The Issue The issue for consideration was whether the Respondent's license as a physician in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Moheb Ishad Girgis El-Far was licensed as a physician in Florida under license number ME 0026895, and the Board of Medicine was the state agency responsible for the licensing and monitoring of physicians in this state. At all times pertinent to the issues herein, Respondent practiced medicine with a specialty in obstetrics at his clinic located a 401 East Olympic Avenue, Punta Gorda, Florida. Patient 2, C.L., first went to see Respondent at his office in Punta Gorda in January, 1989 because she was pregnant and had heard he was delivering babies in his office. She was referred to the Respondent by the Sarasota Health Department when she indicated she wanted to have her child in a birthing center. During that first visit, the doctor and patient agreed on a treatment plan which would culminate with the baby's being delivered in his office and C.L. paid for this pursuant to their agreement. During the period of the patient's prenatal care with the Respondent, he told her her baby was due on August 30, 1987, and when labor began, she was to come to his office and bring her own sheets. On August 24, 1987, C.L. began her labor and went to Respondent's office as agreed. By the time she got there, she was about ready to deliver and a few minutes after her arrival, she did so in a birthing room with her husband present. At the time of the delivery, both Respondent's wife and Ms. L.'s boss, neither of whom played any part in the proceedings, were standing in the doorway to the birthing room. No nurse was present and C.L. cannot recall seeing any sterilization or resuscitation equipment in the room. C.L. experienced little pain during the delivery, which appeared to go smoothly. Afterwards however, Respondent told her she had sustained an inverted uterus and when Respondent attempted to remove the afterbirth, she started to hemorrhage. When this happened, Respondent gave her a shot and towels with which she was to try to stem the bleeding while he tried to correct the uterine problem. He was unsuccessful and thereafter called the paramedics who came to his office and took C.L. to St. Joseph's Hospital in Punta Gorda for treatment. Respondent did not treat her at the hospital because he had no hospital privileges. While there she required 6 units of blood and 2 units of plasma. At no time during the course of her prenatal care did Respondent advise her to go to the hospital. She fully recovered. C.L. was shown pictures of Respondent's office taken by Department investigators at some time subsequent to her delivery. With the exception of the fetal monitor which she had seen in his office, the pictures she saw bore little similarity to the condition of the office whenever she was there. Though the office was not as messy as the pictures show, she was, nonetheless concerned about its condition at the time of her delivery. The carpet was dirty and so was the aquarium. She could not do anything about it at that time, however, and it was not so bad as to cause her to feel unsafe. S.K., Patient 1, first went to the Respondent for her pregnancy care in November, 1987 on a referral from a friend. They agreed on a fee of $1600.00 for prenatal care and delivery in his office. During these initial discussions, Respondent did not discuss in detail with the patient the possibility of complications. He stated only that if there were complications, they could probably be treated in the office. S.K. went to Respondent's office about 6 times after that initial visit. During this period, on an early visit, Respondent gave her some medicine samples and a prescription for vitamins. When she asked about the cost, he said he would include the cost of the samples when he billed her insurance company. During these visits, she also saw his personal office, an examining room, and a small room where the patient's blood pressure was taken. She noted that the office was not as clean and orderly as others she had seen, and in fact, was usually in a state of disarray. On one occasion when Respondent examined her, he was wearing a wrinkled shirt with a blood spot on it. The next time she went for a visit, Respondent was wearing the same shirt. S.K. was shown pictures of Respondent's office taken by investigators and several were similar to conditions she observed there. His personal office was not well organized and there was clutter about but not as aggravated as appears in the photos. Based on her experience with other doctors, Respondent's office was far more untidy and in disarray but not necessarily nonsterile or unsafe. On February 5, 1988, S.K. went to Respondent's office because she was having pains and thought she was in labor. When she called him and explained her symptoms, he told her to come in and he examined her when she did. He gave her something to calm her and to try to stop her labor in an attempt to save her baby. He gave her a shot of demerol and put her in an examining room to lie down. She slept there for quite a while with her husband present. When she awoke she again began to have pains but Respondent would not give her any more medicine. After a while, the baby spontaneously delivered while Respondent was sleeping in another room. He was called but by the time he came in, the baby was dead. He asked S.K. if she wanted to see the fetus but she declined. After a period of recovery, she was released to return home. When this patient came into the office that day and it appeared she was going to deliver, her husband asked Respondent if he thought she should be in the hospital. Respondent replied that it was up to her because the baby, if delivered, was too premature to survive. The decision not to go to the hospital was hers. Respondent did not try to dissuade her from going. In fact, in most ways she considered Respondent's treatment of her to have been satisfactory. During the period she was in his office Respondent was in and out of the room checking on her. The only complaint she has relates to his handling of the fetus she delivered. About 2 weeks after delivery she again went to see Respondent at his office where he showed her her baby which he had preserved in a jar of formaldehyde. This was a strange and sad experience for her. Mr. K. basically confirms that testified to by his wife. While she was in labor or sleeping prior to the delivery, he wandered about the building into other parts of the clinic. He also rested in one of the examining or birthing rooms and observed the general state of cleanliness of the facility was poor. For example, the floor and rugs were spotted throughout with a dark stain and the examining table also had a dark stain on it. These stains looked to him like blood. In addition, the hallway carpets were dirty, there were bags off debris laying out, spare pieces of wood were stacked in the halls, and medical instruments were left out in the birthing and examining rooms. In his opinion, many of the pictures shown to him displayed scenes similar to what he saw when he was there with his wife. Both Dr. Borris and Dr. Marley agreed that Respondent's treatment of Ms. K. had no relationship to her miscarriage. By the same token, neither claims that his treatment of Ms. L.'s inverted uterus was inappropriate. Both agree, however, that other factors in Dr. El Far's operation of his practice as regards both patients failed to conform to generally accepted standards of care in providing obstetrical services. Specifically, he failed to have a nurse present during the delivery; he failed to have emergency equipment in the form of resuscitative and lifesaving equipment available to handle potential surgical complications which might have arisen; he had no emergency backup care available; and he had no hospital privileges in Punta Gorda, the area in which he was engaged in an obstetrical practice. Without those privileges, it was not prudent for him to undertake a delivery in the office. While the prenatal care of patient 1 was within standards, the balance of Respondent's practice was below standards because: the patient was not monitored while in the office; if the conditions as appearing in the pictures existed at the time he was seeing patients, he did not meet sanitation standards because of the general disarray.; he attempted a delivery in his office when a hospital was only 1.5 miles away, (not prudent in light of the patient's condition when there was no emergency to justify it); and his records were not complete. The standard of a reasonably prudent physician is the same regardless of the locality. Acceding to the wishes of a patient, when to do so is not in the patient's best interests, is not necessarily acceptable medical care. Mr. Cook, the Department's investigator, inspected Respondent's office on September 16, 1988, in the company of investigator Clyne, as a result of a call he received from an agent of the Florida Department of Law Enforcement who was then on the premises. When they arrived, they observed a female sitting on the couch in the waiting room changing a baby's diaper. From conversation he had with Respondent at the time, Mr. Cook inferred the lady was a patient. In addition to the previously mentioned lady and the state investigative personnel, Cook also noticed two children, who Respondent indicated were his, running freely about throughout the building. Cook examined the patient log maintained by Respondent for that day and noted that two patients were scheduled. Nonetheless, while he was there, there were no nurses, receptionists or office staff present. Though Respondent claims he did not have any patients that day, and though Cook did not see any other than the lady aforementioned, from the patient log and the fact that at least one patient was there, it is found that Respondent was engaged in at least a minimum practice and was available to see patients. Mr. Cook observed conditions in Respondent's office on the day in question that were inconsistent with a proper medical practice. Trash was not contained, food was left open, and dust and dirt were in evidence, all in the area where medical services were or would be rendered. Mr. Cook took photos and a video tape of the condition of Respondent's office. The photos were those shown to the two patients who testified herein and to Mr. K. Though he looked throughout the office, Mr. Cook could find no sterilization equipment, no general anesthesia equipment, no blood transfusion equipment, and no emergency resuscitation equipment. When asked about his sterilization capability, Respondent stated his "heater" was broken and in for repairs. When during a visit to Respondent in October, 1988, Ms. Clyne told him he needed sterilizer equipment, he indicated it had recently been purchased. On that visit, Respondent had a patient in the office. Ms. Clyne again went to Respondent's office on February 15, 1989 and observed it to be still in a state of disarray. Ms. Hampton, another Department investigator, visited with Respondent in his office on January 11, 1989 and found it to be unsatisfactory. The waiting area was cluttered, the carpet was dirty, the walls stained, and magazines were laying around. The clinic area was piled up with mail leaving no counter space. Respondent took Ms. Hampton on a tour through the office during which she observed the computer, patient records, and the typewriter to be unclean. Her examination of the halls, examining rooms, birthing rooms, and the like revealed that in one room, a sink had an unclean speculum in it and others were lying about. The paper on one examining table was soiled and when Respondent saw that, he quickly tore it off. The spread in one of the birthing rooms was soiled and the floor needed sweeping. Trash cans were not lined and needed cleaning. The covering on the baby examining table was soiled and there were bloody cotton balls on a table in the room. She, too, saw no evidence of any sterilization, anesthesia, or emergency resuscitation equipment. On this visit, Respondent indicated he was not seeing any new patients; only those former patients who were still pregnant. Respondent indicates that during the period from July 4 through September 16, 1988 he had closed up his office for an extensive vacation and was living in his office on that latter date. He does not deny that his office was in the condition as depicted in the photos when they were made but contends he has since cleaned it up and put new carpet down. During the period his office was closed, he referred his patients to other doctors and has not been actively practicing while waiting for his malpractice insurance to come through. Respondent also does not deny that the Certificate of Education form he signed and submitted to the Board was in error. He contends, however, that at the time he signed it he believed it to be a certificate of regular continuing education hours, not a certification used for approval for dispensing drugs. He also claims that at no time did he intend to defraud the Board, and when Ms. Clyne brought the error to his attention, he wrote to the Board explaining what had happened. He contends that when he affirmed the statement that he had the appropriate hours, he considered the "a" in "affirm" to be a negative prefix indicating he did not have the required hours. This contention is both ingenuous and unbelievable. It is found that Respondent well knew the meaning and effect of the certification he signed and his affixing his signature thereto was both false and with intent to mislead.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice medicine in Florida be suspended for two years and that he thereafter be placed on probation for an additional period of three years under such terms and conditions as are imposed by the Board of Medicine. RECOMMENDED this 30th day of October, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1507 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Fact submitted by the parties to this case. For the Petitioner: 1.- 3. Accepted and incorporated herein. Accepted and incorporated herein. Rejected in so far as it editorializes on the condition of the clinic. While below standard, there was no evidence of health hazard to patients. 6.-8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein Accepted and incorporated herein. Accepted. & 18. Accepted and incorporated herein. 19. Accepted. For the Respondent: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of expert testimony. Rejected as contra to the weight of the evidence. Accepted in so far as it finds that Respondent's performance of medical procedures was within standard. Rejected as to the finding that overall care and practice was within standards. Accepted. COPIES FURNISHED: Larry G. McPherson, Jr., Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 David K. Oaks, Esquire The Professional Center 201 West Marion Avenue Suite 205, Box 3288 Punta Gorda, Florida 33950 Kenneth E. Easley General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine DPRB 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination is whether Respondent, a licensed practical nurse, committed violations of Chapter 464, Florida Statutes, sufficient to justify the imposition of disciplinary sanctions against her license. The resolution of this issue rests upon a determination of whether Respondent failed to properly document the dispensing of certain medications topatients; whether she engaged in or attempted to engage in the possession of controlled substances as set forth in Chapter 893, Florida Statutes, for other than legitimate purposes; and whether such action by Respondent constitutes unprofessional conduct in the practice of nursing.
Findings Of Fact Respondent is Doris Brewer. She is a licensed practical nurse and holds license number PN 0537621. At all times pertinent to these proceedings, Respondent was employed at Memorial Hospital of Tampa, located in Tampa, Florida. Respondent's employment with Memorial Hospital of Tampa began in January of 1988 and continued until her termination on November 29, 1988. During her employment and prior to occurrence of the incidents which form the basis for charges set forth in the administrative complaint, Respondent was cited on two occasions by her superiors for deficient performance related to medical record keeping and dispersal of medications to patients. One of those incidents occurred on March 1, 1988, when Respondent failed to follow directions in the administration of medication and received a verbal warning. She was again disciplined on September 15, 1988, receiving a written warning for failure to properly document the administration of controlled substance medications to patients. On November 19, 1988, Respondent signed out a controlled substance, Tylenol #3, for patient B.N. at 3:45 a.m. and again at 5:00 a.m. The medical administration record documents only one dose of the medication was actually given to the patient at approximately 5:10 a.m. The patient's nursing chart or "notes"do not reflect that the pain medication was subsequently provided to the patient by Respondent. Respondent also signed out Tylenol #3 for patient R.B. at 1:45 a.m. and 5:00 a.m. on November 19, 1988. Respondent charted this medication dispersal on the medication administration record. Again, Respondent failed to document administration of the drugs to the patient in the patient's nursing chart or "notes." On November 27, 1988, Respondent signed out Vicodin, a controlled substance, for patient D.G. at approximately 12:00 a.m. and 4:00 a.m., but did not document this action in the medication administration record or in the patient's nursing notes. Respondent testified in mitigation of the charges in the administrative complaint that she was guilty of "poor documentation"; had appropriately administered the subject drugs in each instance; and had not diverted the drugs to the illicit personal use of herself or anyone else. Failure of a nurse to document or "chart" administration of medication to patients in the patient's chart or nurse's notes constitutes a violation of acceptable standards of prevailing nursing practice. By her own admission at the final hearing, Respondent committed this offense. Respondent's failure to properly document administration of the controlled substance medications in each of the three alleged instances constitutes inaccurate recording of patient records for which she was responsible during the period of time when she was on shift and administering medications to thepatients B.N., R.B., and D.G.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Board of Nursing finding Respondent guilty of unprofessional conduct in violation of Section 464.018(1)(h), Florida Statutes (1989) and Rule 210-10.005(1)(e)1., Florida Administrative Code. IT IS FURTHER RECOMMENDED that such Final Order place Respondent's license on probation for a period of two years upon reasonable terms and conditions to be established by the Board, including a condition that Respondent enroll in and successfully complete continuing education courses, as may be determined by the Board, in the subject area of proper documentation of administration of patient medications. DONE AND ENTERED this 15th day of June, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 15th day of June, 1990. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-17. Adopted in substance, though not verbatim. Rejected; hearsay. 19.-21. Adopted in substance, though not verbatim. 22. Rejected; hearsay. 23.-25. Adopted in substance. 26. Rejected; hearsay. 27.-29. Rejected; unnecessary. 30. Adopted by reference. 31.-33. Rejected as to patients claims; hearsay. 34.-35. Adopted in substance. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Tobi C. Pam, Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Doris Brewer 319 Northwood Drive Lutz, FL 33549 Kenneth Easley, Esq. General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Judie Ritter Executive Director Board of Nursing Department of Professional Regulation 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32201
Findings Of Fact At all times material hereto, Respondent has been licensed as an osteopathic physician in the State of Florida, having been issued license number OS-0001053 in 1954. According to Respondent's office records for a patient named Barry Belikoff, Respondent saw Belikoff in his office on twenty-five (25) occasions between September 5, 1980, and July 24, 1981, and during this time wrote twenty-four (24) prescriptions for a total of 344 Quaaludes (Methaqualone) with a dosage of 300 mg. each. According to his patient records, Respondent also saw Belikoff on thirteen (13) occasions between October 31, 1981 and June 18, 1982 and wrote four (4) prescriptions for controlled substances, including Talwin, Restoril, and Percodan. Respondent was treating Belikoff for back pains and insomnia. According to expert testimony, the records kept by Respondent of this patient's office visits were inadequate and do not provide the required documentation which would support and explain the controlled substances prescribed in this case. In addition, a proper course of patient care would not include the on-going prescription of Quaaludes over almost a one year period at a rate of over one a day without a record of additional tests, x-rays, or neurological exams during this period. Belikoff's patient records do not show any such additional tests, x- rays or exams. Without such documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Belikoff were without medical justification, excessive and inappropriate, according to expert testimony. Respondent was treating a patient named Lyndon Ellis during 1981 and 1982. Ellis was hospitalized on four occasions while under Respondent's care, and according to expert testimony the level of care and medical records for this patient, while hospitalized, were excellent. As a result of office visits by Ellis, Respondent wrote thirty-eight (38) prescriptions for controlled substances between April 20, 1981 and September 29, 1982 which included Percocet 5, Demerol, and Fiorinal. Ellis was being treated by Respondent for chronic headaches and pain from accident injuries, and also for a problem with his toe. However, according to expert testimony, the records kept by Respondent on Ellis' office visits were inadequate and do not provide documentation which would support and explain the controlled substances prescribed in this case. The absence of a thorough patient medical history, exam, evaluation, x- rays and lab tests in this patient's office records is explained by Respondent by the fact that this information was available in hospital records for this patient. Nevertheless, Respondent's office records for Ellis are totally inadequate. These office records do reflect that Respondent was aware of Ellis' overuse of controlled substances and the need to detoxify this patient on October 29, 1982. Yet he prescribed Percocet, a controlled substance, on five additional occasions after October 29, 1982. Without adequate documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Ellis were without medical justification, excessive and inappropriate, according to expert testimony. Between July 14, 1980 and April 23, 1982, Respondent treated a patient named Alan Fogler. During this time Respondent wrote twelve (12) prescriptions for a total of 464 Percodan, a controlled substance. Respondent was treating Fogler for headaches, whiplash and a concussion reported by the patient, as well as allergies, but patient records reveal no x- rays, brain scans, lab work or neurological exams. According to expert testimony, patient records in this case are inadequate and do not justify the treatment rendered which consisted primarily of prescriptions for Percodan. Without adequate patient medical records, the prescriptions for controlled substances were without- medical justification, excessive and inappropriate, accordingly to expert testimony. While treating patients Belikoff, Ellis and Fogler, Respondent repeatedly reissued prescriptions for controlled substances without a substantiation of medical reasons in the patients' office medical records. According to expert testimony concerning the standards expected of osteopathic physicians in keeping office medical records on patients, Respondent did not perform with reasonable skill, nor meet the standards expected of physicians in this aspect of their practice. Vicki Cutcliffe, a deputy sheriff with the Broward County Sheriff's Office, saw Respondent in his office on March 30, April 11 and April 25, 1984 using the alias "Vicki Tarra". After taking a brief medical history which revealed that "Tarra" used alcohol daily, Respondent began treating her for situational anxiety by prescribing controlled substances, including Librium and Tranxene. On April 25 "Tarra" told Respondent she wanted some extra pills for her friend named Jo Ann and asked him to write her friend a prescription. Respondent said he could not do that, but did give "Tarra" a prescription for Tranxene and two refills, after initially giving her a prescription which allowed for only one refill. He told her that she could give some of the pills to her friend and then she could refill the prescription twice. Respondent knew that "Tarra" wanted the extra pills for a friend and that she would give them to her friend who was not a patient of Respondent. According to expert testimony, the treatment given to "Tarra" by Respondent, which consisted simply of prescriptions for controlled substances without adequate documentation of the reasons for this course of treatment in the patient's medical records, was totally inappropriate. Increasing a prescription when a patient says they want some extra pills for a friend is never justified and constitutes malpractice, according to expert testimony.
Recommendation Based upon the foregoing it is recommended that a Final Order be issued suspending Respondent's license for a period of two ( 2) years. DONE and ENTERED this 30th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 3 2301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John W. Gaul, D.O. 11360 Tara Drive Plantation, FL 33325 Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 ================================================================ =
The Issue The issues in this case are: (1) whether Petitioner is entitled to repayment for alleged Medicaid overpayments to Respondent; and, if so, the amount of the overpayment to be repaid; (2) the amount of any fine to be imposed against Respondent; and (3) the amount of any investigative, legal, and expert witness costs to be assessed against Respondent.
Findings Of Fact The Parties Petitioner is the agency responsible for administering the Medicaid program in the state of Florida, including overseeing the integrity of that program. § 409.913, Fla. Stat.1/ Respondent is a board-certified family practice physician. During the Audit Period,2/ Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered medical services rendered to Medicaid recipients.3/ Respondent provides medical services in a rural area to an underserved population. A substantial proportion of his patients are poor and are Medicaid recipients. The Audit As part of Petitioner's duties in overseeing the integrity of the Medicaid program, it investigates and audits Medicaid providers for services rendered to Medicaid recipients. In what is commonly referred to as the "pay-and-chase system," Medicaid providers bill Petitioner for medical services rendered to Medicaid recipients and Petitioner pays these bills, which are referred to as "claims." Thereafter, Petitioner audits those claims. The audit is conducted to determine whether the medical services rendered were appropriate for the condition being treated, whether the amounts billed for services are correct based on documentation provided, and whether Medicaid covers the services provided. If Petitioner determines that the provider was paid for services that did not comply with the Medicaid program requirements, it seeks reimbursement from the provider of the payments made for noncompliant claims. Here, Petitioner audited Respondent's medical records to verify that claims paid by Medicaid during the period from January 1, 2012, through June 30, 2014 (the "Audit Period"), qualified for payment under the Medicaid program. During the Audit Period, Respondent submitted a total of 7,093 claims for billable services rendered to a total population of 854 Medicaid recipients, for which Medicaid paid a total of $448,314.06. Rather than examine the medical service provision records of all 854 recipients Respondent served during the Audit Period, using a computer program, Petitioner randomly selected a sample comprised of 35 recipients from the total population of recipients. Respondent submitted 245 claims for the 35 recipients in the sample population. Once these 35 recipients were identified, Petitioner requested that Respondent provide the Medicaid services records for the claims submitted for these recipients. Upon receiving the Medicaid services records from Respondent, Petitioner, through its nurse consultant, Karen Reynolds, and its peer reviewer, Dr. Lisa Jernigan,4/ reviewed the claims for these 35 recipients. Reynolds' review of Respondent's records consisted of identifying the claims for which Respondent provided insufficient or no documentation, as required by the 2008 and 2012 Florida Medicaid Provider General Handbooks ("Handbooks"), to support the claims. When she determined that insufficient documentation had been submitted to support a claim, Reynolds made notations on a worksheet created for that particular recipient, regarding the insufficiency of the documentation. Reynolds made her notations on the worksheets in light red ink. After Reynolds completed her review, the records were transmitted to Dr. Jernigan for a substantive review of each claim to determine whether the documentation submitted in support of a claim complied with the pertinent standards in the Handbooks for payment of the claim. Based on her substantive review, Dr. Jernigan determined, for each claim, whether the claim should be approved, adjusted, or denied.5/ Dr. Jernigan's notations regarding approval, denial, or modification of payment for each claim, as well as the basis of her determination for each claim, were made on the worksheets in green ink and in darker red ink. After Dr. Jernigan completed her review of the claims, Reynolds went back through the worksheets and made additional notations, such as "NMN" for "not medically necessary," summarizing Dr. Jernigan's substantive review, in light green ink. For each claim that Dr. Jernigan determined should be adjusted or denied, Reynolds wrote the disallowed amount in the "dis-amt" space on the worksheet for that claim.6/ Based on the competent, substantial, and persuasive evidence, the undersigned determines that the audit was properly conducted. Dr. Jernigan engaged in the peer review of Respondent's records, and Reynolds merely served as an assistant whose role was confined to the ministerial tasks of determining whether Respondent had submitted the documentation requested by Petitioner for purposes of determining compliance with the Handbooks, and, after Dr. Jernigan completed her substantive peer review of each claim, summarizing Jernigan's determinations, as appropriate, and calculating the disallowed amounts for claims that Dr. Jernigan had determined should be adjusted or denied.7/ On the basis of this review process, Petitioner determined that Respondent had been overpaid in the amount of $4,867.97 ($19.86832653 per claim) for the 245 claims in the 35- recipient sample population. Using the statistical formula for cluster sampling,8/ which extrapolates the overpayment determined from the sample population across the total population of 7,093 claims, Petitioner determined that Respondent had been overpaid the total amount of $104,951.05. Petitioner informed Respondent of this preliminary overpayment determination through its Preliminary Audit Report ("PAR")9/ issued on November 10, 2015, and gave him the option of submitting further documentation in support of the claims that had been preliminarily identified as ineligible for payment by the Medicaid program.10/ In response to the PAR, Respondent provided additional documentation, which was reviewed by Dr. Jernigan. Based on the review of the additional records Respondent provided, Petitioner issued a FAR, dated August 8, 2016. The FAR determined that Respondent had been paid an overpayment of $4,637.45 ($18.92836735 per claim) for the 245 claims in the 35-recipient sample population. As with the PAR, Petitioner employed the statistical formula for cluster sampling to determine the alleged probable overpayment for the total population of 7,903 claims paid during the Audit Period. This analysis yielded a probable overpayment of $97,121.42, with a 95-percent probability that the actual overpayment is equal to or greater than that amount. Petitioner also sought to impose a fine of $19,424.28 as a sanction for violating Florida Administrative Code Rule 59G- 9.070(7)(e), and to require Respondent to pay $1,708.08 in investigative, legal, and expert witness costs, as authorized by section 409.913(23), Florida Statutes. Subsequent to issuance of the FAR, Petitioner and Respondent conducted a peer-provider meeting. As a result of that meeting, as well as subsequent discussions between the parties, Respondent was afforded several opportunities to submit additional documentation to support his claims. As a result of the documentation Respondent provided, Petitioner has further reduced the alleged overpayment amount to $72,084.43, which is now the amount at issue in this proceeding. Petitioner also seeks to impose a fine consisting of 20 percent of this overpayment amount, or $14,416.89. Additionally, if Petitioner prevails in this proceeding, it seeks to recover its investigative, legal, and expert witness costs. Grounds Stated in FAR for Denial or Reduction of Claims The FAR states four grounds, or "Findings," for Petitioner's determination that Respondent was overpaid by Medicaid for certain medical services he provided, based on cited provisions in the 2008 Florida Medicaid Provider General Handbook ("2008 Handbook"), 2012 Florida Medicaid Provider General Handbook ("2012 Handbook"), 2010 Physician Services Coverage and Limitations Handbook ("2010 Handbook"), 2012 Practitioner Services Coverage and Limitations Handbook, and 2014 Practitioner Services and Limitations Handbook ("2014 Handbook").11/ The FAR does not allege that Respondent committed any Medicaid fraud or abuse in this proceeding. Finding No. 1 Finding No. 1 in the FAR alleges that Respondent provided incomplete records, as defined in the 2008 and 2012 Handbooks, for some claims for which he billed and was paid, such that any payments for which incomplete records were submitted constitutes an overpayment that Petitioner is entitled to recover. The 2008 and 2012 Handbooks, "Provider Responsibility" section, states, in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: Have actually been furnished to the recipient by the provider prior to submitting the claim; * * * Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state and local law; and Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record. The 2008 and 2012 Handbooks, "Requirements for Medical Records" section, states in pertinent part: Medical records must state the necessity for and the extent of services provided. The following requirements may vary according to the service rendered: Description of what was done during the visit; History; Physical assessment; Chief complaint on each visit; Diagnostic tests and results; Diagnosis; Treatment plan, including prescriptions; Medications, supplies, scheduling frequency for follow-up or other services; Progress reports, treatment rendered; The author of each (medical record) entry must be identified and must authenticate his entry by signature, written initials or computer entry; Dates of service; and Referrals to other services. The 2008 and 2012 Handbooks, "Record Keeping Requirement" section, states: Medicaid requires that the provider retain all business records as defined in 59G- 1.010(30) F.A.C., medical-related records as defined in 59G-1.010 (154) F.A.C., and medical records as defined in 59G-1.010 (160) F.A.C. on all services provided to a Medicaid recipient. Records can be kept on paper, magnetic material, film, or other media including electronic storage, except as otherwise required by law or Medicaid requirements. In order to qualify as a basis for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamped signatures must be initialed. The records must be accessible, legible and comprehensible. The 2008 Handbook, "Incomplete Records" section, states that "providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped." The 2012 Handbook, "Incomplete or Missing Records" section, similarly states: "Incomplete records are records that lack documentation that all requirements or conditions for service provision have been met. Medicaid shall recover payment for services or goods when the provider has incomplete records or does not provide the records." The following claims, which are in dispute in this proceeding, were denied on the ground stated in Finding No. 1: Recipient 2, claim nos. 2 and 21; Recipient 6, claim nos. 1, 2, 3, and 4; Recipient 8, claim no. 6; Recipient 9, claim no. 4; Recipient 10, claim no. 10; Recipient 13, claim no. 3; Recipient 16, claim nos. 2, 3, 4, 6, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 27, 30, 31, 32, 33, 34, 35, 37, 38, 41, 43, 54, and 57; Recipient 18, claim nos. 2, 3, 4, and 5; Recipient 24, claim no. 1; Recipient 33, claim no. 9; Recipient 34, claim nos. 4 and 7; Recipient 35, claim nos. 5 and 6.12/ A total of 47 claims are in dispute on the ground stated in Finding No. 1. Finding No. 2 Finding No. 2 in the FAR alleges that the medical necessity of some services for which Respondent billed and was paid were not supported by the documentation he provided. The 2008 and 2012 Handbooks, in the section titled "Provider Responsibility," state in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * Are Medicaid-covered goods or services that are medically necessary[.] Additionally, as noted above, the 2008 and 2012 Handbooks, "Provider Responsibility" section, state, in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record. The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 2: Recipient 2, claim nos. 11, 13, 19, and 21; Recipient 16, claim nos. 15, 17, 30, 31, 32, 34, 36, 39, 41, 43, 45, and 47; Recipient 24, claim no. 1; Recipient 34, claim nos. 4 and 7; and Recipient 35, claim no. 4. A total of 20 claims are disputed on the ground stated in Finding No. 2.13/ Finding No. 3 Finding No. 3 in the FAR states that some services that Respondent provided to established patients were billed and paid as having been rendered to new patients. The 2010, 2012, and 2014 Handbooks, "Established Patient Visit" section, defines an "established patient" as "one who has received professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years." These Handbooks define a "new patient" as "one who has not received any professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years." The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 3: Recipient 21, claim no. 1; Recipient 23, claim no. 1. A total of two claims are disputed on the ground stated in Finding No. 3. Finding No. 4 Finding No. 4 in the FAR states that the level of service for some claims for which Respondent billed and was paid was not supported by the documentation submitted to support the claim. The 2010 Handbook, "Medically Necessary" section, states in pertinent part: Medicaid reimburses for services that are determined medically necessary and do not duplicate another provider’s service. In addition, the services must meet the following criteria: * * * Be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient’s needs; * * * Reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide[.] The 2012 and 2014 Handbooks, "Medical Necessity" section, state in pertinent part: Medicaid reimburses services that are determined medically necessary and do not duplicate another provider’s service. Rule 59G-1.010 (166), F.A.C. defines "medically necessary" or "medical necessity" as follows: The medical or allied care, goods, or services furnished or ordered must: (a) Meet the following conditions: * * * 2. Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient’s needs. * * * 4. Reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide. The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 4: Recipient 8, claim no. 4; Recipient 9, claim no. 2; Recipient 10, claim no. 3; Recipient 13, claim no. 1; Recipient 16, claim nos. 29, and 52; Recipient 17, claim no. 1; Recipient 21, claim no. 2; Recipient 22, claim no. 2; Recipient 30, claim no. 3; Recipient 32, claim no. 2; Recipient 35, claim no. 1. A total of 12 claims are disputed on the ground stated in Finding No. 4. In sum, a total of 69 claims are disputed on the grounds set forth in Finding Nos. 1 through 4. Medical Record-Keeping Purpose and Requirements Medical records should consist of a simple, complete, organized record that documents the patient's medical condition, needs, and the medical services rendered, so that the physician preparing the record, as well as any other physician——whether or not familiar with the patient or the record-keeping system, including an electronic health record ("EHR" system) used——is able to follow the patient's course of health and treatment. Additionally, medical records must be sufficiently complete and clear for purposes of billing, and in the case of Medicaid, for payment. For claims for services provided to Medicaid recipients to be payable under the Medicaid program, the medical records must meet the requirements set forth in the pertinent Medicaid Handbooks. As discussed above, among these requirements are that the records be true and accurate; demonstrate the medical necessity of, and level of service for, the services provided; contain certain specified components, such as a description of what was done during the visit, the patient's medical history, physical assessment of the patient, the patient's chief complaint on a particular visit, diagnosis, and treatment plan; and be comprehensible, individualized, specific, and consistent with the symptoms or confirmed diagnosis of the illness or injury treated. Dr. Jernigan opined, persuasively, that in the medical context, the term "comprehensible" means that the medical records are sufficiently intelligible and understandable such that another physician or other medically-trained individual could read the record and have a solid picture of the patient's medical history and general condition, as well as the treating physician's specific physical findings and reasons why a particular treatment or service was provided to the patient. Dr. Jernigan testified, credibly and persuasively, that when a medical record contains conflicting or inconsistent information, it is incomprehensible. If the medical record is incomprehensible, it cannot be determined to support the billed service, in which case, the claim for that service must be adjusted or denied. The Intergy EHR System During the Audit Period, Respondent used the "Intergy" EHR system to prepare and keep his medical records for his patients, including the Medicaid recipients he treated and whose claims he billed under the Medicaid program. Dr. Jernigan does not use the Intergy EHR system in her own practice. However, the components of the Intergy EHR system are the same or similar to the components of other commonly-used EHR systems with which she is familiar.14/ Dr. Jernigan explained the purpose of each component of the Intergy EHR template used to compile the medical records for a patient. The purpose of the first component of the Intergy template, "Reason for Visit," is to document the reason why the patient is seeking medical services. The second component, "History of Present Illness," serves to provide a chronological description of the issues surrounding the patient's chief complaint and the reason for the visit. In essence, this portion of the medical record documents the commencement of the patient's medical complaint; the length of time the patient has experienced that condition; its progression; effective and ineffective treatments; the specific location of the condition on or in the patient's body, including whether it is on the left or right side of the body, or both; and other information regarding the temporal and physical aspects of the patient's medical condition. The purpose of the "Past Medical/Surgical History" component is to document the patient's past medical or surgical history relative to the patient's current condition at the time of the particular visit. The purpose of the "Social History" component is to document the patient's social history or habits as related to the patient's medical condition presented at the visit.15/ The "Family History" component is to enable the provider to document any family history that may be relevant to diagnosing and treating the patient's condition.16/ The purpose of the "Review of Systems" component is to document the patient's medical condition at the time of the visit. This component includes a review of body systems involved in the patient's complaint, to determine and document whether there may be other health issues that could present with the same symptoms. This component enables the provider to document relevant information regarding the involvement of other body systems that may affect the diagnosis or treatment for the primary complaint or reason for a particular visit. The "Physical Findings" component is the portion of the medical record in which the provider documents the information regarding his or her findings resulting from a physical examination of the patient. The "Assessment" component is where the provider documents his or her conclusion, or diagnosis, as to the nature, identity, or cause of the patient's condition. The "Therapy" component enables the provider to describe and document the chosen course of treatment for the patient. The "Counseling/Education" component enables the provider to describe and document the matters discussed with the patient, such as the nature of the patient's medical condition and prognosis, the provider's chosen course of treatment or therapy, recommendations regarding the patient's actions to assist in treating the condition, and instructions provided to the patient. The "Plan" component describes the course of treatment for the medical condition and the reasons for choosing this course of treatment. The "Practice Management" component is included to implement certain meaningful use regulatory requirements. The Intergy EHR system has time-saving features, such as a "carry-forward" feature, which allows patient information from previous visits to be "carried forward," or copied and pasted, into the records for subsequent visits. Dr. Jernigan opined, credibly, that although the "carry-forward" feature is convenient, improper use or overuse of this feature can result in the records for a patient's subsequent visits containing all of the information from previous visits, rather than only the information pertinent to the particular subsequent visit. This may render the medical records outdated and inaccurate with respect to the patient's medical condition in subsequent visits. Additionally, carrying forward information from previous visits can render the records for subsequent visits incomprehensible, in that the patient's reason for that particular visit, the symptoms exhibited at that visit, and the specific treatment provided in that visit cannot be determined from the mass of comprehensive information that was carried forward from previous visits and included in the record for that particular visit. Here, the competent, credible evidence shows that Respondent was not trained in, and experienced difficulty in using, the Intergy EHR system. The competent, credible evidence shows that Respondent frequently used Intergy's "carry-forward" feature in preparing his medical records, and this was the likely cause for many of the records for his Medicaid patients including extensive carried-forward information from visit to visit——to the point that in numerous cases, it was difficult to identify which, if any, additional medical conditions, physical findings, treatments, or other services were provided to patients in their subsequent visits. The competent, credible evidence also shows that the Intergy EHR system has numerous flaws that render it difficult to use and not optimally functional in producing electronic medical records that are sufficiently accurate or comprehensible to be used for Medicaid billing purposes. As a result of the Intergy EHR system's flaws, as well as Respondent's apparent overuse of the system's "carry-forward" feature, his medical records were, in many cases, redundant, outdated, contradictory, and inaccurate with regard to documenting a patient's medical condition, physical findings, treatment, basis for services provided, and other key information for a particular visit. This rendered those records untrue, inaccurate, and incomprehensible, and, therefore, not in compliance with the Handbooks' requirements regarding documentation of services sufficient to support billed claims. Overpayment Determinations Rather than presenting evidence on each of the 69 total claims denied or adjusted on the grounds stated in Finding Nos. 1 through 4, the parties presented testimony and related evidence on selected representative claims for each Finding. The parties stipulated, with respect to Finding Nos. 1, 2, and 4, that Dr. Jernigan's analysis of Respondent's medical records, and her opinions regarding whether those records complied with the pertinent standards in the Medicaid Handbooks for payment purposes, applied to all claims for which the grounds in a particular Finding were cited as the basis for denial or modification of payment of that claim. It is important to note that Petitioner did not stipulate to the correctness of Dr. Jernigan's analyses and opinions——only that her analyses and opinions applied to all of the disputed claims denied on the grounds set forth in Finding Nos. 1, 2, and 4 in the FAR. Due to the small number of claims (two) that were denied or adjusted on the grounds cited in Finding No. 3, the parties presented testimony on each of those claims. Finding No. 1 – Insufficient Documentation to Support Claim For Finding No. 1, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 6, claim nos. 1 through 4; Recipient 8, claim no. 6; Recipient 16, claim nos. 3, 6, 15, 18, and 21. Recipient 6 Claim No. 1 Based on Dr. Jernigan's review, Petitioner denied Recipient 6, claim no. 1, for services provided by Respondent on February 29, 2012, on the basis of insufficient documentation to support the claim. The Reason for Visit noted that the patient was visiting due to "increased pains," but the documentation did not describe the location or nature of the pain, so was incomplete. The History of Present Illness component for this claim consisted of a bullet-point list of complaints, rather than a discussion of the development of those complaints over time. Additionally, this component contained incomplete and contradictory information. Specifically, this component contained a notation stating that the patient was suffering from hand pain and a range of other joint pain, without specifying which hand and joints (i.e., on the right side, left side, or both sides of the body) were painful. Additionally, the notation stated "no musculoskeletal symptoms," which conflicts with the notations regarding the existence of hand and other joint pain. The Review of Systems component for this claim also contained conflicting or contradictory notations. For example, there were conflicting descriptions of the patient's state of malaise, and conflicting notations documenting both the presence and the absence of night sweats. The Physical Findings component for this claim also contained contradictions and insufficient information. For example, the notations state both "wheezing was heard" and "no wheezing was heard"; that vomiting was observed and that the patient is to call the provider if vomiting develops; and that muscle spasms and tenderness in the back, as well as numerous trigger points, were observed, but that there was an overall finding of "normal" for the musculoskeletal system. Further, the notes did not identify whether these findings applied to the left or right side of the body, or both. The Assessment component consisted of a wide-ranging list of conditions, likely due to the carry-forward of all or much of the information from previous visits. Many of the conditions listed in this component were not supported by the information recorded in the History of Present Illness, Review of Systems, or Physical Findings components. For example, the assessment states that the patient suffers from hyperlipidemia, testicular dysfunction, viral syndrome, and upper respiratory infection, none of which are sufficiently supported by the information documented in any other component in the patient's medical history. The Therapy component states that Respondent provided pain management counseling and pain management by medication; however, the medication prescribed for the patient was not identified or documented in the medical record. The Counseling/Education component lists numerous matters on which counseling ostensibly was provided, including use of tobacco, alcohol, and illicit drugs, none of which were supported by any findings or notations in the patient's medical record. The Plan component for this claim diagnoses the patient as suffering from impotence of organic origin and suggests referring the patient to a urologist. Dr. Jernigan credibly testified that this diagnosis is not supported by the information documented in the other components of the patient's medical record, thus highlighting the point that if this diagnosis is accurate, the medical records for this claim are incomplete because they do not sufficiently document the basis for this diagnosis and course of treatment. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 1 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete and incomprehensible. Dr. Jernigan credibly and persuasively opined that as a result of these deficiencies, the medical records submitted to support claim no. 1 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 1 for Recipient 6 should be denied. Claim No. 2 Claim no. 2 is a follow-up visit for the same patient that took place on August 3, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirms, that the documentation for this claim suffers from most of the same deficiencies as did the documentation for claim no. 1. Specifically, the Reason for Visit was incomplete because it failed to document and describe the location or nature of the "increased pains." The History of Present Illness component consisted of the carried-forward information recorded in that EHR component for the previous visit, and, as such, suffered from the same deficiencies. Specifically, it did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead contained the same series of descriptive bullet points. Further, as previously discussed, several of the conditions described in these bullet points were contradictory. The Review of Systems component also appeared to carry-forward the same information contained in the same component from the previous visit, so suffers from the same deficiencies. Additionally, this component is inaccurate because it did not accurately reflect the patient's current medical condition at the time of the follow-up visit. The Physical Findings component also contained mostly carried-forward information from the same component in the record of this patient's previous visit, so contained the same inconsistencies and contradictions as the records submitted in support of claim no. 1. The Assessment component also appeared to be a carry- forward of all or much of the information from the previous visit, so it also suffered from the same deficiencies as the Assessment for claim no. 1. As discussed in detail above, many conditions listed in this component were not supported by the information documented in the other components of the medical record. In the Plan component for this claim, the urological diagnosis was deleted; however, the Plan did not specifically address or prescribe any treatments specific to the medical conditions identified in other components of the medical record for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 2 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that as a result of these deficiencies, the medical records submitted to support claim no. 2 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 2 for Recipient 6 should be denied. Claim No. 3 Claim no. 3 is a follow-up visit for Recipient 6 that took place on August 15, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirms, that the documentation for this claim suffers from several of the same deficiencies as did the documentation for claim nos. 1 and 2. The Reason for Visit component for this claim was incomplete because although it referenced that one of the reasons for the visit was a "medication refill," the medical record for this visit did not contain any documentation regarding the medication prescription being refilled. Additionally, as before, this component did not document and describe the location or nature of the "increased pains" also listed as a reason for the visit. As before, the History of Present Illness component consisted of carried-forward information, so continued to suffer from some of the previously discussed deficiencies. This component did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead consisted of a series of descriptive bullet points, some of which contained contradictory information. The Review of Symptoms component also appeared to consist mostly of carried-forward information that contained the same contradictory information as with the previous claims. In addition, new contradictory provisions documented the presence of "no sore throat" and "[s]ore throat," "no cough" and "cough causing vomiting," and "[a]nxiety" and "[n]o anxiety." The Physical Findings component also contained carried-forward information from the same component in the record of this patient's previous visit, so some of the previous contradictions in the notations, such as "wheezing was heard" and "no wheezing was heard," continued to be included. Additionally, the record still did not identify the specific location——i.e., left or right side of the body——of the musculoskeletal and neurological conditions noted, so was incomplete. The Assessment component also appeared to be a carry- forward of all or much of the information from the previous visit, so suffered from the same deficiencies as the Assessment for claim nos. 1 and 2. As discussed above, many conditions listed in this component were not supported by the information documented in the other components of the medical record. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 3 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 3 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 3 for Recipient 6 should be denied. Claim No. 4 Claim no. 4 is a follow-up visit for Recipient 6 that took place on November 21, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirmed, that the documentation for this claim suffered from several of the same deficiencies as claim nos. 1, 2, and 3. The Reason for Visit component for this claim was incomplete because although it referenced that one of the reasons for the visit was a "medication refill," the medical record for this visit did not contain any documentation regarding the medication prescription being refilled. This component also failed to describe the location or nature of the "increased pains" that are listed as a reason for the visit. As before, the History of Present Illness component consisted of the carried-forward information, so continued to suffer from some of the previously discussed deficiencies. As before, this component did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead consisted of a series of descriptive bullet points. New information regarding the patient's self- monitoring of blood glucose was added, but the blood glucose levels observed at various times of the day were not listed, rendering this notation incomplete. Additionally, this component continued to be incomplete due to lack of information regarding precise location of musculoskeletal and neurologic conditions. The Current Medication component, added into the medical records for this patient on this follow-up visit, was incomplete because it did not list the medications the patient is taking. The Review of Symptoms component also appeared to consist mostly of carried-forward information that contained the same contradictory information as with the previous claims. In addition, new contradictory provisions documented the presence of "no sore throat" and "[s]ore throat," "no cough" and "cough causing vomiting," and "[a]nxiety" and "[n]o anxiety." The Past Medical/Surgical History component stated "Pediatric: Failure to thrive." Because this patient is a 73-year-old adult rather than a pediatric patient, this information is inaccurate. As before, the Review of Symptoms component contained carried-forward information from this patient's previous visits, so perpetuated contradictions previously noted, such as "night sweats" and "no night sweats," and "no wheezing" and "wheezing worse during upper respiratory infection." The Physical Findings component still did not identify the specific location—i.e., left or right side of the body——of the musculoskeletal and neurological conditions noted. Additionally, necessary information, such as vital signs and lab testing results, was not documented. The Assessment component again appeared to be a carry- forward of all or much of the information from the previous visit, so suffered from the same deficiencies as the Assessment for claim nos. 1, 2, and 3. As previously discussed, many conditions listed in this component, such as "adult failure to thrive," "vascular dementia," and "chronic fatigue syndrome," were not supported by the information documented in the other components of the medical records. The Therapy Component noted that the patient's pain was being managed by medication, but there was no notation regarding the type of medication prescribed. Additionally, the patient was directed to perform a "self-examination" with no detail regarding what part of the body was to be examined, and the "addiction counseling" notation was unsupported by any other mention of addiction in the medical record. The Counseling/Education component continued to contain extensive carried-forward information, and also contained an extensive list of newly-added counseling notations that were not supported by other components of the medical record. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 4 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 4 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Accordingly, it is determined that claim no. 4 for Recipient 6 should be denied. Recipient 8 Claim No. 6 Based on Dr. Jernigan's review, Petitioner denied Recipient 8, claim no. 6, for services provided by Respondent on February 29, 2012, on the basis of insufficient documentation. Dr. Jernigan noted that much of the medical record for this visit appeared to be an exact carry-forward from the previous visit, so did not specifically address or reflect the patient's current condition at the time of her follow-up visit. Additionally, several of the components for this visit contained contradictory or clearly inaccurate information. She noted that when inconsistencies are repeated in medical records, it is very difficult to determine the patient's condition or course of treatment for a particular visit. Here, the History of Illness was again a bullet-point list of symptoms or conditions, rather than a chronological narrative of the patient's medical condition presented for this visit. Additionally, although one of the stated reasons for this visit was "infected hands after burns," this component contained the contradictory statement "no skin symptoms." Further, in the Past Medical/Surgical component, it is noted "Pediatric: Failure to thrive." Because the patient is an adult, this was an inaccurate notation in the record. The Social History component stated in part: "Abuse and Neglect: Receiving insufficient liquids and abandonment which resulted in hunger or thirst." Dr. Jernigan opined that this statement was inconsistent with the fact that the patient is obese. The Functional component describes the patient as "unable to lift more than" and "unable to drive more than," but did not contain a complete description of these limitations from which the patient suffered. Additionally, the statements "able to walk" and "difficulty walking unassisted" appeared to be contradictory. The Review of Systems also contained several contradictory statements. Specifically, the Reason for Visit component stated that one of the reasons for this visit was "infected hands after burns," but the Review of Symptoms component stated that the patient exhibited "no skin lesions." Additionally, this component stated that the patient exhibited "no polydipsia" and "polydipsia," "vertigo" and "no vertigo," and "no sensory disturbance" and "tingling of the hands and feet, a burning sensation, and numbness of the hands and feet (distal)." The Physical Findings also contained contradictory and incomplete information. For example, the stance and gait were shown as being both "abnormal" and "normal." Further, the description of the burns on the patient's hands did not specify whether they were first-, second-, or third-degree burns, and although her hands were burned, the skin was described as "general appearance was normal" and having "no skin lesions." The Assessment consisted of an extensive list of conditions, many of which were unsupported by the Review of Systems and Physical Findings components. The Therapy component consisted of an extensive list of items, many of which were unsupported by information in the other components of the medical record. For example, addiction counseling for alcohol and opioids is noted, but there was no information documenting addiction to these substances in other parts of the medical record. Additionally, "psychoactive medication management" was listed as a therapeutic item, but the specific medication was not identified and the other components did not support this therapy. Similarly, "pain management by medication" was listed, but the specific medication was not identified. "Education and instructions" also was listed but there was no description of the specific subjects. The Counseling/Education component consisted of an extensive list of subjects about which the patient ostensibly was counseled or education on this visit, but most of them were unsupported by the information in the other components of the medical record for this visit. Dr. Jernigan noted that it appeared that the EHR system "dumped" a laundry list of unrelated items into the notes for this component, making it difficult to know precisely what type of counseling and education was actually provided for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 6 for Recipient 8 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 6 for Recipient 8 did not comply with the pertinent standards in the Handbooks. Accordingly, it is determined that claim no. 6 for Recipient 8 should be denied. Recipient 16 Recipient 16 was a young male patient. During the Audit Period, this patient had numerous visits to Respondent, resulting in a total of 59 claims. Of those, 33 are in dispute in this proceeding. Dr. Jernigan testified about claim nos. 3, 6, 15, 18, and 21 as representative of her analysis and opinions regarding claims denied or adjusted pursuant to the grounds stated in Finding No. 1. Claim No. 3 Dr. Jernigan again noted incomplete documentation and inconsistencies with respect to the notations in the various components of the medical record for this claim. Specifically, she noted that in the Social History, there is a notation of "Abuse and neglect: Receiving insufficient liquids and abandonment which resulted in hunger or thirst," but this notation was not consistent with or supported by the information in the other components of the medical record for this visit. In the Review of Symptoms component, there was an inconsistent notation of "earache" and "no earache." In the Physical Findings component, no vital signs were recorded, rendering the medical record incomplete. Additionally, there were several inconsistent observations documented, including a notation of "no distress," notwithstanding that "vomiting was observed." The Assessment component contained extensive carried- forward information from previous visits, rendering that information inaccurate with respect to this particular visit. Additionally, the medications of Phenergan and Bentyl IM apparently were administered, but no dosage was documented. The Counseling/Education component listed subjects about which the patient ostensibly was counseled, such as tobacco, alcohol, and illicit drug use, but these items were not supported by information in the Social History component or in other components in the medical record for this visit. Ultimately, Dr. Jernigan determined that this claim, which was for an injection to treat nausea with vomiting, should be denied because no dosage for the injected medication was provided, as required by the Handbooks for the claim to be payable. Accordingly, it is determined that claim no. 3 for Recipient 16 should be denied. Claim No. 6 Although the Reason for Visit component referred to test results, the types of tests and results thereof were not addressed or otherwise documented in the medical record for this visit. The History of Present Illness again was presented in a bullet-point list, rather than a chronological narrative of the patient's medical condition and its progression and treatment. There was no information regarding when or for how long the list of conditions existed, or whether they existed at the time of this specific visit. The notation in the Physical Findings that there was "no nasal discharge seen" and "no sinus tenderness" was inconsistent with the Review of Symptoms notations documenting the presence of sinus pain and nasal discharge, and the notation that the oropharynx was "abnormal" and "inflamed" was inconsistent with the notation that it also was "normal." The Counseling/Education component notations stated that the patient again was counseled about tobacco, alcohol, and illicit drug use, but as before, there was no information in the other components to support this counseling for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 6 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 6 for Recipient 8 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 6 for Recipient 16 should be denied. Claim No. 15 The Reason for Visit component for this claim did not address the reason for the patient's visit or identify the test results that would be reviewed during that visit. As with previous claims, the History of Illness component for this visit was a bullet-point list of symptoms rather than a chronological narrative of the patient's condition. Additionally, it contained contradictory information regarding the presence or absence of pulmonary symptoms. The Review of Systems component for this visit contained multiple contradictions similar to those noted in the previous claims for this patient. Specifically, there were contradictory notations regarding the presence of "neck pain" and "no neck pain," the presence of "neck stiffness" and "no neck stiffness," the presence of "sore throat" and "no sore throat," and the presence of "localized joint stiffness" and "no localized joint stiffness." The Physical Findings component lacked information regarding the patient's vital signs, and contained contradictory notations regarding normal and abnormal breath sounds and the presence and absence of wheezing. The Assessment component contained extensive information that was unsupported by information documented in the other components of the medical record for this visit. Moreover, this patient had been documented in a previous visit as weighing 168 pounds and suffering abuse and neglect resulting in hunger or thirst, so the notation that he was at risk for obesity hypoventilation syndrome appeared inaccurate and inconsistent with his previously documented condition. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 15 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 15 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 15 for Recipient 16 should be denied. Claim No. 18 As with the medical records for previous claims, the Reason for Visit component for this claim lacked key information, such as information regarding the reason for the visit and the test results to be reviewed. The History of Illness component once again consisted of a bullet list of observed conditions, rather than a chronological narrative of the history of the patient's condition, its progression, and its response or lack of response to treatments. The Review of Systems contained many of the previously noted inconsistencies regarding the presence and absence of neck pain and stiffness and presence and absence of sore throat. Additionally, this component contained the contradictory notations of "heartburn" and "no heartburn." The Physical Findings component of this visit also contained many of the same contradictions as noted for previous claims for this patient. Specifically, there was a notation of normal and abnormal pharynx, normal and abnormal lungs, the presence of wheezing and absence of wheezing, and the presence of both an abnormal and normal gait. The Assessment component again consisted of an extensive list of conditions, many of which were not supported by information documented in the other components for this medical record. The Plan component was non-specific and did not address any of the diagnoses listed in the Assessment component. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 18 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 18 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 18 for Recipient 16 should be denied. Claim No. 21 Claim no. 21 for Recipient 16 suffered from many of the same deficiencies as previously identified for other claims for this patient. The Reason for Visit component did not specifically identify the reason for this particular visit, and the laboratory test results to be reviewed were not identified. The History of Present Illness component consisted of a bullet-point list, rather than a chronological narrative, and it did not discuss the history and progression of the patient's condition and response or lack of response to treatment. Additionally, it contained the same or similar contradictory statements as were previously discussed with respect to this component for other claims for this patient. The Review of Symptoms component contained many of the same contradictions previously noted with respect to other claims for this recipient. Specifically, "no facial pain" and "facial pain and sinus pain," "neck pain" and "no neck pain," "no sore throat" and "sore throat," "heartburn" and "no heartburn," and "dizziness" and "no dizziness" were noted in this component. The Physical Findings component also contained contradictory information, such as abnormal and normal orolarynx, wheezing and no wheezing being heard, and abnormal and normal gait and stance. The Assessment component again appeared to be a carried-forward list of numerous conditions, such as acne, anemia, arthropathy, fatigue, thyroid issues, and obesity that were not supported by documentation in the other components of the medical record for this visit. The Plan was non-specific and did not address the diagnosed conditions listed in the Assessment component. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 21 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 21 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 21 for Recipient 16 should be denied. Summary of Grounds for Denial of Claims Under Finding No. 1 Dr. Jernigan's overall assessment of the claims denied on the basis of Finding No. 1 was that Respondent's documentation was not sufficiently clear and accurate to enable a reviewer to discern the reason for a particular patient visit; the symptoms presenting for a particular visit; the nature, history, and progression of the medical condition; the diagnosis or determination of the medical condition; the treatment; or the therapy and counseling provided to address the medical condition. In particular, the frequent lack of key details, such as the patient's vital signs, and the frequent and pervasive contradictions in many of the components of the records rendered them inaccurate, unreliable, and essentially useless in determining the nature of the patient's condition, treating the patient's condition, and documenting that treatment for payment purposes. Additionally, the diagnoses documented in the Assessments component were rarely well-supported by accurately documented information in the other components, and appeared to be more a "basketful of therapies" that were not specific to the patient and not supported by other information documented in the rest of the medical record. As Dr. Jernigan put it, "if I was looking at [the medical record for] that specific patient, I would have nothing that would be helpful to me." Dr. Jernigan testified, credibly and persuasively, that the frequent and pervasive inconsistencies in Respondent's records rendered them untrue, inaccurate, and incomprehensible. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the basis of no documentation or incomplete documentation to be credible, accurate, and supported by the documentary and other evidence in the record. Pursuant to the parties' stipulation noted above, the undersigned has applied this analysis in reviewing each of the other claims disputed on the basis of Finding No. 1. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 1. Finding No. 1: No Documentation or Incomplete Documentation Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 2 2 99212 Deny 48.56 2 21 99213 Deny 77.34 6 1 99214 Deny 39.46 6 2 99214 Deny 39.46 6 3 99214 Deny 39.46 6 4 99214 Deny 39.46 8 6 99213 Deny 79.34 9 4 99214 Deny 48.27 10 10 93000 Deny 9.67 13 3 99213 Deny 83.35 16 2 J2550 Deny 2.05 16 3 96372 Deny 12.42 16 4 93672 Deny 12.42 16 6 99214 Deny 48.27 16 15 99214 Deny 48.27 16 16 99372 Deny 12.42 16 17 99214 Deny 48.27 16 18 99214 Deny 48.27 16 19 96372 Deny 12.42 16 21 99214 Deny 48.27 16 22 96372 Deny 13.43 16 23 99214 Deny 48.27 16 24 96372 Deny 13.43 16 25 99214 Deny 48.27 16 27 99214 Deny 48.27 16 30 99213 Deny 83.35 16 31 99213 Deny 83.35 16 32 99211 Deny 23.06 16 33 96372 Deny 13.43 16 34 99212 Deny 50.56 16 35 96372 Deny 13.43 16 37 96372 Deny 13.43 16 38 99213 Deny 83.35 16 41 99212 Deny 50.56 16 43 99212 Deny 50.56 16 54 99212 Deny 50.56 16 57 96372 Deny 14.14 18 2 J0969 Deny 2.00 18 3 96372 Deny 12.42 18 4 J1100 Deny 0.15 18 5 96372 Deny 14.42 24 1 99213 Deny 79.34 33 9 99213 Deny 77.34 34 4 99214 Deny 39.46 34 7 88150 Deny 10.00 35 5 99214 Deny 39.46 35 6 99214 Deny 39.46 Total Recipients: 12 Total Claims: 47 Determined Total Overpayment Amount: $1,810.95 Finding No. 2 – Services Provided Not Medically Necessary For Finding No. 2, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 2, claim nos. 11, 13, and 19; Recipient 16, claim nos. 15, 17, and 30; and Recipient 34, claim no. 7. However, because claim nos. 15, 17, and 30 are being denied in this Recommended Order on the basis of Finding No. 1, they are not addressed in this discussion of claims denied on the basis of Finding No. 2, and they are not counted toward the amount of reimbursement determined in this Recommended Order to be owed. Additionally, because the following claims previously have been denied in this Recommended Order on the basis of Finding No. 1, they have not been counted toward determining the overpayment amount for claims denied on the basis of Finding No. 217/: Recipient 2, claim no. 21; Recipient 16, claim nos. 15, 17, 30, 31, 32, 34, 41, and 43; Recipient 24, claim no. 1; and Recipient 34, claim nos. 4 and 7. Accordingly, a total of eight claims in dispute on the basis of Finding No. 2 have been addressed in this Recommended Order. The CPT Codes The 2012, 2013, and 2014 versions of the Current Procedural Terminology manuals (collectively, "CPT Manuals") establish the CPT Codes that apply in billing services to Medicaid.18/ The following CPT Codes are pertinent to the claims denied on the basis set forth in Finding No. 2: 99211, 99212, 99213, and 99214. These CPT Codes indicate a progressive increase in the complexity of the medical visit, so require progressively greater levels of documentation to justify billing Medicaid for the service. Dr. Jernigan regularly bills Medicaid for services she provides using these CPT Codes. She is very familiar with their use and with the nature of the medical services that are appropriately billed under each code. CPT Code 99211 The CPT Manuals define CPT Code 99211 as: "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." CPT Code 99212 The CPT Manuals define CPT Code 99212 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 components: A problem focused history; A problem focused examination; Straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self[-]limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. CPT Code 99213 The CPT Manuals define CPT Code 99213 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: An expanded problem focused history; An expanded problem focused examination; Medical decision making of low complexity. Counseling and coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. 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. CPT Code 99214 The CPT Manuals define CPT Code 99214 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: A detailed history; A detailed examination; Medical decision making of moderate complexity. Counseling and/or coordination of care with other physicians, other qualified health care professionals, or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Typically, 25 minutes are spent face-to-face with the patient and/or family. In determining whether a service provided is medically necessary for purposes of Medicaid billing, the focus is on whether there is sufficient documentation to support the necessity of the service provided to the patient. The documentation submitted to support a claim is reviewed to determine whether there is sufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided, and to justify the need for the service provided. A. Recipient 2 Claim No. 11 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Specifically, while the patient presented with conditions that may indicate a urinary tract infection or pelvic inflammatory disease, those diagnoses were only two in a list of 32 assessments, so the record did not clearly indicate the specific diagnosis for her condition at this specific visit. Further, the treatment consisted of a topical medication used to treat arthritis and a medication used to treat painful menstruation, rather than a medication used to treat a urinary tract infection or pelvic inflammatory disease. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 11 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Claim No. 13 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Specifically, there were no physical examination findings that appeared to be specifically related either to the patient's condition at that visit, or to the treatment provided. For example, Dr. Jernigan specifically noted that while there was an assessment of vulvodynia and the patient was treated for a yeast infection, the medical record does not note an examination of the patient's genitalia having been performed to support that assessment and treatment. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 13 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Claim No. 19 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Here, the stated reason for the visit included fatigue, somnolence and weakness with problems sleeping, arthralgias with muscle pain and tenderness, headache and dizziness, and snoring with acid reflux. However, the assessment contained a list of 33 diagnoses, many, if not most, of which did not appear to be related to the stated reason for the visit. Additionally, the treatment did not appear appropriate for the conditions stated as the reason for this specific visit. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 19 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Summary of Grounds for Denial of Claims under Finding No. 2 In sum, Dr. Jernigan determined that the claims denied as not medically necessary did not contain sufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided, and to justify the need for the service provided. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the basis of no documentation or incomplete documentation to be credible, accurate, and supported by the documentary and other evidence in the record. Pursuant to the parties' stipulation noted above, the undersigned has applied Dr. Jernigan's analysis in reviewing each of the other claims disputed on the basis of Finding No. 2. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 2. Finding No. 2 – Not Medically Necessary Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 2 11 99213 Deny 81.35 2 13 99213 Deny 81.35 2 19 99213 Deny 77.34 16 36 99211 Deny 23.06 16 39 99212 Deny 50.56 16 45 99212 Deny 50.56 16 47 99211 Deny 23.06 35 4 99214 Deny 39.46 Total Total No. Determined Recipients: of Claims: Total 3 8 Overpayment Amount: $426.74 Finding No. 3 – Established Patients Billed as New Patients As discussed above, a new patient is one who has not received any professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years. The two claims in dispute that were denied on the basis set forth in Finding No. 3, that they were not new patients are Recipient 21, claim no. 1; and Recipient 23, claim no. 1. These claims were downcoded to reflect that the patient was an established patient, rather than a new patient. The CPT Codes pertinent to this Finding are 99203, 99204, 99213, and 99214. CPT Codes 99213 and 99214 previously have been defined in the findings pertaining to Finding No. 2, above. CPT Code 99203 The CPT Manuals define CPT Code 99203 as: Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A detailed history; A detailed examination; Medicaid decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. CPT Code 99204 The CPT Manuals define CPT Code 99204 as: Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A comprehensive history; A comprehensive examination; Medicaid decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. Recipient 21 Claim No. 1 Recipient 21, claim no. 1 was adjusted from CPT Code 99204 to CPT Code 99214. Dr. Jernigan determined that this claim should be denied because the notations for the Past Medical History, Social History, and Family History state that they are "unchanged." This notation would not be appropriate for a new patient, but would be appropriate for an established patient. Dr. Jernigan noted that had she determined this claim was for a new patient, it would have been denied, rather than adjusted downward, because the supporting documentation did not contain the patient's comprehensive history, which is one of the three components required in the documentation to support a claim billed under CPT Code 99204. Instead of denying this claim, Dr. Jernigan determined that under the documentation submitted, it should be billed under CPT Code 99214, as a claim for an established patient having a medical problem of moderate to high severity, and for which two of the three components are documented in the medical record. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to support billing the claim as one for a new patient, but would support billing the claim as one for an established patient, was credible, supported by the evidence, and persuasive. Accordingly, claim no. 1 for Recipient 21 should be billed under CPT Code 99214, rather than CPT Code 99204. Recipient 23 Claim No. 1 Dr. Jernigan determined that this claim should be denied because the notations for the Past Medical History, Social History, and Family History state that they are "unchanged." This notation would not be appropriate for a new patient, but would be appropriate for an established patient. Accordingly, she reviewed the claim as one for an established patient, and, based on the documentation in the medical record, determined that the presented problem was one of low to moderate severity and at least two of the required components were present in the record. For these reasons, Dr. Jernigan determined that this claim should be billed under CPT Code 99213, rather than under CPT Code 99203. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to support billing the claim as one for a new patient, but would support billing the claim as one for an established patient was credible, supported by the evidence, and persuasive. Accordingly, claim no. 1 for Recipient 23 should be billed under CPT Code 99213, rather than CPT Code 99203. Summary of Grounds for Downcoding Claims Under Finding No. 3 In sum, Dr. Jernigan's determined that the notations in the Past Medical History, Family History, and Social History components of the documentation submitted for these claims, as well as the lack of other components in the record, did not support billing these claims as new patient claims, but would support billing them as established patient claims. The undersigned finds Dr. Jernigan's analysis and opinion regarding the downcoding of these claims to bill them as established, rather than new, patient claims to be credible, accurate, and supported by evidence in the record. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 3. Finding No. 3 – Incorrectly Billed as New Patient Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 21 1 99204 Adjusted to 99214 25.38 23 1 99203 Adjusted to 99213 37.66 Total Recipients: 2 Total Claims: 2 Determined Total Overpayment Amount: $63.04 Finding No. 4 – Level of Service Not Supported Claims denied on the grounds set forth in Finding No. 4 of the FAR did not contain documentation sufficient to support the higher level of service billed, but did contain documentation sufficient to support a lower level of service than that billed. CPT Codes 99212, 99213, 99214, and 99204 are pertinent to this Finding, and have been previously defined in the findings pertaining to Findings No. 2 and 3, above. As previously noted, CPT Codes 99212, 99213, and 99214 indicate a progressive increase in the complexity of the medical visit, so require progressively greater levels of documentation to justify billing Medicaid for the service. For Finding No. 4, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 8, claim no. 4; Recipient 9, claim no. 2; Recipient 10, claim no. 3; Recipient 13, claim no. 1; and Recipient 16, claim nos. 29 and 52. Recipient 8 Claim No. 4 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. Despite the extensive description in the Reason for Visit component and the extensive list of conditions noted in the Assessment component, the visit ultimately was to address a urinary tract infection, which is a problem of low to moderate complexity and involved the components which would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 4 for Recipient 8 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 9 Claim No. 2 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. This visit was a follow-up without any significant changes in the findings documented in the components of previous visits. There was no documentation in any of the components for this visit which would indicate that it involved problems that were of moderate to high complexity, and that it entailed components that would justify billing the claim under CPT Code 99214. The documentation for this visit indicated a problem of low to moderate complexity and entailed the components that would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 2 for Recipient 9 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 10 Claim No. 3 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. This claim entailed extensive internal inconsistencies and contained numerous contradictory notations, which affect the reviewer's ability to determine the purpose of the visit and the appropriate type and level of treatment. Here, Dr. Jernigan opined that this visit ultimately was a follow-up for hypertension and diabetes, and that the patient's condition had not changed from the previous visit. The documentation did not indicate that this visit entailed problems that were of moderate to high complexity, nor did it document the components would justify billing the claim under CPT Code 99214. Rather, the documentation for this visit indicated a problem of low to moderate complexity and involved the components that would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 3 for Recipient 10 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 13 Claim No. 1 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99204 to CPT Code 99214. The documentation for this claim did not support billing the visit under CPT Code 99204, for a new patient, because it did not contain sufficient information that a comprehensive examination was performed, which is required by this CPT Code. Additionally, the documentation lacked any substantial discussion of the patient's Social History, Family History, or Past Medical History——information that, according to Dr. Jernigan, would be particularly important for a new patient——especially one who, per the documentation in the record, was sexually abused. Further, the Past Medical/Surgical History, Social History, and Family History components all listed this patient's condition as "unchanged," indicating that the patient must have been an established, rather than a new, patient. These deficiencies in the record for this claim did not justify billing the claim under CPT Code 99204, for a new patient. However, due to the severity of the patient's condition, the treatment documented in the record for this visit entailed the components under CPT Code 99214 for an established patient. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 1 for Recipient 13 is correctly adjusted from CPT Code 99204 to CPT Code 99214. Recipient 16 Claim No. 29 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. Dr. Jernigan found much of the information documented for this claim to be incredible. For example, the patient is a 19-year old male, but the notations in the record state such things as "parental concerns about baby's growth" and "assessment for menopause performed." Dr. Jernigan ultimately determined that this visit was a follow-up to address hypothyroidism and that thyroid medication was prescribed as a treatment for this condition. This visit concerned a problem of low to moderate complexity and involved the components that would justify billing the claim under CPT Code 99213, rather than a more complex problem that would justify the level of service under CPT Code 99214. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 29 for Recipient 16 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Claim No. 52 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99213 to CPT Code 99212. Here, the Reason for Visit stated that the visit was, among other things, to address a skin rash. Although the documentation for this claim contained numerous inconsistencies, Dr. Jernigan was able to discern that the patient had two dermatological conditions that would support the prescription of Doxycycline. According to Dr. Jernigan, skin issues are relatively easy to see and treat, which would justify billing this claim under CPT Code 99212, for a minor problem that would entail the components for that CPT Code, rather than a more complex problem that would justify the level of service under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible and persuasive. Accordingly, it is determined that claim no. 52 for Recipient 16 is correctly adjusted from CPT Code 99213 to CPT Code 99212. Summary of Grounds for Denial of Claims Under Finding No. 4 Dr. Jernigan's overall assessment of the claims denied on the basis of Finding No. 4 was that while a basis for billing Medicaid could be discerned from the medical records for the claim, the documentation in those records was not consistent with the symptoms or confirmed diagnosis, so did not reflect the level of service that could safely be furnished. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the grounds stated in Finding No. 4 to be credible, supported by the evidence, and persuasive. Pursuant to the parties' stipulation noted above, the undersigned has applied this analysis in reviewing each of the other claims disputed on the basis of Finding No. 4. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 4. Finding No. 4 – Incorrectly Billed at Higher Level of Service Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 8 4 99214 Adjusted to 99213 38.79 9 2 99214 Adjusted to 99213 15.71 10 3 99214 Adjusted to 99213 36.79 13 1 99204 Adjusted to 99214 122.14 16 29 99214 Adjusted to 99213 38.79 16 52 99213 Adjusted to 99212 32.79 17 1 99214 Adjusted to 99213 23.32 21 2 99214 Adjusted to 99213 14.85 22 2 99214 Adjusted to 99213 73.87 30 3 99214 Adjusted to 99213 12.85 32 2 99214 Adjusted to 99213 32.56 35 1 99204 Adjusted to 99202 36.77 Total Recipients: 11 Total Claims: 12 Determined Total Overpayment Amount: $479.23 Findings of Ultimate Fact Pursuant to the foregoing, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid by the Medicaid program for the disputed and undisputed claims in this proceeding. Respondent defends its position that many of the claims in dispute should be adjusted downward in this proceeding, rather than denied, by asserting that the inaccuracies and lack of comprehensibility in the documentation for the claims were due to the flaws and defects in the Intergy EHR system, rather than any deficiency on his part in diagnosing or treating his patients or in properly documenting their visits. In support of this position, Respondent notes that in many cases, the documentation provided to support a claim did contain——among the many listed conditions and assessment——a diagnosis that matched the reason for the visit. There is little question in the undersigned's mind that Respondent actually provided the services in the claims he billed to Medicaid. However, the issue in this proceeding is not whether the provider did, in fact, provide the services or accurately diagnose and treat the patient's condition. Rather, the issue is whether the documentation submitted to Petitioner to support the Medicaid-billed claims is true, accurate, comprehensible, and demonstrates the medical necessity of the billed claim, as required by section 409.913 and the Handbooks. Unfortunately, due to the substantial flaws in the Intergy system and Respondent's difficulty in using that system, his records did not comply with those standards, so do not support the billed claims. As the enrolled Medicaid provider, Respondent is ultimately responsible for the completeness, accuracy, and comprehensibility of the documentation submitted in support of his claims billed to Medicaid. § 409.913(7), Fla. Stat. The Handbooks, section 409.913, and applicable rules do not recognize, as a defense to actions seeking reimbursement for overpayments, that deficiencies in the provider's records may be excused due to poor or dysfunctional EHR systems. Based on the foregoing, the undersigned found Dr. Jernigan's analyses and opinions credible, supported by the competent substantial evidence in the record, and persuasive. Accordingly, it is determined, as a matter of ultimate fact, that Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid by the Medicaid program in the amount of $72,084.43 for the disputed and undisputed claims in this proceeding. However, the undersigned determines that Petitioner did not prove the overpayments by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Agency for Health Care Administration, enter a final order directing Respondent to repay to the Agency the sum of $72,084.43 in overpayments. Pursuant to section 409.913(23)(a), Petitioner, as the prevailing party in this proceeding is, entitled to recover, as costs, all investigative, legal, and expert witness costs as the prevailing party is granted. If the amount of these costs cannot be stipulated by the parties, Petitioner may request a hearing solely to establish the amount of costs it is entitled to recover in this proceeding. DONE AND ENTERED this 12th day of March, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 12th day of March, 2018.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Robb E. Ross was a licensed physician engaged in the practice of family medicine as a sole practitioner. He was licensed to practice medicine in the State of Florida in 1966 and holds license number 12433. He was board certified in family practice in 1970. Respondent also holds a license as a pharmacist. Respondent treated patient N.B. from September of 1970 through October of 1986. She initially presented as a new patient moving into the area, aged 61, for maintenance of her general physical medical care, primarily relating to her mild depression that she had for years following a mastectomy. While believing that patient N.B. had previously been under the care of a psychiatrist or psychologist, respondent never requested her prior medical records. Patient N.B. informed the respondent that she had been taking Biphetamine, a steroid amphetamine that is no longer produced, for the past ten years. Respondent continued patient N.B. in that treatment modality for over ten years, as well as treating her for other complaints. At some point, he did attempt to titrate her from Biphetamine, but she did not function as well with a substitute drug. When the drug Biphetamine was phased out of the market in either 1980 or 1982, respondent prescribed Dexedrine to patient N.B. and continued to do so approximately every six months. Respondent maintained her on Dexedrine due to her mild depression and the fact that she had been on amphetamines for many, many years. He was reluctant to take her off Dexedrine for fear that she could become overtly depressed. Since she did well with Dexedrine, respondent maintained her on that regiment due to the adverse side effects of other compounds utilized to control depression. The respondent's medical records for patient N.B. contain virtually no patient history or background information. For each patient visit, there is a brief notation which includes N.B.'s temperature, blood pressure and weight and also a reason for the visit. The reason noted on the records are either "check- up" or a brief statement of the patient's complaint on that particular day. The medication prescribed is noted, though very difficult to read. While the symptom or patient complaint is often noted, the patient records contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from N.B.'s medical records the reason that Dexedrine was prescribed for this patient. While N.B. complained of tiredness, she did not suffer from narcolepsy. Patient G.B. was under respondent's care from August of 1979 through May of 1985. He initially presented, at age 56, with problems relating to emphysema, lung collapse, exhaustion, impotency and aches and pains. Respondent prescribed various medications for him, including Nitroglycerin for chest pains. Respondent felt that due to his age and his complaints, patient G.B. had some type of arteriosclerosis. Patient G.B. frequently complained of being weak, exhausted and having no endurance or energy. For this reason, respondent prescribed Dexedrine for him on March 30, 1984. Other medications to increase his energy were tried before this and after this time. Nothing appeared to give him any relief. After determining that patient G.B. "liked his medicine too much," respondent terminated his treatment of him. The respondent's medical records for patient G.B. are brief and difficult to decipher. Again, the patient's temperature, blood pressure and weight are recorded for each visit, and there is a brief statement of the patient's complaint. There is no statement indicating a medical diagnosis or a treatment plan. The medications prescribed at each visit are written on the records, but are difficult to read. D.M. was a patient under respondent's care from December of 1976 until his death, at age 84, in March of 1986. He initially presented with stomach problems and subsequently had a host of other medical problems, surgeries and hospitalizations throughout the years. This patient was given so many different medications for his various physical problems that respondent did not always write each of them down on his records after each office visit. It appears from respondent's medical records that he first started patient D.M. on Dexedrine in January of 1984. At that time, D.M.'s chief complaint was "dizziness, falling, no pep." Respondent maintained D.M. on Dexedrine or an amphetamine type of compound from that period until his death, primarily because of his weakness, dizziness, falling down and low blood pressure. Other specialists were consulted regarding D.M.'s fainting and falling episodes, caused by postural hypotension, and were unable to remedy the problem. Respondent was of the opinion that the administration of Dexedrine enabled patient D.M. to function more properly and that it worked better than anything else. Patient D.M. expired in March of 1986. Respondent listed the cause of death as "cardiac arrest." The respondent's medical records on patient D.M. are typical of those previously described for patients N.B. and G.B. The office visit notes list patient complaints or symptoms and no medical diagnosis or comprehensive assessments. There are indications in the record that D.M. complained of chest pains in 1983, 1984 and 1985. The medications prescribed indicate the presence of cardiac disease. Respondent's record-keeping with regard to patients N.B., G.B. and D.M. are below an acceptable standard of care. They fail to include an adequate patient history and initial assessment of the patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the patient's background. The respondent's only notation of treatment is a listing, and a partial listing in the case of D.M., of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken. Dextroamphedimine sulfate, also known as Dexedrine, is a sympathomimetic amine drug and is designated as a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Commonly, it is referred to as "speed" or an "upper." It is addictive and highly abusive. While individual patients react differently to Dexedrine, its consumption can cause psychosis, marked elevations of blood pressure and marked rhythmic disturbances. As such, its use is contraindicated in patients with coronary disease. In addition, because Dexedrine is an "upper" and makes a patient "feel good," it can mask a true physical condition and prevent the patient from being treated for the physical ailment he is experiencing. A patient should not be relieved of pain without first knowing what is causing the pain. In Florida, Dexedrine may only be prescribed, administered or dispensed to treat specifically enumerated diseases, conditions or symptoms. Section 458.331(1)(cc), Florida Statutes. Neither respondent's medical records nor his testimony indicate that patients N.B., G.B. and/or D.M. suffered from the conditions, symptoms or diseases which warranted the statutorily approved and limited use of Dexedrine. Respondent was not aware that there were statutory limitations for the use of Dexedrine. He is aware of the possible dangers of amphetamines and he prescribes Dexedrine as a treatment of last resort when he believes it will help the patient. Respondent further testified that his medical record-keeping is adequate to enable him, as a sole practitioner, to treat his patients, though he admits that his medical records could be improved.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 458.331(I), subparagraphs (cc),(q),(t) and (n), Florida Statutes, and that the following penalties be imposed: an administrative fine in the total amount of $2,000.00, and probation for a period of twelve (12) months, with the following conditions: (a) that respondent complete continuing medical education courses or seminars in the areas of medical record-keeping and the dangers and authorized use of compounds designated as Schedule II controlled substances, and (b) that respondent submit to the Board on a monthly basis the medical records of those patients for whom a Schedule II controlled substance is prescribed or administered during the probationary period. Respectfully submitted and entered this 2nd day of September, 1987, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3483 The proposed findings of fact submitted by counsel for the parties have been carefully considered. To the extent that the proposed factual findings are not included in this Recommended Order, they are rejected for the following reasons: Petitioner: The 48 proposed findings of fact submitted by the petitioner consist of summaries or recitations of the testimony of the witnesses presented by the petitioner in this proceeding. While the summaries and/or recitations constitute an accurate representation of the testimony received by those witnesses at the hearing, and are thus accepted, they do not constitute proper factual findings by themselves. Instead, they (along with the testimony presented by the respondent) form the basis for the findings of fact in this Recommended Order. Respondent: Page 4, Paragraph 1 The reference to 30 years is rejected as contrary to the evidence. COPIES FURNISHED: David E Bryant, Esquire Alpert, Josey, Grilli, Paris and Bryant 100 South Ashley Drive Suite 2000 Tampa, Florida 33602 David J. Wollinka, Esquire P. O. Box 3649 Holiday, Florida 33590 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue for determination is whether Petitioner is liable for overpayment of Medicaid claims for the period from 9/1/94 through 9/30/96, as stated in Respondent's Final Agency Audit Report dated May 5, 1998.
Findings Of Fact At all times material hereto, the Agency for Health Care Administration (Respondent) was the state agency charged with administration of the Medicaid program in the State of Florida pursuant to Section 409.907, Florida Statutes. At all times material hereto, Henry M. Rubinstein, D.C., (Petitioner) was a licensed chiropractor in the State of Florida and was providing chiropractic services to Medicaid recipients. Petitioner provided the services pursuant to a contract with Respondent under the Medicaid provider number 0503517-00. His Medicaid patients for years have included children and multi-handicapped children. Petitioner has published in peer review journals and is a board certified chiropractor. Dennis L. Jones, D.C., is a licensed chiropractor in the State of Florida. 1/ He was involved in the creation of Florida's Medicaid program and monitors the Florida Chiropractic Medicaid Program. Dr. Jones also serves as a Medicaid chiropractic consultant, including the issuance of prior authorizations for treatment. Prior authorizations are required for a chiropractor to provide and bill for visits by Medicaid recipients in excess of the set limited number. The maximum number of visits allowed per year prior to July 1, 1994, was 12, and after July 1, 1994, was 24. After July 1, 1994, prior authorization was required for visits beyond 24 for Medicaid recipients under the age of Prior authorization was granted for requests that demonstrated medical necessity. Dr. Jones denied many of Petitioner's requests for prior authorization. He denied the requests on the basis that the treatments were extending for periods of up to two years without detailed explanation of medical necessity to substantiate such extended periods of care. Dr. Jones observed that Petitioner's requests for such extended care routinely lacked substantiation and documentation for such extended care, such as x-rays, orthopedic and neurological findings, and subjective/objective descriptions. However, Dr. Jones granted some of Petitioner's requests for prior authorization to exceed the maximum number of visits. Dr. Jones had concerns as to the sufficiency of the documentation of Petitioner's requests for prior authorizations. As a result, when such requests were granted, Dr. Jones noted on the request forms that supplemental medical necessity needed to be documented more completely in the future. In 1996, Dr. Jones related his concerns about Petitioner in a letter to Respondent and included with the letter prior authorizations for primarily special needs children covering the years 1994 through 1996. Twenty-nine prior authorizations were included, with 25 of them for special needs children. His concerns related primarily to Petitioner's Medicaid patients who were special needs children and for whom Dr. Jones had reviewed only prior authorizations submitted by Petitioner. Further, in his letter, Dr. Jones requested an investigation into possible patient brokering, a criminal act. However, a request from a complainant for an investigation into a particular area of alleged violation does not prevent Respondent from identifying and investigating other areas of possible violation revealed by the documents provided. Dr. Jones' letter was referred to one of Respondent's employees, Judith M. Jensen. At that time, Ms. Jensen was also in the process of reviewing another complaint lodged against Petitioner by Dr. Jones, regarding prior authorizations for children, but covering a different time period--from 1993 through 1995. Ms. Jensen was, and is, employed by Respondent as a Human Services Program Specialist. Her duties include monitoring Medicaid claims and investigating Medicaid complaints and aberrant billings for Respondent's Medicaid Program Integrity Office. In investigating all billing irregularities or specific complaints, a review is typically made of the Medicaid provider's medical records. Substantiation of Medicaid claims that are submitted and paid is by adequate and proper medical record documentation. An audit, based upon a billing irregularity or complaint, is usually begun with the selection of a provider or a group of providers. Next, a sample of the chosen provider's Medicaid claims is chosen for a particular time period, which is the audit period. An analyst for Respondent then requests from the provider the medical records for the Medicaid recipients sampled for the audit period. The medical records are provided to and analyzed by a medical peer reviewer. If the medical peer reviewer recommends denial of payment for any of the claims, resulting in overpayment, Respondent forwards a preliminary audit letter to the Medicaid provider, describing the audit findings and requesting any supplemental medical records. A review of any submitted supplemental medical records is conducted, and the audit findings are adjusted in accordance with the results of the review. If an overpayment continues to be indicated after the review, Respondent forwards a final audit letter to the Medicaid provider. Respondent has a limited number of analysts and medical peer reviewers. Due to such constraints on Respondent, sampling is utilized due to its reliability, cost-effectiveness, and commonly accepted method for review of high volumes of Medicaid claims. Ms. Jensen initiated Respondent's review of Petitioner's Medicaid claims. She began the audit by requesting an ad hoc computer report on Petitioner's billing history for all Medicaid recipients under the age of 21 for the time period from 9/1/94 through 9/30/96. Ms. Jensen's request concentrated only on Medicaid recipients under the age of 21 because Dr. Jones alerted Respondent primarily to prior authorizations for children. Ms. Jensen received the ad hoc computer report, which was a detail of all of Petitioner's Medicaid billings for Medicaid recipients under the age of 21 for the period from 9/1/94 through 9/30/96. The report provided that for the time period indicated, Petitioner billed and was paid for 4,499 claims for 85 recipients, for a total amount of $71,731.30. Having received this information, Ms. Jensen requested a computer-generated selection of a random sample of 20 recipients from the total population of the 85 recipients. Twenty recipients were randomly selected from the total population of the 85 recipients, which showed, among other things, claims totaling 1,307 and payment for the claims totaling $20,710.69. Afterwards, Ms. Jensen requested Petitioner to provide all the medical records for the 20 sampled recipients for the time period from 9/1/94 through 9/30/96. Petitioner complied with Ms. Jensen's request. Having received the medical records, Ms. Jensen engaged a peer review consultant, Dr. Ronald J. Hoffman, D.C., to evaluate the records submitted by Petitioner. She provided the medical records to Dr. Hoffman.. 2/ He was provided with the medical records of only 10 Medicaid recipients on two separate occasions, instead of all 20 at the same time. The Medicaid recipients' medical records were not "sanitized" when they were submitted to Dr. Hoffman, meaning that the names of the Medicaid recipients and provider, Petitioner, were not redacted. Dr. Hoffman, as a peer reviewer, rarely reviews files which have been sanitized. The failure to sanitize the medical records found to be of no consequence to Dr. Hoffman's determinations. Dr. Hoffman is a licensed chiropractor in the State of Florida and has been practicing for over 30 years. His practice includes patients who are pediatric and multi-handicapped, but these patients comprise a very small number of his patients. He performs chiropractic Medicaid utilization review for Respondent and is a Medicaid provider. He has performed chiropractic utilization review for more than 15 years. For the Medicaid program, Dr. Hoffman has been a consultant since 1997, but Petitioner's review was the first peer review performed by Dr. Hoffman for the Medicaid program. When Dr. Hoffman performs peer reviews for Respondent, he relies upon State statutes and Respondent's guidelines, specifically, The Chiropractic Coverage and Limitation Handbook, and his years of experience Dr. Hoffman is knowledgeable about what a medical record should contain in order for the medical record to demonstrate medical necessity for Medicaid reimbursement purposes. The medical record should contain the complete medical history; an examination showing the condition of the patient and why the patient is being treated; symptoms; standardized testing, including orthopedic and neurological tests; treatment notes; a treatment program; objective findings; special procedures; and an evaluation of the patient's progress. 3/ Petitioner agrees that, according to the Medicaid provider reimbursement handbook, the following are requirements for medical records: patient history; chief complaint for each visit; diagnostic tests and results; diagnosis; treatment plan, including prescriptions; medications, supplies, scheduling frequency for follow-up or other services; progress reports, treatment rendered; original signatures and dates; dates of service; and referrals to others. Dr. Hoffman was aware from review of the medical records provided by Petitioner that the Medicaid recipients were special needs children. However, he was unaware of Florida's special needs statutes (Subsections 409.803(1)(c) and 409.9126(1)(b), and Section 409.9121, Florida Statutes), which address, among other things, health care needs for special needs children, and he did not use the statutes in his determination. The failure to use the special needs statutes had little or no effect on Dr. Hoffman's review. The undersigned is persuaded and a finding of fact is made that Dr. Hoffman's failure to use the special needs statutes in his review did not invalidate his determinations. Dr. Hoffman was tendered and is accepted as an expert in chiropractic medicine. He is also found to be an appropriate peer reviewer for Petitioner's situation. Dr. Hoffman's testimony is found to be credible. After having reviewed the medical records, regarding the 20 randomly sampled Medicaid recipients, pursuant to Respondent's Medicaid peer review, Dr. Hoffman produced two reports of his findings. 4/ During his review, Dr. Hoffman considered all of the Medicaid recipients' visits, including those that had been granted prior authorization. Patient 1 was recipient K.K., with a date of birth of 5/18/86. 5/ Dr. Hoffman's opinion was that Patient 1's medical records did not support a finding of medical necessity. The medical records failed to support justification for Patient 1's 198 visits from 11/10/94 through 9/10/96. X-rays contained in the medical records were of such poor quality that they were of no diagnostic value; however, the x-rays were not a factor in the determination of medical necessity. Petitioner's medical notes were practically the same for each visit, with Petitioner noting practically the same comment(s); and there was no recorded orthopedic or neurological testing and no standard chiropractic evaluation forms justifying the number of treatments billed. Patient 1's medical records failed to demonstrate medical necessity for the visits. For Patient 1, 198 claims were paid in the amount of $3,081.30. Prior authorizations granted totaled $2,964. 6/ Patient 2 was recipient N.M., with a date of birth of 8/11/83. Dr. Hoffman's opinion was that Patient 2's medical records lacked documentation demonstrating that the treatments were a medical necessity for Medicaid reimbursement purposes for the 175 visits from 7/12/94 through 6/27/96. The medical records contained no standard medical notes or examination forms and no orthopedic, neurological or chiropractic examination forms to justify treatments; and were redundant and repetitive. X-rays contained in the medical records were of such poor quality that they were of no diagnostic value; but, the x-rays have no impact on the determination of medical necessity. Patient 2's medical records failed to demonstrate medical necessity for the visits. For Patient 2, 175 claims were paid in the amount of $2,726.50. Prior authorizations granted totaled $2,964. Patient 3 was recipient D.A., with a date of birth of 4/6/89. Dr. Hoffman's opinion was that Patient 3's medical records lacked justification for the 173 visits from 8/23/94 through 7/30/96. The medical records contained no standard procedures performed by an acceptable chiropractic physician licensed in the State of Florida. The medical records also indicated that a medical radiologist, Dr. Robert S. Elias, M.D., read the recipient's x-rays for the purpose of a medical diagnosis of treatment and that Dr. Elias' diagnosis directly conflicted with Petitioner's diagnosis; however, the x-rays were not a factor in the determination of medical necessity. Patient 3's medical records failed to demonstrate medical necessity for the visits. For Patient 3, 173 claims were paid in the amount of $2,693.70. Prior authorizations granted totaled $2,604. Patient 6 was recipient T.W., with a date of birth of 2/5/90. Dr. Hoffman's opinion was that Patient 6's medical records lacked justification for the 160 visits from 1/3/95 through 9/3/96. The medical records contained no standardized chiropractic notes, no specified diagnosis, and no routine re- examinations. Furthermore, the medical records failed to show why Petitioner was treating Patient 6. X-rays contained in the medical records were not of diagnostic quality and were, therefore, of no diagnostic value; however, the x-rays had no impact on the determination of medical necessity. Patient 6's medical records failed to demonstrate medical necessity for the visits. For Patient 6, 160 claims were paid in the amount of $2,502.20. Prior authorizations granted totaled $1,882.90. Patient 24 was recipient G.H., with a date of birth of 7/20/95. Dr. Hoffman's opinion was that Patient 24's medical records failed to justify the approximately 73 visits. The medical records contained no standardized chiropractic notes, no objective findings, and no standardized testing, including range of motion, muscle spasms, and orthopedic or neurological tests. For many of the visits, the only documentation contained in the medical records consisted of the same notation or statement: "Patient doing well." Patient 24's medical records failed to demonstrate medical necessity for the visits. For Patient 24, 72 claims were paid in the amount of $1,158.09. The medical records do reflect that any prior authorizations were granted. Patient 25 was recipient O.M., with a date of birth of 4/25/83. Dr. Hoffman's opinion was that Patient 25's medical records failed to justify the 87 visits. The medical records contained no standardized chiropractic notes, no justification of diagnosis, and no standard medical tests. The notes that were recorded were quite sparse and repetitive and typically recorded as "Doing well." Patient 25's medical records failed to demonstrate medical necessity for the visits. For Patient 25, 71 claims were paid in the amount of $1,131.69. Prior authorizations granted totaled $753.60. Patient 27 was recipient C.F., with a date of birth of 2/12/84. Dr. Hoffman's opinion was that Patient 27's medical records failed to justify the 67 visits from 10/11/95 through 3/25/96. The medical records contained no standardized chiropractic notes, no standardized examination forms, and no documentation of Patient 27's progress. Patient 27's medical records failed to demonstrate medical necessity for the visits. For Patient 27, 67 claims were paid in the amount of $1,079.59. The medical records do reflect that any prior authorizations were granted. Patient 28 was recipient K.H., with a date of birth of 8/22/94. Dr. Hoffman's opinion was that Patient 28's medical records failed to justify the 69 visits. The medical records contained no standardized chiropractic notes and no standardized testing, and showed no specific treatment provided based upon the requirements of the Medicaid laws. Patient 28's medical records failed to demonstrate medical necessity for the visits. For Patient 28, 66 claims were paid in the amount of $1,031.79. The medical records do reflect that any prior authorizations were granted. Patient 33 was recipient K.D., with a date of birth of 2/15/84. Dr. Hoffman's opinion was that Patient 33's medical records failed to justify the 73 visits. The medical records contained no standardized chiropractic notes and no standardized testing. Patient 33's medical records failed to demonstrate medical necessity for the visits. For Patient 33, 51 claims were paid in the amount of $800.70. Prior authorizations granted totaled $376.80. Patient 35 was recipient T.M., with a date of birth of 10/15/91. Dr. Hoffman's opinion was that Patient 35's medical records failed to justify the 51 visits from 2/15/95 through 6/10/96. The medical records contained no standardized chiropractic notes justifying the treatment provided. The medical records also stated that Dr. Elias read Patient 35's x- rays for the purposes of medical diagnosis of treatment and that Dr. Elias' diagnosis directly conflicted with Petitioner's diagnosis; however, the x-rays were not a factor in determining medical necessity. Patient 35's medical records failed to demonstrate medical necessity for the visits. For Patient 35, 51 claims were paid in the amount of $828.39. Prior authorizations granted totaled $753.60. Patient 39 was recipient B.T., with a date of birth of 8/8/95. Dr. Hoffman's opinion was that Patient 39's medical records failed to justify the 47 visits from 2/9/95 through 10/19/95. The medical records contained no standardized chiropractic notes justifying the treatment provided. Patient 39's medical records failed to demonstrate medical necessity for the visits. For Patient 39, 47 claims were paid in the amount of $765.59. Prior authorizations granted totaled $753.60. Patient 40 was recipient T.H., with a date of birth of 7/11/84. Dr. Hoffman's opinion was that Patient 40's medical records failed to justify the 46 visits from 11/15/94 through 2/28/95. The medical records contained no standardized chiropractic notes justifying the treatment provided. The medical records also indicated that Dr. Elias read the recipient's x-rays for the purposes of medical diagnosis of treatment and that Dr. Elias' diagnosis directly conflicted with Petitioner's diagnosis; however, the x-rays were not a factor in determining medical necessity. Patient 40's medical records failed to demonstrate medical necessity for the visits. For Patient 40, 46 claims were paid in the amount of $731.70. Prior authorizations granted totaled $753.60. Patient 45 was recipient T.W., with a date of birth of 9/26/90. Dr. Hoffman's opinion was that Patient 45's medical records failed to justify the 22 visits from 4/24/95 through 11/15/95. The medical records contained no standardized chiropractic notes justifying the treatment provided. Patient 45's medical records failed to demonstrate medical necessity for the visits. For Patient 45, 26 claims were paid in the amount of $408.20. Prior authorizations granted totaled $376.80. Patient 48 was recipient S.L., with a date of birth of 1/31/91. Dr. Hoffman's opinion was that Patient 48's medical records failed to justify the 23 visits from 3/25/96 through 9/11/96. The medical records contained no standardized chiropractic notes justifying the treatment provided. Patient 48's medical records failed to demonstrate medical necessity for the visits. For Patient 48, 23 claims were paid in the amount of $388.79. The medical records do reflect that any prior authorizations were granted. Patient 54 was recipient H.A., with a date of birth of 1/31/88. Dr. Hoffman's opinion was that Patient 54's medical records failed to justify the 7 visits from 9/6/95 through 10/2/95. The medical records contained no standardized chiropractic notes justifying the treatment provided. Patient 54's medical records failed to demonstrate medical necessity for the visits. For Patient 54, 19 claims were paid in the amount of $298.30. The medical records do reflect that any prior authorizations were granted. Patient 58 was recipient T.W., with a date of birth of 11/19/81. Dr. Hoffman's opinion was that Patient 58's medical records failed to justify the 23 visits from 3/25/96 through 9/30/96. The medical records contained no standardized chiropractic notes justifying the treatment provided. Patient 58's medical records failed to demonstrate medical necessity for the visits. For Patient 58, 17 claims were paid in the amount of $294.59. The medical records do reflect that any prior authorizations were granted. Patient 59 was recipient C.P., with a date of birth of 4/11/93. Dr. Hoffman's opinion was that Patient 59's medical records failed to justify the 22 visits from 4/10/96 through 10/9/96. The medical records contained no standardized chiropractic notes, no documentation of standardized testing of the spine, no documentation of standard tests, including orthopedic and neurological tests, and no medical justification for ongoing care and treatment. Patient 59's medical records failed to demonstrate medical necessity for the visits. For Patient 59, 16 claims were paid in the amount of $278.89. Prior authorizations granted totaled $376.80. Patient 64 was recipient M.L., with a date of birth of 8/20/89. Dr. Hoffman's opinion was that Patient 64's medical records failed to justify the 8 visits from 8/30/95 through 10/2/95. The medical records contained no standardized chiropractic notes, no documentation of standardized testing, and no description of Patient 64's pain or physical condition. Patient 64's medical records failed to demonstrate medical necessity for the visits. For Patient 64, 13 claims were paid in the amount of $204.10. The medical records do reflect that any prior authorizations were granted. Patient 69 was recipient A.L., with a date of birth of 1/14/92. Dr. Hoffman's opinion was that Patient 69's medical records failed to justify the 9 visits from 2/27/95 through 3/20/95. The medical records contained no standardized chiropractic notes, and the documentation contained in the records was minimal and repetitious. Patient 69's medical records failed to demonstrate medical necessity for the visits. For Patient 64, 13 claims were paid in the amount of $204.10. The medical records do reflect that any prior authorizations were granted. Patient 77 was recipient N.J., with a date of birth of 4/16/80. Dr. Hoffman's opinion was that Patient 77's medical records failed to justify the 7 visits from 3/6/95 through 3/29/95. The medical records contained no standardized chiropractic notes justifying the treatment provided. Patient 77's medical records failed to demonstrate medical necessity for the visits. For Patient 77, 7 claims were paid in the amount of $137.59. The medical records do reflect that any prior authorizations were granted. Dr. Hoffman recommended denial of all claims for the 20 sampled Medicaid recipients for the period from 9/1/94 through 9/30/96 due to Petitioner's failure to adequately document medical necessity in the recipients' medical records. For the 20 sampled Medicaid recipients for the period from 9/1/94 through 9/30/96, the total of the Medicaid payments was $20,710.69. As a result, the denial amount, the overpayment, for the 20 sampled recipients was the same, $20,710.69. The overpayment for the 20 sampled Medicaid recipients was extrapolated to the entire universe or total population of the 85 Medicaid recipients under the age of 21 for the period from 9/1/94 through 9/30/96, which resulted in a total projected overpayment of $70,518.26. The actual total amount of Medicaid payments for the 85 Medicaid recipients for the covered time period was $71,731.30. Considering the actual total payment of $71,731.30, the projected overpayment of $70,518.26 is very close to the actual total payment and is inherently reasonable. There is an expectation that, because all the claims of the 20 sampled Medicaid recipients were denied, the projected denial for all the claims in the universe of 85 recipients would be very close to the actual total payment. The difference between the projected overpayment of $70,518.26 and the actual amount paid of $71,731.30 is $1,213.04. This difference is negligible and such negligible difference reflects the inherent accuracy and reliability of the statistical methodology utilized. The maximum error range is 5 percent. The difference between the projected overpayment total and the actual payment total is also well within the maximum error range of 5 percent, or $3,587, for a 95 percent statistical confidence interval. To illustrate Respondent's statistical methodology, first, begin with sampled Medicaid recipient Patient 1. As indicated previously, the total number of actual claims for the total population of 85 Medicaid recipients, who were under the age of 21, was 4,499, and the total amount paid for the claims was $71,731.30; the data being taken from Respondent's Medicaid claims database. For Patient 1, 198 claims were audited and $3,081.30 was the total amount paid for the claims. All of the $3,081.30 was denied and determined to be an overpayment. Second, the same process was used with all 20 Medicaid recipients sampled, which produced a total of 1,307 claims, which were all denied, and produced a total of $20,710.69 in overpayment. The total sampled overpayment of $20,710.69 was divided by the total number of sampled claims (1,307) to obtain a mean overpayment per sampled claim of $15.85. The overpayment per sampled claim of $15.85 was multiplied by the number of claims in the total population (4,499) to obtain a point estimate of the total population overpayment, which was $71,291.04. Third, adjusting the point estimate of $71,291.04 for any potential statistical error, Respondent's model reduces the point estimate by 1.73 standard deviations, yielding an error- adjusted total overpayment of $70,518.26. Respondent has a level of confidence that there is 95 percent chance that actual overpayment is a minimum of $70,518.26. The point estimate of $71,291.04 is very close to the actual payment of $70,731.30 for the claims of the total population of the 85 Medicaid recipients; therefore, the overpayment of $70,518.26 is relatively conservative. Respondent's audit was conducted in conformity with Respondent's standards and conformed to Respondent's manner in conducting audits. The audit also had no known deviations or irregularities or deficiencies in the technical processes utilized, except the failure to take into account the prior authorizations granted. As to the statistical aspect of Respondent's audit, Respondent presented the testimony of a statistical expert, Dr. James T. McClave, Ph.D. 7/ Dr. McClave's testimony is considered credible. Using statistical methods in Medicaid overpayment determinations is a common and well-accepted standard of practice. Statistical modeling in Medicaid auditing scientifically and accurately determines the extent of overpayments in a population of payments from a small sample of overpayments drawn from the population of payments. Statistical modeling is capable of providing reliable estimates of the integrity, or lack thereof, of a Medicaid provider's billings, within reasonable time and resource constraints. In the statistical formula, a sample of claims is used to obtain a valid statistical estimate of the overpayment, if any, associated with the entire population of claims from which the sample of claims was drawn. A point estimate, being the best estimate the sample has to offer of the overpayment, is taken; and then a factor, allowing for the uncertainty associated with the sample, is subtracted such that there is a specified level of confidence that what is obtained is the conservative estimate of what the total population overpayment would be. The point estimate is referred to as "the lower 95 percent confidence bound," 8/ and the number obtained is a number which one "can be 95 percent confident that it is an underestimate of what the total overpayment would be" 9/ if the entire population was sampled. Respondent complied with the statistical methodology. The random selection process and the ad hoc computer report were valid and reliable. The results of the sampling and extrapolation were valid and reliable on the basis of the total population of Petitioner's Medicaid patients was pediatric patients and the results were limited to Petitioner's Medicaid patients under the age of 21. Further, the sample size of 20 Medicaid recipients from the total population of 85 was adequate. However, the results of the sampling and extrapolation are not reliable as they pertain to the failure of Respondent to take into consideration the granted prior authorizations. Respondent is compelled and should be provided an opportunity to re-apply its statistical methodology in light of granted prior authorizations not being considered. Uncertainty now exists as to what effect the granted prior authorizations would have on the outcome of the total overpayments. The denial of all of Petitioner's claims was a situation of first impression for Respondent. Prior to the instant case, Respondent had had no chiropractor's Medicaid claims go through peer review and denial recommended. By letter dated February 4, 1998, Respondent forwarded to Petitioner a Preliminary Agency Audit Report (Preliminary Audit Report). The Preliminary Audit Report informed Petitioner, among other things, that Respondent's preliminary determination was that Petitioner had received an overpayment of $70,518.26 due to the claims being determined not medically necessary, and requested, among other things, that Petitioner submit any additional information or documentation which may reduce the overpayment. The Preliminary Audit Report also informed Petitioner of the overpayment calculation and statistical formula used by Respondent. In response to the request for additional information or documentation, Petitioner forwarded to Ms. Jensen a videotape and testimonials. Ms. Jensen did not send the testimonials and videotape to Dr. Hoffman, the peer reviewer, for his review because these items (1) were determined by her to have been created prior to recording of the medical records at issue, and, therefore, did not constitute a medical record for review; and (2) were, consequently, not relevant. The undersigned is persuaded and a finding of fact is made that the testimonials and videotape were not relevant and need not have been submitted to Dr. Hoffman for his review. By letter dated May 5, 1998, Respondent forwarded to Petitioner its Final Agency Audit Report (Final Audit Report). The Final Audit Report, based upon the recommendations of Dr. Hoffman, notified Petitioner, among other things, that the final determination was that he had received an overpayment of $70,518.26, due to the Medicaid claims not being medically necessary. The Final Audit Report also notified Petitioner, among other things, of the overpayment calculation and statistical formula used by Respondent. Moreover, Petitioner was notified that his type of violation warranted termination from the Medicaid program and a $2,000 fine, but that, in lieu of termination from the Medicaid program, he could continue as a provider by paying a $5,000 fine. In a subsequent letter to Petitioner, regarding clarification of continued participation in the Medicaid program, Ms. Jensen explained that, as a requirement for continued participation in the Medicaid program, in addition to the $5,000 fine, Petitioner must comply with Medicaid policy and Florida Statutes and rules. Petitioner was placed on notice that to continue as a Medicaid provider he must abide by Medicaid billing requirements. Respondent's Final Audit Report did not contain any notice of mediation being available. Section 120.573, Florida Statutes, requires notice of whether mediation (settlement) is available in agency action that affects substantial interests. There is no dispute that Respondent's Final Audit Report affects Petitioner's substantial interests. No evidence was presented that either Petitioner inquired about mediation or that Petitioner or Respondent sought or desired mediation. Moreover, no evidence was presented that Petitioner was harmed or suffered as a result of not receiving the notice. No evidence was presented to support a finding that the basis of the audit findings involved a conspiracy. A finding of fact is made that the basis of the audit findings does not involve a conspiracy between Respondent and its employees and Dr. Jones and Dr. Hoffman and Dr. McClave or anyone else. Respondent did not initiate any disciplinary action against Petitioner's license as a chiropractor and, therefore, Subsections 455.225(1) and 455.621(1), Florida Statutes, are not applicable. No evidence was presented that any criminal action was referred or taken against Petitioner as a result of Respondent's audit. No evidence was presented that Respondent suspected Petitioner of having committed a criminal violation, that a criminal act had been committed by Petitioner, or that Respondent had determined that Petitioner had committed a criminal act.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order against Henry M. Rubinstein, D.C. and therein: Sustaining the failure of Dr. Rubinstein's medical records, except as to granted prior authorizations, for Medicaid recipients under the age of 21 for the period from 9/1/94 through 9/30/96, to demonstrate medical necessity. Sustaining the Final Agency Audit Report, except as indicated and consistent with this Recommended Order. Requiring Dr. Rubinstein to repay overpayments, without interest, in an amount subsequently determined in a proceeding by the Agency for Health Care Administration and within a time period under terms and conditions deemed appropriate. Imposing a fine of $5,000. DONE AND ENTERED this 11th day of April, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2000.
Findings Of Fact The Respondent Albert Sneij is a licensed medical physician, having been issued license number ME 0034499. The current office address of the Respondent is 125 Fifth Street, Miami Beach, Florida. Dr. John V. Handwerker, a licensed physician was the Petitioner's sole witness. Dr. Handwerker, who has served as an Assistant Professor of Pharmacology at the University of Miami, was requested by the Department to examine the patient records obtained from the Respondent during the course of a Department investigation, evaluate whether the prescriptions contained in the patient records were appropriate or excessive and whether such prescriptions were adequately documented in the patients' clinical records. Dr. Handwerker evaluated the Department's investigative file and the Respondent's clinical records, involving eight patients: Charles Thomas Whitecup, John Marsden, Carole Rosen, Thomas T. Bellamy, John Barbosa, Rex Bridwell, Thomas Sestito and Margaret Lee Baker. Dr. Handwerker's testimony was based solely on his review of the records since none of the patients involved in this case were seen or examined by him. Charles Whitecup's records revealed that he suffered an injury four years prior to his being prescribed Dilaudid by the Respondent. The injury was a gunshot wound to his left leg on which an exploratory laparotomy was subsequently performed. At that time it was discovered that the gunshot had torn the femoral artery and inflicted substantial nerve plexus damage. Upon examination of Whitecup, the Respondent noted weakness and atrophy in the left extremity and numbness in the anterior portion of his leg. Additionally, Whitecup suffered from bursitis in the knee with pain in the knee and patellar ligament. The Respondent diagnosed chronic left leg pain due to femoral nerve plexus damage and asked Whitecup to bring his medical records to his next appointment which as scheduled in ten days. Based on this diagnosis, the Respondent prescribed 30 Dilaudid, 4 milligrams. Thereafter, Whitecup lost his original prescription and a replacement prescription was issued on April 7, 1982. This was the only prescription which was filled and the only prescription recorded in the Respondent's clinical records for this patient. The records of this patient, Petitioner's Exhibit 1(a) and the Respondent's examination justify and document prescribing the Dilaudid for this patient. Additionally, Whitecup specifically requested that the Respondent prescribe Dilaudid since this was the only medication which relieved his chronic pain. John Marsden was issued a single prescription by the Respondent for Dilaudid, 4 milligrams, on March 8, 1982. Although no clinical records exist to justify this prescription, the Respondent remembered Marsden as suffering from a long-standing chronic pain problem. During the time that the Marsden prescription was written, the Respondent was in the process of moving his office and the clinical records for this patient were probably lost during the move. The Respondent wrote two prescriptions for 20 and 25 Dilaudid, 4 milligrams, to Carol Rosen on February 9, 1982 and March 8, 1982, respectively. Both prescriptions were written when the Respondent was located in his old office and like Marsden, were probably among the records lost in the course of moving offices. The Respondent has no recollection of this particular patient. 2/ In response to the missing Marsden and Rosen records, the Respondent has instituted a new record keeping system and detailed records for all patients are now kept. The Respondent wrote six prescriptions for Thomas Bellamy between March and May of 1982, for 171 Dilaudid, 4 milligrams. Bellamy suffered from back and neck spasms for nine years prior to his initial examination by the Respondent. He was Bellamy had ever obtained for pain was when he was prescribed Dilaudid. During a follow-up examination, the Respondent noted that Bellamy's activities were limited and that his pain was primarily centered in the lower back in the area of L-5, S-1, with occasional radiation to the left leg. The Respondent wanted to take an x-ray but did not because Bellamy was unwilling to incur the cost. Although six prescriptions were written by the Respondent based on only two examinations of the patient, the clinical records for Bellamy, Petitioner's Exhibit 1(d), and the Respondent's examinations of the patient justify and document the prescribing of Dilaudid for this patient. The Respondent examined John Barbosa on May 5,1982, and diagnosed an injured disc between L4-5 during the week prior to the exam. This patient demonstrated spinal spasms during the exam with limited mobility. A single prescription of 36 tablets of Dilaudid, 4 milligrams, was written for the patient. This proscription was justified and documented by the clinical records, Petitioner's Exhibit 1(e) and the examination performed by the Respondent on the patient. In January, 1982, the Respondent first examined Rex Bridwell, a double knee amputee. Bridwell consulted the Respondent due to a vascular disease which caused grangrene and resulted in the amputations. Bridwell's legs had not healed and ulcerous lesions were visual at the amputation sites. Bridwell, who had been unsuccessfully treated for the previous six years, was understandably in a great deal of distress and pain as a result of his condition. The Respondent prescribed painkillers, antibiotics, vitamins and discussed with Bridwell alternative therapy including, prayer, hypnosis and meditation. Bridwell was subsequently examined by the Respondent on February 2, 1982 and March 4, 1982. The Respondent prescribed Tuinal on March 3, 1982, 30 tablets, 3 grams; and Dilaudid on March 23, 1982, 40 tablets, 4 milligrams and April 8, 1982, 24 tablets, 4 milligrams, for Bridwell. These drugs were prescribed for Bridwell's severe pain. Bridwell's clinical record, Petitioner's Exhibit 1(f), and the examinations performed by the Respondent demonstrate that these prescriptions were justified and documented. 3/ On January 26, 1982, the Respondent examined Thomas Sestito, a carpenter, who came to the Respondent complaining of severe back aches which resulted from his falling off a roof in 1979 and subsequently reinjuring his back. X-rays from Baptist Hospital confirmed that Sestito suffered a facture at L2. Sestito's pain was at L4 and LB and radiated into his right thigh. The Respondent diagnosed sciatica and prescribed a total of 70 Dilaudid, 4 milligrams, on January 27, 1982, March 7, 1982 and March 11, 1982 and 30 Tuinal, 200 milligrams, on February 10, 1982. 4/ The prescribing of Dilaudid in this case was justified and is documented by the patient's clinical record, Petitioner's Exhibit 1(g) and the Respondent's examination on January 26, 1982. Finally, the Administrative Complaint charges the Respondent with unlawfully prescribing Dilaudid on April 8, 9 and 14, 1982 to Lee Baker. The clinical record, Petitioner's Exhibit 1(h), indicates that two of these prescriptions were written to "Margaret Baker" and only the April 9, 1982, prescription was written to "Lee Baker." Although Margaret Baker's middle name is "Lee", insufficient testimony was introduced to establish that all three prescriptions were written for the same person. Additionally, the Petitioner did not attempt to amend the Administrative Complaint prior to hearing to conform the allegations contained in the Complaint to the evidence which was to be introduced at final hearing. Accordingly, only the prescription written on April 9, 1982, to Lee Baker is relevant to the allegations contained in Counts 29-32 of the Administrative Complaint. Due to the lack of certainty that "Margaret Lee Baker" and "Lee Baker" are the same person, it follows that the clinical record introduced at final hearing, Petitioner's Exhibit 1(h), might contain two sets of records or one set of incomplete records. Under such circumstances, the Petitioner has failed to prove through the introduction of the clinical record of Margaret Lee Baker, that the Respondent unjustifiably prescribed controlled drugs or kept inadequate records concerning Lee Baker.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Petitioner Board of Medical Examiners enter a Final Order finding the Respondent Sneij guilty of violating Counts 8 and 12 of the Administrative Complaint, not guilty of violating the remaining counts, and placing him on probation for three months subject to the condition that the Respondent demonstrate to the Board of Medical Examiners the adequacy of his present medical record keeping system prior to the end of this period. DONE and ORDERED this 29th day of September, 1983, in Tallahassee, Florida. SHARYN L. SMITH, 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 29th day of September, 1983.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: During times material hereto, and particularly from January 1, 1983 through December 31, 1985, Respondent, Eusebio Subias, M.D., was a licensed medical doctor in Florida, board certified in Psychiatry and an eligible Medicaid provider of psychiatric services pursuant to the Medicaid contract he is party to with DHRS dated October, 1982. (Petitioner's Exhibit 1). Medicaid regulations and guidelines require physicians to meet board certification in psychiatry before they may provide reimbursable psychiatric services to Medicaid eligible recipients. As part of his agreement to participate in the Medicaid Program, Respondent agreed to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance in the state plan. Respondent also agreed to abide by the provisions of pertinent Florida administrative rules, statutes, policies, procedures and directives in the manual of the Florida Medicaid Program. (Petitioner's Exhibit 2). During 1986, the Surveillance & Utilization Review System unit of the Medicaid Office indicated that the amount of Respondent's medicaid billing greatly exceeded that of his peers. Based on that indication, the Office of Program Integrity asked Respondent to provide them with copies of certain medical records for the year 1982. Respondent provided the Department with those records as requested. (Petitioner's Composite Exhibit 3). Those records were forwarded to the peer review committee for evaluation. The records were reviewed by both the local and state peer review committees. The 1982 records contained inadequate information for the peer review committee to document or otherwise justify the number of office visits per patient. The records did not contain reasons for treatment, reasons for frequency of visits or what specific services were rendered to patients. (Petitioner's Exhibits 16 and 17, Pages 3 and 4 and Composite Exhibit 3). On April 21, 1986, Petitioner notified Respondent that it determined that he overbilled Medicaid in the amount of $17,820.09 for the calendar year 1982. Respondent was then notified that a similar review would be conducted for the period January 1, 1983 through December 31, 1985. That review and the results thereof are the subject of this proceeding. The Department subsequently requested, and Respondent provided medical records for 85 specific recipients which were selected by means of the "Disproportionate Stratified Random Sampling" (DSRS). (Petitioner's Exhibit 7). Respondent's 1983-85 records contain substantially more details than the records he provided Petitioner during the 1982 review period. Petitioner had its medical consultant, Dr. Forsthoefel, review the 1983-85 records. He was a member of the peer committee which made the peer review determination in 1982 which was used as a guide for the degree of overutilization. Forsthoefel denied those office visits that he determined were not supported by documentation in the medical records and concluded that the visits were not medically necessary. As a result, Petitioner sent Respondent a letter advising that he had overbilled medicaid in the amount of $79,093.05 for the years 1983-1985. (Petitioner's Exhibits 9 and 13). By letter dated September 5, 1986, Respondent requested a meeting to discuss the Department's proposed action and such a meeting was granted on October 31, 1986 at 1:30 p.m. Dr. Forsthoefel, Dr. Conn, Petitioner's Chief Medical Consultant in 1982, Millie Martin, and Respondent attended the October 31 meeting. During the meeting, Respondent attempted to individually review each of the approximately 3200 medical records for patients he treated during the years 1983-85 such that he could explain and document the medical necessity of each of the patient's office visits. He also requested that Petitioner have the records reviewed by a psychiatrist. Neither Dr. Conn nor Dr. Forsthoefel are psychiatrists. Dr. Conn left soon after the meeting began. Dr. Forsthoefel, unable and unwilling to comply with Respondent's request that each medical record be individually reviewed, concluded that continuing the meeting would not be productive and left after approximately 2 hours. The Department again denied those visits which it had early concluded were not medically necessary based on the review by its medical consultants. By letter dated November 10, 1986, Petitioner again advised Respondent that the Department would seek a $79,093.05 overpayment for the years 1983-85 and advised him of his rights to a formal hearing. Drs. Mutter and Tumarkin were commissioned by Petitioner to review the medical records under scrutiny with each doctor reviewing one half of the records. Based on their review, Respondent was denied reimbursement for even more office visits based on their opinion that the records did not contain sufficient documentation or notations that would indicate continued office visits were medically necessary. (Petitioner's Exhibits 17a and 18). Dr. Tumarkin made his comments on Respondent's medical records in green ink. Those records which did not contain green marking were records numbered 3 and 27 resulting in the Department's overstating the overpayment claim by $125.01. Respondent introduced information regarding Medicaid's denial of claims which should have been billed to Medicare. During the period from May 1985 through December 31, 1985, certain denials fall within the 1983-85 review period and since the Department never paid such claims, the Department agreed at hearing to reduce its overpayment amount by $6,421.44. Also at hearing, Petitioner determined that it made an error in its computation of the figures stated in the November 10, 1986 letter and was now seeking $78,661.93 minus $6,421.44 for the amount claimed to be overbilled by Respondent as $72,240.49. Respondent, who is of hispanic origin, treats a substantial number of Spanish speaking patients. Respondent graduated from medical school in Cuba at the age of 22 and participated in a rotating internship at Mercy Hospital in Hampton, Ohio. He came to Florida in 1963 and was licensed in 1964. In April, 1963, Respondent was employed at Hollywood Memorial Hospital. Respondent was the third Spanish speaking doctor to practice in South Florida and was the first to be promoted to a chairmanship at Hollywood Memorial Hospital. Respondent was the first clinical director at Coral Reef's Hospital. He is a member of several medical societies and was involved in the development of several psychotic drugs, including Elavil. Respondent is board certified in psychiatry. Respondent has staff privileges at Hollywood Memorial Hospital and three other area hospital. He has practiced psychiatry for more than 25 years in the United State and is accomplished in the treatment of severe psychotic patients. Respondent was tendered and received as an expert in psychiatry. Southeastern Florida was inundated during the early 1980's with mentally ill refugees during the Mariel Boat Lift. That area has a uniquely high need for psychiatric services due to its characteristic as a metropolitan area with a large homeless population. The Marlowe Study which was commissioned by Petitioner to review the need for psychiatric services in Dade County during the period which coincided with the Respondent's 1983-1985 office practice here under review, concluded that insufficient resources were earmarked for the treatment of mentally ill residents of Dade County, Florida. Respondent prefers to treat severely psychotic patients on an outpatient basis. He has been very successful in utilizing this method of treatment and it has resulted in substantial public benefit in the form of substantial financial savings that would have otherwise been required to hospitalize such patients for treatment. Respondent is paid $35.01 for a 45 minute session for each Medicaid patient whereas the average cost for inpatient treatment at an area hospital is approximately $400.00 per day. Respondent modified his record keeping practice in 1982 so that his medical records for 1983-85 contained the minimum requirements for medical records necessary to support Medicaid billings as specified in Rule 10C- 7.030(1)(m) and 10C-7.062(1(n) Florida Administrative Code. All of the medical experts testified that Respondent's records for the period at issue here met the minimum requirements specified in the required regulations and DHRS's procedure manuals. Those requirements are: dates of services; patients name and date of birth; name and title of person performing the service, when it is someone other than the billing practitioner; chief complaint on each visit; pertinent medical history; pertinent findings on examinations; medications administered or prescribed; description of treatment when applicable; recommendations for additional treatments or consultations; and tests and results. Petitioner presented testimony through Ms. Martin to the effect that Respondent had admitted during his October 1986 meeting with the medicaid consultants that he had, from memory, gone back and recreated his medical records for 1983-85. Respondent denied this at hearing and credibly testified that based on the deficiencies found in the latter part of 1982 concerning his medical records, he commenced to prepare a complete medical record for each patient visit. Respondent's testimony in this regard is credited and none of the medical professionals, save Ms. Martin, presented any evidence which would call into question the accuracy of Respondent's records during the period 1983- Ms. Martin's testimony to the contrary is rejected. Dr. Forsthoefel candidly admitted that he is not qualified to render an opinion with respect to medical necessity and appropriateness of specialized psychiatric services. Respondent is the first psychiatrist reviewed by the Medicaid officials of Petitioner for over-utilization as Petitioner's officials were unaware of any other psychiatrist who had been reviewed prior to Respondent. The peer review process for determination of over-utilization and mis- utilization of Medicaid services is designed so that the physician being reviewed may discuss individual patient records and cases with the Committee, as well as the Medicaid consultants who later apply peer review findings, and such discussion will be considered in arriving at a final determination. (Peer Review SOP, April, 1987, Respondent's Exhibit 12). An integral part of peer review for the physician being reviewed is to be able to discuss individual cases with the reviewer prior to a final determination being made concerning medical necessity and appropriateness. Such interplay and explanations regarding certain aspects of a case can lead to a more detailed determination concerning an overpayment issue. Respondent's October 1986 review should have been a complete new review of individual records affording him an opportunity to discuss specific cases with the physician consultants, provide him an opportunity to substantiate certain treatments based upon his recollection and justify the treatment modality he utilized for the 85 patients which comprised the random sampling. 2/ Respondent was not permitted to meaningfully discuss those individual cases even though he requested an opportunity to do so. This is so despite Petitioner's consultant's admission that such a consultation would have aided them and perhaps changed their opinion with respect to medical necessity and appropriateness of specific treatments rendered by Respondent. (Testimony of Conn, Forsthoefel, Tumarkin and Whiddon). While some experts would treat severely psychotic patients on a less frequent basis than Respondent and hospitalize them sooner, Respondent's method of treatment is well accepted among qualified board certified psychiatrists. Dr. Tumarkin's different treatment philosophy wherein he favored inpatient treatment for severely psychotic patients while Respondent showed a preference for outpatient treatment, is in no way indicative of inappropriateness by Respondent's method of treatment since his method was proven to be successful. Additionally, one expert, Dr. Tumarkin would have allowed more visits as being medically necessary and appropriate had he been advised by Petitioner's representatives that he should apply the community standard for medical necessity and appropriateness of psychiatric services. A Medicaid provider of psychiatric services is required to provide services equivalent to that of their peers. Had Dr. Tumarkin consulted with Respondent, his opinion concerning medical necessity and appropriateness would have been affected and he would have requested such had he known that he was allowed to. This is especially so based on the fact that his treatment preference is more hospital oriented. It is thus concluded that Respondent was not given a fair opportunity to present circumstances relevant to the overpayment amount in question here, despite his request to do so. (Petitioner's Exhibit 14). A review of a Peer Comparison Analysis with Respondent's practice respecting the number of office procedures per patient performed by him in contrast to other medicaid psychiatrists, indicates that Respondent saw his patients, on average, less than the average for other psychiatrists in Dade, Monroe and Broward Counties between the years 1983-85. (Petitioner's Exhibit 22). Dr. Stillman is board certified in psychiatry and has been practicing for more than 30 years. He reviewed, as Respondent's expert witness, all of the 85 patient charts in question. Dr. Mutter rendered a specific report about the even numbered charts that he reviewed. His reports indicates, with respect to many charts, that he was unable to find specific documentation supporting the reasons and medical necessity for treatment. This testimony was sharply contradicted by that of both Dr. Stillman and Respondent who easily located specific record documentation which indicated the medical necessity and reasons for services provided to patients by Respondent. Examples of over-utilization from Dr. Mutter's report were inquired about and on each occasion, Respondent and Dr. Stillman were able to identify documents not referred to by Dr. Mutter that substantiated the medical need and reasons for treatment. Drs. Subias and Stillman's testimony was not contradicted by Petitioner. Without going through each patient's records, a review of the findings concerning several patients is illustrative and will be herein discussed. Patient number 85, S. T., Jr. 3/ was a schizophrenic, suffering from epilepsy with borderline intellectual functioning. He was a very psychotic patient who was, during his early years, treated in an institution. (Petitioner's Composite Exhibit 5). He was obese, apprehensive, disoriented, suffered from impaired insight and judgment, a depressed mood, flat affect and a constant feeling of rejection. Respondent commenced treating patient number 85 twice weekly as an outpatient and as his condition improved, he was seen once a week and office visits were reduced further as his condition continued to improve. Without this intense continuity of treatment, patient number 85 would have decompensated and would have required an extensive institutionalization. Respondent provided substantial documentation as to the need for each of S. T.'s visits. Patient number 83, C. C., was a schizophrenic who suffered from depression, was delusional with a flat affect, poor reality contact and went through extended periods of depression on a monthly basis. Respondent prescribed benadryl to counteract patient C. C.'s delusional symptoms and otherwise justified his method of treatments, frequency and reason for each visit. Respondent substantiated that it was medically necessary to treat patient C. C. on each occasion where treatment was provided. Respondent's medical records provided the documentation for treatment in each instance. Patient number 81, F. D., was a schizophrenic who suffered severe mental depression. His condition had deteriorated to the point whereby family therapy sessions had to be scheduled by Respondent. Respondent was able to keep F. D. out of the hospital, he remained with his family and his condition improved to the point where the frequency of visits were reduced. Respondent's records justified the medical necessity and reasons for the treatment he provided patient F. D. Respondent testified as to his method of treatment as to patients 88, 78, 77, 52, 56, 48, 46, 38, 40, 60, 68 and as to each of those patients, Respondent's records document that the patients treatment and visits were medically necessary and appropriate. Dr. Stillman demonstrated that on each occasion, there was substantial record documentation which supported the necessity for the treatment as provided by Respondent. Based upon the inconsistent evidence presented by Petitioner respecting its claim that Respondent failed to document the medical necessity for the treatment he provided to the patients during the years 1983-85 and the direct evidence presented by Respondent which established that all of the services rendered by him to Medicaid recipients were medically necessary and appropriate under the circumstances, it is concluded that Petitioner failed to establish by a preponderance of the evidence that any of the treatments here in dispute were unnecessary, inappropriate or were not otherwise documented by the medical records under review. Moreover, all of the experts agree that the treating psychiatrist is best able to determine the medical necessity and appropriateness of specific treatments to render to a patient as that psychiatrist has direct contact with, and is best able to fully apply his or her training and experience. Respondent amply demonstrated that the services here at issue were medically necessary, appropriate and was of clear benefit to the patient. Petitioner has failed to meet its burden of establishing any basis for an overpayment as claimed. 4/
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 finding that there was no overpayment to Respondent during the years 1983- 85. Respondent is entitled to a refund of all monies held pursuant to the overpayment calculation by the Department in this cause together with 10% for annual interest pursuant to Rule 10C-7.060(12), Florida Administrative Code. DONE and ORDERED this 18th day of November, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1988.
