The Issue Whether the amount sought to be recovered from Petitioner for Medicaid overpayments by the Agency is correct.
Findings Of Fact Petitioner is a licensed pediatrician who provided services to Medicaid beneficiaries. Petitioner voluntarily signed a Medicaid Provider Agreement, and was subject to all of the duly-enacted statutes, rules, and policies pertaining to Medicaid providers. On January 10, 2001, the Agency issued a Final Agency Audit Report (Audit Report), requesting Petitioner to reimburse the Agency $42,713.15, for certain services Petitioner rendered to Medicaid recipients between October 19, 1997, and October 19, 1999. (R-4, pg. 1) The determination of overpayment was based upon audit findings that the services provided by Petitioner did not meet the Medicaid criteria. These criteria include: lack of medical necessity; lack of documentation for the services rendered to support the higher level of office visit billed; medical records inappropriately maintained; the required elements for early periodic screening for diagnosis and treatment services not performed; services erroneously coded on submitted claims; evaluation and management services improperly documented in the medical records; laboratory tests improperly billed; two billing codes used in instances in which one code incorporates the elements of the other; new patient billing codes used for patients who did not meet the requisite new patient criteria; and evaluation and management services billed absent the requisite face-to-face encounter. (R-4, pgs. 2-3) Testimony of Brenda Turner Brenda Turner testified at hearing on May 22, 2001, in Tallahassee, Florida. Ms. Turner is a human services program specialist employed by the Bureau of Medicaid Program Integrity at the Agency. As a human services program specialist, Ms. Turner's primary responsibility is to conduct audits of Medicaid providers. The Agency performed an audit of Petitioner's Medicaid billings for the period October 1997 through October 1999. As part of this audit, the Agency generated a list of 31 Medicaid recipients (cluster sample) rendered services by Petitioner during the audit period. These medical records (R-6) were examined by Ms. Turner, Ms. Johnson, and Dr. Deeb. In addition, the Agency generated work papers of the total amount Petitioner billed during the audit period, the total number of recipients Petitioner rendered services to during the audit period, and the total times Petitioner billed any claim. (R-11) Ms. Turner completed a summary report of her on-site visit. The primary finding of her report was that Petitioner did not have on-site the appropriate equipment for certain services for which Petitioner had submitted claims. Subsequent to an on-site visit of Petitioner's office in December 1999 by Agency staff, Petitioner was asked to provide the Agency with answers to a questionnaire and medical records relating to the cluster sample. Petitioner submitted medical records for the cluster sample as requested by the Agency. These records were given to an Agency registered nursing consultant, Margerite Johnson, and physician consultant, Dr. Larry Deeb, for review. After their review, Ms. Johnson and Dr. Deeb provided Ms. Turner with worksheets outlining their review findings and a medical record review report. (R-16) Based upon the information contained in the worksheets and medical record review report, including the total claims, the total amount billed, and the total amount disallowed, Ms. Turner used a statistical program to calculate with a computer the amount Petitioner was overpaid during the audit period. The statistical methodology utilized by the Agency in determining the overpayment amount was not contested and was not an issue. Petitioner was sent a preliminary letter notifying him of the calculated overpayment amount. Subsequent to his receipt of the preliminary letter, Petitioner submitted additional documentation to contest the audit findings. Petitioner's additional documentation was submitted to Ms. Johnson and Dr. Deeb for review. Ms. Johnson and Dr. Deeb produced a second medical record report review containing findings which they gave to Ms. Turner. (R-16) Based upon the conclusions of the second medical record report, Ms. Turner recalculated the amount Petitioner was overpaid during the audit period. (R-10) The Agency sent Petitioner a final agency action letter on January 10, 2001, setting forth the recalculated overpayment amount of $42,713.15. Testimony of Margerite Johnson Margerite Johnson testified at hearing on May 22, 2001, in Tallahassee, Florida. Ms. Johnson is a registered nursing consultant employed by the Bureau of Medicaid Program Integrity at the Agency. As part of her duties with the Agency, Ms. Johnson reviews medical records to determine whether they are compliant with the current Physician's Procedural Terminology Manual and Medicaid policies, including the Medicaid Provider Reimbursement Handbook, HCFA-1500 and Child Health Check-Up, the Physician's Coverage and Limitations Handbook, and the EPSDT Coverage and Limitations Handbook. Ms. Johnson received medical record review sheets listing all of the claims submitted by Petitioner for the cluster sample during the audit period. She also received the medical records submitted by Petitioner pertaining to the cluster sample. Ms. Johnson reviewed these materials to ensure that documentation was provided for each service listed on the review sheets and that the medical records complied with Medicaid policy. Ms. Johnson wrote a report of the policy violations she observed during her review of the medical record review sheets and corresponding medical records. She then transmitted to Dr. Deeb for further review, her report, the medical record review sheets, and the medical records provided by Petitioner. Subsequent to Dr. Deeb's review, the medical records and medical record review sheets with Dr. Deeb's comments were returned to Ms. Johnson. Based on Dr. Deeb's notations on the medical record review sheets, Ms. Johnson indicated on the medical record review sheets whether a claim should be allowed, adjusted, or denied. For those claims on which a determination was made that the claim should be adjusted or denied, Ms. Johnson indicated the difference between the amount the Agency paid for the claim and the amount the Florida Medicaid Management System providers should have been paid for the type of service rendered. Ms. Johnson also indicated the reason for the denial of the claim on the medical record review sheets. Using the information from the medical record review sheets, Ms. Johnson prepared a report that sets forth the policy findings by Ms. Johnson and the medical necessity and level of care findings by Dr. Deeb. (R-16) As indicated on the medical record review report (R-16), Ms. Johnson identified several claims from the cluster sample where the medical records maintained by Petitioner did not contain appropriate documentation of the billed services. (R-46) After reviewing all of the documentation provided by Petitioner, including the additional documentation that was not contemporaneous with the actual date of services, Ms. Johnson determined that there were no records in the files for the claims set forth in Respondent's Exhibit No. 46. An examination of the entries on R-46 for the Patients 1, 3, and 7, and comparison with the record of visits in R-6 reveal that there are records present for all the visits except those for Patient #1 and Patient #7 on 9-1-98. Having discovered so many records which were supposedly present, R-46 was determined to be grossly inaccurate as a listing of visits without records and rejected. Because Ms. Johnson determined that there were no records in the files for the claims set forth in Respondent's Exhibit No. 46 as required by the Medicaid Provider Reimbursement Handbooks, she concluded that said claims should be denied. This was clearly an error in fact. In addition, Ms. Johnson identified ten claims that were an early and periodic screening diagnosis and treatment (EPSDT), or well-child examinations. Chapter 3 of the EPSDT Coverage and Limitations Handbook provides regarding EPSDT reimbursement that, "The fee includes all the screening components and the diagnosis and treatment of problems that can be diagnosed and treated during screening, such as early otitis media." However, it goes on to say, "Under federal law, Florida must provide medically necessary treatments, as described below, for all medical conditions that are diagnosed during EPSDT screening. Once the recipient is screened, any further diagnoses and treatments are provided through the applicable Medicaid program, such as physician services." See Page 2-2, Chapter 2. There are numerous components in the EPSDT screening. If the provider "vaguely mentions" the required components, Ms. Johnson will approve the corresponding claims. Ms. Johnson's three claims involved lead screenings, which were not performed during an EPSDT visit. Page 2-13, Chapter 2, states regarding required laboratory tests for lead, "Providers must perform lead poisoning and risk assessment, blood lead testing, and counseling and document the results in the recipient's medical record." Regarding Blood Lead Testing, Page 3-2, Chapter 3 of the EPSDT Coverage and Limitations Handbook provides regarding EPSDT Reimbursement, "Certain providers may also be reimbursed for blood lead testing and other laboratory services." On the same page, Chapter 3, goes on to state, "In addition to the EPSDT screening, certain providers may be reimbursed blood lead testing through their provider specific Medicaid programs, such as physician services." Petitioner pointed out without contradiction that his clinic was too far from the laboratory to perform a blood test for lead because the test is time critical. He could assess risk and could counsel patients, but he could not submit a valid test for blood lead. Petitioner referred patients to the Health Department for lead testing. The fee for the EPSDT examination was reduced by $40 to pay an amount equal to the 213 service code. There is no suggestion that the value of the lead blood test is $40. The EPSDT screening requires taking various examinations, extensive history, and counseling of the parent. As pointed out elsewhere, the examinations are part of and compensated as part of the EPSDT screen. Although the visit fee was reduced, there is no evidence that Petitioner was compensated for audiometry, and similar tests included in the EPSDT screen fee. The audit revealed EPSDT screening billed on the same date as evaluation and management services or office visit. (R-51) Page 2-62 of the November 1997 Physician Coverage and Limitations Handbook provides that Code W9881, the code for an EPSDT screening, is considered a visit code and is "not reimbursable in addition to an office, home, or hospital visit." (R-27, pg. 4) Page 2-3 of the July 1997 EPSDT Coverage and Limitations Handbook provides that "[b]ased on his medical discretion, a provider should not perform an EPSDT screening on an obviously sick recipient, because the illness may distort the screening results." If the patient is sick when he or she presents for an EPSDT visit, the provider should treat or refer the recipient for the illness and reschedule the screening appointment. (R-32, pg. 3) Dr. Deeb reviewed the records submitted by Petitioner for those claims where an EPSDT screening and evaluation and management services were simultaneously billed, and determined that both procedures were not medically necessary. Ms. Johnson gave Petitioner credit for the more expensive of the two billed procedures when an EPSDT and an office visits were billed for the same recipient on the same date of service, but not both. As stated above, the record does not reflect Petitioner was similarly credited with tests normally included in EPSDT screens which are not part of an office visit. (R-16, pg. 1, 3) Ms. Johnson identified 12 claims from the cluster sample that were erroneously coded. (R-49, pg. 1) However, the Agency concedes and withdraws its allegations that the 12 claims listed in Respondent's Exhibit No. 49 were in error. Ms. Johnson also identified two claims from the cluster sample where Petitioner billed for an office visit when immunizations were the only documented services rendered. Page 2-37 of the Physician's Coverage and Limitations Handbook provides that "[e]valuation and management (E&M) services are reimbursable in addition to the injectable medicine service, provided the visit is for a separate and identifiable service and the services are documented in the medical record." There was no indication in Petitioner's records that a separate and identifiable service was also rendered on the date the immunizations were provided. (R-41) Accordingly, the claims for an office visit where immunizations were the only documented services rendered should be denied. (R-16) Ms. Johnson identified four claims from the cluster sample where Petitioner billed for hemoglobin and hematocrit tests as procedures separate from the general office visit. (R-43) These were improper billings since the costs for the hematocrit and hemoglobin procedures were included in the amount of money Petitioner was already reimbursed for an office visit. Page 2-49 of the January 1996 Physician's Coverage and Limitations Handbook provides that ". . . fingerstick hemoglobin and hematocrit performed as part of a physician visit are not reimbursed in addition to the physician visit. The provider may not bill for them as separate procedures." This same language appears on page 2-63 of the November 1997 Physician's Coverage and Limitations Handbook. Page 2-73 of the January 1999 Physician's Coverage and Limitations Handbook provides that ". . . hemoglobin and hematocrit performed as part of a physician visit are not reimbursed in addition to the physician visit. The provider may not bill for them as separate procedures." Petitioner submitted claims for a pure tone audiometry, procedure code 92552, on the same day and for the same recipients that he submitted claims for EPSDT. (R-48) EPSDT, or early and periodic screening diagnosis and treatment, is a multiple component comprehensive exam of a well-child, and includes a standardized hearing test. Pure tone audiometry is included in the billing code for an EPSDT screening, and the audiometry and EPSDT screening should not be billed simultaneously. Page 2-12 of the December 1996 and the July 1997 EPSDT Coverage and Limitations Handbooks provide that a Medicaid provider "must perform a hearing screening on all recipients at each EPSDT screening." (R-32, pg. 11) Accordingly, Ms. Johnson concluded that the claims for a pure tone audiometry submitted simultaneously with the EPSDT screenings should be denied. (R-16, pg. 2, 4) Ms. Johnson identified one claim in which Petitioner billed for a new patient visit for a patient who had been previously seen by Petitioner. (R-42) The Physician's Coverage and Limitations Handbook defines a new patient as "one who has not received any professional services from a physician or another physician of the same specialty who belongs to the same group practice, within the past three years." An established patient "is one who has received professional services from a physician . . . within the past three years." The Handbook provides that only "[o]ne new patient visit may be reimbursed once per recipient." Accordingly, Ms. Johnson concluded that the claim for a new patient who was previously rendered services should be denied. (R-16, pg. 4) However, Ms. Johnson treated the visit as a relatively simple doctor's visit, a 213. The records reveal the patient, an infant, presented holding both ears, spitting up since its formula was changed, and had continual constipation. Petitioner spent a great deal of time diagnosing and treating the patient. Under the criteria stated by Dr. Deeb, the patient presented with more than one problem involving more than one body system, and required a complex diagnosis. This visit was not a simple 213 office visit. In her Medical Record Review Report, Ms. Johnson determined that Petitioner had billed Medicaid "for dipstick urine, which is all-inclusive in the office visit." (R-16 & 44) Page 2-49 of the January 1996 Physician's Coverage and Limitations Handbook provides that "[d]ipstick urine . . . performed as part of a physician visit are not reimbursed in addition to the physician visit. The provider may not bill for them as separate procedures." This same language appears on Page 2-63 of the November 1997 Physician's Coverage and Limitations Handbook. Page 2-73 of the January 1999 Physician's Coverage and Limitations Handbook provides that "[m]annual or automated dipstick urine . . . performed as part of a physician visit are not reimbursed in addition to the physician visit. The provider may not bill for them as separate procedures." Accordingly, Ms. Johnson concluded that the claims for dipstick urine in addition to the physician visit should be denied. (R-16, pg. 4) Ms. Johnson identified one claim in which Petitioner billed Medicaid for a test performed by an independent lab. (R-47, pg. 1) Page 2-45 of the January 1996 Physician's Coverage and Limitations Handbook provides that services for specimens sent to an independent laboratory are reimbursed to the independent laboratory. (R-47, pg. 2) This same language appears on Pages 2-57 of the November 1997 Physician's Coverage and Limitations Handbook and Pages 2-67 of the January 1999 Physician's Coverage and Limitations Handbook. (R-47, pg. 3, 5) Accordingly, Ms. Johnson concluded that the claim for the test performed by the independent laboratory should be denied. (R-16, pg. 4) Ms. Johnson identified one claim in which Petitioner billed Medicaid for an office visit where no patient contact was documented. (R-16, pg. 2; R-45) However, the Agency concedes on this issue, and would adjust its claim accordingly. The Medical Record Review Report, Respondent's Exhibit No. 16, reflects the sum of Ms. Johnson's conclusions after conducting two reviews of Petitioner's records regarding why certain claims should be denied. The totals stated in R-16, which is a compilation of the other exhibits including R-46, are wrong. Testimony of Dr. Larry Deeb Dr. Larry Deeb testified at hearing on May 22, 2001, in Tallahassee, Florida. In addition, the deposition of Dr. Deeb on January 31, 2002; February 4, 2002; February 14, 2002; and February 15, 2002, was offered in lieu of trial testimony. (Notice of Continuing Deposition, 2/7/02) Dr. Deeb is a licensed pediatrician, certified by the American Board of Pediatrics in both pediatrics and pediatric endocrinology. (R-1) Dr. Deeb currently practices pediatric medicine. Dr. Deeb is a peer of Petitioner. In addition, Dr. Deeb has served as a consultant for the Medicaid program since 1981. Dr. Deeb testified that he has conducted peer reviews of Medicaid providers for the Agency for 20 years. Medical records of the audited patients were introduced. Testimony from the auditors indicated that some records were initially obtained from Petitioner, and in reply to their initial letter, additional records were provided. There was also testimony that only contemporaneous records could be considered in substantiating whether a procedure or services were medically necessary. All materials included in Respondent's Exhibit No. 6, to include those documents indicated to be "Additional Documents," were examined and considered. Dr. Deeb was provided a set of documents, which were entered into evidence as Respondent's Exhibit No. 6, by the Agency. Dr. Deeb was asked by Ms. Johnson to review Respondent's Exhibit No. 6 and determine "the level of service provided for the actual visits, and . . . the medical necessity of the visits and/or the ancillary services provided." After conducting his initial review of Petitioner's records, Dr. Deeb reviewed all of the additional documentation Petitioner provided to rebut Dr. Deeb's initial conclusions. After Dr. Deeb concluded his review of the documents included in Respondent's Exhibit No. 6, he returned the documents, his notations on the medical record review sheets, and a short memo of his conclusions to Ms. Johnson. (R-16) In reviewing Petitioner's records, Dr. Deeb determined that the claims submitted to Medicaid reflected a "significant inflation of the level of service," included charges for "prolonged physician attendance" without justification, and contained "wholesale billing for tympanometry." Dr. Deeb observed that "[v]irtually every patient had a tympanometry," regardless of the condition or symptoms the patient demonstrated to Petitioner. A tympanogram is a graph of how well the ear drum moves and is used to diagnose inner ear infections or otitis media. Dr. Deeb concluded that Petitioner repeatedly billed Medicaid for tympanometry services when the documentation in the medical records did not indicate that the services were medically necessary. Petitioner admitted that he gave a tympanogram to nearly every patient he saw without regard to their presenting complaint based upon his experience with young patients. Dr. Deeb testified concerning medically appropriate conditions for billing tympanometry. It is medically necessary to confirm a diagnosis when one is not sure, and to confirm if the patient has improved. A review of the 31 patient records reveals that 211 tympanograms were performed. Of these, the Agency found that seven were reimbursable. The Agency would deny compensation for 17 of 18 tympanograms performed during well-child visits because they are included in the services and fees to be provided. It would approve one procedure which was performed during a well- child visit and reveal the patient had an inner ear infection. A careful review of the 211 tympanograms performed reveals 98 other instances in which the tympanogram performed revealed a child had an inner ear infection or in which the procedure was performed to respond to a specific complaint related to the patient's ears, and was appropriately billed and paid under the principles outlined by Dr. Deeb. See Vol. I, Page 93 of Transcript of Proceedings. When making a determination about level of service, Dr. Deeb relies on the current Procedural Terminology Handbook published by the American Medical Association. The current Procedural Terminology Handbook is used by the medical community, the Agency, the Health Care Financing Administration, and most private insurers "as the methodology for billing and payment." The level of service codes varies according to the complexity of the office visit. The level of service code depends upon three elements: "the complexity of the history, the detail of the physical examination, and the medical decision-making complexity." There are five levels of service for repeat office visits, ranging from 99211 through 99215, depending upon the complexity of the visit. A 211 is a visit in which the patient is seen by staff and a 212 would be a very simple case, i.e., taking out stitches and checking a wound. In Dr. Deeb's experience, "the vast majority of visits in a pediatrician's office are 213s." Dr. Deeb observed "there were significant numbers of 99214s and 215s billed where the complexity and the data provided didn't justify" in the records he examined. Mentioned specifically and emphatically was the failure to take a detailed history on a follow-up visit. A review of the records indicates that Petitioner took careful histories on his patients' past medical involvement, family histories, and social histories upon initially examining a patient or when the patient presented with a complaint. His notes frequently reflect detailed interaction with a patient presenting with a sore throat regarding the patients hyper- activity, behavior in school, and grades. The records also reveal patients who developed over time more complex medical problems. Further, these records indicate time spent was spent on some medical condition the patient had and which was mentioned in the clinical notes maintained by Petitioner. This conforms to Dr. Deeb's working definition provided for "medical necessity." Dr. Deeb testified that Petitioner's records contained no documentation that Petitioner spent additional time with the patient. The Physician's current Procedural Terminology Handbook "allows the physician to charge when they are there for additional time." The records contained in R-6 reveal that in the overwhelming majority of cases Petitioner documented additional time spent with his patients. The treatment by the Agency of Petitioner's billing for Patient #8 is particularly at odds with the standards which the Agency maintains that it follows. Patient #8 was a nine- day-old infant who presented for an EPSDT visit. The visit revealed a cardiac problem which resulted in its transfer to Shand's Emergency Room by ambulance. All Petitioner's notes apparently were not copied because they state "over," indicating added notes were made on the back of the form; however, there are sufficient notes contained in the record to support Petitioner's claim for extra time and for a complex visit. Continuing with Patient #8, the record reflects a patient with significant continuing problems who was transported to the emergency room on two more occasions, once after the infant stopped breathing. The Agency wants to reduce this code for this patient's visits to 214 on the occasion of its transport to Shand's and again after it stopped breathing. The Agency wants to reduce the code for the visit when cardiac testing was repeated from 215 to 213. The notes reflect that the child was in for testing, but presented with a cough it had had since birth and was still prone to super ventricular tachycardia. In sum, Patient #8 was a complex patient with complex problems requiring high level thinking, the criteria for a high level visit. Dr. Deeb indicated in his testimony the scale ran from 212, a re-check visit, to 213, a simple medical problem, to 214, a more complex medical problem or multiple medical problems, to 215, which were very complex problem or problems. The reductions proposed in the billing codes for many of Petitioner's patient visits are inconsistent with the standards expressed by Dr. Deeb, as evidenced by the audit recommendations with regard to Patient #8. A similar pattern occurs with other patients generally or with regard to specific visits. It should be remembered that some patients' conditions changed over time to become more complex. Others presented on one occasion with several things occurring at the same time. In either instance, they presented a situation beyond that of a simple patient. See Patients 9(4-12-99), 12, 15, 16(6-8-99), 17, 23, 24, 25, 26(1-21-99 & 4-6-99), 27, 28(5-28-99 & 6-17-99), 29(9-3-99), and 30(4-21-97). The auditors proposed to reduce not only the code applicable to the visit, but to deny the claim for additional time. A review of the record reveals instances in which, even if a reduction in the code were warranted, there was a medical need for spending additional time with the patient and it was documented in Petitioner's records. This included time spent counseling patients, obtaining added history about their behavior and performance in school, and discussing referrals with parents. In most instances, Petitioner's spending extra time coincided with a complex patient presenting with more complex medical problems. The auditors conclusions regarding Patient #26's visit of 5-11-99 is consistent with Dr. Deeb's testimony. Unfortunately, the audit conclusions with regard to treatment of Patient #26 on other dates are consistent with Dr. Deeb's testimony regarding the standards of review, as are the conclusions reached with regard to other patients. Using the standard applied to the visit of 5-11-99 of Patient #26, very few of the proposed reductions would be as deep as the agency would propose, and others would not be reduced at all.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Respondent recompute the claim and re-file against the Petitioner, who would have a limited right to contest the new claim. DONE AND ENTERED this 19th day of July, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 19th day of July, 2002. COPIES FURNISHED: Anthony L. Conticello, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Tony C. Rich 1710 Northwest 42nd Street Gainesville, Florida 32605 Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of paragraphs (m), (q), and (t) of Section 458.331(1) Florida Statutes.1
Findings Of Fact At all times material to this case, the Respondent, Donald A. Tobkin, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is 30942.5 Sometime during the month of December 2004, the Police Department of Hollywood, Florida, (HPD) received information from a confidential informant that the Respondent was soliciting drug-prescribing business and was writing inappropriate and excessive prescriptions for controlled substances. On the basis of that information, the HPD initiated an undercover operation to investigate the information received from the confidential informant. As part of the undercover investigation, on the evening of January 20, 2005, at approximately 9:56pm, an HPD female detective named Nicole Coffin made a telephone call to the Respondent's telephone. The Respondent answered the telephone and identified himself by name. Detective Coffin pretended to be a person named Melissa Beech. She pretended to be a person who was seeking to obtain OxyContin, which is a Schedule II controlled substance. During the entire undercover investigation, Detective Coffin pretended to be a drug-seeker while interacting with the Respondent. On the telephone she told the Respondent that she wanted a prescription for OxyContin and also told the Respondent that a girl somewhere on Federal Highway had given her the Respondent's card and had told her she could call the Respondent if she needed a prescription. Detective Coffin, in her role as Melissa Beech, did not initially describe any medical complaint to the Respondent; she just said she wanted a prescription for OxyContin. In response to the request for a prescription for OxyContin, the Respondent told the make-believe drug-seeker that he could provide the requested prescription, but that they would have to have a "medical reason" for such a prescription. The Respondent then asked the make-believe drug-seeker if she had ever been in an automobile accident. The make-believe drug-seeker answered "yes," because that is the answer she thought would provide a basis for a "medical reason." The Respondent then proceeded to ask the make-believe drug-seeker a long series of leading questions which, if answered "yes," could provide the appearance of a "medical reason" for the requested prescription for OxyContin. This series of questions was for the purpose of establishing a contrived "medical reason" for the prescription sought by the make-believe drug-seeker. There never was, and there never appeared to be, any real "medical reason" for the prescription sought by the make-believe drug-seeker. The sole purpose for the many questions asked by the Respondent, and for the Respondent's written notations related to those questions, was to create the illusion, or the false impression, that there was a "medical reason' for the prescription when, in fact, there was no such reason. The detective who was pretending to be a drug-seeker answered "yes" to all of the leading questions asked by the Respondent. She answered "yes," even when that was not a truthful answer, because she was trying to give the answers she thought the Respondent wanted to hear.6 The Respondent's leading questions included questions asking about such things as whether the make-believe drug-seeker had ever had an automobile accident, whether she had suffered a herniated disk as a result of that accident, whether she had had an MRI, whether she had had any subsequent accidents, whether she had tried any other drugs to relieve pain, whether she had used Oxycontin in the past, and whether in the past the Oxycontin had relieved her pain. During the course of the first telephone conversation between Detective Coffin and the Respondent a number of significant matters were not discussed. The Respondent did not discuss the possibility of surgical treatments to treat the back pain described in response to the Respondent's questions. The Respondent did not discuss the necessity of reviewing the MRI or X-rays that supposedly would confirm the "herniated disc" he had inquired about. The Respondent did not discuss the necessity of obtaining future MRIs, X-rays, or other diagnostic tests to evaluate the "severe back pain" supposedly described by Detective Coffin in her role as Melissa Beech. The Respondent did not mention that she would need to have any follow-up visits with the Respondent. During the course of the first conversation between Detective Coffin and the Respondent, she told the Respondent that she had previously been obtaining Oxycontin "off the street" and that she was seeking a prescription from the Respondent because her street source had "dried up." She also told him that she had previously taken Valium and Percocet. During the course of the first telephone conversation Detective Coffin, pretending to be a drug-seeker, told the Respondent that she suffered from back pain as a result of the make-believe automobile accidents. She did not say that she was currently experiencing pain at the time of that telephone conversation. During the first telephone conversation the Respondent did not ask the make-believe drug-seeker any questions about her menstrual cycle, about whether she was pregnant, or about whether she had had any prior pregnancies or had ever had any children. However, in his written notes the Respondent included notations that purport to be answers to those unasked questions. Similarly, the Respondent did not ask the make-believe drug-seeker any questions about her consumption of alcohol, but included in his notes notations that purport to memorialize the answer to that unasked question. The Respondent's "history" notes also report that he warned the make-believe drug-seeker that OxyContin tablets should not be crushed or broken, even though he did not include any such warning in his telephone conversation with the make-believe drug-seeker. During the first telephone conversation, Detective Coffin was never asked about, and never provided any information about, whether other physicians had either prescribed OxyContin for her or had refused to prescribe OxyContin for her. The only prior sources of OxyContin she mentioned to the Respondent were non-prescription illegal sources on the street. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan for addiction. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan to treat a complaint of "severe pain." During the course of the first telephone conversation, the Respondent agreed to provide a prescription to the make- believe drug-seeker for a total of sixty-two 80-milligram OxyContin tablets. It was agreed that the make-believe drug- seeker would pay $100.00 for the first prescription and that the Respondent would provide similar prescriptions in the future for $50.00 per prescription. Towards the end of the first telephone conversation the Respondent told the make-believe drug-seeker that he had another matter to attend to and that she should call him later to arrange the time and place for the two of them to meet later that same evening. During the course of the first telephone conversation, which lasted for approximately 14 minutes, the Respondent made written notes of the answers given by the make-believe drug-seeker. Those notes were prepared in such a manner as to resemble the types of notes customarily made by physicians who are making a medical record of information elicited from a patient. A number of the details recorded in the Respondent's notes of the first telephone conversation were inconsistent with the information provided by the make-believe drug-seeker. Specifically, those notes contained a significant amount of information that was never uttered by the make-believe drug- seeker. The fictitious and false history details memorialized in the Respondent's notes are intentional falsehoods. Later that evening, at approximately 12:20am on January 21, 2005, Detective Coffin, still pretending to be the drug-seeking person named Melissa Beech, placed a second telephone call to the Respondent. She spoke with the Respondent for about three minutes on this occasion. Most of the second conversation consisted of providing the Respondent with information about the location where Detective Coffin would be waiting for him and information about where the Respondent should park when he arrived. Law enforcement officers of the HPD attempted to record both of the telephone conversations between the Respondent and Detective Coffin. Both of those attempts were unsuccessful. There is no recording of either of the telephone conversations. Sometime later that evening, during the early morning hours of January 21, 2005, the Respondent met the make-believe drug-seeker at the motel or efficiency apartment. He entered the room where the make-believe drug-seeker was pretending to be staying. Prior to his arrival, two cameras had been concealed in the room by the HPD police officers. During the entire time the Respondent was in the room the two cameras were attempting to record everything he said and everything he did, as well as everything said or done by the detective pretending to be the drug-seeking person named Melissa Beech. After entering the room, the Respondent spoke with the make-believe drug-seeker and asked her additional questions related to her request for a prescription for OxyContin. He made some written notes that purported to be summaries of her answers. During the course of the meeting with the make-believe drug-seeker the Respondent provided her with a document titled "Patient's Acknowledgement," which she signed, but did not read. That document contained information about the patient-physician relationship, about what was expected of the patient, and also memorialized the patient's informed consent to the treatment she was requesting from the Respondent. The Respondent also conducted a brief physical examination of the make-believe patient and made written notes that purported to be a memorialization of what he had observed during the course of his examination. The Respondent's examination of the make-believe drug-seeker included the following: check of pulse and blood pressure, check of reflex responses at several joints, and check of chest sounds with stethoscope. The Respondent performed a deep tendon reflex test on Detective Coffin by striking her wrists, elbows, and knees with a medical hammer. Detective Coffin's feet remained on the floor during this test. A deep tendon reflex test cannot be performed properly with the subject's feet touching the floor. Such a test performed in such a manner will not produce reliable results. The Respondent indicated in his written notes that he had examined Detective Coffin's head, eyes, ears, nose, and throat. However, the Respondent did not perform any examination at all of Detective Coffin's head, ears, nose, or throat. The Respondent perhaps performed a partial examination of Detective Coffin's eyes, but did not perform an adequate examination of her eyes. The Respondent indicated in his written notes that Detective Coffin's pupils were equal, round, and reactive to light and accommodation. However, the Respondent did not conduct any examination of Detective Coffin's eyes that was sufficient to support a conclusion that they were equal, round, and reactive to light and accommodation. The Respondent included in his written notes that Detective Coffin's chest and lungs were clear to auscultation and percussion. The Respondent did not examine Detective Coffin in a manner that could determine whether her chest and lungs were clear to auscultation and percussion. Therefore, the Respondent did not have any basis for writing that the detective's chest and lungs were clear to auscultation and percussion. The Respondent included in his written notes an observation that Detective Coffin's abdomen was soft. The Respondent never touched or otherwise examined Detective Coffin's abdomen. The Respondent had no factual basis for writing that Detective Coffin's abdomen was soft. In his written notes the Respondent indicated that Detective Coffin experienced pain upon lifting her leg thirty degrees. Detective Coffin never raised either leg in the Respondent's presence and never complained of pain in his presence. There was no factual basis for the subject notation. The Respondent never conducted a Rhomberg examination on Detective Coffin, but he included in his written notes an observation that a Rhomberg test was negative. There was no factual basis for such a notation. The Respondent included in his written notes an observation that he had examined Detective Coffin's gait. However, the Respondent never performed an adequate and sufficient examination of Detective Coffin's gait. The Respondent did not conduct a range of motion test of Detective Coffin. The Respondent never asked Detective Coffin to lift her leg towards her chest. Nor did he ask her to touch her toes. The Respondent never asked her to manipulate her body in any way. At no time during the encounter between Detective Coffin and the Respondent did Detective Coffin state that she was experiencing pain. At no time during that encounter did she behave or move in any manner that would suggest she was experiencing pain. To the contrary, Detective Coffin crossed and uncrossed her legs, alternatively slouched and sat up straight in her chair, and made other movements that would indicate to a reasonable prudent physician that she was not experiencing any pain at all. The Respondent never discussed with Detective Coffin the necessity of obtaining further MRIs, X-rays, or other forms of diagnostic testing. He never discussed any need to obtain and review any prior medical records. The Respondent never asked Detective Coffin to sign a medical records release document that would have authorized the Respondent to obtain prior medical records. The Respondent's written notations regarding his examination of the make-believe drug-seeker contain false information because, among other things, the notations contain the results of tests and examinations the Respondent did not perform. Such false notations are intentional falsehoods. The Respondent never discussed with Detective Coffin the need for a follow-up appointment. The Respondent never asked Detective Coffin for any form of identification. Under the circumstances presented in this case, a reasonable prudent physician would have performed a range of motion test and a leg-raising test, neither of which were performed by the Respondent. Under the circumstances presented in this case, a reasonably prudent physician would have established a treatment plan that would have included a schedule for follow-up visits, a review of prior medical records, and plans for future diagnostic tests. The Respondent did not establish any type of treatment plan. The prescription provided to Detective Coffin was inappropriate, unjustified, and excessive because the physical examination was inadequate, the medical record was falsified, and the patient never exhibited any sign of being in pain. Under the circumstances presented in this case, the Respondent's act of providing a prescription to a total stranger with no medical justification for doing so was an action taken other than in the course of the Respondent's professional practice. Ultimately, the Respondent wrote and delivered a prescription to the make-believe patient. The prescription was for sixty-two 80-milligram tablets of OxyContin. This was a 31- day supply if the OxyContin was taken as directed; one tablet every 12 hours. The Respondent wrote several warnings at the bottom of the prescription document. The warnings included such things as the fact that OxyContin impairs driving ability and may cause drowsiness, loss of balance, and/or loss of coordination. The Respondent also wrote on the prescription: "Must swallow whole and do not crush or break." Other law enforcement officers of the HPD were listening to and observing the events inside the room. Shortly after the Respondent handed the prescription to the make-believe patient and received the one hundred dollars from her, other law enforcement officers rushed into the room, arrested the Respondent, and seized various items of the Respondent's personal property, including the medical record he had been preparing regarding his care and treatment of the make-believe patient. With regard to obtaining information about the characteristics of, and the proper use of, specific drugs, medical doctors customarily rely on the information contained in the Physician Desk Reference (PDR) and on the information contained in the manufacturer's package insert that often accompanies a drug. The package insert for OxyContin includes the following information: (Following an initial caption reading WARNING) OxyContin Tablets are a controlled-release oral formulation of oxycodone hydrochloride indicated for the management of moderate to severe pain when a continuous, around-the- clock analgesic is needed for an extended period of time. * * * (Following caption reading CLINICAL PHARMACOLOGY) Oxycodone is a pure agonist opioid whose principal therapeutic action is analgesia. *** With pure opioid agonist analgesics, there is no defined maximum dose; the ceiling to analgesic effectiveness is imposed only by side effects, the more serious of which may include somnolence and respiratory depression. * * * As with all opioids, the minimum effective plasma concentration for analgesia will vary widely among patients, especially among patients who have been previously treated with potent agonist opioids. As a result, patients must be treated with individualized titration of dosage to the desired effect. The minimum effective analgesic concentration of oxycodone for any individual patient may increase over time due to an increase in pain, the development of a new pain syndrome and/or the development of analgesic tolerance. * * * OxyContin Tablets are associated with typical opioid-related adverse experiences. There is a general relationship between increasing oxycodone plasma concentration and increasing frequency of dose-related opioid adverse experiences such as nausea, vomiting, CNS effects, and respiratory depression. In opioid-tolerant patients, the situation is altered by the development of tolerance to opioid-related side effects, and the relationship is not clinically relevant. As with all opioids, the dose must be individualized . . . because the effective analgesic dose for some patients will be too high to be tolerated by other patients. (Following caption reading WARNINGS) OxyContin 80 mg and 160 mg Tablets ARE FOR USE IN OPIOID-TOLERANT PATIENTS ONLY. These tablet strengths may cause fatal respiratory depression when administered to patients not previously exposed to opioids. * * * Concerns about abuse, addiction, and diversion should not prevent the proper management of pain. The development of addiction to opioid analgesics in properly managed patients with pain has been reported to be rare. However, data are not available to establish the true incidence of addiction in chronic pain patients.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Concluding that the Respondent is guilty of having violated Section 458.331(1)(q), Florida Statutes, as charged in Count Three of the Administrative Complaint; and Imposing a penalty consisting of an administrative fine in the amount of ten thousand dollars ($10,000.00) and the revocation of the Respondent's license to practice medicine. DONE AND ENTERED this 26th day of June, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2006.
The Issue As stipulated by the parties at the commencement of the hearing, the following cases were settled and are no longer at issue in the proceeding: Case No. 88-0642 Patient - R. G. 88-0643 J. G. 88-1261 L. C. 88-1879 P. C. 88-2327 K. P. The remaining cases and amounts at issue are: AMOUNT RETROACTIVELY AMOUNT PAID DENIED BY PATIENT CASE NO. BY MEDICAID MEDICAID F. C. 88-1154 $ 6,288.49 $ 6,288.49 C. M. 88-1155 $ 2,418.65 $ 2,418.65 D. M. 88-1258 $ 8,707.14 $ 8,707.14 A. J. 88-1259 $ 6,772.22 $ 1,451.19 S. F. 88-1260 $14,511.90 $14,511.90 Lottie C. 88-1379 $14,028.17 $14,028.17 The parties stipulated that all the patients were personally eligible for Medicaid and that the disallowances were not based on lack of quality of care or Orlando General's failure to meet all quality standards. (Prehearing Stipulation, filed August 29, 1988) The issue for determination is whether in the cases above (except for A. J.) the admission and treatment at Orlando General were "medically necessary". For A. J., HRS contests the medical necessity of the last three days only.
Findings Of Fact Orlando General is a state-licensed acute-care hospital in Orange County, Florida. Orlando General participates in the Florida Medicaid program. Randall Greene, D.O., is now, and was at all relevant periods, Director of Orlando Generals 28-day inpatient chemical dependency (CD) program. The program treats both alcohol and drug abuse patients. Dr. Greene is certified as an addictionologist by the American Society of Physicians Treating Alcohol and Chemical Dependencies. Dr. Greene has no pecuniary interest in admitting Medicaid patients to the CD program. He is reimbursed by Medicaid, but only at 10 to 20 percent of his usual and customary fee, an amount which does not cover his administrative costs of the paperwork for Medicaid. In addition, the unit has 26 beds. The acceptance of a Medicaid patient precludes the use of that bed for a commercially insured, more lucrative, patient. In the first 72 hours after admission to Orlando General's CD program, the patient is evaluated to see whether he or she is appropriate for continued hospitalization or whether it is possible to simply complete detoxification and refer the patient to an outpatient program. The evaluation includes the taking of a history, a physical examination and a psychosocial evaluation by a certified counselor. In a staffing after the evaluations the decision is made to retain the patient in the program, or to refer the patient to a residential or outpatient program. The goals of Orlando General's CD program are medical detoxification, medical evaluation and treatment of ancillary medical problems and introduction to the 12-step recovery program called Alcoholics Anonymous (AA) or Narcotics Anonymous (NA). The patient is also introduced to the disease concept of chemical dependency and is provided the tools to lead a chemical-free life style. Upon discharge, the patient is often referred to a non-hospital residential program or to an outpatient program. The patients who are admitted to Orlando General's CD program are "end- state" abusers. This means their disease of alcoholism or drug abuse has progressed to the stage where they have lost control and the alcohol or drug becomes an obsession. Liver disease and other medical problems are prevalent. They are unable to function socially, are morally degraded, and have impaired thinking. They are paranoid and experience hallucinations. If untreated, the next stage is death. F. C. was a 36-year old male patient who was treated at Orlando General for chemical dependency from December 12, 1986, until January 2, 1987. He used heroin, cocaine and marijuana and was spending from $70 to $300 per day on his habit. He was inducing the heroin and cocaine intravenously. He had been involved in criminal activity to support his addiction and had been in prison. Prior outpatient treatments were unsuccessful. In the initial medical work-up he tested positive for AIDS-related complex and for hepatitis. He was placed on detoxification using methadone, but did not tolerate the drug and was switched to Catapres. Catapres must be closely supervised, as it can cause life-threatening low blood pressure. In addition to his detoxification and his counselling, F. C. received symptomatic treatment by a specialist for his infectious diseases. He was maintained on body and fluid precautions. He was progressing and had accepted the fact that he would need additional treatment in a residential setting after discharge from Orlando General; however, he was confronted in a group session with regard to his need to avoid contact with other patients involving exchange of bodily fluids. He then left the hospital against medical advice. (Petitioner'S Exhibit 1, discharge summary). C. M. was a 28-year old female who was treated at Orlando General from October 10, 1986, until October 14, 1986. She was unemployed and spending $200 a day on whisky and free- base cocaine. She had syphilis and gonorrhea and a trichomonas infection. She had blood in her urine and was malnourished. She also had a skin infection. She suffered from organic brain syndrome and experienced memory loss. C. M. was medically detoxed from the alcohol and cocaine. She was treated for the skin disease, venereal disease and the gynecological condition. She resisted change in her thinking and behavior and did not bond with the other patients. She was given a 3-hour pass when she said that she had to go sign some papers for her 2- month old baby. She did not return, and was discharged against medical advice. D. M. was a 27-year old female who was treated at Orlando General for chemical dependency from August 6, 1986, until August 24, 1986. She was addicted to cocaine and reported free-basing. At the time of her admission, D. M. complained of a variety of medical problems, including abdominal pain, pain on urination, constipation, and a vaginal discharge. She gave a history of thyroid disease and a deformed pancreas. She was also malnourished. She was treated for the urinary tract infection and vaginal infections. She did not require "psycho-pharmacological intervention" for her detoxification. The radiology report in her record revealed an unremarkable gall bladder and pancreatic ultrasound. Her progress notes indicate that she frequently was excused from counselling sessions when she complained of illness. A progress note dated 8/23/86 reflects that she was not cooperating: "...seems to feel ill everytime there is a group session or activity. May be reluctant to attend meetings...". (Petitioner's Composite Exhibit #1). D. M. was therapeutically discharged on August 24, 1986. Dr. Green's discharge summary states that she was difficult to deal with and failed to make significant changes. A. J. was a 24-year old male patient who was treated at Orlando General from July 9, 1986, until July 23, 1986. He was dependent on cocaine and used it intravenously and by smoking. He had a $100 to $300 a day habit and was also drinking. He had a history of blackouts. His record does not document the number of medical problems experienced by the other patients. A. J. was defiant and did not cooperate. He slept when he was supposed to be on the unit with a group. He was found in a female patient's room and was admonished. He lied about going to NA meetings. After being warned that further infractions would result in discharge, he immediately violated the rules again. He was therapeutically discharged as medically stable. S. F. was a 21-year old female patient treated at Orlando General from September 6, 1986, until October 6, 1986. She was dependent on free-base cocaine and alcohol. She was malnourished and had significantly low protein and- albumin levels. She also had tachycardia (increased heart rate) and a history of vaginitis and pelvic inflammatory disease. S. F. was referred to Orlando General by HRS, who had taken custody of her children. S. F. was therapeutically discharged when she was found to have used cocaine and alcohol while on a temporary pass. L. C. was a 54-year old female who was treated at Orlando General from December 17, 1986, until January 15, 1987. She was an alcoholic and schizophrenic. She was referred to Orlando General by Lake Sumpter Mental Health Clinic. At the time of her admission, she had a variety of medical complaints including headaches, chest pains, and abdominal pains. It was difficult to predict what complications would arise during her treatment because her mental-problems made her a poor historian. She had problems with fluctuating blood pressure and required a cardiology work-up. Her treatment was complicated by her need for medication for her schizophrenia at the same time that she needed withdrawal from chemical dependency. L. C. was discharged when she was determined to be medically stable. The plan, according to her discharge summary, was for her to be involuntarily committed under the Myers Act to a long-term residential facility. Every hospital that is a Medicaid provider must have an approved utilization review mechanism in place. This must include an admissions criteria and continued stay criteria. The mechanism must be approved by HRS' Peer Review Organization (PRO), an organization with whom HRS has contracted to conduct the state's utilization review responsibilities. One aspect of Orlando General's approved mechanism is the use of a review "screen", called an "ISD", outlining examples of the intensity of services needed to justify continued hospital treatment, the severity of illness to justify admission, and discharge criteria. This screen is used for every admission by a registered nurse on the staff of the hospital who is designated as the utilization review coordinator. If, in the nurse's opinion, the patient does not meet the criteria, the medical record is referred to a physician on the hospital's utilization review committee. This physician reviews the record to determine whether, in his judgment, medical necessity is present. If he has questions, he can discuss the case with the attending physician. If the two disagree, a third physician is consulted, also a member of the utilization review committee at the hospital, and his opinion is the tie-breaker. A further review is conducted when the hospital submits a claim for reimbursement after the patient is discharged. A list of paid claims is sent to the PRO office in Tampa, and a sample is selected for oversight review. In those cases, the PRO applies the same mechanism as the hospital, with the use of the screen by a nurse reviewer, then reference to PRO utilization review physicians. If the PRO physicians do not see a medical necessity for the admission or treatment, the attending physician is notified and is given an opportunity to respond in writing. After that response, the PRO makes its final decision. In the cases at issue here, the final PRO decision was that medical necessity was not present for the admissions, except in A. J. `s case, where only the final three days of treatment were questioned. The approved ISD screen applied to these cases was developed for psychiatric cases and is not specific to chemical dependency cases, although some criteria apply to both types of cases. Compliance with the screen is considered presumptive evidence of medical necessity and the screen is utilized by the nurse reviewer as a tool to determine which cases require further physicians' review and professional judgment as to medical necessity. The screen is not binding, therefore. Under the category, "severity of illness", the ISD screen requires such conditions as a "comatose or impending comatose patient", recent onset of"...suicide attempt, assaultive behavior, self-mutilative behavior, deliria and/or mania hallucinations (visual or auditory), total body rigidity or immobility...", and like symptoms. (Respondent's Exhibit #1). Dr. Greene concedes that the patients at issue do not meet those criteria. In support of its position that medical necessity justified Orlando General's reimbursement for each of the six patients in issue, the hospital presented Dr. Greene's testimony and that of Daniel C. Glennon, M.D. Dr. Glennon is presently Medical Director of the dual diagnosis unit at Laurel Oaks Hospital, a licensed psychiatric hospital for children and adolescents in Orange County, Florida. The dual diagnosis unit treats chemically dependent adolescents. Dr. Glennon is a certified addictionologist. Dr. Glennon is familiar with non-hospital alternatives in the area and from April 1979, until January 1986, he was Medical Director of the Metropolitan Alcoholism Council (MACO), one of the two residential treatment facilities with whom the state had a contract in the Orlando area during the relevant period. Dr. Glennon had personal knowledge of some of the patients at issue, but based his opinion at hearing on his review of their medical records and his knowledge of alternative treatment facilities. In each case, in Dr. Glennon's opinion, the admission and treatment of the six patients at Orlando General was medically necessary. Each were end-stage chemical dependents with a variety of related and unrelated medical complications, or the imminent threat of medical complication. Not all end stage chemical dependents need acute care hospitalization, but the frequency or intensity of intravenous drug usage and the use of free-base or "crack" cocaine found in most of these patients indicated the need for medical evaluation and treatment in a hospital. Not all detoxification needs occur in an acute care hospital, but the presence or the high probability of complications in each of these patients indicates the medical necessity for the treatment they received. Peter M. Macaluso, M.D., testified as an expert witness on behalf of HRS. Dr. Macaluso is also a certified addictionologist and practices in Tallahassee, Florida. Dr. Macaluso reviewed the medical records of the six patients and concluded that most needed a good, structural residential program with medical backup, but not treatment in an acute hospital setting. For his opinion, Dr. Macaluso relied, in part, on the ISD screens. Dr. Macaluso admitted that he had no knowledge of the residential programs available in the Orange County area. Residential programs vary widely in the kind and quality of services provided. During the relevant period, there were two non- hospital residential programs under state contract in the Orlando and adjacent areas, MACO, and the Center for Drug-Free Living (also known as Phoenix South). The state paid approximately $45 a day for the services in those facilities, substantially less than the approximately $500 per diem reimbursed to Orlando General. The opinions of Dr. Greene and Dr. Glennon were more credible than that of Dr. Macaluso on the necessity of admission and treatment and the availability of alternatives for the six patients. The admission and treatment of each at Orlando General was proven medically necessary. The record does not support HRS' position that Orlando General failed to comply with its approved utilization review plan with regard to the patients. Although Dr. Greene does not personally use the ISD screen, the CD program which he directs does have admission criteria. Dr. Greene does not remember whether a hospital utilization review committee physician contacted him about the cases, but under the process described by HRS nurse consultant, Nedra Mansager, the attending physician would be brought in only if the first reviewing physician had questions or disagreed that there was a medical necessity for the patient's admission and treatment at the hospital. (Transcript, p.121).
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered approving Medicaid reimbursement in cases 88-1154, 88-1155, 88-1258, 88- 1259, 88-1260 and 88-1379, and disposing of the remaining cases in a manner consistent with the agreement of the parties. DONE and ENTERED this 23rd day of February, 1989, in Tallahassee, Leon County, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0642 The following constitute my rulings on the findings of fact proposed by each party. Petitioner's Proposed Findings of Fact Adopted in paragraph #1. Adopted in paragraph #2. Adopted in paragraph #3. Adopted in paragraph #4. Adopted in paragraph #2. Adopted in paragraph #5. 7.-15. Rejected as unnecessary. 16.-30. Adopted in substance in paragraph #6 31.-35. Rejected as cumulative and unnecessary. The conclusion as to medical necessity is adopted, however, in paragraph #23 36.-55. Adopted in substance in paragraph #7 56.-72. Adopted in substance in paragraph #8. 73.-84. Adopted in substance in paragraph #9. 85.-97. Adopted in substance in paragraph #10. 98.-113. Adopted in substance in paragraph #11. 114.-115. Rejected as inconsistent with the weight of evidence. (The patient's chart does not support these finding.) 116. Adopted in paragraph #23. 117. Adopted by implication in paragraph #16. 118. Adopted in paragraphs #5 and #20. 119. Adopted in paragraph #22. 120. Rejected as ambiguous. The record establishes only that MACO did not have a methadone license and did not "routinely provide drug services." Transcript, p.116, lines 2-4. 121. Adopted in paragraph #16. Respondent's Proposed Findings of Fact Addressed in background. Addressed in conclusion of law #3. Adopted in paragraphs 1 and 2. Rejected as immaterial. Substance abuse patients can be treated in a non-hospital setting, as found in paragraph #20.The issue, however, is the need of these six patients. HRS failed to rebut the competent testimony by Drs. Greene and Glennon that these patients needed the acute-care hospital treatment. HRS' witnesses could not provide specific information on the alternate programs in Orlando. They could only describe alternate types of treatment facilities generally. Adopted in part in paragraph #22, otherwise rejected as irrelevant. Rejected as contrary to the evidence. If no alternatives available, the patient must be treated in the hospital. Rejected as contrary to the evidence. Rejected as immaterial. 9.-16. Rejected as contrary to the weight of evidence. Adopted in paragraphs #12 and #13. Adopted in paragraph 13, except that the evidence (Ms. Mansager's testimony) does not establish that the attending physician is consulted in every case by the "physician advisor." Adopted in paragraph 17, except for the conclusion that the plan required consultation with the attending physician. Rejected as immaterial. Rejected as unsupported by the record. Rejected as contrary to the evidence (the conclusion that medical necessity was not met), otherwise adopted in paragraph 16. 23.-26. Rejected as cumulative and immaterial. 27. Rejected as contrary to the weight of evidence. 28.-30. Rejected as irrelevant. COPIES FURNISHED: James A. Burt, Esquire Scott A. Satell, Esquire 118 East Jefferson Street Orlando, Florida 32801 Jay Adams, Esquire Richard Bellak, Esquire 101 North Monroe Street Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 S. Power, Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
