to be involuntarily committed under the Myers Act to a long-term residential facility. Every hospital that is a Medicaid provider must have an approved utilization review mechanism in place. This must include an admissions criteria and continued stay criteria. The mechanism must be approved by HRS' Peer Review Organization (PRO), an organization with whom HRS has contracted to conduct the state's utilization review responsibilities. One aspect of Orlando General's approved mechanism is the use of a review "screen", called an "ISD", outlining examples of the intensity of services needed to justify continued hospital treatment, the severity of illness to justify admission, and discharge criteria. This screen is used for every admission by a registered nurse on the staff of the hospital who is designated as the utilization review coordinator. If, in the nurse's opinion, the patient does not meet the criteria, the medical record is referred to a physician on the hospital's utilization review committee. This physician reviews the record to determine whether, in his judgment, medical necessity is present. If he has questions, he can discuss the case with the attending physician. If the two disagree, a third physician is consulted, also a member of the utilization review committee at the hospital, and his opinion is the tie-breaker. A further review is conducted when the hospital submits a claim for reimbursement after the patient is discharged. A list of paid claims is sent to the PRO office in Tampa, and a sample is selected for oversight review. In those cases, the PRO applies the same mechanism as the hospital, with the use of the screen by a nurse reviewer, then reference to PRO utilization review physicians. If the PRO physicians do not see a medical necessity for the admission or treatment, the attending physician is notified and is given an opportunity to respond in writing. After that response, the PRO makes its final decision. In the cases at issue here, the final PRO decision was that medical necessity was not present for the admissions, except in A. J. `s case, where only the final three days of treatment were questioned. The approved ISD screen applied to these cases was developed for psychiatric cases and is not specific to chemical dependency cases, although some criteria apply to both types of cases. Compliance with the screen is considered presumptive evidence of medical necessity and the screen is utilized by the nurse reviewer as a tool to determine which cases require further physicians' review and professional judgment as to medical necessity. The screen is not binding, therefore. Under the category, "severity of illness", the ISD screen requires such conditions as a "comatose or impending comatose patient", recent onset of"...suicide attempt, assaultive behavior, self-mutilative behavior, deliria and/or mania hallucinations (visual or auditory), total body rigidity or immobility...", and like symptoms. (Respondent's Exhibit #1). Dr. Greene concedes that the patients at issue do not meet those criteria. In support of its position that medical necessity justified Orlando General's reimbursement for each of the six patients in issue, the hospital presented Dr. Greene's testimony and that of Daniel C. Glennon, M.D. Dr. Glennon is presently Medical Director of the dual diagnosis unit at Laurel Oaks Hospital, a licensed psychiatric hospital for children and adolescents in Orange County, Florida. The dual diagnosis unit treats chemically dependent adolescents. Dr. Glennon is a certified addictionologist. Dr. Glennon is familiar with non-hospital alternatives in the area and from April 1979, until January 1986, he was Medical Director of the Metropolitan Alcoholism Council (MACO), one of the two residential treatment facilities with whom the state had a contract in the Orlando area during the relevant period. Dr. Glennon had personal knowledge of some of the patients at issue, but based his opinion at hearing on his review of their medical records and his knowledge of alternative treatment facilities. In each case, in Dr. Glennon's opinion, the admission and treatment of the six patients at Orlando General was medically necessary. Each were end-stage chemical dependents with a variety of related and unrelated medical complications, or the imminent threat of medical complication. Not all end stage chemical dependents need acute care hospitalization, but the frequency or intensity of intravenous drug usage and the use of free-base or "crack" cocaine found in most of these patients indicated the need for medical evaluation and treatment in a hospital. Not all detoxification needs occur in an acute care hospital, but the presence or the high probability of complications in each of these patients indicates the medical necessity for the treatment they received. Peter M. Macaluso, M.D., testified as an expert witness on behalf of HRS. Dr. Macaluso is also a certified addictionologist and practices in Tallahassee, Florida. Dr. Macaluso reviewed the medical records of the six patients and concluded that most needed a good, structural residential program with medical backup, but not treatment in an acute hospital setting. For his opinion, Dr. Macaluso relied, in part, on the ISD screens. Dr. Macaluso admitted that he had no knowledge of the residential programs available in the Orange County area. Residential programs vary widely in the kind and quality of services provided. During the relevant period, there were two non- hospital residential programs under state contract in the Orlando and adjacent areas, MACO, and the Center for Drug-Free Living (also known as Phoenix South). The state paid approximately $45 a day for the services in those facilities, substantially less than the approximately $500 per diem reimbursed to Orlando General. The opinions of Dr. Greene and Dr. Glennon were more credible than that of Dr. Macaluso on the necessity of admission and treatment and the availability of alternatives for the six patients. The admission and treatment of each at Orlando General was proven medically necessary. The record does not support HRS' position that Orlando General failed to comply with its approved utilization review plan with regard to the patients. Although Dr. Greene does not personally use the ISD screen, the CD program which he directs does have admission criteria. Dr. Greene does not remember whether a hospital utilization review committee physician contacted him about the cases, but under the process described by HRS nurse consultant, Nedra Mansager, the attending physician would be brought in only if the first reviewing physician had questions or disagreed that there was a medical necessity for the patient's admission and treatment at the hospital. (Transcript, p.121).
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered approving Medicaid reimbursement in cases 88-1154, 88-1155, 88-1258, 88- 1259, 88-1260 and 88-1379, and disposing of the remaining cases in a manner consistent with the agreement of the parties. DONE and ENTERED this 23rd day of February, 1989, in Tallahassee, Leon County, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0642 The following constitute my rulings on the findings of fact proposed by each party. Petitioner's Proposed Findings of Fact Adopted in paragraph #1. Adopted in paragraph #2. Adopted in paragraph #3. Adopted in paragraph #4. Adopted in paragraph #2. Adopted in paragraph #5. 7.-15. Rejected as unnecessary. 16.-30. Adopted in substance in paragraph #6 31.-35. Rejected as cumulative and unnecessary. The conclusion as to medical necessity is adopted, however, in paragraph #23 36.-55. Adopted in substance in paragraph #7 56.-72. Adopted in substance in paragraph #8. 73.-84. Adopted in substance in paragraph #9. 85.-97. Adopted in substance in paragraph #10. 98.-113. Adopted in substance in paragraph #11. 114.-115. Rejected as inconsistent with the weight of evidence. (The patient's chart does not support these finding.) 116. Adopted in paragraph #23. 117. Adopted by implication in paragraph #16. 118. Adopted in paragraphs #5 and #20. 119. Adopted in paragraph #22. 120. Rejected as ambiguous. The record establishes only that MACO did not have a methadone license and did not "routinely provide drug services." Transcript, p.116, lines 2-4. 121. Adopted in paragraph #16. Respondent's Proposed Findings of Fact Addressed in background. Addressed in conclusion of law #3. Adopted in paragraphs 1 and 2. Rejected as immaterial. Substance abuse patients can be treated in a non-hospital setting, as found in paragraph #20.The issue, however, is the need of these six patients. HRS failed to rebut the competent testimony by Drs. Greene and Glennon that these patients needed the acute-care hospital treatment. HRS' witnesses could not provide specific information on the alternate programs in Orlando. They could only describe alternate types of treatment facilities generally. Adopted in part in paragraph #22, otherwise rejected as irrelevant. Rejected as contrary to the evidence. If no alternatives available, the patient must be treated in the hospital. Rejected as contrary to the evidence. Rejected as immaterial. 9.-16. Rejected as contrary to the weight of evidence. Adopted in paragraphs #12 and #13. Adopted in paragraph 13, except that the evidence (Ms. Mansager's testimony) does not establish that the attending physician is consulted in every case by the "physician advisor." Adopted in paragraph 17, except for the conclusion that the plan required consultation with the attending physician. Rejected as immaterial. Rejected as unsupported by the record. Rejected as contrary to the evidence (the conclusion that medical necessity was not met), otherwise adopted in paragraph 16. 23.-26. Rejected as cumulative and immaterial. 27. Rejected as contrary to the weight of evidence. 28.-30. Rejected as irrelevant. COPIES FURNISHED: James A. Burt, Esquire Scott A. Satell, Esquire 118 East Jefferson Street Orlando, Florida 32801 Jay Adams, Esquire Richard Bellak, Esquire 101 North Monroe Street Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 S. Power, Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: East Pasco Medical Center (EPMC) is a non-profit 85-bed acute care hospital facility located in the East Pasco subdistrict of HRS District V. There are only two hospitals in the subdistrict -- EPMC in Zephyrhills and Humana in Dade City, which is approximately ten miles north. Humana is a 120- bed acute care hospital facility. Both facilities offer the same services and share the same medical staff. On or about September 17, 1987, EPMC submitted an application for a Certificate of Need to add 35 medical/surgical beds via a fourth floor addition to its existing facility. Its existing 85 beds are located in private rooms, and it is proposed that the additional 35 beds will also be placed in separate rooms. The application submitted to the Department of Health and Rehabilitative Services (HRS) projected a total project cost of $4,531,000. This figure was revised at the hearing to a project cost of $2,302,900. With regard to acute care services, the State Health Plan seeks to assure geographic accessibility. All residents of East Pasco County currently have access to acute care hospital services within the travel times suggested by the State plan. The State Health Plan also seeks to promote the efficient utilization of acute care services by attaining an average annual occupancy rate of at least 80 percent. The District V Local Health Plan emphasizes that additions to inpatient acute care beds in a subdistrict should not be considered unless a numeric bed need is shown and certain occupancy thresholds have been met. The recommended occupancy thresholds for medical/surgical beds are 80% for the subdistrict and 90% for the facility seeking to add beds. Application of the bed need methodology contained in HRS's Rule 10- 5.011(1)(m), Florida Administrative Code, indicates a numeric need for 57 additional acute care medical/surgical beds in the East Pasco subdistrict for the planning horizon period of July, 1992. The rule provides that HRS will "not normally approve" additional beds unless average occupancy in the subdistrict is greater than 75 percent. However, the rule permits HRS to award additional beds when there is a calculated need, notwithstanding low occupancy in the subdistrict, if the applicant had a minimum of 75% average occupancy during the 12 months ending 14 months prior to the Letter of Intent. Rule 10- 5.011(1)(m)7.e., Florida Administrative Code. The rule also permits HRS to award additional beds where the calculated numeric need substantially exceeds the number of existing and approved beds in the subdistrict and there is an access problem related to travel time. For the relevant time period, the acute care occupancy rate for the East Pasco subdistrict was below 75% percent. Indeed, over the past few years, the average occupancy rate in that subdistrict has been 54 to 58 percent. Humana only operates at about a 55% occupancy. The East Pasco subdistrict does experience seasonal fluctuations in medical/surgical occupancy, with the season for high occupancy beginning in late October and ending in mid- to late April. In addition to tourists, it is expected that the revival of the citrus industry in East Pasco County will bring more migrant pickers to the area during the peak season months. The seasonal increase in occupancy directly corresponds with a large increase in seasonal population, particularly in the Zephyrhills area. The Zephyrhills area population is much older than the Dade City population and is also much older than the State average. The HRS acute care bed need rule includes considerations of seasonal peak demands. When considering both hospitals in the subdistrict, there has been a decline in peak seasonal occupancy rates over the past few years. While the population of the East Pasco subdistrict has grown, and is expected to increase by approximately 7,200 in 1992, there is a trend of declining utilization in the subdistrict. This decline is due to increased used of outpatient services and shorter lengths of hospital stay attributable to the current reimbursement system. The medical/surgical use rate fell from 454 patient days per 1,000 population in 1986 to 414 patient days per 1,000 population in 1988. There was a similar decline in the acute care use rate. Assuming a constant medical/surgical use rate, the projected demand for 1992 would be 2,980 additional medical/surgical patient days in the subdistrict according to population projections, and about 4,267 incremental patient days according to local health council projections. EPMC's Letter of Intent to add 35 additional beds was filed in mid- July, 1987. Its acute care occupancy rate for the period of April, 1986 through March, 1987 was 75.3 percent. Occupancy at EPMC from May, 1986 to April, 1987 was 73.6%; occupancy from June, 1986 through May, 1987 was 73%; and occupancy from July, 1986 to June, 1987 was 72.2 percent. EPMC does experience periods of high occupancy during the peak season months. High occupancy levels have a greater impact upon smaller hospitals due to their lesser degree of flexibility. On occasion, during the winter months, EPNC is required to refuse admittance to patients due to crowded conditions within its facility. Patients are sometimes transferred or referred to other facilities, including Humana, although the necessity for such transfers or referrals is occasionally due to a lack of intensive or critical care beds as opposed to a lack of medical/surgical beds. During the periods of time when EPMC had high occupancy levels, beds were available at Humana. EPMC's current payor mix includes a high level of Medicare (over 60%), and it is committed, through both its Christian mission and an agreement with the County, to treat indigent and Medicaid patients. The actual amount of indigent or charity care provided by EPNC was not established. In any event, EPMC desires to increase its bed size in order to help maintain a proper payor mix at the hospital so as to ensure the financial survival of the hospital. It is felt that a greater number of beds, given the rise in population, and particularly elderly population, would allow EPNC to serve a greater number of private and/or third party insurance paying patients. While the evidence demonstrates that EPMC may operate with a less favorable payor mix than Humana, the evidence was not sufficient to demonstrate that EPMC will suffer financial ruin without additional beds. Likewise, it was not established that the patients which EPNC must turn away in the winter months are consistently paying patients. Increasing the number of beds at EPNC to 120 beds does not necessarily mean that its profitability would be improved. Volume and payor mix are the most critical factors in determining whether a hospital will be profitable. There is currently a nursing shortage throughout the nation. Rural areas, such as the eastern portion of Pasco County, experience even greater difficulty in attracting nursing personnel to the area. Due to the shortage of nurses, as well as the seasonal demand, EPMC is required to use contract care nurses throughout the year. While it would prefer to employ its own nursing staff, EPMC will use contract staff due to the seasonal variations in its nursing requirements. The use of contract or registry nurses costs 50% to 60% more on a daily basis; however, lower occupancy during the off-peak months does not justify year- round employment for as large an in-house nursing staff. For its proposed 35 beds, EPMC projects nurse manpower requirements as follows: 1 nurse manager, 4.2 R.N. charge nurses, 15.1 R.N. staff and 14.1 L.P.N. staff, for a total of 34.4 full time equivalent nursing positions. The recruiting efforts of EPNC to fill these positions will include advertising, visiting nursing schools and colleges, utilizing student nurses at the hospital and use of the Adventist Health System international network. Humana currently has 15 vacancies, or 12 to 13% of its nursing staff. Humana's nursing salaries have increased 20% over the past eighteen months. As noted above, EPNC and Humana compete for the same nursing personnel. Humana's personnel director believes that if EPNC increases its nursing staff by 34 FTEs, Humana's nursing staff will be approached to fill those positions. As a consequence, Humana will experience additional nursing shortages and will be required to further increase salaries. It is proposed that the project cost of adding 35 beds to EPMC will be financed with 100% debt financing through a bond issue. The financing will be part of a much larger bond issuance intended to finance several other projects within the Adventist hospital system. No evidence was adduced that such a bond issuance had been prepared or approved, and there was no evidence concerning the other projects which would be financed in conjunction with this project. In 1987, EPNC was carrying about five million dollars of negative equity. The hospital is currently greater than 100% financed. As noted above, the original Certificate of Need application filed with HRS listed the total project cost to be $4,531,000. In its response to omissions, EPMC stated that the construction cost would be $175 per square foot. In the updates submitted at the hearing, EPNC proposed a project cost of $2,302,900, which included a construction cost of $85 per square foot. A more reasonable cost for the addition of a floor to an existing facility would be $125 per square foot, plus an inflation factor of 6% and architectural and engineering fees of 6 to 7%. The proposed equipment list submitted by EPNC fails to include major equipment items such as an overhead paging system, a nurse call system, examination room equipment, medication distribution equipment, bed curtains, shower curtains, patient and staff support lounge items, and IV pumps. EPNC's updated equipment cost budget fails to include tax, freight, contingency and installation costs. The projected equipment costs should be tripled to adequately and reasonably equip a 35-bed nursing unit. The projected utilization and pro formas submitted by EPMC are not reasonable and were not supported by competent substantial evidence. EPMC's projected utilization for the proposed 35-bed unit is 8,950 patient days in the first year of operation and 9,580 in the second year of operation. Applying the current use rate to the population projections submitted by EPMC's expert in demographics and population projections produces only about 2,980 additional patient days in the year 1992. Given the fact that EPMC's current market share is approximately 54%, there is no reason to believe that Humana would not absorb at least some of those projected additional patient days. There are many months of the year in which additional patient days could be filled within the existing complement of 85 beds at EPNC. Depending upon the ultimate cost of the project, the break even point for financial feasibility purposes would be approximately 3,500 to 4,000 patient days. The concept behind a pro forma is to develop a financial picture of what operations will be in the first two years of operation. EPMC stated its revenues and expenses in terms of 1988 dollars and used its current revenue- to-expense ratios for projecting operations four years into the future. This is improper because gross revenues are going up, reimbursement is not increasing as rapidly and expenses, particularly salaries and insurance, are increasing. In addition, EPMC's projected 1992 salaries in several categories were less than they are currently paying for such positions. EPMC currently provides good quality of care to its patients. The only future concern in this realm is the fact that in the winter months, its intensive and critical care unit beds are often full and there is no room for additional patients. Additional medical/surgical volume from the proposed 35- bed unit would lead to additional intensive and critical care bed demand.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of East Pasco Medical Center for a Certificate of Need to add 35 acute care beds to its existing facility be DENIED. Respectfully submitted and entered this 30 day of March, 1989, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. (Case No. 88-1227) The proposed findings of fact submitted by the parties have been carefully considered and are accepted, incorporated and/or summarized in this Recommended Order, with the following exceptions: Petitioner: Third sentence rejected as not established by competent, substantial evidence. Accepted, but not included as irrelevant to the ultimate resolution of the issues. Rejected. The Personnel Director of Humana presented testimony in this proceeding. Accepted as an accurate restatement of testimony, but rejected as an erroneous conclusion of law. 16. Second sentence rejected as an erroneous conclusion of law. A18. Rejected as contrary to the evidence. 20. First sentence rejected as an erroneous conclusion of law. First sentence rejected as an erroneous conclusion of law. Rejected as not supported by competent substantial evidence. 27 and 30. Accepted as an accurate restatement of testimony, but rejected as an erroneous conclusion of law. Rejected as immaterial to the issue of need in the year 1992. First sentence rejected as not established by competent substantial evidence. First and third sentences rejected as not established by competent substantial evidence. 37 and 38. Rejected as not established by competent substantial evidence. 44. Last sentence rejected as unsupported by competent substantial evidence. Accepted only if the factors of volume and payor mix are also considered. Partially rejected as speculative and not supported by competent substantial evidence. All but first two sentences rejected as unsupported by competent substantial evidence and an erroneous conclusion of law. Rejected as unsupported by competent substantial evidence and an erroneous conclusion of law. Last sentence rejected as unsupported by the evidence. Rejected as unsupported by competent substantial evidence. Second sentence rejected as contrary to the greater weight of the evidence. 58. Rejected as irrelevant and immaterial. 60. Rejected as not established by competent substantial evidence. 62 - 67. The actual figures regarding total costs, projected utilization and those figures utilized in the pro formas were not established by competent substantial evidence and, therefore, the findings regarding the financial feasibility of the project are rejected. 71. Rejected as not supported by competent substantial evidence. 74. Rejected as not supported by competent substantial evidence. 77. Rejected as an improper factual finding and contrary to the evidence. 78 and 79. Rejected as contrary to the greater weight of the evidence. First sentence rejected as unsupported by competent substantial evidence. Last sentence rejected as unsupported by the evidence. Rejected as contrary to the evidence. Respondent: 2 and 6. Partially accepted with the additional considerations of the applicant's occupancy levels and geographic accessibility. 9. Rejected as contrary to the evidence. 19(a) Interpretation of rule not sufficiently explicated at hearing. 56 - 58. Actual figures are not established by competent evidence due to the failure to establish with reliability the total costs of the project. Intervenor: Second sentence accepted with the additional considerations of the applicant's occupancy levels and geographic accessibility. Third sentence rejected. Interpretation of rule not sufficiently explicated at hearing. First sentence rejected, but this does not preclude a consideration of such a period. Third sentence rejected as not established by the greater weight of the evidence. 31. Second sentence rejected as speculative. 40 and 41. Accepted as factually correct, but not included due to the showing of unused capacity within the East Pasco subdistrict. 55 and 56. Actual figures are not established by competent evidence due to the failure to establish with reliability the total costs of the project. 63 and 72. Same as above with regard to second sentence. 92. Rejected as an overbroad statement or conclusion. 97. Second sentence rejected as overbroad and not supported by the evidence. COPIES FURNISHED: E.G. Boone and Jeffrey Boone 1001 Avenida del Circo Post Office Box 1596 Venice, Florida 34284 Stephen M. Presnell Macfarlane, Ferguson, Allison & Kelly Post Office Box 82 Tallahassee, Florida 323a2 James C. Hauser Messer, Vickers, Caparello, French & Madsen, P.A. Post Office Box 1876 Tallahassee, Florida 32302 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are set forth in 11 separate counts within the four consolidated cases: Case No. 09-5360 Count I--Whether Respondent failed to properly monitor and care for a patient in restraints. Count II--Whether Respondent failed to ensure the physician's plan of care for patient was implemented. Case No. 09-5363 Count I--Whether Respondent failed to properly implement the physician's plan of care for patient. Case No. 09-5364 Count I--Whether Respondent failed to ensure a patients' right to privacy. Count II--Whether Respondent failed to ensure that food was served in the prescribed safe temperature zone. Count III--Whether Respondent failed to ensure that only authorized personnel had access to locked areas where medications were stored. Count IV--Whether Respondent failed to perform proper nursing assessments of a patient. Count V--Dismissed. Count VI--Whether Respondent failed to maintain patient care equipment in a safe operating condition. Case No. 09-5365 Count I--Whether Respondent failed to triage a patient with stroke-like symptoms in a timely fashion. Count II--Whether Respondent's nursing staff failed to assess and intervene for patients or ensure implementation of the physician's plan of care.
Findings Of Fact Petitioner is the state agency responsible for, inter alia, monitoring health care facilities in the state to ensure compliance with all governing statutes, rules and regulations. It is the responsibility of AHCA to regularly inspect facilities upon unannounced visits. Often AHCA will inspect facilities for the purpose of licensure renewal, certification, or in conjunction with federal surveys. AHCA will also inspect facilities on the basis of complaints filed by members of the general public. Respondent, Gulf Coast Medical Center ("Gulf Coast" or "GCH") is a hospital within the Lee Memorial Health System. South West Florida Regional Medical Center ("SWF") was another hospital within the Lee Memorial Health System. SWF closed in March 2009, when it was consolidated with Gulf Coast. On October 15, 2008, the Agency conducted a complaint investigation at SWF; a follow-up complaint investigation was done on November 13, 2008. SWF filed and implemented a plan of correction for the issues raised in each of the investigations. The November investigation resulted in an Administrative Complaint containing two counts. On December 16, 2008, AHCA performed another complaint investigation at Gulf Coast. Gulf Coast filed and implemented a plan of correction for the issues raised in the investigation. The investigation resulted in an Administrative Complaint containing one count. On January 5 through 9, 2009, AHCA conducted a routine licensure survey at Gulf Coast. The hospital filed and implemented a plan of correction for the issues raised in the survey. The survey resulted in an Administrative Complaint containing six counts (although Count V was dismissed during the course of the final hearing). On February 18, 2009, AHCA did its follow-up survey to the previous licensure survey. Gulf Coast filed and implemented a plan of correction for the issues raised in the survey. The survey resulted in an Administrative Complaint containing two counts. Case 09-5360 The complaint investigation at SWF on November 13, 2008, was conducted under the supervision of Charlene Fisher. Count I in this case addresses findings by the Agency concerning a patient who was placed in restraints at the hospital on August 28, 2008. The patient, A.D., came into the hospital emergency department under the Baker Act seeking medical clearance to a facility. The patient presented at approximately 4:00 p.m., with back pain. He had a history of drug abuse, so there was concern by the hospital regarding the use of narcotics or certain other medications to treat the patient. The patient engaged in some scuffling with police. A physician signed and dated a four-point restraint (one on each limb) order, resulting in the patient being physically restrained. The restraint was deemed a medical/surgical restraint, rather than a behavioral restraint. AHCA had concerns about the restraint, specifically whether there was a notation for Q 15 (or every 15 minutes) monitoring of the restrained patient. However, medical/surgical restraints only require monitoring every two hours. The restraint worksheet for the patient confirms monitoring every two hours. The patient was ultimately admitted to the hospital at 9:37 p.m., and, thereafter, began complaining of left shoulder pain. The hospital responded to the patient's complaints about back pain and began treating the pain with analgesics. However, the patient continued to complain about the pain. An X-ray of the patient's shoulder was finally done the next morning. Shoulder dislocation was confirmed by the X-ray, and the hospital (four hours later) began a more substantive regimen of treatment for pain. Surgery occurred the following morning, and the shoulder problem was resolved. It is clear the patient had a shoulder injury, but it is unclear as to when that injury became more painful than the back injury with which the patient had initially presented. The evidence is unclear whether or when the shoulder injury became obvious to hospital staff. During its course of treating this patient, the hospital provided Motrin, Tylenol, Morphine, Percocet and other medications to treat the patient's pain. Count II in this case also involved a restrained patient, M.D., who had presented to the emergency department under the Baker Act. The patient was released from handcuffs upon arrival at the hospital. After subsequently fighting with a deputy, this patient was also placed in a medical/surgical restraint pursuant to a physician's order. The doctor signed and dated, but did not put a time on, the restraint order. A time is important because there are monitoring requirements for patients in restraints. However, the time of 0050 (12:50 a.m.) appears on the patient's chart and is the approximate time the restraints were initiated. The proper procedure is to monitor a restrained patient every two hours. This patient, however, was removed from his restraints prior to the end of the first two-hour period. Thus, there are no records of monitoring for the patient (nor would any be necessary). The evidence presented by AHCA was insufficient to establish definitively whether the hospital nursing staff failed to properly respond to the aforementioned patients' needs. It is clear the patients could have received more care, but there is not enough evidence to prove the care provided was inadequate. Case No. 09-5363 On December 16, 2008, AHCA conducted a complaint investigation at SWF. The Agency had received a complaint that the hospital did not properly implement a physician's plan of care. Count I in this complaint addresses alleged errors relating to two of four patients reviewed by the surveyors. Both of the patients came to the hospital from a nursing home. One patient, I.A., had presented to the emergency department complaining of chest pains. The medication list sent to the hospital by the nursing home for I.A. actually belonged to someone other than I.A. I.A.'s name was not on the medication list. The drugs listed on the patient chart were different than the drugs I.A. had been taking at the skilled nursing facility from which she came. The skilled nursing facility actually sent I.A.'s roommate's medication list. The erroneous medications were then ordered by the admitting physician and administered to the patient. The hospital is supposed to review the medication list it receives and then enter the medications into the hospital system. The person reviewing the medication list does not necessarily have to be a nurse, and there is no evidence that the person making the error in this case was a nurse or was some other employee. It is clear, however, that the person reviewing the medication list did not properly ascertain that the list belonged to patient I.A. The other patient from the nursing home had been admitted for surgery at SWF. Again, the nursing home from whence she came sent a medication list that was incorrect. The medications on the incorrect list were entered into the system by a SWF employee. The erroneous medications were ultimately ordered by the attending physician for the patient, but there is no evidence the patient was ever administered those medications. Neither of the residents was harmed by the incorrect medications as far as could be determined. Case 09-5364 From January 5 through 8, 2009, AHCA conducted a licensure survey at Gulf Coast and SWF in conjunction with a federal certification survey. Count I of the complaint resulting from this survey addressed the right of privacy for two residents. In one instance, a patient was observed in her bed with her breasts exposed to plain view. In the other instance, a patient's personal records were found in a "public" place, i.e., hanging on the rail of a hallway in the hospital. AHCA's surveyor, Nancy Furdell, saw a female patient who was apparently asleep lying in her bed. The patient's breasts were exposed as she slept. Furdell observed this fact at approximately 1:15 p.m., on January 7, 2009. Furdell did not see a Posey vest on the patient. She did not know if anyone else saw the exposed breasts. Furdell continued with her survey duties, and at approximately 5:00 p.m., notified a staff member as to what she had seen. Furdell did not attempt to cover the patient or wake the patient to tell her to cover up. The female patient with exposed breasts was in the intensive care unit (ICU) of the hospital. Visiting hours in ICU at that time were 10:00 to 10:30 a.m., and again from 2:00 till 2:30 p.m. Thus, at the time Furdell was present, no outside visitors would have been in the ICU. ICU patients are checked on by nursing staff every half-hour to an hour, depending on their needs. This particular patient would be visited more frequently due to her medical condition. On the day in question, the patient was supposed to be wearing a Posey vest in an effort to stop the patient from removing her tubing. The patient had been agitated and very restless earlier, necessitating the Posey vest. Also on January 7, 2009, a surveyor observed some "papers" rolled up and stuffed inside a hand-rail in the hospital corridor. This occurred at 1:15 p.m., on the fourth floor of the south wing of the hospital. A review of the papers revealed them to be patient records for a patient on that floor. The surveyor could not state at final hearing whether there were hospital personnel in the vicinity of the handrail where she found the patient records, nor could she say how long the patient records had been in the handrail. Rather, the evidence is simply that the records were seen in the handrail and were not in anyone's possession at that moment in time. Count II of the complaint was concerned with the temperature of certain foods being prepared for distribution to patients. Foods for patients are supposed to be kept at certain required temperatures. There is a "danger zone" for foods which starts at 40 degrees Fahrenheit and ends at 141 degrees Fahrenheit. Temperature, along with time, food and environment, is an important factor in preventing contamination of food and the development of bacteria. Surveyor Mary Ruth Pinto took part in the survey. As part of her duties, she asked hospital staff to measure the temperature of foods on the serving line. She found some peaches at 44 degrees, yogurt at 50 degrees, and cranberry juice at 66 degrees Fahrenheit. According to Pinto, the hospital's refrigerator temperatures were appropriate, so it was only food out on the line that was at issue. Pinto remembers talking to the hospital dietary manager and remembers the dietary manager agreeing to destroy the aforementioned food items. The hospital policies and procedures in place on the date of the survey were consistent with the U.S. Food and Drug Administration Food Code concerning the storage, handling and serving of food. The policies acknowledge the danger zone for foods, but allow foods to stay within the danger zone for up to four hours. In the case of the peaches and yogurt, neither had been in the danger zone for very long (not more than two hours). The cranberry juice was "shelf stable," meaning that it could be stored at room temperature. The food services director for the hospital remembers the peaches and yogurt being re-chilled in a chill blaster. She does not believe any of the food was destroyed. Count III of the complaint addressed whether an unauthorized person had access to a room where medications were being stored. A state surveyor, Gary Furdell, was part of the survey team on January 5, 2009. Furdell was touring the second floor of the hospital when he noticed a locked door. Furdell asked a hospital medical technician who was standing nearby about the door. The medical technician gave Furdell the code to unlock the door. Furdell peeked inside and noticed bottles that he presumed were medications. It would be a violation for a medical technician to have access to medications, because medical technicians cannot distribute drugs. The room Furdell looked into is a "mixed use" room located behind a nursing station. A mixed use room is used to store medical supplies, including medications, as long as there is a locked cabinet in the room for that purpose. This particular mixed use room had a locked cabinet. The room is used for the preparation of medications and for other purposes. No narcotics were stored in this particular mixed use room. The room contained locked cabinets used to store other medications. The evidence presented was insufficient to determine what "medications" Furdell may have seen in the room. Count IV of the complaint concerned the nursing assessment of a patient, and whether the assessment was properly and timely performed. A patient, M.S., had been admitted to the hospital on June 18, 2008, for lung surgery. Following the surgery, Amiodarone (a very toxic drug which can cause clots and other complications) was administered to treat M.S. for heart arrhythmia. The Amiodarone was administered intravenously and M.S. developed blisters and irritation at the intravenous site. That is not an uncommon complication with Amiodarone. M.S.'s attending physician was notified about the irritation and prescribed a treatment. He also ordered a consult with an infectious disease specialist who ultimately changed M.S.'s antibiotics. Although M.S. was seen daily by her physicians, the nursing notes do not reflect the assessment and treatment of her blisters. It appears that proper care was rendered, but the care was not documented properly. Another patient was admitted to the hospital on December 15, 2008, with End Stage Renal Disease and diabetes mellitus for which she began dialysis treatment. The patient was not weighed before and after a particular dialysis treatment on January 5, 2009. However, the patient had been moved to an air mattress bed on that date for comfort. The air mattress bed did not allow for a weight to be taken as it could be on a regular bed. There is an allegation in the Administrative Complaint concerning the discontinuation of the calorie count for a patient. This issue was not discussed in AHCA's Proposed Recommended Order, nor was sufficient evidence of any wrong- doing concerning this matter presented at final hearing. During the survey, the hospital was found to be storing the medication Mannitol in blanket warmers, rather than in warmers specifically designed for the drug. The blanket warmers maintained the Mannitol at 100-to-110 degrees Fahrenheit. The manufacturer's label on the drug calls for it to be dispensed (injected) at between 86 and 98.5 degrees Fahrenheit. In order to meet this requirement, the hospital takes the drug out of the blanket warmer in time for it to cool sufficiently before it is injected. There is nothing inherently wrong with using a blanket warmer to store Mannitol. On January 5, 2009, a surveyor found two vials of Thrombin, one vial of half-percent Lidocaine and Epi, and one vial of Bacitracin in operating room No. 4. The operating room is within the secured and locked suite of surgical rooms on the second floor. Two of the vials had syringes stuck in them and one of them was spiked. Whoever had mixed the medications was not attending to them at the time the surveyor made her observation. There were two unlicensed technicians in the room preparing for the next surgery. A registered nurse anesthetist was present as well. There was no identifying patient information on the medications. The hospital's policies and procedures do not require the patient's name to be on the label of medications prepared for impending surgery. That is because the procedures for the operating room include a process for ensuring that only the correct patient can be in the designated operating room. There is a fail-safe process for ensuring that only the proper patient can receive the medications that are set out. At around 2:45 p.m. on January 5, 2009, there were patient records in the emergency department showing that several drugs had been administered to a patient. The surveyor did not see a written order signed by a physician authorizing the drugs. When the surveyor returned the next morning, the order had been signed by the physician. The hospital policy is that such orders may be carried out in the emergency department without a doctor's signature, but that a physician must sign the order before the end of their shift. AHCA cannot say whether the physician signed the order at the end of his shift or early the next day. Count V of the complaint was voluntarily dismissed by the Agency. Count VI of the complaint concerned the status of certain patient care equipment, and whether such equipment was being maintained in a safe operating condition. A patient was weighed at the hospital upon admission on December 27, 2008, and found to weigh 130 pounds using a bed scale. Six days later, on January 2, 2009, the patient's weight was recorded as 134 pounds. Two days later, in the same unit, the patient weighed 147 pounds and the next day was recorded as weighing 166 pounds. During the survey process, the patient was weighed and recorded at 123 pounds on a chair scale. The hospital does not dispute the weights which were recorded, but suggests there are many factors other than calibration of the equipment that could explain the discrepant weights. For example, the AHCA surveyor could not say whether the patient sometimes had necessary medical equipment on his bed while being weighed, whether different beds were involved, or whether any other factors existed. AHCA relies solely on the weight records of this single patient to conclude that the hospital scales were inaccurate. Case No. 09-5365 On February 18, 2009, AHCA conducted a licensure survey at Gulf Coast. Count I of the complaint from this survey concerned the timeliness of triage for a patient who presented at the hospital emergency department with stroke-like symptoms. AHCA surveyors witnessed two patients on stretchers in the ambulance entrance hallway leading to the emergency department. Each of the two patients had been brought in by a separate emergency medical service (EMS) team and was awaiting triage. One patient was taken to an emergency department room (ER room) 50 minutes after his/her arrival at the hospital. The other patient waited 45 minutes after arrival before being admitted to an ER room. Meanwhile, a third patient arrived at 2:20 p.m., and was awaiting triage 25 minutes later. During their observation, the surveyors saw several nursing staff in the desk area of the emergency department, i.e., they did not appear to be performing triage duties. The emergency department on that date was quite busy. That is not unusual during February, as census tends to rise during the winter months due to the influx of seasonal residents. A summary of the action within the emergency department from 1:00 p.m. to 3:00 p.m., on the day of the survey shows the following: Patient L.G., 74 years old with stable vital signs, was radioed in by her EMS team at 1:08; L.G. was processed into the ER at 1:21 (which is not an unreasonable time; EMS teams call in when they arrive at or near the hospital. By the time they gain access, wait their turn if multiple ambulances are present, and get the patient inside, several minutes may lapse). L.G. was stabilized and quickly reviewed by ER staff, then officially triaged at 2:04. Patient H.M., an 89-year-old male residing in a nursing home, arrived at 1:20 and was processed in at 1:59. He was triaged at 2:01, but ultimately signed out of the hospital against medical advice. Patient E.M. arrived at 2:18 and was processed at 2:25. Triage occurred one minute later. This patient presented as a stroke alert, and hospital protocol for that type patient was followed. Patient C.J. arrived at 1:08 and was processed at 2:38. Triage occurred immediately after C.J. was processed. This patient was not stroke alert, but had some stroke-like symptoms.1 C.J. had not been transported to the hospital as emergent, because the symptoms had been going on for 24 hours. Patient W.M., an auto accident victim, arrived at 1:40 and was processed at 1:49. Triage occurred within six minutes. Patient M.M., W.M.'s wife (who had been with M.M. in the automobile accident, but was placed in a separate ambulance), arrived at 2:06 and was triaged at 2:34. There is no record of when M.M. was processed. Patient L.M. came to the hospital from a nursing home. She arrived at 1:43 and was processed at 2:35. L.M. was triaged at 2:37. Patient K.M. arrived at 2:45 and was processed within three minutes. Triage occurred at 2:52. Her triage was done very quickly due to the condition in which she arrived, i.e., shortness of breath and low oxygen saturation. Patient R.S. arrived at 1:00 and was triaged at 1:15. The aforementioned patients represent the patients presenting to the emergency department by ambulance during a two-hour period on a very busy day. It is the customary procedure for ER staff to make a quick visual review (rapid triage) of patients as they come into the hospital. Those with obvious distress or life-threatening conditions are officially triaged first. Others, as long as they are stable, are allowed to wait until staff is available for them. As part of their duties, nurses necessarily have to be in the desk area (nursing station) in order to field phone calls from physicians concerning treatment of the patients who present. It is not unusual or improper for nurses to be in the nursing station while residents are waiting in the processing area. It is clear that some patients waited a much longer time for triage than others. However, without a complete record of all patients who presented that day and a complete review of each of their conditions, it is impossible to say whether the hospital was dilatory in triaging any of them. Count II of the complaint addressed the nursing staff and whether it failed to assess and intervene in the care of a patient or failed to implement a physician's plan of care for the patient. Patient D.W. was a 67-year-old female who was morbidly obese, diabetic, debilitated, had end stage renal disease, and was receiving dialysis. Upon admission, D.W. had a Stage 3 pressure ulcer to her sacrum and a Stage 4 ulcer on her left calf. A wound care protocol was initiated immediately, and a Clinitron bed was obtained for her on the day of admission. Due to the seriousness of her condition, the wound care physician declined to accept her case at first. He later ordered Panafil, and it became part of the protocol for treating the patient. The nursing documentation for D.W. was only minimally sufficient, but it does indicate that care was provided. Patient R.H. was an 83-year-old male who presented on February 10, 2009, in critical condition. R.H. was suffering from congestive heart failure, pneumonia, and respiratory failure. Due to the critical nature of his respiratory problems, R.H. was placed on a ventilator. As a ventilator patient, he did not fit the profile for obtaining wound care. Nonetheless, the hospital implemented various other measures to deal with R.H.'s pressure wounds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Agency for Health Care Administration, imposing a fine in the amount of $500.00 in DOAH Case No. 09-5363 and a fine in the amount of $500.00 in DOAH Case No. 09-5364, Count VI. DONE AND ENTERED this 30th day of April, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 30th day of April, 2010.
Findings Of Fact Respondent Ahmed Elkadi, who holds a license to practice medicine in Florida, No. 0031490, was one of two surgeons (among some half dozen physicians) on the staff of Weems Memorial Hospital in Apalachicola, Florida, in August of 1988. Whether the physicians on staff who were not surgeons had other specialties and, if so, what they were, the proof did not show. A duly licensed 29-bed general hospital, Petitioner's Exhibit No. 7, Weems Memorial had, "on a . . . stat basis," (Fitzgerald Deposition at 13), despite its small size, "24-hour respiratory therapy capability, 24-hour laboratory coverage, [and] 24-hour radiology coverage," (Fitzgerald Deposition at 5), which did not, however, include computed tomographic scanning or magnetic resonance imaging technology, both available only at facilities some 60 or 70 miles away. Continuous cardiac monitoring was available in house. Id. at 16. Weems Memorial had a physician in house 24 hours a day and a registered nurse on duty 24 hours a day, along with "at least one LPN," (Fitzgerald Deposition at 6), and two nurse's aides. Id. On average, Weems Memorial only had five or six inpatients at any one time during 1988. Staff off premises but on call were required to report within 30 minutes of being summoned. Fitzgerald Deposition at 13. On August 22, 1988, Dr. Elkadi admitted A. L. as a patient, in preparation for gastric bypass surgery the following day. A 29-year-old woman, A. L. (who worked as a nurse at the hospital) stood 5 feet 1.5 inches tall and weighed 303 pounds, when admitted. A chest x-ray taken before she was admitted uncovered no abnormalities other than obesity. Because she "was in excess of twice her standard weight for height," (MacGregor Deposition, p.7) and had "blood cholesterol elevation and [elevated levels of] blood triglycerides," Id., p.8, and because of her age, A. L. was an appropriate candidate for gastric bypass surgery, Corwin Deposition. She signed a form consenting to the operation. Roux-en-Y Dr. Elkadi performed the surgery, a "gastric bypass with Roux-en-y gastrojejunostomy," Petitioner, Exhibit No. 2, p. 7, on August 23, 1988. A. L., who was anxious about the impending operation, received Valium as well as anesthesia before the procedure began. While A. L. lay on her back anesthetized, he cut open her abdomen and partitioned her stomach with staples, thus reducing the capacity of her stomach to receive food; and joined the small, newly segregated, upper portion of her stomach directly to the small intestine. In a contemporaneous operative note, Dr. Elkadi described the procedure: . . . . The TA 90 stapler was used twice to proximal gastric from the proximal apply a double staple line across the stomach to separate a small proximal pouch with a capacity of about 30 cc remaining stomach cavity. A loop of in side using inner for was jejunal completed. 14 the the jejunum was pulled up through an opening the transverse mesocolon and anastomosed to side to the proximal gastric pouch a running suture of 3-0 chromic for the layer and interrupted 3-0 silk sutures the outer layer. A naso-gastric tube passed into the distal limb of the loop before the anastomosis was The gastrojejunostomy measured about 12- mm in diameter. The proximal limb of jejunal loop was then disconnected just proximal to the gastrojejunostomy using GIA stapler, and the cut end was anastomosed to the distal limb about 60 cm distal to the also gastrojejunostomy. The GIA stapler was used for the entero-enterostomy supported by a running 3-0 silk suture for the serosal transverse loop layer. The edges of the opening of the mesocolon were sutured to the jejunal . The using a fascia, a of using interrupted 3-0 silk sutures. . . abdominal wall was closed in layers running suture of #1 Dexon for the running suture of #3-0 Dexon for the subcutaneous layer, and a running suture #3-0 Nylon for the skin. . . . Petitioner's Exhibit No. 2. As reported and as is customary, Dr. Elkadi severed the small intestine just above the newly fashioned connection to the "small proximal gastric pouch." Because gastric juices continue to leave the distal stomach and travel through the disconnected intestinal segment, the procedure was not complete until this segment of the jejunum was rejoined to the small intestine lower down. In manipulating the jejunum to accomplish the reconnection, it was necessary to cut and tie off various blood vessels, including tributaries of the mesenteric vein. Dr. MacGregor, one of petitioner's expert witnesses, testified that "[t]he record indicates that [the surgery] was done appropriately." T.15. On deposition, petitioner's counsel asked and Dr. MacGregor answered: Q. It seems to be a normal surgery? A. Right. Q. Except for the amount of time? A. Correct MacGregor deposition 15. The operation took four hours. The other surgeon petitioner called as an expert testified that "probably four hours would be a reasonable time." Corwin Deposition at 12. Petitioner produced no witness who testified that respondent's work in the operating room failed to meet standards of any kind. Sequelae In the wake of operations of this kind, "mortality can be as high as 2.7 to 2.9 per cent at training centers who have documented teams of specialists and post op care specialists." T.15. Complications "tend to be in two major groups . . . pulmonary embolism and infections." Id. The "most important complication of gastric bypass surgery is perforation or leakage," (MacGregor Deposition at 16) which leads to infection. In many hospitals, nursing administration routinely assigns a formal nursing plan for postoperative patients, after consulting with the surgeon. MacGregor Deposition at 15. But practices vary (Corwin Deposition at 13) and the omission of a formal nursing plan altogether "in and of itself . . . is not unusual," (Fitzgerald Deposition at 12) at least in smaller hospitals. No formal, written nursing or contingency plan was drawn up for A. L. Dr. Elkadi did not originally direct care for A. L. "beyond what [staff] would normally do [for] any postoperative surgical patient." Fitzgerald Deposition at 11. A. L. left the operating room at ten before two on the afternoon of August 23, 1988. An hour and 40 minutes later, her pulse rate was 84 and her respiration was 28. Petitioner's Exhibit NO. 2. At ten o'clock that night, her pulse was 112 and her respiration was 36; and, at or about the same time, her temperature was approximately 97.2o F. A half hour later, with Dr. Elkadi present, A. L. was standing by her bedside and taking a few steps. The next morning she sat up, first on the side of her bed, then in a chair. At half past one on August 24, 1988, she walked to the nursing station, which she "tolerated well." But, after she returned to her bed, she complained of "surgical pain." At six o'clock that evening she walked a short distance in the hall, returned to her room, sat in a chair and, after she had gone back to bed, again complained of "surgical pain." A chest x-ray taken the day after the operation revealed "[s]mall areas of linear atelectasis . . . in the lung bases," Petitioner's Exhibit No. 2, p. 43, which a radiologist attributed to A. L.'s not having taken a full breath. He found that a "full inspiration was not taken during filming," Id., and that the atelectasis was "probably for this reason." Id. On the evening of August 24, 1988, the nursing notes reported "slight drainage of dark green fluid" from the nasogastric tube. Earlier that day, bloody drainage ("scant") was reported for what may have been the first and only time. The last entry in the nurse's notes characterized the drainage as dark brown; "scant amt greenish drainage," Petitioner's Exhibit No. 2, was reported as late as four o'clock on August 26, 1988. Also at four o'clock on the afternoon of August 26, 1988, the nurse's notes reported, "Bowel sounds [were] audible in all 4 quadrants." Petitioner's Exhibit NO. 2. At seven o'clock that evening, according to the same source, A. L. "had small tan colored lo[ose] stool." Id. A blood specimen drawn at nine o'clock on the morning of August 26, 1988, yielded a "WBC" test result of "19.9." Id. at an unnumbered page. The white blood cell count had "c[o]me down to 11,000 on the day of [A. L.'s] admission." Petitioner's Exhibit No. 2, p. 7. On the morning of August 25, 1988, another walk in the hall ended with A. L.'s sitting in a chair. The nurses' notes reported that she was "[t]olerating activity well." Petitioner's Exhibit No. 2. At eleven o'clock that night, "belching incessantly," she complained of back and stomach pain, and a nurse helped her take a walk. She was still up (sitting in a chair) at midnight, when a second walk resulted in "much relief in stomach." Pain and belching persisted, nevertheless, and Dr. Elkadi was called, arriving at ten before one o'clock in the early morning of August 26, 1988. After seeing A. L., respondent ordered an enema and a dose of Vistaril. At quarter past one, she was pushing on her stomach to relieve gas pains. The nurses' notes reported that she was "extremely anxious," and Dr. Elkadi prescribed five milligrams of Valium. She continued to belch, and Dr. Elkadi was notified of her distress and anxiety at three o'clock in the morning. After she received another five milligrams of Valium (presumably at Dr. Elkadi's behest), she fell asleep. At 5:20 that morning, she was given a third five milligram dose of Valium, and at seven o'clock three milligrams more. In each instance, it was administered intravenously by "slow push." Awake by seven, when she complained of abdominal pain, she was given two milligrams of Levodromoran, after walking to and from the nursing station. When the respiratory therapist saw her at nine o'clock, she was sitting in a chair, again complaining of abdominal pain. But an hour later, when she went to the shower, she said she had less gas pain. That afternoon, she rested in bed, sat in a chair, and walked in the hall. The day after the operation, A. L.'s temperature had risen to 100.5o F., and her pulse had reached 128. When her pulse declined on the following day, August 25, 1988, her temperature remained elevated. On August 26, however, her temperature dropped to normal and her pulse leveled off at the low to mid 90s. On August 23, 1988, the day of the surgery, and again on each of the two following days, Dr. Elkadi ordered extra intravenous fluids. On more than one occasion, the nurse's notes reported that intravenous solution was infusing with difficulty, or words to that effect. While a 1500-milliliter per day discrepancy between fluid intake and urine output is to be expected, the discrepancy averaged some 3500 milliliters per day in A. L.'s case, following her surgery. After surgery, she was given morphine in five-milligram doses, intravenously, as needed. The day after the operation, A. L. also received Levodromoran for pain. On August 25, 1988, although she again received both pain-killing medications, she required less morphine. On August 26, 1988, however, in response to complaints of pain, the amounts both of morphine and of Levodromoran she received increased over the previous day's totals. Dr. Elkadi also prescribed Valium and Vistaril; and A. L. received a total of 100 milligrams of the latter, on August 26, 1988, in multiple doses. In addition, Dr. Elkadi prescribed and A. L. received Nubain, an analgesic that, according to Dr. MacGregor, "is a narcotic antagonist." Petitioner's Exhibit No. 1 to MacGregor Deposition. It is therefore possible that Nubain offset the increased dosages of narcotics in whole or in part. The Last Day A. L. awoke at half past six on the morning of August 27, 1988, complained of pain, and received an injection of Nubain. Only 30 minutes later, she complained of "pain between shoulders," but she received no more pain medication, according to the nurse's notes, until five after two that afternoon, when she was given an injection of five milligrams of Valium. (Twelve hours earlier, she had received ten milligrams of Valium.) At seven o'clock on the morning of August 27, 1988, the nurse's notes again reported "good bowel sounds heard in all quad." Id. Early that afternoon, after an enema, according to the nurse's notes, "pt had good results of flatus & sm amt of lg stool." Id. At four o'clock, she "passed some flatus." Id. At quarter of eight that morning, and again at nine, A. L. used a spirometer. Dr. Solman saw her at eight o'clock. She complained of shortness of breath at nine. A chest x-ray taken August 27, 1988, showed "areas of atelectasis in each lung base, somewhat more pronounced on the right side." Id. at 44. At three o'clock that afternoon, she was hyperventilating. When Dr. Loutfi saw her at half past three, her lungs were clear, and the X-ray taken earlier in the day had evidently not yet been seen by a radiologist. At half past four, a nurse gave A. L. ten milligrams of Valium "for relaxation/rest," Petitioner's Exhibit No. 2, and, fifteen minutes later, a "bag to breathe in," which A. L. used for about five minutes. The nurse initialled A. L.'s chart next to a physician's order that concluded: "Valium 10 mg. IV slowly." Petitioner's Exhibit No. 2. Asked on deposition who ordered the Valium, Dr. Corwin testified: And then it says. I can't read what it says. record to Loutfi in far as NAR? I don't know. DR. ELKADI: Dr. Ludwig [sic]. BY DR. ELKADI: Q. All right. In patients having - - MRS. SMALL: I would object for the the questioner testifying. Corwin Deposition at 42. Perhaps Dr. ordered the Valium. The order was not, any event, given by the respondent, as the evidence shows. At quarter past five, the nurse "encouraged [A. L.] to slow/deep breathe." Id. Ten minutes later she found A. L., whom she had last seen sitting on the side of her bed, sprawled across it. Cyanotic around the mouth, she was not breathing. After Drs. Loutfi and Elkadi tried in vain to resuscitate A. L., respondent pronounced her dead, at 6:30 p.m. on August 27, 1988. Cause of Death Unclear Each of the four physicians who testified at hearing or on deposition assigned a different reason for A. L.'s death. Dr. Elkadi reported the following in a discharge summary: The postoperative course during the first 4 occasional the blood of be Patient the The was patient was days was uneventful except for episodes of anxiety, usually related to incisional pain or discomfort caused by NG-tube, and which always responded to sedation or analgesis medication. The oxygenation was measured during several these anxiety episodes and was found to satisfactory with 02 saturation level of 95-97% using the finger tip oxymeter. was walking outside the room already on first postoperative day. By the fourth postoperative day the Foley catheter was removed and she had 2 bowel movements. incision was healing well, and the chest clear to auscultation. On 8/27/88, about 5:20 p.m., the suddenly arrested, and cardiopulmonary resuscitation was carried out. There heart to over an The of considerable airway resistance, and the was in asystole which failed to respond large doses of cardiac drugs. After hour of intensive resuscitative efforts, patient was pronounced dead at 6:30 p.m. course of events was strongly suggestive massive pulmonary embolism. Petitioner's Exhibit No. 2. After the autopsy revealed that the only blood clots in the lungs had formed post mortem, Dr. Elkadi refined his hypothesis, and posited a fat embolus or emboli in the lungs, which, he surmised, degraded into free fatty acids before the autopsy took place, perhaps before death occurred. He testified that free fatty acids produce serotonin, which causes bronchospasms, and he cited resistance the airway offered during the unsuccessful attempt to resuscitate A. L. Ventilation and oxygenation were virtually impossible, even though the endotracheal tube was already in place. Although Dr. Mahoney, the pathologist who performed the autopsy, found a fatty liver, he ruled out a pulmonary fat embolism because he saw no evidence of infection or trauma to the liver (which might have dislodged fat) and because examination of lung and brain tissue (a single section of each) revealed no fat globules. "No intravascular lipid vacuoles were identified in the lung." Petitioner's Exhibit No. 2. On the other hand, "[o]ccasional perivascular lipid vacuoles were seen . . . in the brain section . . . ," Id., indicating fat cells must have passed through the lungs at some point. The autopsy report made no mention of any mechanical blockage or of distension of any part of the gastrointestinal track. Nor was there evidence of alimentary leakage. All sutures held. "Inspection [during the autopsy] of the surgical sites where the surgeon had done anastomotic, reanastomosis of stomach and bowel . . . [showed] these sites were intact and grossly appeared viable." T. 9. Dr. Mahoney listed as a major finding in the autopsy report "[i]schemic enteritis with focal necrosis of the proximal jejunal segment at the entero-enterostomy junction of the Roux-en-y procedure; mesenteric vein thrombosis." Petitioner's Exhibit No. 2. But at hearing he testified, consistently with reported results of microscopic examination, that "major findings at the autopsy . . . [included] a segment of intestine, the jejunal segment, which had undergone a hemorrhagic necrosis." T. 8. Ischemic changes occur when blood supply is insufficient, while hemorrhagic changes are the result of insufficient ability to remove blood. Blood clots blocked veins serving the necrotic tissue. At hearing, Dr. Mahoney concluded "that the most probable cause [of A. L.'s death] was this dead bowel segment essentially causing sepsis." T. 13. Microorganisms penetrating the transmural necrosis caused localized infection outside the bowel or peritonitis, he testified, which led to infection in the blood stream. Septic toxins circulating in the blood caused cardiovascular failure, he theorized. These conclusions rest on autopsy findings of serositis and "approximately 1 liter of cloudy brown fluid with fibrin strands," (Petitioner's Exhibit No. 2) in the abdominal cavity. But Dr. Mahoney did not find "certain types of cells" (T.94) usually found two and a half to three days after peritonitis sets in. In fact, the autopsy findings "are not unusual findings after abdominal surgery without any complication." T.130. Dr. Corwin, one of two surgeons testifying as experts for petitioner, testified that "the autopsy report . . . [contained] essentially no indication of peritonitis." Corwin Deposition at 46. In a report petitioner put in evidence, Dr. Corwin had earlier written that "there really is no evidence of peritonitis." Dr. Corwin wrote, on June 25, 1990, after examining A. L.'s records, "In my opinion the heavy dose of intravenous Valium within the hour before the patient's sudden cardiac arrest almost certainly caused apnea, respiratory shutdown and subsequent to this, the patient suffered a cardiac arrest from which she could not be resuscitated." Petitioner's Exhibit No. 3. Dr. Mahoney testified that the final administration of Valium "may have actually contributed to a respiratory arrest" (T.15) and so to A. L.'s death. A. L. received her last dose of valium 45 minutes before she was last seen alive and 55 minutes before she was found dead. Dr. Corwin conceded that he had ordered Valium for patients in circumstances comparable to A. L.'s over a period of some 17 years, but always, he said, in situations where the patient would be watched, until the effects of the drug wore off. When administered intravenously, Valium has its maximum effect within five minutes. As far as the evidence showed, A. L. did not have an adverse effect to any earlier dose of Valium. For moderate anxiety, the Physicians' Desk Reference (1987 ed.) recommends dosages of "2 mg to 5 mg, I. M. or I. V. Repeat in 3 to 4 hours, if necessary." For severe anxiety, the same reference recommends dosages of "5 mg to 10 mg, I. M. or I. V. Repeat in 3 to 4 hours, if necessary." "Valium is indicated for the management of . . . short-term relief of the symptoms of anxiety." Respondent's Exhibit No. 2. Contraindications are "known hypersensitivity" and glaucoma. Dr. MacGregor, the other surgeon whose opinion petitioner relied on, testified that the "fundamental cause [of A. L.'s death was hypovolemic shock . . . [shock brought on by l]ow blood volume." MacGregor Deposition at 30. When asked, Dr. MacGregor agreed that Valium "may have contributed," id. at 29, to A. L.'s death. But his principal contention was that the focal necrosis created an ileus or physiological obstruction, which caused distension of the stomach and upper gastrointestinal tract which in turn led to a loss of fluid into the lining of the stomach and bowel and ultimately to hypovolemic shock. Recordkeeping Petitioner presented evidence from the same two surgeons on the question whether respondent had adequate medical records while treating A. L. In a letter attached to Dr. Corwin's deposition as an exhibit, he wrote: Did the subject prepare and keep written medical records justifying the course of treatment of the patient, including history, examination and test results? The answer to this question is yes. Deposition of Corwin, Petitioner's Exhibit No. 3. Dr. MacGregor testified that respondent's operative note was "inadequate in terms of . . . [d]etails of sutures and the techniques that were used . . . the instruments used . . . not the number of sutures but the type of sutures and the number of layers." Deposition of MacGregor at 12. But on cross-examination, Dr. MacGregor conceded that "similar operative notes [are] found in many other surgeons' records." Deposition of MacGregor at 35. The hospital records contain a separate, presumably complete list of the surgical instruments Dr. Elkadi used. Although Dr. Elkadi ordered arterial blood gas evaluations, and blood tests specifically to determine oxygen saturation, results of these tests are not in the hospital records, insofar as the hearing officer could discover. Dr. MacGregor testified the results were not in the copy of the records he was furnished. He testified: I think a blood gas was obtained but it's not two helpful normal in the records; and oxygen saturation on occasions. . . . [T]hey would be quite because they might well indicate fairly levels in a patient who has a rapid respiratory rate . . . Deposition of MacGregor at 24. Dr. MacGregor testified that he "would have thought that [it] would have been standard hospital procedure for whoever obtained those, to have recorded them in the record." Deposition of MacGregor at 25.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 25th day of January, 1991, in Tallahassee, Florida. Administrative Hearings 1550 the Administrative Hearings 1991. ROBERT T. BENTON, II Hearing Officer Division of The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399- (904) 488-9675 Filed with the Clerk of Division of this 28th day of January, APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact Nos. 1 through 7, 12, 14, 15, 16, 18, 20, 21, 22 and 28 have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 8 and 9, see paragraphs 11 through 28 of the findings of fact. With respect to petitioner's proposed findings fact No. 10, the record showed dosages, before the final dose, of five, five, five, three, ten and five milligrams. With respect to petitioner's proposed finding of fact No. 11, some tests were done; others were not. Petitioner's proposed findings of fact Nos. 13, 19, 23, 24, and 26 pertain to subordinate matters. With respect to petitioner's proposed findings of fact Nos. 17 and 25, the cause of death was not clear. Petitioner's proposed findings of fact Nos. 27 and 29 were not proven. Petitioner's proposed findings of fact No. 31 is immaterial. Respondent's proposed findings of fact Nos. 1, 2 and 3 in Part 1 and 3 in Part 2, have been accepted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 4 in Part 1 and No. 10 in Part 3, these matters are not material to the allegations of the administrative complaint. With respect to respondent's proposed finding of fact No. 5 in Part 1 and Part 2, the cause of death is unclear. With respect to respondent's proposed findings of fact Nos. 1, 2 and 8 in Part 3, see findings of fact Nos. 11 through 28. With respect to respondent's proposed finding of fact No. 4 in Part 3, the autopsy report does not reflect this but he so testified at hearing. Respondent's proposed findings of fact Nos. 5, 6, 7 and 9 pertain to subordinate matters. COPIES FURNISHED: Wellington H. Meffert, II, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Ahmed Elkadi, M.D. 236 S. Tyndall Parkway Panama City, FL 32404 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue in this case is whether Respondent was overpaid Medicaid funds for services provided to his patients, and, if so, whether the alleged overpayment was properly calculated.
Findings Of Fact AHCA is the state agency responsible for, inter alia, administering the Medicaid program in the State of Florida. The Bureau, a division of AHCA located in Tallahassee, Florida, is responsible for monitoring payments to Medicaid providers, and, when necessary, collecting return of any overpayments made to the providers. Medicaid providers enter into a contract with AHCA agreeing to bill patients no more than the usual and customary charges for services provided. Charges are established, in part, in accordance with procedure codes from the Current Procedural Terminology (CPT) guidelines. The CPT codes describe the kind of office visit which occurs during treatment to individual patients. A monetary charge is then assigned to the CPT code so that Medicaid will know how much to pay for the visit in question. The provider submits its claim for payments each month to AHCA, setting forth the number of visits within each CPT procedure code. The Bureau then determines the amount of Medicaid payment earned by the provider pursuant to the claimed services. The payment is then made by AHCA to the provider. The Bureau periodically performs audits of the claims submitted by providers. If a discrepancy or overpayment is discovered during the audit process, the Bureau notifies the provider by way of a demand letter. The Bureau then requests records and documents from the provider concerning the patients and charges in question. Upon review of the provider's records, the Bureau issues a Preliminary Audit Report setting forth its findings. The provider may agree (and repay the overpayment amount) or challenge the audit findings. In the present case, Respondent challenged the audit findings. As a result of that challenge, AHCA requested and Respondent provided additional documentation concerning Respondent's provision of services to certain patients. The Bureau then issued a Final Audit Report, again stating the amount of the overpayment and imposing a fine. The overpayment amount in this case is $82,836.07 and a fine of $3,000 was imposed. The overpayment discovered by AHCA relates to 40 individual patients who Respondent treated during the period January 1, 2002, through August 31, 2006. Each will be more fully discussed below. For some of the patients, there was only one charge in dispute; for others there are numerous charges. There are a small number of CPT procedure codes relevant to Respondent's patients at issue in this proceeding. A discussion of them is necessary to the analysis of the individual cases. Definitions and descriptions of the various codes are found in the Evaluation and Management Services Guidelines manual issued by the American Medical Association (AMA). The codes at issue are: 99201--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: A problem focused history; a problem focused examination; and Straightforward medical decision making. Usually, the presenting problems are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. 99202--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: An expanded problem focused history; An expanded problem focused examination; and Straightforward medical decision making. Usually, the presenting problems are of low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family. 99203--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: A detailed history; A detailed examination; and Medical decision making of low complexity. Usually the presenting problems are of moderate severity. Physicians usually spend 30 minutes face-to-face with the patient and/or family. 99204--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: A comprehensive history; A comprehensive examination; and Medical decision making of moderate complexity. Usually the presenting problems are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. 99205--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: A comprehensive history; A comprehensive examination; and Medical decision making of high complexity. Usually, the presenting problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. 99211--Office or other outpatient visit for the evaluation and management of an established patient that may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services. 99212--Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: A problem focused history; A problem focused examination; and Straightforward medical decision making. Usually the presenting problem(s) are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient or family. 99213--Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: An expanded problem focused history; An expanded problem focused examination; and Medical decision making of low complexity. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. 99214--Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: A detailed history; A detailed examination; and Medical decision making of moderate complexity. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. 99215--Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: A comprehensive history; A comprehensive examination; and Medical decision making of high complexity. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family. 99382--Initial comprehensive preventive medicine evaluation and management . . . for a child age 1 through 4 years. 99384--An initial comprehensive preventive medicine evaluation and management . . . of a new patient, aged 12 through 17 years. 99385--An initial comprehensive preventive medicine evaluation and management . . . of a new patient, aged 18 to 39 years. 99392--A periodic comprehensive preventive medicine evaluation and management . . . for a child age 1 to 4 years. 99393--A periodic comprehensive preventive medicine evaluation and management . . . of a child age 5 through 11 years. 99395--A periodic comprehensive preventive medicine evaluation and management . . . of an existing patient, aged 18 through 39 years. 99396--A periodic comprehensive preventive medicine evaluation and management . . . of an existing patient, aged 40 through 64 years. W9881--A checkup and screening for a child.4 The exact correlation between the CPT procedure codes and specific dollar amounts was not provided at final hearing, but there was a dollar amount assigned (by AHCA) to each of the services provided by Respondent to his patients. The Medicaid Fee Schedules (of which official recognition were taken) do provide a maximum fee for each code, but there was no testimony as to how each fee was assigned in this case, i.e., whether it was the maximum fee or not. AHCA used the services of a hired consultant (Dr. Sloan) to review Respondent's patient records concerning the assignment of CPT procedure codes for services rendered. Dr. Sloan is an experienced physician with a family practice in Chipley, Florida (a city in the Florida panhandle). Dr. Sloan had never, prior to the instant action, performed a review of another physician's records for the purpose of ascertaining the proper procedure code. This was his first foray into this process. Dr. Sloan reviewed Respondent's patient records and determined that all 40 patient records at issue had at least one erroneous procedure code, resulting in the reduction of allowable charges for those procedures. After Dr. Sloan's review was completed, another medical professional (Greg Riley, a registered nurse) reviewed the charts and made some adjustments to the monetary charges. Riley had reviewed the records initially just to make sure the records were complete. His subsequent review, after Dr. Sloan, was to determine the correct charges based on Dr. Sloan's adjustments of the procedure codes. For the purposes of reviewing the following paragraph, the patients were each assigned a number (1 through 40) and will be referenced by their assigned number herein with a parenthetical number, e.g., (1) (2) (3), etc. Some patients had more than one visit at issue. For those patients, the visit will be referred to by a written number, e.g., One, Two, Three, etc. A review of each patient and each office visit will be discussed in the following Findings of Fact. The original code and monetary charge will be stated, followed by Dr. Sloan's revised code and Riley's reduction in monetary charge. A statement of Respondent's position concerning the charge will come next, followed by a conclusion as to the proper charge based on all the evidence presented. The evidence at final hearing as to each resident was presented by way of three groups of documentation. First, there is an AHCA form listing all claims in the Medicaid sample, showing the CPT code for each patient and each patient visit. Second, there is the Respondent's office chart from each patient visit. Third, there is a written response from Respondent's former counsel as to each patient visit. This evidence, along with the testimony of witnesses, shows: One: Coded 99205 with a charge of $85.41--Dr. Sloan reduced the code to 99203, due to lack of a comprehensive history; charge was reduced to $48.68. Respondent showed that, according to annotations in the chart, the patient presented with multiple problems and a comprehensive examination was conducted. 99205 is supported. Two: Coded 99214 for $39.46--claim denied in full, as visit was a follow up only; no face-to-face time with doctor. Respondent's records show he did meet with patient, but did not exercise complex medical decision-making. The evidence supports a reduction to 99211, with the appropriate charge for that code. One: Coded 99205 for $85.41--reduced to 99202 due to lack of documentation. Respondent did not prove entitlement to a higher code. 99202 is appropriate. Two: Coded 99215 for $58.28--reduced to 99212 for $21.84, because visit was not deemed "extensive" by Dr. Sloan. Respondent did not prove elements of 99215. 99212 is appropriate. Three: Coded 99395 for $51.85--denied in full due to lack of documentation and no management issues during the visit. Respondent's records indicate comprehensive exam, and he testified to long face-to- face visit with resident. 99395 is supported. One: Coded 99204 for $66.74--reduced to 99203 for $48.37, because the examination was deficient. Respondent's records show that comprehensive examination done, history taken, and moderate complexity medical decisions made. 99204 is supported. Two: Coded 99215 for $58.94--reduced to 99213 for $26.47, due to lack of complex history or exam. The records show some level of medical decision-making that could support a higher code. 99214 would be appropriate. One: Coded 99204 for $66.74--reduced to 99203 for $48.37, due to lack of complex history. Respondent did not prove otherwise. 99203 is appropriate. Three: Coded 99214 for $39.51--reduced to 99213 for $26.61 for lack of documentation. Respondent did not prove otherwise. 99212 is appropriate. Four: Coded 99213 for $24.47--reduced to 99212 for $21.84 (a difference of $2.63) for lack of complexity. Respondent did not prove otherwise. 99212 is appropriate. One: Coded 99204 for $68.74--reduced to 99203 for $48.66, due to lack of complexity. Respondent explained his notations in the patient chart and proved the complex nature of the patient's medical problems. 99204 is supported. Four: Coded 99214 for $39.64--reduced to 99212 for $21.84, because the examination lacked detail. Respondent's records and testimony established that a detailed examination was performed. 99214 is supported. One: Coded 99204 for $66.74--reduced to 99202 for $32.44, because of lack of complexity, i.e., upper respiratory infection. Respondent did not prove that a higher code was justified. 99202 is appropriate. One: Coded 99205 for $6.74--denied in full, because the exam lacked a review of services (ROS) component. Respondent's records showed otherwise. 99205 is supported. Three: Coded 99214 for $39.49--reduced to 99212 for $21.84 due to lack of exam and/or exam was "problem focused."5 Respondent indicated patient had undergone complete physical three days prior. Visit at issue was for a specific problem. 99212 is appropriate. Four: Coded 99213 for $24.47--reduced to 99212 for $21.84, because no exam shown; visit was problem focused. Respondent's records indicate only a brief visit. 99212 is appropriate. Five: Coded 99213 for $24.4--reduced to 99211 for $12.48, due to visit being solely to refill medication. Respondent states, erroneously, that the 99211 code means that only a nurse saw the patient. In actuality, the code says that the physician does not have to see the patient, but may do so. 99211 is appropriate. Six: Coded 99214 for $39.49--reduced to 99212 for $21.84, because the visit was only problem focused. The examination performed by Respondent appears to be just that, for an oral problem. 99212 is appropriate. Seven: Coded 99213 for $24.47--denied in full, because of absence of history taken and examination record. Doctor appeared to only provide results of prior test. Respondent did not prove otherwise. Denial is appropriate. One: Coded 99204 for $68.74--denied in full by Dr. Sloan, but upgraded to 99203 for $50.64, by the RN. No comprehensive history or exam was proven by Respondent. 99203 is appropriate. One: Coded 99384 for $71.54--reduced to 99213 for $32.56 due to insufficient documentation. Respondent showed that the patient came in for a school checkup. 99384 is supported. One: Coded 99204 for $68.74--reduced to 99202 for $34.01, because the visit was only problem focused. But Respondent showed that although patient showed with only one problem (toothache), other problems were identified during the visit. 99204 is supported. One: Coded 99204 for $68.74--reduced to 99202 for $32.71, because visit was only problem focused, i.e., skin irritation. Respondent showed that patient was also in a high risk pregnancy and additional services were provided. 99204 is supported. Two: Coded 99395 for $71.54--denied in full by Dr. Sloan for failure to do more than an abdominal exam and take vital signs. Respondent did show that an annual evaluation was done, but the records do not appear to indicate a full examination. 99212 would be warranted. One: Coded 99214 for $41.51--reduced to 99213 for $32.56, because the visit was problem focused. Respondent did spend some time with patient, but did not show elements of higher code. 99213 is appropriate. One: Coded 99204 for $68.74--reduced to 99202 for $34.01, because visit was problem focused for an ingrown toenail. Respondent showed that the patient actually had multiple issues and Respondent did a fairly comprehensive history and examination. 99204 is supported. (14) One: Coded 99204 for $68.74--reduced to $32.71, because visit was problem focused for an upper respiratory infection. Respondent showed that a comprehensive history and examination were done in order to more adequately address the new patient's needs. 99204 is supported. Two: Coded 99395 for $68.84; denied in full, because of full examination done just one week prior. Respondent showed that the annual evaluation done on this date had a different focus than the prior visit and was justified and necessary. 99395 is supported. One: Coded 99215 for $58.29--reduced to 99212 for $21.84, because the visit was only to refill a prescription. A one-item exam plus vitals was performed. Respondent did not establish need for higher code. 99212 is appropriate. Two: Coded 99214 for $39.46--reduced to 99213 for $26.61, because the visit was only to address dermatitis. Respondent showed the existence of multiple problems and extensive time spent with patient. 99214 is supported. Three: Coded 99214 for $41.46--reduced to 99212 for $21.84, because visit was problem focused for an insect bite. Respondent did not prove higher code was needed. 99212 is appropriate. Four: Coded 99214 for $39.46--reduced to 99213 for $23.61, because visit was problem focused for vaginitis. Respondent did not prove otherwise. 99213 is appropriate. Five: Coded 99396 for $53.72--initially denied in full by Dr. Sloan, then reduced to 99211 by the RN. Respondent showed that a legitimate annual evaluation of patient was done. 99396 is supported. Six: Coded 99215 for $60.29--reduced to 99213 for $26.61, because Dr. Sloan deemed the examination inadequate; Respondent failed to do a ROS. Respondent showed that he spent a lot of time with the patient, but not that there was any degree of medical decision-making at a high complexity level involved. 99214 would be appropriate. Seven: Coded 99214 for $41.46--reduced to 99213 for $26.21, because visit was for an expanded problem- focused reason (ear infection). Respondent did not prove otherwise. 99213 is appropriate. One: Coded 99215 for $58.88--reduced to 99212 for $21.84, due to lack of examination documentation and that visit was problem focused. Respondent showed that additional issues were presented and discussed. 99215 is supported. Four: Coded 99214 for $41.49--reduced to 99212 for $21.84 for same reasons as prior visit. Respondent did not provide evidence of further issues. 99212 is appropriate. One: Coded 99214 for $41.51--reduced to 99213 for $27.67, due to lack of examination details. Respondent could not support higher code. 99213 is appropriate. One: Coded 99204 for $66.73--reduced to 99203 for $48.25, due to inadequate ROS and low complexity of the patient. Respondent could not support higher code. 99203 is appropriate. One: Coded 99204 for $68.74--reduced to 99202 for $34.01, because visit was for an expanded problem focus reason with straightforward medical decision- making. Respondent did not establish reason for higher code. 99202 is appropriate. One: Coded 99204 for $66.74--reduced to 99202 for $32.37, because it was a problem focused visit for an upper respiratory infection (URI). Respondent found patient to be in a high risk pregnancy and examination escalated due to that fact. 99204 is supported. One: Coded 99204 for $66.74--reduced to 99202 for $37.37, because visit was problem focused for URI. Respondent did not support higher code. 99202 is appropriate. One: Claim was allowed. Two: Coded 99214 for $41.51--reduced to 99213 for $32.56, because the visit was problem-focused for a URI. Respondent could not prove higher code was necessary. 99213 is appropriate. Three: Coded 99213 for $26.47--reduced to 99212 for $26.45 (two cent difference). Respondent acquiesced. 99212 is appropriate. Four: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem-focused for an allergic reaction. Respondent noted that patient had allergic rhinitis and perhaps pneumonia. 99214 is supported. Five: Coded 99213 for $26.47--reduced to 99212 for $26.45 (two cent difference). Respondent acquiesced. 99212 is appropriate. Six: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused for URI. Respondent did not prove need for higher code. 99213 is appropriate. Eight: Coded 99393 for $71.54--denied in full, due to fact that prior visit should have covered examination. Respondent showed that the annual evaluation or physical focused on different aspects of patient's wellbeing than regular office visits. 99393 is supported. Ten: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused for gastrointestinal problem. Respondent did not sufficiently justify the higher code. 99213 is appropriate. Twelve: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Thirteen: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Fourteen: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Sixteen: Coded 99214 for $41.51--reduced to 99213 for $27.67, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. One: Coded 99205 for $85.11--reduced to 99203 for $48.69, because of lack of documentation. The evidence and documentation presented by Respondent was sufficient to validate higher code. 99205 is supported. Two: Coded 99214 for $41.51--reduced to 99212 for $26.45, because visit was problem focused. Respondent did not support a higher code. 99212 is appropriate. Three: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. One: Claim was allowed. One: Coded 99205 for $87.41--reduced to 99202 for $34.01, due to inadequate documentation. Respondent showed sufficient documentation to warrant code. 99205 is supported. Three: Coded 99215 for $60.95--reduced to 99213 for $27.67, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Four: Coded 99212 for $21.84--reduced to 99211 for $12.97, because visit was for a lab draw only. Respondent did not prove otherwise. 99211 is appropriate. Five: Coded 99214 for $41.51--reduced to 99212 for $27.71, because visit was problem focused. Respondent failed to show all elements of higher code. 99212 is appropriate. Six: Coded 99214 for $41.51--reduced to 99213 for $27.67, because visit was problem focused. Respondent failed to show all elements of higher code. 99213 is appropriate. One: Coded 99214 for $41.49--reduced to 99213 for $32.56, because visit was problem focused. Respondent showed that patient had several complex problems. 99214 is supported. One: Coded 99204 for $68.74--reduced to 99202 for $33.66, because visit was problem focused for a URI. Respondent did not prove otherwise. 99202 is appropriate. One: Coded 99214 for $41.51--reduced to 99212 for $26.45, because no examination done on a problem focused visit. Respondent showed that more extensive examination was done, that patient had disappeared for two years and doctor needed to catch up on their history, and diagnoses were complex. 99214 is supported. Two: Coded W9881 for $68.74--reduced to 99211 for $12.48, because visit was for minor checkup. Respondent showed that visit was a legitimate checkup for the child. W9881 is supported. Three: Coded 99212 for $21.84--reduced to 99211 for $12.97, because visit was just for refills and vital signs taken. Respondent did not show otherwise. 99211 is appropriate. Four: 99214 for $41.51--reduced to 99213 for $32.56, because visit was only for expanded problem focus. Respondent did not prove elements of higher code. 99213 is appropriate. One: Coded 99204 for $68.74--reduced to 99202 for $33.74, because visit was problem focused. Respondent showed the patient had multiple problems that required treatment. 99204 is supported. Three: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused for URI. Respondent showed the elements of the higher code. 99214 is supported. Four: Coded 99392 for $71.54--reduced to 99212 for $26.45, because it was deemed a simple office visit. Respondent proved that the visit was indeed an annual evaluation. 99392 is supported. Five: Coded 99214 for $41.51--reduced to 69210 (a procedure code having to do with cerumen impaction removal, i.e., removing wax from the patient's ear) for $25.31. Respondent proved the difficulty of that procedure for a child and that by doing so he saved the family a much higher medical charge had they gone to a specialist. 99214 is supported. One: Claim was allowed. One: Coded 99204 for $66.74--reduced to 99202 for $33.66, because visit was problem focused for a depressive disorder. Respondent did not prove otherwise. 99202 is appropriate. One: Coded 99215 for $60.35--denied, in full, because of lack of evidence that face-to-face examination occurred. Respondent showed sufficient evidence that such an examination did occur. 99215 is supported. One: Coded 99382 for $71.54--initially denied, in full, but then reduced to 99202 for $34.01 by the RN. Respondent showed that a full screening for a new patient was done. 99382 is supported. One: Coded 99204 for $66.74--reduced to 99202 for $33.74, because visit was problem focused for hypertension. Respondent indicated he spent considerable time with the patient, but did not meet the requirements for a higher code. 99202 is appropriate. Two and Three: The dates and designations for these two visits are confused in the record. One visit is coded 99396 for $55.16, the other is 99215 for $58.35. The first was allowed, the second denied. Respondent did not prove the elements of the two higher codes. 99396 is appropriate. 99215 is denied. Four: Coded 99212 for $19.84--reduced to 99211 for $12.48, because the visit was simply a blood pressure check. Respondent did not prove otherwise. 99211 is appropriate. Five: Coded 99214 for $39.46--reduced to 99212 for $21.84, because visit was problem focused, and there was no examination. Respondent did not prove otherwise. 99212 is appropriate. Six: Coded 99396 for $54.75--denied, in full, because of lack of documentation. Respondent showed the existence of a legitimate annual exam. 99396 is supported. Seven: Coded 99214 for $39.46--reduced to 99213 for $26.61, because visit was an expanded problem focused relating to hypertension. Respondent did not prove otherwise. 99213 is appropriate. Eight: Coded 99214 for $39.46--reduced to 99212 for $21.84, because visit was problem focused with only vitals taken. Respondent showed the visit was more extensive than that, but not to the level of 99214. 99213 would be supported. One: Coded 99204 for $66.74--reduced to 99202 for $32.37, because visit was problem focused. Respondent showed that patient had many special needs and additional services were required. 99204 is supported. Two: Coded 99214 for $39.51--amount was adjusted to $34.75, due to fact that wrong code was used. Respondent provided sufficient evidence to support his code. 99214 is supported. Four: Coded 99214 for $39.51--denied, in full, because lack of documentation and belief that visit was simply a pre-op visit. Respondent did not support the higher procedure code, but did support a code of 99202. Six: Coded 99214 for $41.49--reduced to 99213 for $26.61, because visit was problem focused to remove foreign object from patient's ear. Respondent satisfied elements of the higher procedure code. 99214 is supported. Seven: Coded 99212 for $19.84--denied, in full, because of lack of documentation. Respondent's testimony and documents show that services were performed. 99212 is supported. Nine: Coded 99213 for $24.47--denied, in full, because visit seemed to be only an interpretation on a test. Respondent did not prove otherwise. Claim is denied. Ten: Coded 99214 for $41.46--reduced to 99213 for $26.61, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Eleven: Coded 99395 for $51.83--denied in full, because the issues had been covered during the patient's prior visit. Respondent showed that the visit was an annual periodic visit and was legitimate. 99395 is supported. Twelve: Coded 99213 for $24.47--denied, in full, because of lack of documentation and visit was only for lab work. Respondent did not prove otherwise. Claim is denied. One: Coded W9881 for $68.74--reduced to 99212 for $26.45, because visit was only a skin evaluation. Respondent showed that the patient was brought in by a state agency for a physical. W9881 is supported. One: Coded 99204 for $66.74--reduced to 99201 for $31.20, because visit was problem focused on obesity. Respondent spent time with the patient, but did not prove the elements of the higher code. 99202 would be appropriate. Two: Coded 99212 for $19.84--denied, in full, because there is no evidence of a visit. Respondent did not prove otherwise. The claim is denied. Three: Coded 99396 for $54.75--denied, in full, because of lack of medical necessity. Respondent did not prove otherwise. Claim is denied. Four: Coded 99214 for $39.46--reduced to 99211 for $12.48, because no exam was conducted. Respondent did not prove otherwise. 99211 is appropriate. Five: Coded 99212 for $19.84--denied, in full, because the visit was for a lab draw only. Respondent did not prove otherwise. 99211 is appropriate. Six: Coded 99214 for $39.46--reduced to 99211 for $12.48, because visit was only for lab work review. Respondent proved that more services were provided. 99214 is supported. Seven: Coded 99212 for $19.84--denied, in full, because of absence of face-to-face meeting. Respondent showed documentation that such a meeting occurred. 99212 is supported. Eight: Coded 99213 for $24.47--denied, in full, because no face-to-face meeting occurred. Respondent did not prove otherwise. Claim is denied. One: Coded 99204 for $68.74--reduced to 99202 for $32.71, because visit was problem focused for HIV patient. Respondent did not prove otherwise. 99202 is appropriate. Two: Coded 99385 for $49.83--denied, in full, because of lack of medical necessity. Respondent showed need for annual medical evaluation. 99385 is supported. Three: Coded 99214 for $39.46--reduced to 99213 for $26.61, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Four: Coded 99214 for $39.46--reduced to 99212 for $21.84, because visit was problem focused. Respondent showed that more than a simple visit occurred. 99213 would be appropriate. Dr. Sloan, although undeniably a qualified family medicine practitioner in his own right, operates his business in a geographic area far removed from Respondent. Dr. Sloan's office is located in Chipley. Respondent's office is in central Florida, in Winter Haven. No evidence was presented to indicate how the diversity of those two areas would affect Dr. Sloan's ability to accurately address Respondent's coding. Thus, it is presumed for purposes of this proceeding that Dr. Sloan was competent to perform the review of records. Nonetheless, Respondent is uniquely positioned to evaluate the patients who came to his office. Respondent is the only witness who testified at final hearing who knows exactly what kind of treatment each such patient received. His descriptions of the office visits and interpretation of the patient charts are, therefore, given great weight. Further, Respondent's testimony was very credible as to his description of his patients and their various ailments. The assignment of charges to each code was not discussed sufficiently at final hearing for the undersigned to make any specific findings as to the proper Medicaid charges for the revised codes. That is the purview of AHCA. The fee schedule introduced into evidence contains only the maximum fee for each CPT code; it does not provide guidance in setting a fee less than the maximum. No evidence was presented to refute Respondent's description of his services to the 40 patients at issue; nor did Dr. Sloan address Respondent's explanation and interpretation of the patient charts. The Agency used the technique of "cluster sampling" to determine the amount of overpayment to Respondent. This technique, which has been upheld in Agency for Health Care Administration v. Custom Mobility, 995 So. 2d 984 (Fla. 1st DCA 2008), rev. den., Custom Mobility, Inc. v. Agency for Health Care Administration (Fla. Feb. 2, 2009), was correctly applied in the instant case. It was the cluster sampling of Respondent's 40 patients that resulted in the calculation of overpayment by AHCA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Agency for Health Care Administration, setting forth the following: That each CPT code substantiated by Respondent, Hamid Bagloo, M.D., be deemed proper and that the amount paid for those office visits be allowed; That the codes validated by Respondent pursuant to his testimony at final hearing in this matter be assigned a monetary charge consistent with the Medicaid Fee Schedule; That the sum total of AHCA's overpayment to Respondent be reduced in an amount commensurate with the findings herein; and That the fine imposed against Respondent be stricken. DONE AND ENTERED this 10th day of September, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 10th day of September, 2009.
Findings Of Fact Dr. Siham K. Toma is a Florida licensed physician practicing in St. Augustine, Florida. She specializes in pediatrics. Dr. Toma is a provider of physician services to the Medicaid program administered by HRS. During the period of January 1, 1979 to October 27, 1980, she submitted bills to HRS for services she rendered to Medicaid patients. In 424 instances during that time Dr. Toma billed as "new patient" services the care she rendered to patients whom she had treated previously. An example is the billing for Dr. Toma's patient, Hazel Hardy. Dr. Toma billed "new patient" services for Hazel Hardy on September 12, 1978. Subsequently she again billed for "new patient" services given to Hazel Hardy on January 12, 1979 and later Dr. Toma billed for "new patient" services rendered to Hazel Hardy on September 15, 1980. Dr. Toma's billing for the patient Amile Harris provides another example of multiple "new patient" billing. Between December 29, 1978 and August 26, 1980, she made claims for twelve "new patient" office visits. In one instance these visits were as close together as two days apart (January 22, 1979 and January 24, 1979). As a result of the foregoing 424 claims Dr. Toma has been paid $2,047.72 more than she would have been paid if she had filed the claims as "established patient" visits. HRS seeks to recover for incorrect billing in the period of January 1, 1979 until October 27, 1980 pursuant to that portion of Section 10C-7.38, Florida Administrative Code which became effective on January 1, 1979, and established the distinction between new patients and established patients. In January, 1979 a "Medicaid Information Update" was sent by SDC Integrated Services, Inc. 1/ to all Medicaid service providers. It stated in part: Procedure Codes 90000 - 90026 are to be used when billing for new patients only. Once a patient has been seen by a physician, subsequent office visits are to be billed with procedure codes 90030 - 90087 (Florida Relative Value Studies, page 23.) Dr. Toma does not remember receiving the January, 1979 Update. Once she was individually notified by the Department in March, 1981 concerning the Department's interpretation of this rule, Section 10C-7.38, Florida Administrative Code, she modified her billing practices to follow the Department's directions. The notice to Dr. Toma sent on March 31, 1981 states in part: Ref. (a) Florida Administrative Rule 10C-7.38, Revised effective January 1, 1978 1975 Florida Relative Value Studies, page 23, February 1976 Medicaid Information Update, Number 6, January 1979 Dear Dr. Toma: Reference (a) stipulates that "Medicine charges will be computed by utilizing the appropriate procedure codes listed in the Florida Medical Association's 1975 Florida Relative Value Studies. Reference (b) defines a "new patient" as one "new to the physician, office, or facility." An "established patient" is defined as one "known to the physician and/or whose records are normally available." Reference (c) states that procedure codes 90000 through 90026 are to be used when billing for new patients only, and once a patient has been seen by a physician, subsequent office visits are to be billed using procedure codes 90030 through 90087. An analysis of Medicaid claims submitted by your office for services provided on and after January 1, 1979 and paid (adjudicated) by Medicaid through October 27, 1980 (review period) has indicated that in some instances you billed and were paid for more than one new patient office visit for the same reci- pient during that period. A total number of 424 excess new patient office visit claims has been identified, resulting in an overpayment to your office of $2,047.72. The specific claims submitted by your office resulting in excess payments for new patient office visits are indicated in the enclosed printout. Please note that if a recipient/patient was seen for an initial office visit in 1978, that person is considered to be an established patient for the purpose of evalua- ting payments for office visits during the review period. It is frequently true that the examination and treatment of a child patient by a physician takes more of the doctor's time than would the similar treatment of an adult patient. Children are more volatile in their physical changes than adults. As a result a pediatrician must spend more time bringing the patient's medical history up to date when a child comes in on subsequent office visits. Additionally, young children are unable to relate or explain symptoms to the treating physician in the manner that an adult can. This fact means more diagnostic time is required for a child patient. The claim codes under which physician service providers submit claims to HRS make no distinction between services rendered to adult patients and services provided to children. No Medicaid payments to Dr. Toma have been withheld from her because of the Department's belief that she was overpaid for those claims she designated as new patient" services between January 1, 1979 and October 27, 1980.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT THE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES: Enter a final order requiring Dr. Toma to repay $2,047.72 to the Department pursuant to Section 409.335, Florida Statutes (Supp. 1980). DONE and RECOMMENDED this 15th day of October, 1981, in Tallahassee, Florida. MICHAEL P. DODSON 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 15th day of October, 1981.
Findings Of Fact By application dated September 28, 1988 respondent/applicant, Southwest Florida Regional Medical Center, Inc. (SFRMC), filed an application with respondent, Department of Health and Rehabilitative Services (HRS), seeking the issuance of a certificate of need (CON) authorizing the expenditure of approximately $19.98 million to construct a new three story clinical and ancillary services building at its facility located in Fort Myers, Florida. After the application was filed, and certain additional information was provided by SFRMC, HRS issued proposed agency action in the form of a letter on January 13, 1989 advising that it intended to issue SFRMC a CON. On February 3, 1989, HRS published in the Florida Administrative Weekly a notice of its intent to grant the CON. After learning of this action, petitioner, Lee Memorial Hospital (Lee), filed a petition for formal administrative hearing seeking to contest the proposed agency action. That prompted this proceeding. The state agency action report, which is a part of this record, reflects that the applicant proposes to: ... add 4 additional operating rooms to the existing 11; 16 new cardiac surgery recovery beds to the existing 16; and 8 new CCU beds to the existing 8 (by conversion of med/surg beds) in a new three story building that will be a replacement/expansion to the existing facility. The requested project will not constitute an increase in the licensed beds of the applicant's facility. The proposal does not request approval of any new services or change in the total number of beds that are licensed for the applicant's facility, but it does include redesignation of 8 existing medical/surgical beds to add to the 8 additional CCU beds requested. New space for Central Supply Services, as well (as) new and additional administrative, staff support areas, land public areas have been planned. (Emphasis added) These changes were sought by SFRMC to meet "(t)he need and demand for Cardiac services (that have) increased dramatically over the last seven years due to the community's growth, technological advancements and changing clinical practices." According to the allegations in the petition, Lee operates a health care facility in Fort Myers, Florida, which is in the same health planning district as SFRMC. The petition goes on to aver that Lee provides a wide range of medical services and programs, including cardiac surgery and recovery, cardiac catheterization laboratories, CCU, and non-invasive diagnostic cardiology services as proposed in SFRMC's application. The petition alleges further that, due to the sheer size of the project and the "substantial change" in services that will occur, Lee is entitled to a hearing. Based upon these considerations, Lee alleges that its open heart surgery program will be substantially affected if the CON is issued. HRS has authorized Lee to operate an open heart surgery program. However, by stipulation dated March 28, 1988 in DOAH Case No. 87-4755, it has agreed not to begin this program until at least April 1, 1990. If approved, SFRMC's building addition would not be completed until May 1, 1990, or one month after Lee's program begins. The application reflects that SFRMC will increase its total square footage by 25%, operating room capacity by 57%, and SICU capacity by 64%. In all, the project will add approximately 68,000 square feet to the facility complex. In addition, operating expenses associated with the project will total in excess of $28 million per year. Finally, utilization of existing facilities will be enhanced by the new addition.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Southwest Florida Regional Medical Center's motion to dismiss the petition of Lee Memorial Hospital be GRANTED and that Lee's petition for formal administrative hearing be dismissed with prejudice. DONE AND ORDERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1989.
Conclusions Having reviewed the administrative complaint dated July 16, 2008, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The. att ached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Filed June 30, 2009 1:59 PM Division of Administrative Hearings. Respondent shall pay an administrative fine in the amount of One Thousand Dollars ($1000.00). The administrative fine is due and payable within thirty (30) days of the date of rendition of this Order. Checks should be made payable to the "Agency for Health Care Administration." The check, along with a reference to these case numbers, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. Respondent's petition for formal administrative proceedings is hereby dismissed. Each party shall bear its own costs and attorney's fees. The above-styled case is hereby closed. DONE and ORDERED this du, day of- =---' 2009, in Tallahassee, Leon County, Florida. Holly Ben on, Secretary Agency fo Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: David C. Ashburn Attorney for the Respondent Greenberg Traurig, P.A. 101 East College Avenue Tallahassee, Florida 32302 (U. S. Mail) Mary Daley Jacobs Assistant General Counsel Agency for Health Care Administration 2295 Victoria Avenue, Room 346C Fort Myers, Florida 33901 (Interoffice Mail) Finance & Accounting Agency for Health Care Admin. Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) Daniel Manry Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (U.S. Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the <?s = method designated, on this the Z f C J , 2009. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 STATE OF FLORIDA
