Conclusions An Administrative Law Judge with the Division of Administrative Hearings ("DOAH") submitted his Recommended Order of Dismissal to the Department of Environmental Protection ("DEP") in these consolidated administrative proceedings. The Recommended Order of Dismissal indicates that copies thereof were served upon counsel for the Co-Respondent, Escambia County Utilities Authority (“Authority”), and upon pro se Petitioners, Kerry Culligan (*Culligan’ ) Mary Pueschel Studstill (“Studstill’), and Chris Englert Cnglert. A copy. of the Recommended Ofder of Dismissal i is attached hereto as s Exhibit A The matter is now "before the Secretary o of DEP for final agency action. a | BACKGROUND The Authority owns and operates a public water system in Escambia County, Florida. These consolidated cases involve an application fi fi led with DEP seeking a permit to construct fluoridation treatment facilities at six of the Authority’s potable water a supply wells. On September 5, 2000. DEP executed an Intent to Issue and draft permit . } 4 F tor the Applicant’ fluoridation treatment construction project. The Petitioners then fi led “similar petitions with DEP contesting the issuance of the permit to the Applicant and requesting formal administrative hearings. The Petitions, which were forwarded to : r appropriate proceedings, basically questioned the safety and effi icacy of oe DOAH fc fluoridation i in their drinking water. Administrative Law w Judge, Donald R. Alexander, AL, was assigned to “~ insuffi cient to state a cause ofa action for relief f against DEP under the controling ‘provisions of Rule 62- 555. 328, Florida Administrative Code. Rule 62- 555. 325 establishes conditions and requirements for the issuance by of permits to public oO Bo yee ee water systems for the installation and operation of fluoridation treatment equipment. _ sad The ALS J recommended that DEP center a fi ina alorer dismissing, with prejudice, t the wale) eh as ed squares sas chante és antes? CONCLUSION The case law of Florida holds that parties to. formal administrative proceedings ‘must alert agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of administrative law judges by filing exceptions to the DOAH recommended orders. See Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). The ALJ ruled in his Recommended Order of Dismissal that Petitioners’ allegations were legally insufficient to state a cause of action warranting denial of the construction permit for Applicant's proposed fluoridation treatment facilities. Nevertheless, no exceptions were filed by any of the Petitioners objecting to this critical adverse ruling or objecting to the ALJ’s ultimate recommendation that DEP enter a final order dismissing the three petitions with prejudice. Having considered the Recommended Order of Dismissal and other matters of record and faving | reviewed the applicable law, | concur with the rulings and ultimate recommendation of the ALJ. Itis therefore ORDERED: A. The ALJ’s Recommended Order of Dismissal is adopted in its entirety and is incorporated by reference herein. - B. Culligan’s amended petition for administrative hearing and the initial petitions for administrative hearings of Studstill and Englert are dismissed, with prejudice, for failure to state a cause of action upon which a final order can be entered denying the Authority’s requested permit to construct the fluoridation treatment facilities. seals Lae eee es i x A a Mk ii i ie aL C. DEP's Northwest District Office shall ISSUE to the Authority the construction permit for the fluoridation treatment facilities, subject to the terms and conditions of the draft permit issued in DEP File No. 0083021 -001 -WCIMA. Any party to these proceedings has the right to seek judicial review of this Final : pursuant “to Rife 9.110, Florida Rules of Appellate Procedure, ‘with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, MS. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable fi iling fees with the appropriate District Court of Appeal. The Notice of ‘Appeal must be fi led within 30 days from the date ‘this Final Order is fi led ; with the clerk of the Department. -DONE AND ORDERED this Z day of January, 2001, in Tallahassee, Florida. bn STATE OF FLORIDA DEPARTMENT . OF ENVIRONMENTAL PROTECTION LS DAVID B. STRUHS Secretary Marjory Stoneman Douglas Building AOS OSU ue SAAS ai head. te 3900 Commonwealth Boulevard ; Tallahassee, Florida 32399-3000 moun i}76lo1 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing Final Order has-been sent by United States Postal Service to: Kerry Culligan Mary Pueschel Studstill 814 North 13" Avenue 414 North Guillemard Street Pensacola, FL 32501 Pensacola, FL 32501 Chris Englert Robert W. Kievet, Esquire 4121 West Avery Avenue Kievet, Kelly & Odom Pensacola, FL 32501 15 West Main Street Pensacola, FL 32401 Ann Cole, Clerk and Donald R. Alexander, Administrative Law Judge David S. Dee, Esquire Division of Administrative Hearings John T. LaVia, Ill, Esquire The DeSoto Building Landers & Parsons, P.A. 1230 Apalachee Parkway Post Office Box 271 Tallahassee, FL 32399-1550 Tallahassee, FL 32302 and by hand delivery to: Craig D. Varn, Esquire Department of Environmental Protection . . 3900 Commonwealth Blvd., M.S. 35 ° “~~~ Tallahassee, FL 32399-3000 this LStkd ay of January, 2001. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION : “TERRELL WILLIAMS Assistant General Counsel ate ) Mhea 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 “Telephone 850/488-9314 ce it 1a ea
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing, as well as the stipulation of facts filed as part of the prehearing stipulation, the following relevant facts are found: Petitioners are orthopedic surgeons practicing in Seminole County. They rendered medical services in the nature of a thermogram and a thermographic diagnosis to seven patients who were suspected to be suffering from nerve irritation. Each of the patients complained of either neck or lower back pain with extremity radiation, and had not responded to earlier conservative treatment. The thermograms were a part of the diagnostic studies undertaken by petitioners to treat these patients. These seven patients, who were employees of various employers, were Efrian Toledo, Esther McCoy, Dale Long, Itheria Creech, Jacob A Boone, Glenn McNeely and Orville A. Reiley. The bills for these patients were submitted to the employers' insurance carriers under the Workers' Compensation law. The carriers denied payment for the thermographic services because the respondent Department of Labor had previously ruled by way of a Declaratory Statement dated August 15, 1983, that thermography or thermograms were not a reimbursable medical expense within the meaning of Chapter 440.13, Florida Statutes. The parties have stipulated that the thermographic medical services received by the seven patients were consistent with the location of the service, were consistent with the level of care provided and were reasonably safe. Nerve irritation is principally manifested by pain which radiates to an extremity. If a nerve becomes irritated or compressed, there is a change that occurs in the blood supply to this nerve. This change can cause a blood vessel to either dilate or constrict, and this causes a localized change in skin temperature. The nerve irritation results in a change in the blood flow and that change either increases or decreases the amount of heat emanation. Since nerves follow dermatomal skin patterns, akin to a road map, irritation of a nerve is exemplified by a change in skin temperature. The main physiological principle upon which thermography is based is that the infrared energy radiating from the bodies' skin surface will vary according to the amount of blood supply below the skin's surface. This scientific principle is valid. Thermography is the study of infrared patterns emitted by the body. A thermogram is a graphic representation of the heat emitted by a region of the body. The body is known to be symmetrical, and a comparison between comparable body sections can be made to determine if symmetry exists. If there is no localized problem, a symmetrical pattern of heat emission will be presented. Changes or variances in skin temperature, which can be measured and depicted by a thermogram, are an indication of nerve dysfunction. Thermograms are performed under controlled conditions so that extraneous causes of variations in skin temperature may be eliminated. The temperature and humidity of the room is controlled, the patient is given instructions with respect to the intake of hot or cold liquids, medication, nicotine, etc. prior to the examination and a technician is present in the examination room during the procedure. Generally, two or more separate exams, fifteen to twenty minutes apart, are administered to ensure reliability. The procedure is safe, non-invasive and is done on an out- patient basis. The physicians who testified on behalf of the petitioners at the hearing, who were orthopedists, neurologists and radiologists, all practice thermography for the diagnosis and treatment of patients with nerve irritation, and not for research or experimental purposes. These physicians also receive referrals for thermographic services from other physicians in their area, and are aware of other doctors who practice thermography for nerve irritation. Dr. Bilotta's medical group has utilized thermographic services for the diagnosis and treatment of 198 patients suspected of nerve irritation. A large hospital in Orlando has a thermographic unit. Dr. Uricchio, an orthopedic surgeon from Winter Park, has provided thermographic medical services for some 750 patients, many of whom had been referred to him by 48 area physicians who practice as orthopedic surgeons, neurologists, neurosurgeons and family practitioners. Dr. Uricchio also gives lectures on the subject of thermography at medical meetings where continuing medical education (CME) credits can be obtained. Dr. Ashley Kaye, a radiologist in the Broward County area, utilizes thermography in a clinical practice just as he would utilize other imaging modalities, such as x- ray, CT scans (computerized tomography) and myelography. He and his associates perform thermogram interpretations for six orthopedic surgeons in the Ft. Lauderdale area. He is aware of eighteen other doctors in Broward County who practice thermography. Dr. Ronald Weber, a neurologist in Hollywood, has provided thermographic services to 195 patients and receives referrals from about ten other area physicians. In the past twelve to fifteen months, Dr. Joseph Gelety, a neurosurgeon in Ft. Lauderdale, and his associates have performed from 1200 to 1400 thermograms for approximately 900 patients. He receives referrals for thermographic services from about a dozen doctors from Broward, Dade and Palm Beach Counties. Dr. Jacob Green, a neurologist in Jacksonville, has provided thermographic services to approximately 165 patients and receives referrals for such services from twelve physicians in the Jacksonville area. Dr. Green also teaches thermography to residents from the University of Florida School of Medicine. The Florida Society of Neurology has approved thermography for CME credits. Thermography for nerve injuries is practiced at Johns Hopkins University Hospital in Baltimore, Maryland, for clinical patient purposes. Between July 1, 1982 through June 30, 1983, Dr. Sumio Uematsu, who teaches and practices at Johns Hopkins and is board certified in neurosurgery, electromyography and electrodiagnosis, performed thermographic services for 558 patients. Some 313 patients received thermographic examinations between July 1, 1983 and January 6, 1984. Approximately 70 percent of Dr. Uematsu's patients are referred from other doctors at Johns Hopkins Hospital and the remaining 30 percent come from doctors in the Washington, D.C. - Baltimore area. Dr. Margaret Abernathy, a neurologist who teaches and practices at Georgetown University Hospital in Washington, D.C., has provided, since 1978, thermographic medical services for some 6,000 to 8,000 patients suspected of nerve irritation problems. She utilizes thermography as a routine clinical diagnostic test, just as she would utilize a myelogram, an electromylogram (EMG) or a CT scan. Dr. Abernathy teaches thermography at Georgetown University Medical School, which has an established Fellowship in thermography. She also teaches thermography for nerve irritation to other physicians throughout the United States. She is aware of at least 22 university hospitals where thermography is being practiced on a daily basis. Dr. Charles Emanuel Wexler, a board certified radiologist who practices in California, provides thermographic diagnosis for some 1,000 patients a year who have suspected nerve irritation. This type of diagnosis is utilized by him as a clinical medical tool and not as an experimental, investigative or research tool. Dr. Wexler teaches thermography at the UCLA Medical School, and lectures extensively both nationally and internationally on the subject of nerve irritation thermography. He conducts training courses for physicians and technicians on the practice of thermography for nerve irritation. These two-day seminars, for which the student is expected to have done several weeks of preparatory study, have been attended by several hundreds of physicians from all over the country. These physicians are typically orthopedists, neurologists, radiologists, psychiatrists, general practitioners and surgeons. The American Academy of Thermology has approximately 300 members. There are 27 physician members from Florida. As of this year, in order to earn active status, completion of a certification examination is required. A physician may become board certified in thermology by passing the exam, having been involved in the active practice of thermology for no less than two years and having earned no less than 50 hours in continuing medical education in thermology courses sponsored by the Academy. There is a new organization known as the Florida Academy of Clinical Thermography which has approximately 20 members comprised of orthopedic surgeons, radiologists and neurologists. It is reviewing the training and background of physicians in thermography and is concerned with quality control in the sense that thermography be performed in accordance with accepted clinical standards. The Florida Academy has approved the development of a technologist organization, which will have a written set of standards and an examination. The typical charge for a thermographic examination is somewhere in the neighborhood of $350.00 to $450.00. This is less expensive than a CT scan or a myelogram and the procedure does not require hospitalization. A negative thermogram -- one which illustrates symmetry in a dermatomal pattern -- excludes the presence of nerve irritation and often leads to the conclusion that no further diagnostic testing or procedures are warranted. A thermogram is useful in detecting malingerers, and also avoids the use of more expensive diagnostic modalities. A positive thermogram -- one showing asymmetry -- may or may not lead to further methods of testing. While the thermogram does not supplant or eliminate the other diagnostic tools, it provides a distinct function and information not available from other methods. It gives information in the physiological arena of sensory nerves which no other procedure can duplicate. It is the most sensitive indicator of nerve irritation. The CT scan and myelogram are anatomical tests and may reveal why a nerve is irritated. In other words, the thermogram documents nerve fiber irritation but does not reveal its cause. In order to determine the underlying etiological cause of the irritation, and render a determination as to whether surgery is warranted, other tests, such as a CT scan or myelogram, are required. The thermogram is thus complimentary to either the CT scan or the myelogram. As a diagnostic tool, the thermogram is more accurate than the myelogram and compares favorably with the CT scan. Studies have shown that the thermogram for detection of nerve irritation is between 91 percent and 93 percent accurate, the CT scan is approximately 90 percent accurate and the myelogram is 84 percent or 85 percent accurate. The myelogram will only be positive for an anatomically visible abnormality, such as disc herniation, which may take weeks to become apparent. The thermogram is almost instantly positive when nerve irritation is present. There are some uses of thermography which are still in an experimental stage. These would include the use of thermograms for detecting skin mole malignancy and the location of the placenta. The use of thermography for nerve irritation appears to be the most common and widely accepted use, and the practice of thermology for this purpose appears to be emerging as an area of specialty or subspecialty. Thermography for musculoskeletal injury, which includes nerve irritation, is a reimbursable medical expense under the Medicare program. Such thermography has been determined by the U.S. Department of Health, Education and Welfare to be "beyond the experimental stage." At least one Florida court has rejected the contention that thermography is simply "an experimental diagnostic test with little or no proven clinical value," and instead found it to be "reasonable and necessary" and thus compensable under the Florida Motor Vehicle No-Fault Law. Flowers v. State Farm Mutual Automobile Insurance Company, Cty. Ct., Orange Cty., Case No. CO-83-2226 (January 18, 1984). Thermography is not a universally accepted procedure in the medical community at this time. The three physicians who testified on behalf of the respondent -- a neurologist, an orthopedic surgeon and a pediatric allergist -- were of the opinion that thermography was not widely accepted by the medical community, was still in the investigative or experimental stage and lacked a scientific basis. These three physicians had never performed or even observed a thermographic examination, nor were they familiar with thermographic equipment or the evolution thereof. They had not attended seminars or CME courses related to thermography. Their review of the literature regarding thermography for nerve irritation was not extensive. Dr. Johnson, who investigated the use and acceptance of thermography for the Division of Workers' Compensation, appears to have based his opinions largely upon discussions with several neurologists and orthopedists who have chosen not to utilize thermographic services. He contacted no thermographic practitioner or physician who made referrals for such services on the basis that he "knew what they would say." This lack of personal experience or knowledge regarding the practice of thermography leads the undersigned to place little weight upon the opinion testimony of Drs. Johnson, Scheinberg and Neal regarding the scientific principle underlying the practice of thermography, the degree of its acceptance among the practicing peer group and its experimental, as opposed to clinical, usage.
The Issue The issues in these cases are whether Respondent violated sections 458.331(1)(t), 458.331(1)(m), and 458.331(1)(n), Florida Statutes (2004), and section 458.331(1)(t), Florida Statutes (2006), and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is the state department charged with regulating the practice of medicine in Florida pursuant to section 20.43, Florida Statutes (2010), and chapters 456 and 458, Florida Statutes (2010). At all material times to the Administrative Complaints, Dr. Rubinstein was licensed as a medical doctor within the State of Florida, having been issued license number ME37720. He is an otorhinolaryngologist, meaning he is a specialist in ears, nose and throat, and facial plastic and reconstructive surgery. He also treats allergies. On November 7, 2003, Dr. Rubinstein and the Department entered into a Consent Agreement, related to the following Administrative Complaints filed against Dr. Rubinstein: Case No. 2001-07091, Case No. 1999-5773, and Case No. 2000-02195. Based on the Consent Agreement, a Final Order, DOH-04-0020-S-MQ, was filed by the Board on January 7, 2004, imposing a fine of $25,000; imposing 60 hours of community service; requiring Dr. Rubinstein to submit to a two-day evaluation at the Institute for Physician Education (IPE); requiring Dr. Rubinstein to comply with the recommendations resulting from the evaluation at IPE; and placing Dr. Rubinstein on probation for five years. On August 6, 1993, the Department of Business and Professional Regulation (DPR) and Dr. Rubinstein entered into a Consent Agreement to resolve DPR Case Nos. 90-06221, 91-06043, 91-08800, 91-12051, 92-00308, 92-11650, 92-11763. The Consent Agreement provided a stipulated disposition of a $10,000 fine and probation for five years. The Consent Agreement was adopted by a Final Order of the Board filed August 23, 2009. On May 11, 1993, DPR and Dr. Rubinstein entered into a Consent Agreement relating to DPR Case No. 92-13503. The Consent Agreement provided a stipulated disposition of a $5,000 fine, a reprimand, and requirement that Dr. Rubinstein review section 458.331, Florida Statutes, and Florida Administrative Code Chapter 21M. The Consent Agreement was adopted as a Final Order by the Board on June 8, 1993. On August 24, 1992, the Board entered a Final Order in DPR Case Nos. 0081610, 8906844, 8903225, 109405, and 8907280 finding Dr. Rubinstein guilty of violations of subsections 458.331(1)(d), (k), (m), (n), (t), and (x), Florida Statutes; imposing a $15,000 fine; reprimanding Dr. Rubinstein; prohibiting Dr. Rubinstein from initiating contact with patients or their families for the purpose of persuading them to agree to his treatment recommendations; and placing Dr. Rubinstein on probation for one year. On June 8, 2005, a Determination and Order was entered by the State of New York, Department of Health, State Board for Professional Medical Conduct, BPMC No. 05-115, revoking Dr. Rubinstein's license to practice medicine in New York, based on the disciplinary actions by the Board in the Final Order in Case DOH-04-0020-S-MQ. Facts Relating to DOAH Case No. 09-5267PL At all times material to this Administrative Complaint, Dr. Rubinstein did not hold hospital staff privileges for any hospital in the Sarasota, Florida, area. On January 11, 2005, J.D. presented to Dr. Rubinstein's office, seeking the following medical procedures: a breast lift or augmentation; possible liposuction on her hips; and a tummy tuck. J.D. completed a form during the office visit. Dr. Rubinstein recommended that J.D. have a breast augmentation; liposuction of hips, outer and inner thighs, and knees; and an abdominoplasty (tummy tuck). During the January 11, 2005, visit, Dr. Rubinstein told J.D. that he could help her with the dark circles under her eyes with some allergy testing. J.D. had not gone to Dr. Rubinstein for diagnosis, help, or treatment for any other conditions other than her request for cosmetic surgery. On January 11, 2005, J.D. was provided with a cost estimate for the surgical procedures of $29,550. These costs included a tummy tuck at $8,900; liposuction of the abdomen at $3,800; liposuction of the hips at $2,800; liposuction of the waist at $2,400; liposuction of the lateral thighs at $3,400; liposuction of the medial thighs at $1,800; liposuction of the knees at $800; operating room for $300 per hour for a total of $2,700; anesthesia at $300 per hour for a total of $2,700; and lab work for $250. The cost estimate did not include the breast augmentation. The surgical cost estimate stated: "It is estimated that your operating and recovery time will be 9 hours." J.D. took the cost estimate and discussed them with her husband, who felt that the costs were too much. J.D. called Dr. Rubinstein's office and advised that the cost was too high, and she could not have the surgeries for that price. Dr. Rubinstein revised his surgical cost estimate as follows: abdominoplasty $8,900; breast augmentation $4,200; implants $1,400; liposuction of the abdomen $0; liposuction of the hips $2,800; liposuction of the waist $0; liposuction of the lateral thighs $3,400; liposuction of the medial thighs $0; operating room at $300 per hour for a total of $2,700; anesthesia at $300 per hour for a total of $2,700; and pre-op lab work $250. There was no mention of liposuction of the knees in the revised cost estimate. The revised cost estimate stated: "It is estimated that your operating and recovery time will be 9 hours." The revised cost estimate was signed by J.D. on January 14, 2005. Both the original and revised cost estimates contained the following: "The Anesthesia and operating room charges are based on operating and recovery time. Consequently, if a surgical procedure turns out to be more or less lengthy than was expected, both fees will be correspondingly increased or decreased." J.D. went to Dr. Rubinstein's office on January 14, 2005, for a pre-operative visit. A history was taken, and a physical examination was done. Frank Steig, M.D. (Dr. Steig), who is board certified in otolaryngology, head and neck surgery, and plastic and reconstructive surgery, testified as an expert on behalf of the Department. He was of the opinion that the history and physical met the basic criteria. His opinion was based on a review of the medical records. Some of the forms used by Dr. Rubinstein in recording the information concerning J.D. were forms that are more suitable for an otolaryngology physician's use. However, no evidence was presented that the information listed on the forms did not meet the basic criteria for medical records or that the use of a certain form fell below the standard of care. Although J.D. was seeing Dr. Rubinstein for cosmetic surgery, she was asked to fill out a questionnaire concerning allergies. On or about January 14, 2005, Dr. Rubinstein gave Patient, J.D., a cost estimate for allergy testing totaling $3,565.00. On or about January 14, 2005, Dr. Rubinstein directed J.D. to go to Lab Corp for pre-operative testing, which included a CBC with Differential/Platelet, Complete Metabolic Panel, Urinalysis, Prothrombin Time, and Partial Thromboplastin Time. On or about January 19, 2005, J.D. presented to Dr. Rubinstein for the decided cosmetic procedures. Based on Dr. Rubinstein's operative report, he performed the following procedures on J.D. on January 19, 2005: abdominoplasty; liposuction of lower lateral abdomen, hips, waist, lateral thighs, medial thighs, and knees; and augmentation of breasts. Based on the surgical and anesthesia notes, the anesthesia began at 9:15 a.m. and ended at 11:55 p.m. There was some difficulty in finding a vein on J.D. that would be suitable to deliver the anesthesia. Eventually the anesthesia was administered through the jugular vein. Surgery was begun at 11:45 a.m. and was completed at 11:20 p.m. The breast augmentation took three hours and 35 minutes. The liposuction took one hour and 55 minutes. The abdominoplasty took six hours and five minutes. At the final hearing, Dr. Rubinstein testified that he would have predicted that the breast augmentation would have taken approximately two to two-and-a-half hours. He would have estimated that the liposuction would have taken one hour and 55 minutes. He would have estimated that the abdominoplasty would have taken three to four hours. Given these estimates, the planned surgery time at a maximum would have been eight hours and 25 minutes. Dr. Rubinstein's testimony contradicts his estimate of the surgical time as reflected on the surgical cost estimates, which were done prior to the surgery. The first cost estimate did not include the breast augmentation; therefore, the planned surgery for liposuction and the abdominoplasty was eight hours as reflected on the cost estimate. In the revised cost estimate, he added the breast augmentation, which he estimated to be between two and two-and-one-half hours. Thus, the planned time for the three surgical procedures would have been between ten and ten-and-one-half hours. No explanation was given by Dr. Rubinstein why there was no adjustment between the planned time for surgery as reflected in the cost estimates. On or about January 19, 2005, J.D. was taken to the recovery room at 11:55 p.m. and released to return home at 1:00 a.m. on January 20, 2005. Based on the anesthesiologist's assessment, J.D. met the discharge criteria of Dr. Rubinstein's surgical facility, which was accredited as a Level III surgical facility. J.D.'s husband, Mr. J.D., was called to Dr. Rubinstein's office to take J.D. home. He testified that after he arrived at the facility, he was told that there would be an additional fee of $4,900; however, he stated that the discharge of J.D. was not conditioned on the payment of the additional fee. The evidence is conflicting concerning when Mr. J.D. actually paid the additional $4,900 by credit card. Mr. J.D. testified that he paid by credit at the time of J.D.'s discharge on January 20, 2005. The computer credit card receipt, which was signed by Mr. J.D., shows that the payment by credit card was made at 1:01 p.m. on January 20, 2005. The evidence shows that the credit card payment was made in the afternoon of January 20, 2005. Dr. Rubinstein's operative report did not include the amount of tissue that was removed during the abdominoplasty or the tightening of J.D.'s abdominal wall. Dr. Steig, the Department's expert, did not testify that the standard of care required that such information be included in the operative report. He said that generally such information is included. Douglas Dedo, M.D. (Dr. Dedo), expert witness for Dr. Rubinstein, opined that the standard of care did not require Dr. Rubinstein to document the amount of tissue removed during the abdominoplasty or to document the tightening of the abdominal wall. Dr. Dedo's testimony is credited. Dr. Rubinstein belongs to the International Trade Exchange (ITEX), which is a corporation that serves as a network for businesses to do business with each other using an alternative currency system called trade dollars. In other words, businesses can barter with one another. Dr. Rubinstein suggested to J.D. that she might want to become a member of ITEX, and it could be a way of paying for procedures. J.D. and her husband own a tour guide service. One of Dr. Rubinstein's employees, Judy Trapani (Ms. Trapani), was interested in bartering a trip to Italy for procedures performed by Dr. Rubinstein. Based on the testimony of Mr. J.D., it appears that conversations concerning bartering a trip to Italy for surgical procedures occurred between Ms. Trapani and Mr. J.D. The evidence is not clear and convincing that Dr. Rubinstein was trying to barter the surgical procedures for a trip for Ms. Trapani. Facts Relating to DOAH Case No. 09-5269PL On March 22, 2005, B.L. first presented to Dr. Rubinstein, accompanied by her mother, C.L., for complaints of severe acne. C.L. filled out a general patient questionnaire and was also asked to fill out a form concerning allergies. It is not clear why a form relating to allergies would need to be completed prior to the initial examination when B.L. was being seen for severe acne. On the general questionnaire, C.L. indicated that B.L. had had asthma or other respiratory problems, chronic bronchitis, and ear infections. The allergy questionnaire was to determine the cause of the patient's allergy symptoms. However, B.L. was not seeing Dr. Rubinstein for allergy symptoms, and C.L., understandably, thought that the allergy questionnaire related to past symptoms. On the allergy questionnaire, C.L. indicated that B.L. had had trouble with her skin; hives; trouble with ears popping and itching, hearing loss; frequent sore throats with drainage; itching eyes; thick/colored discharge from her nose; sniffles, and sneezing. Other than trouble with her skin, B.L. did not have any of these symptoms when she presented to Dr. Rubinstein. On examination, Dr. Rubinstein noted that B.L.'s turbinates were engorged and pale and that she had hypoplastic lymphoid tissue. Dr. Rubinstein diagnosed B.L. with cystic acne. Cystic acne occurs when an obstruction of the hair follicle inflames the sebaceous gland and the inflammation rises to the surface. Allergies do not cause cystic acne. However, Dr. Rubinstein told C.L. and B.L. that food allergies could affect the inflammatory component of B.L.'s cystic acne. On one of the questionnaires, C.L. had indicated that B.L. had problems with sugars and carbohydrates. From this information, Dr. Rubinstein deduced that B.L. must have a problem with yeast and put her on a yeast-free diet. It is not understood why B.L. was put on a diet eliminating yeast, since sugar and carbohydrates also occur in foods other than foods containing yeast. Dr. Rubinstein put B.L. on a yeast-free diet before any testing was done to determine whether she had an allergy to yeast. Dr. Rubinstein also recommended blue-light therapy for the inflammation. He recommended allergy testing and the Obagi Nu-Derm System (Obagi) products. The Obagi program consists of topical products that are applied to the problem area. A prescription is required for the Obagi products. He prescribed an antibiotic, Minocycline. He also prescribed Nystatin for B.L. During the initial office visit on or about March 22, 2005, Dr. Rubinstein administered 1000mg of Erythromycin to B.L. by mouth prior to performing a deep pore facial cleansing on her. B.L. was also given a facial mask. B.L. suffered severe stomach pains and diarrhea from the Erythromycin. C.L. called Dr. Rubinstein and told him about the stomach problems, and he told C.L. that was a normal reaction. On or about March 28, 2005, B.L. and C.L. presented to Dr. Rubinstein for a follow-up appointment. Dr. Rubinstein documented in the medical records that B.L.'s complexion appeared improved. He continued B.L. on Nystatin and Minocycline. Dr. Rubinstein continued to recommend the allergy tests and the Obagi program. C.L. purchased the Obagi program products for $1,200. B.L. and her mother returned to Dr. Rubinstein's office on April 4, 2005, for a follow-up visit. Dr. Rubinstein continued the Minocycline and reviewed the progress in the Obagi program. C.L. authorized the allergy tests. The charge for the allergy tests was $2,821. One of the allergy tests which Dr. Rubinstein had performed was IgG testing. Such testing is not done by mainstream allergists, and it is below the standard of care to use such testing. On the evening of April 11, 2005, B.L. ate a piece of cake at her grandmother's birthday party. On the morning of April 12, 2005, B.L. went to school at 7:30 a.m., and, by 8:20 a.m., she was experiencing hives, swollen joints, problems catching her breath, and problems moving her fingers, bending her knees, and bending her feet. B.L.'s joints were visibly swollen. C.L. took B.L. to see Dr. Rubinstein on April 12, 2005. Dr. Rubinstein noted in his records on April 12, 2005, that B.L. had hives, but he did not mention that B.L.'s joints were swollen. He opined that the hives were caused by eating cake. B.L. had eaten cake at times before the ingestion of cake on April 11, 2005, and had not experienced the symptoms that she had on April 12, 2005. B.L. has eaten cake since the ingestion of the cake on April 11, 2005, and has not experienced the symptoms that she had on April 12, 2005. Dr. Rubinstein had the results of the allergy tests to foods on April 12, 2005. None of the tests showed that B.L. was allergic to baker's yeast or gluten. One of the tests showed that B.L. might be allergic to candida albicans, which is a yeast that is usually found in babies with thrush and people whose immunity system is compromised. An allergy to candida albicans is not the same as an allergy to baker's yeast. However, Dr. Rubinstein continued the yeast-free diet. During the office visit on April 12, 2005, Dr. Rubinstein administered a 6mg dose of Decadron to B.L. for an acute allergic reaction. Decadron is a steroid used to treat conditions such as arthritis, blood/hormone/immune system disorders, allergic reactions, certain skin and eye conditions, breathing problems, certain bowel disorders, and certain cancers. B.L. had an adverse reaction to the Decadron, resulting in vomiting, stomach pains, and diarrhea. Dr. Rubinstein placed B.L. on another round of Minocycline. He suggested to C.L. that he might want to have B.L. switch to tetracycline because it may be more effective and cheaper than the Minocycline. C.L. told Dr. Rubinstein the price that she was paying for the Minocycline, and he told C.L. that if she could get the Minocycline for the price she stated that B.L. could stay on the Minocycline. During the office visit on April 12, 2005, Dr. Rubinstein lanced and drained four extremely inflamed cysts located on B.L.'s forehead and cheek. On April 12, 2005, Dr. Rubinstein suggested that B.L. go on a Rotation Elimination Diet to eliminate positive allergic foods. B.L. was to continue abstaining from eating yeast. The cost of the diet was $100. On April 12, 2005, after the office visit with Dr. Rubinstein, C.L. called Dr. Rubinstein and advised that B.L. was still not improving. Dr. Rubinstein made a note of C.L.'s telephone call. He continued to opine that the rash was caused by the ingestion of cake. He noted that the allergic reaction may be caused by the medication, but he still did not discontinue the medication. Although, Dr. Rubinstein had just examined B.L. that day, he requested that B.L. be seen again for re-evaluation. On or about April 14, 2005, C.L. went to see Dr. Rubinstein without B.L. to obtain the results of B.L.'s allergy tests. C.L. indicated that B.L.'s hives were worse. Dr. Rubinstein suggested that B.L. present to him again, after having seen B.L. two days prior, and that she may need antihistamines and medrol dose packs. He did not tell C.L. to discontinue the Minocycline. C.L. no longer trusted Dr. Rubinstein. On April 15, 2005, B.L.'s symptoms had not improved, and C.L. took B.L. to see B.L.'s pediatrician. The pediatrician referred B.L., to Hugh H. Windom, M.D. (Dr. Windom), a board-certified allergist. Dr. Windom saw B.L. on April 15, 2005, for hives, joint pain, and some swelling of her hands and lower arms. On examination, Dr. Windom found that B.L. had cystic acne, raised blanching, a red rash on her lower arm, mild nasal mucosal edema, and swelling in the joints on both hands and that B.L. was dermatographic. B.L. told Dr. Windom that she had been prescribed Minocycline by Dr. Rubinstein and had been taking it since sometime in March 2005. B.L. advised Dr. Windom that she did not take the Minocycline on April 14, 2005, and that her symptoms had improved some. Dr. Windom suspected that the hives, joint pain, and swelling were allergic reactions to drugs. He discontinued B.L.'s use of Minocycline and Nystatin. Within 24 hours after her visit with Dr. Windom, B.L.'s symptoms were gone. Dr. Windom referred B.L. to a dermatologist for her acne. Michael Pacin, M.D. (Dr. Pacin), is a board-certified allergist and testified as an expert for the Department. Dr. Pacin was of the opinion that there is no connection between allergies and acne. Acne is not an allergy symptom. He is also of the opinion that the prescription of a yeast-free diet when the physician does not know if the patient has an allergy to yeast is below the standard of care. Dr. Pacin's testimony is credited. C.L. paid Dr. Rubinstein $100 for the Rotation Diet, and $2,821 for allergy testing. Facts Relating to DOAH Case No. 09-5270PL On July 17, 2006, R.A. presented to Dr. Rubinstein with complaints that he had a rash on his face and that it was itching. R.A. thought that he might have an allergy, which is why he sought out an allergy specialist. R.A. had not gone to see Dr. Rubinstein for any nasal problems. R.A. felt that, when he mentioned that he thought he might have allergies, "it just locked in with [Dr. Rubinstein] that he had nasal problems." R.A. filled out a questionnaire on the first visit concerning his current problem. He advised Dr. Rubinstein that he had prostate cancer in 1999, and his prostate had been removed. He also stated that he had had nasal problems and had gone to the Silverstein Institute1/ in October 2005. In December 2005, he had surgery at the Silverstein Institute. Part of the surgery had been for the removal of polyps. R.A. had been going to the Silverstein Institute for follow-up visits and felt that his nasal and sinus issues were clearing up. Dr. Rubinstein recommended that R.A. have a CT scan done. Dr. Rubinstein asked R.A. to get his medical records from the Silverstein Institute. R.A. requested his medical records, including a CT scan of his sinuses, from the Silverstein Institute, and those records were provided to Dr. Rubinstein. On July 18, 2006, a CT scan was performed on R.A. The physician who interpreted the CT scan had the following impression of the CT scan results: Surgical alteration includes bilateral superior and middle turbinate removal. Opacificaton of the anterior ethmoidal air cells present bilaterally extends into the frontal sinuses where there is mild mucoperiosteal thickening. The right sphenoid sinus is completely opacified. There is mention in the history of a possible nasal bone fracture however, fractures are not identified. The CT Scan did not show a deviated septum to the extent that surgery would be needed. The physician who prepared the report on the CT stated: "Nasal septum is not significantly deviated." The medical records from the Silverstein Institute showed that in 2005 that R.A.'s septum was intact in midline. The CT scan report stated: "Mucoperiosteal thickening exists in the left maxillary sinus in a relatively mild fashion with probable polyp formation of the anterior ethmoidal air cells." The CT scan did not conclusively state that polyps were present. Dr. Steig, the Department's expert, reviewed the CT scan image and opined that the CT scan did not show nasal polyps, but instead showed polypoid changes which may or may not have been associated with the presence of polyps. Polypoid changes can be caused by mucosal irritation or suctioning. The polypoid changes in the CT scan were on the mucosa on the lateral wall. Dr. Steig's testimony is credited. On or about July 19, 2006, Dr. Rubinstein called R.A. to discuss the CT scan results and told R.A. that the CT scan results were abnormal. Dr. Rubinstein diagnosed R.A. with chronic allergic rhinitis, chronic sinusitis, nasal septal deviation with moderate obstruction, recurrence of nasal polyps, loud snoring, and dry mouth secondary to mouth breathing. Dr. Rubinstein felt the redness on R.A.'s face was a form of rosacea. Dr. Rubinstein's treatment plan consisted of reviewing the CT results, providing R.A. with supplements, in vitro allergy testing, and providing allergy medication if needed. On July 24, 2006, R.A. underwent in vitro allergy testing, using IgE blood testing for inhalants and IgG blood testing for food. On or about July 27, 2006, R.A. presented to Dr. Rubinstein for a follow-up appointment, complaining of a number of symptoms bothering him since his previous appointment the week before. R.A. complained of symptoms on his skin, a stuffy nose, sore throat, body ache, and watery eyes. On July 27, 2006, Dr. Rubinstein performed an endoscopy on R.A. Dr. Rubinstein told R.A. that the polyps that had been removed at the Silverstein Institute had grown back. He further told R.A. that his septum was crooked and that the physician at the Silverstein Institute had not done a good job and needed to be reported. Dr. Rubinstein advised R.A. of the results of the allergy testing. The allergy test, which Dr. Rubinstein requested for food allergies, showed that R.A. was allergic to all foods tested except for sunflower seeds. The food allergies were tested by Commonwealth Medical Labs in Warrenton, Virginia. The test used was called an IgG test. The laboratory report stated: "This test is For Investigational Use Only. Its performance characteristics have not been cleared or approved by the U.S. Food and Drug Administration." Dr. Rubinstein told R.A. that the allergies could be treated with homeopathic vitamins, supplements, acupuncture, and a Rotation Elimination Diet. Dr. Rubinstein sold R.A. a lot of homeopathic vitamins and supplements from Dr. Rubinstein's office. Dr. Rubinstein also recommended that R.A. get some treatments from an acupuncturist, who worked out of Dr. Rubinstein's office on a case-by-case basis. Some of the treatments included injection of some homeopathic medications. The acupuncturist was supposed to help with the rash on R.A.'s face and the allergies. On July 27, 2006, Dr. Rubinstein ordered a sleep apnea test for R.A. The method of testing was a home test, which R.A. rented from Dr. Rubinstein. R.A. often woke during the night to urinate since he had his prostate removed. The results of the test showed that R.A. had significant snoring and mild obstructive sleep apnea. Dr. Rubinstein told R.A. that he suffered from sleep apnea that was very serious and that R.A. had almost died three to four times during the test. Dr. Rubinstein told R.A. that he needed surgery immediately to treat the sleep apnea. The sleep apnea test did not show severe sleep apnea. The sleep could and should have been treated using positive pressure ventilation via a mask. Dr. Rubinstein's testimony that he suggested the use of a mask and R.A. rejected the idea is not credited. It is clear from R.A.'s testimony that he was led to believe by Dr. Rubinstein that his sleep apnea was life- threatening and that he needed immediate surgery. On or about July 29, 2006, R.A. returned to Dr. Rubinstein's office. Dr. Rubinstein discussed the Rotation Elimination Diet with R.A. On or about August 1, 2006, R.A. presented to Dr. Rubinstein for a follow-up appointment with complaints of a stuffy nose and dry mouth. Dr. Rubinstein noted that a culture from R.A. was positive for staph aureus and prescribed the antibiotics, Septra and Gentamicin nasal spray. On or about August 4, 2006, R.A. presented to Dr. Rubinstein with complaints of inability to breathe through his nose at night. Dr. Rubinstein reviewed the progress of the Rotation Elimination Diet with R.A. On August 8, 2006, R.A. presented to Dr. Rubinstein complaining of bilateral congestion. Dr. Rubinstein prescribed Allegra-D, an antihistamine decongestant, and Nasonex, a cortical steroid. Dr. Rubinstein presented R.A. with a surgical plan that included: endoscopic sphenoidoscopy and debridement; septoplasty; radiofrequency inferior turbinates; radiofrequency soft palate; radiofrequency base of tongue; and bilateral intranasal endoscopic ethmoidectomy revision. Dr. Steig, the Department's expert, is of the opinion that the recommended surgeries were unnecessary and that Dr. Rubinstein should have tried medical treatment before resorting to surgery. Dr. Steig's opinion is credited. On or about August 11, 2006, R.A. presented to Dr. Rubinstein for a pre-operative appointment to take a history and physical examination. Dr. Rubinstein discussed EKG results with R.A., stating that the results were borderline and that Dr. Rubinstein would ask another physician to review the results. On August 14, 2006, R.A. called Dr. Rubinstein's office and left a message that he was cancelling the surgery. R.A. went to see Howard B. Fuchs, M.D. (Dr. Fuchs), on August 14, 2006, to get a second opinion. Dr. Fuchs is board- certified in pediatrics and allergies. On August 14, 2006, R.A. presented to Dr. Fuchs with chronic rhinitis, which is a chronic inflammation of the nasal tissues. He wanted to find out whether he had allergies. R.A. told Dr. Fuchs that he had been tested for allergies when he was Dr. Rubinstein's patient. R.A. did not bring any of the allergy test results with him to the office visit. Dr. Fuchs told R.A. to stop taking antihistamines and scheduled R.A. for skin testing ten days later. On August 24, 2006, Dr. Fuchs performed allergy skin tests, and the results were negative. R.A. did not have any allergies. Dr. Fuchs changed the Allegra-D to doses twice a day and continued R.A. on Nasonex. The Allegra-D was for congestion and to shrink the tissues in R.A.'s nose. Dr. Fuchs diagnosed R.A. with vasomotor rhinitis, which is non-allergic. Vasomotor rhinitis is triggered by things like smoke and chemical fumes. Dr. Fuchs saw R.A. again on September 14, 2006. R.A. said that he was better, but the medication made him jittery. Dr. Fuchs changed the medication. The last time that Dr. Fuchs saw R.A. was on October 13, 2006, and R.A. said that he was doing well. On August 16, 2006, Jack J. Wazen, M.D. (Dr. Wazen), who is board certified in otolaryngology, head and neck surgery, saw R.A. for the first time. Dr. Wazen is employed at the Silverstein Institute, but had not treated R.A. when R.A. had been a patient at Silverstein Institute before August 16, 2006. R.A. was seeking a second opinion concerning Dr. Rubinstein's plan for nasal surgery. Dr. Wazen did a physical examination of R.A., including an endoscopic nasal examination, which revealed the septum to be in the midline with no obstructive deviation. There were no polyps, and the sites on which R.A. had had surgery looked well-healed. Dr. Wazen also reviewed a CT scan, which R.A. had provided. Based on his examination and evaluation, Dr. Wazen told R.A. that he did not have polyps and that there was no clinical benefit to be derived from surgery. R.A. presented with complaints of nasal congestion, stuffy nose, and hives. Dr. Wazen diagnosed R.A. with allergic rhinitis. Dr. Steig was of the opinion that surgery should not have been recommended for the sleep apnea or the chronic allergic rhinitis or chronic sinusitis without first trying other medical treatments such as a mask for the sleep apnea. He opined that the rhinitis and sinusitis could have been treated by the avoidance of a known cause of the rhinitis or sinusitis and continuation of nasal steroids and antihistamines. Dr. Steig's testimony is credited. Dr. Steig was of the opinion that the recommended surgery was not justified by the medical records. There were no polyps present and the septum was not deviated to the extent that surgery was necessary. The sleep apnea was moderate and did not warrant surgical intervention. Dr. Steig's testimony is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered as follows: DOAH Case No. 09-5267PL Finding that Dr. Rubinstein violated section 458.331(1)(t), Florida Statutes (2004); Finding that Dr. Rubinstein did not violate sections 458.331(1)(m) and 458.331(1)(n); Revoking Dr. Rubinstein's license; and Imposing a $10,000 administrative fine; DOAH Case No. 09-5269PL Finding that Dr. Rubinstein violated sections 458.331(1)(m), 458.331(1)(n), and 458.331(1)(t); Requiring Dr. Rubinstein to pay C.L. $2,921 for the allergy testing and the Rotation Diet; Revoking Dr. Rubinstein's license; and e. Imposing an administrative fine of $10,000. DOAH Case No. 09-5270PL Finding that Dr. Rubinstein violated section 458.331(1)(t), Florida Statutes (2006); Revoking Dr. Rubinstein's license; and Imposing a $10,000 administrative fine. DONE AND ENTERED this 1st day of February, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 1st day of February, 2011.
The Issue Did Respondent's failure to intervene in the post-operative period immediately after learning the CT scan results of Patient C.O. near midnight on April 12, 1997, constitute treatment that fell below the standard of care and that he failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, in violation of Section 458.331(1)(t), Florida Statutes?
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine in Florida. Respondent is a licensed physician in the State of Florida at all times material to the times alleged in the Complaint, having been issued license number ME 0070668. Respondent, as of May 2001, is board-certified in the area of neurological surgery. On April 3, 1997, Patient C.O., a 50-year-old male, presented to an Otolaryngologist (ear, nose and throat surgeon) with complaints of right side nasal polyps. On April 7, 1997, Patient C.O.'s surgeon ordered a radiological consult and a Coronal CT (up, down, front and back) scan of the right maxillary sinus. The CT scan revealed "complete opacification (blockage) of the left frontal, right ethmoid, right maxillary sinus, as well as the right nasal cavity with complete opacification of right sphenoid sinus." On April 9, 1997, Patient C.O. underwent a surgical procedure to remove nasal polyps. The surgeon removed an extremely large right nasal polyp, measuring approximately 10 cm in length. After removing the large mass, the surgeon noted smaller polyps and removed these also. After removing the polyps, the surgeon noted a "large pulsatile mass," which he biopsied. Biopsy results indicated that the "mass" was brain tissue. During the course of this procedure, the patient's cribriform plate had been pierced. This plate forms a barrier between the nasal cavity and the base of the brain. As a result of this puncture, the surgeon had removed a portion of Patient C.O.'s brain. The surgeon requested an intraoperative consult with Respondent. The surgeon and Respondent talked by telephone and Respondent recommended sealing off the brain tissue with a surgical flap and packing. An arteriogram was performed on Patient C.O. to determine if bleeding was from an artery or vein. It was determined that the bleeding was from a vein. He also, recommended placing Patient C.O. in the neurological intensive care unit, which was done, and the patient was stabilized. A CT scan, ordered by the surgeon, noted a right frontal hemorrhage and pneumoncephalus (air at the top of the skull). On April 10, 1997, drainage was noted from the right nostril of Patient C.O. Respondent noted that drainage was suspicious for cerebrospinal fluid (CSF). Respondent then considered various options in order to stop the leakage of CSF. On April 10, 1997, Respondent performed a surgical procedure which placed a spinal drain in Patient C.O. to control the intracranial pressure and to permit an outlet for the CSF. Respondent was attempting to allow the rupture to the cribriform plate to heal on its own. On April 11, 1997, a CT scan revealed large areas of air in the frontal areas of the skull. On April 12, 1997, it was determined that the rupture of the cribriform plate had not healed on its own. Patient C.O. had persistent drainage from the right nostril. He was taken to the operating room for a direct intracranial surgical repair of the defect. A CT scan demonstrated an increase in the frontal hemorrhage, a large left subdural hematoma, and brain swelling. On the afternoon of April 12, 1997, Respondent performed a bi- frontal craniotomy on Patient C.O. to close off the leaking of spinal fluid from the brain in the area behind the patient's forehead (CSF leak). The surgery began at 12:15 p.m. and anesthesia was initiated at approximately 12:30 p.m. on April 12, 1997, and surgery concluded at about 5:00 p.m. The procedure involved making an incision across the top of the scalp, from ear to ear, gaining access to the brain by making incisions in the cranium, then lifting the brain to allow access to the cribriform plate. This was accomplished without incident. During the post-operative period, the anticipated reaction of the patient was to return to post-operative status, or to improve neurologically beginning within two hours after the surgery ended. During the course of post-operative care, Patient C.O.'s vital signs and neurological statistics were constantly monitored. Patient C.O. did not show any improvements several hours after surgery as would be expected, but began to show signs of neurological deterioration. Because Patient C.O. did not improve neurologically after the surgery, Respondent, at about 9:30 p.m. on April 12, 1997, ordered a CT scan to be done immediately. Patient C.O. was taken for his CT scan around 10:45 p.m. The CT scan report by radiologist at Florida Hospital was called in to the hospital unit at 11:50 p.m. on April 12, 1997. Respondent was at home in bed, sleeping, when he was paged. Respondent called in and was told by telephone of the "wet read" results of the CT scan by the neuroradiologist. After obtaining the CT scan report, Respondent disagreed with the neuroradiologist's recommendations, ordered the continuation of the interventions which he had previously ordered, and issued no new medical orders. The April 12, 1997, CT scan results were reduced to writing and showed the following findings, when compared to the CT scan taken of Patient C.O., on April 11, 1997: Noncontrast examination shows numerous abnormal findings. Compared to the 04/11/97 study acute left subdural hemorrhage is similar. There is a large intraparenchymal frontal hemorrhage that has a similar appearance . . . . DIFFUSE INTRACEREBRAL SWELLING PROBABLY WORSE IN THE POSTERIOR FOSSA. OBLITERATED FOURTH VENTRICLE. VENTRICLE SIZE SIMILAR. INCREASED BLOOD FRONTAL REGION. UNCHANGED SUBDURAL LEFT POSTERIOR PAREITAL REGION. VENTRICULAR SIZE STABLE. PNEUMOCEPHALUS UNCHANGED. INTRAVENTRICULAR BLOOD STABLE. At 5:15 a.m. on April 13, 1997, Patient C.O.'s neurological status took a significant turn for the worse. The patient was interbated, and all appropriate measures were taken to attempt to revive the patient. Patient C.O. lapsed into coma and was unable to breathe sufficiently for himself; he sustained respiratory failure and coma. In the early morning hours of April 13, 1997, Patient C.O's neurological status was discussed with his family, and the decision was made to execute a do-not- resuscitate order. The patient never recovered and died two days later on April 15, 1997. Petitioner alleges that the standard of care required Respondent to take some affirmative or new action to intervene post-operatively on the night of April 12 through 13, 1997, to determine the cause of the deterioration and prevent irreversible brain damage. In support of Petitioner's position with regard to Respondent's standard of care, it presented the testimony of Dean C. Lohse, M.D. Dr. Lohse is a board-certified neurosurgeon who is licensed to practice medicine in the State of Florida. Dr. Lohse is a similar health care provider to Respondent, and he qualifies as an expert witness under Florida law. Dr. Lohse testified that he had several criticisms of the manner in which Respondent managed Patient C.O.'s post-operative care. Dr. Lohse was critical of the manner in which Respondent reacted to the information which was provided to him regarding the CT scan which was taken on the night of April 12, 1997, and which was communicated to Respondent at approximately midnight on that same night. In response to this information, Dr. Lohse was of the opinion that Respondent should have initiated some new intervention, including returning Patient C.O. to surgery, initiating medications to reduce swelling, introducing a pressure monitor, or changing the position of the lumbar drain. However, during the course of cross-examination, Dr. Lohse conceded that he could not say whether a return to surgery would have resulted in a different outcome for Patient C.O. Likewise, he could not state to within a reasonable degree of medical probability whether the introduction of medications to reduce the swelling would have worked. He could not state within a reasonable degree of medical probability whether the placement of a pressure monitor would have created a different result. Finally, he conceded that the issue of changing the lumbar drain was best left to the clinical judgment of the physician who is presiding over the care of the patient. Respondent testified on his own behalf at the final hearing. Respondent explained the April 12, 1997, craniotomy which he performed. He also explained the course of treatment which was followed with Patient C.O. in the hours subsequent to the conclusion of the craniotomy. Respondent explained his rationale behind ordering a stat CT scan, and he described the basis for his response to the information received at that time. Respondent testified that although he considered a return to surgery based upon the information contained within the CT scan, he decided against this option, as performing another surgery would only have been for the purpose of removing additional portions of Patient C.O.'s brain, including areas of the brain which are designed to control significant elements of an individual's personality. Respondent made the determination at that time that performing another surgical procedure would likely have caused more harm than good. Respondent testified that brain swelling reducing medication had been introduced previously and that the introduction of more or different brain swelling-reducing medications would not have addressed Patient C.O.'s condition. Respondent testified that the placement of a pressure monitor would have been pointless, given the information which he was able to obtain during the course of the craniotomy procedure. A pressure monitor is designed to measure increased levels of pressure on the brain. Patient C.O. was suffering from the opposite problem. Patient C.O.'s brain was actually flaccid, suffering from an absence, rather than an overabundance, of pressure. Therefore, the placement of a pressure monitor was never considered, as it would not have been of any use under the circumstances. Respondent testified that there was no need to change the aspect of the lumbar spinal drain. The lumbar spinal drain in this particular case was adequately controlled, at 5 ccs per hour. Thus, the use of the spinal drain was appropriate under the circumstances. Respondent's testimony is credible. Respondent also presented expert testimony, via deposition, of R. Patrick Jacob, M.D. Dr. Jacob is a board- certified neurosurgeon who currently works at the University of Florida in Gainesville. Dr. Jacob testified as to his education, training, and experience. He is a similar health care provider to Respondent, qualifies as an expert under Florida law, and can render expert medical opinions regarding the applicable standard of care in this case. Dr. Jacob testified that in his opinion, to within a reasonable degree of medical probability, Respondent met the applicable standard of care. He addressed each of the specific criticisms raised by Dr. Lohse. He specifically rejected the idea that another surgical procedure should have been performed, stating that to do so would have done more harm than good. He rejected Dr. Lohse's contention that the introduction of additional medications to reduce swelling would have been appropriate. Dr. Jacob disagreed with Dr. Lohse's suggestion that the placement of a pressure monitor would have been appropriate under the circumstances of this case. Finally, Dr. Jacob took issue with Dr. Lohse's opinion that a change in the lumbar spinal drain was warranted given Patient C.O.'s condition. On cross-examination, Dr. Jacob testified that he felt that Respondent's response to the information contained within the April 12, 1997, CT scan was appropriate. He was then presented with hypothetical questioning regarding whether doing nothing in response to the information contained within the CT scan would have been appropriate. Dr. Jacob testified that doing nothing in response to the information contained within the CT scan report may have constituted a deviation from the accepted standard of care. However, according to Dr. Jacob's review of the records, and Respondent's testimony at the final hearing, it is apparent that a decision was made by Respondent to continue with the interventions which had already been initiated, which under the circumstances of this case constitutes an affirmative act by Respondent to address the treatment and care of Patient C.O. Dr. Jacob's testimony is both credible and persuasive. The evidence is not clear and convincing that Respondent failed to intervene in the post-operative period immediately after learning the CT scan results of Patient C.O. around midnight on April 12, 1997. Respondent did not fail to take appropriate action after learning the results of the CT scan at midnight on April 12, 1997. Respondent ruled out several options and elected to continue with the interventions already initiated. Therefore, Respondent did not fall below the standard of care for similarly situated neurosurgeons and his actions on April 12 through 13, 1997, did not constitute a failure to practice medicine with that level of skill, care, and treatment recognized by a reasonably prudent similar neurosurgeon as being acceptable under similar conditions and circumstances.
Recommendation Based on the foregoing, it is RECOMMENDED that the Board of Medicine issue a final order finding that Respondent has not violated Section 458.331(1)(t), Florida Statutes, and dismissing the Administrative Complaint. DONE AND ENTERED this 19th day of July, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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: Michael R. D'Lugo, Esquire Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A. Post Office Box 2753 Orlando, Florida 32802-2753 Shirley J. Whitsitt, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 39-A Tallahassee, Florida 32308 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Findings Of Fact The Petitioner, Darall J. Moore, graduated from the Ohio College of Podiatric Medicine in 1983 with a D.P.M. degree. T. 10. The Petitioner took the podiatry examination in July 1986, and did not receive a passing grade. On October 1, 1986, the Petitioner conducted a review of his examination. He arrived at 8:30 a.m. and left the review session at 1:30 p.m. R. Ex. 1. The review was conducted pursuant to the procedures outlined in P. Ex. 1, a copy of which was provided to the Petitioner by the Respondent before the review took place. The purpose of the review was to give the Petitioner an opportunity to examine the answer key and the questions asked on the examination, and to note in writing (on challenge sheets provided) his objections to the grading of particular questions by number. The procedure for examination review also provided that: Candidates may not copy any material provided for the review. No reference materials or electronic recording or photographic equipment may be brought into the review. No material may be taken out of the review. All reviews are subject to Departmental security requirements in order to insure the integrity of the examination. The review session on October 1, 1986, was conducted in a small room. The room was used by other people as well, and during the review there were conversations of people, phones ringing, and people coming in and out. Nonetheless, there does not appear to be any direct evidence that these distractions substantially impaired the Petitioner's ability to review his examination. During the review, the Petitioner submitted challenges to 20 examination questions by number. R. Ex. 1. Each of these written challenges identifies the examination question by number and provides a space for comments concerning the challenge. The procedure for examination review and challenge provides in part that "[a]ll objections must be submitted within sixty (60) days from the date of your request for a review. Objections will be analyzed by a committee of the Board of Podiatry and you will be notified of any decision." P. Ex. 1. (E.S. in original.) Before the review took place, the Petitioner was informed that he had a right "to appeal" from the "results" of his examination review. The "appeal" was to be initiated within thirty (30) days of his "receipt of . . . examination review results." The "appeal" was to contain specific reasons for the challenge, including why the Petitioner was "appealing," "what actions of the examiner(s) were unfair, and any objections made at your review." P. Ex. 1. (E.S. in original.) The Petitioner timely requested a formal administrative hearing. At the formal administrative hearing, the Petitioner presented evidence concerning five examination questions. T. 30. None of this evidence was by expert testimony, but the Petitioner referred to expert treatises in the field. The first question was to state the nerve located around the neck of head of the fibula. T. 30. Petitioner contends that his answer to the question, the common peroneal, is correct. Id. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The second question challenged at the hearing by the Petitioner was "what dorsal cutaneous nerve communicates with the sural nerve." T. 44, 45. The Petitioner contends that the correct answer to this question, his answer, is the lateral dorsal cutaneous nerve. Id. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The third question challenged by the Petitioner at the hearing was "what is the largest reservoir of blood in the body." T. 46. The Petitioner contends that his answer, the veins, is the correct answer. T. 47. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The fourth question challenged by the Petitioner at the hearing was what is the characteristic of metatarsus adductus. T. 48. The Petitioner contends that his answer, "styloid process, prominent styloid process, based on the concave in the concavity being reversed," is the correct answer. T. 49. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The fifth question challenged by the Petitioner at the hearing was never clearly stated by the Petitioner, but concerned "pathopneumonic of gouty arthritis." T. 49. The Petitioner never clearly identified the answer that he gave, but contended that his answer was partially right and that there was no other answer that he could have chosen. T. 49-50. It appears that this question was discussed and objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2, question 88. However, since the Petitioner never clearly demonstrated what the question was, or what the answer was, the testimony of the Petitioner was too unclear for there to be a finding that the answer he gave to the question was correct. The Petitioner admitted that during the review session (see R. Ex. 2) he did not provide the Respondent with all of the questions to which he had objections. T. 38. The Petitioner did not provide the Respondent with written objections to the first four questions discussed above within sixty (60) days of the review, and indeed, did not provide any such notice to the Respondent until the formal administrative hearing began. There is no evidence that the Petitioner would have passed the examination if the Respondent accepted his answer to the fifth question. The Petitioner testified that his ability to prepare for this hearing was impaired because he was not allowed to take anything into the review session and was not permitted to take anything out of the review session. He states that he could not adequately prepare for the hearing because he did not have references during the review session, and did not have a copy of the questions objected to in the review session or a copy of the examination for use at the hearing. The Petitioner represented himself without representation of a lawyer. There is no evidence that the Petitioner knew about the procedures for conducting discovery prior to a formal administrative hearing, and there is no evidence that prior to the hearing he sought any discovery of the written objections he made during the review session or of the examination questions.
Recommendation For these reasons, it is recommended that the Department of Professional Regulation, Board of Podiatry, enter its final order finding that the Petitioner, Darall Jerome Moore, has not proven by a preponderance of the evidence that his 1986 examination for licensure as a Podiatrist was improperly graded, that the procedures for review of his examination were unfair, or that he should be given a passing grade on the 1986 examination. DONE and ENTERED this 10th day of July, 1987. WILLIAM C. SHERRILL, 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 10th day of July, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 87-1725 The following are rulings upon findings of fact proposed by the parties, by number, which have been rejected. Findings of fact proposed by the Petitioner: 1. The record does not contain evidence (testimony or exhibits) to allow any conclusion as to the numerical grade received by the Petitioner. Thus, the finding proposed that the grade was 71.9 is rejected. There is insufficient evidence that the distractions during the review in fact substantially impaired the ability of the Petitioner to review the examination. The Petitioner did not testify that the noise or traffic caused him to be unable to concentrate or to fail to review the entire exam. See T. 28-29. The Petitioner completed twenty objections and left at 1:55 P.M., three hours before 5:00 P.M. The first sentence is rejected as not relevant. The Petitioner did not present any evidence to show how he was caused to be unable to prepare his case due to the scheduling of the hearing. It is officially recognized that the case was set for final hearing to commence August 10, 1987, by an order dated and entered May 1, 1987, and that the hearing date was changed to June 8, 1987, at the request of an attorney, Marc A. Tenney, received May 4, 1987. For these reasons, the second sentence is also rejected. Rejected for the reasons set forth in conclusions of law 2-4. The finding that it was very difficult to prepare for final hearing is rejected in finding of fact 19 and conclusion of law 6. Rejected in finding of fact 19 and conclusion of law 6. These findings are rejected in finding of fact 19 and conclusion of law 6. Rejected in findings of fact 11 through 14. Rejected in findings of fact 11 through 14. Findings of fact proposed by the Respondent: 2. The second sentence is rejected for lack of evidence in the record. COPIES FURNISHED: Marcelle Flanagan Executive Director Board of Podiatry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darall Jerome Moore, D.P.M. 5455 27th Street South, Apt. 87 St. Petersburg, Florida 33712 Chester G. Senf, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Petitioner can prove Medicaid overpayments to Respondent and, if so, how much Petitioner is entitled to recoup.
Findings Of Fact Respondent is a licensed physician with an office in Stuart. He is Board-certified in neurology and pain medicine. During the audit period and until recently, Respondent was an enrolled Medicaid provider. The audit in this case involved 237 claims on behalf of 30 recipients. Of these 237 claims, Petitioner determined that 59 were overpayments. After determining the total of these 59 overpayments, Petitioner referred the file to a statistician, who extended these 59 overpayments to the total overpayment shown in the Final Audit Report. The statistician based the extension on generally accepted statistical methods that he explained, at the hearing, to everyone's satisfaction, as evidenced by the fact that no one asked to hear more. During the statistician's testimony, the parties agreed that, if the overpayments in the Final Audit Report are altered in the Final Order, Petitioner will refer the new determinations to a statistician for another extension, based again, of course, on generally accepted statistical methods. Recipients will be identified by the numbers assigned them in Petitioner Exhibit 7. The only recipients addressed are those for whom Petitioner has determined overpayments. Nine billings are at issue with Recipient 1. On March 8, 2007, Respondent saw Recipient 1 and billed a CPT Code 99245 office consultation. Petitioner downcoded this to a CPT Code 99244 office consultation and generated an overpayment of $20.39. The CPT describes these office consultation codes as follows: 99244 Office consultation for a new or established patient, which requires these three key components: A comprehensive history; A comprehensive examination; Medical decision making of moderate complexity. * * * Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. 99245 Office consultation for a new or established patient, which requires these three key components: A comprehensive history; A comprehensive examination; Medical decision making of high complexity. * * * Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 80 minutes face-to-face with the patient and/or family. Recipient 1 was the victim of a severe beating at the hands of her husband in July 2006. Petitioner's determinations concerning this case partly arose out of the failure of its consultant to find in Respondent's medical records a date of incident, but Respondent provided this information at the hearing. Recipient 1 suffered fractures of the skull and orbital bone from the spousal battery. Continuously since the incident, she had suffered headaches; vertigo, especially when blowing her nose; memory loss; and a complete inability to use her left hand. The initial office consultation was on March 8, 2007, and Respondent billed it correctly, given the complexity of the medical decisionmaking. She had five diagnoses, and Respondent gave her 11 recommendations. Considerable time and effort were required of Respondent to address her case at this initial office consultation, for which there is thus no overpayment. On March 20, 2007, Recipient 1 underwent an MRI of the brain, for which Respondent billed a CPT Code 70553, which is for brain MRIs with and without dye or contrast. Petitioner downcoded this to a CPT Code 70551, with a reduction of $76.59, because Respondent had ordered only an MRI of the brain without dye. Respondent produced at hearing a copy of the prescription, which cryptically states: "MRI Brain c /o contrast." The "c" and the "o" have dashes over them. The "c" with a dash is a traditional abbreviation of cum, so it means "with." The meaning of the dash over the "o" is unclear. Lacking a conjunctive symbol in the space between the letters, it appears that the combination means "without," rather than "with" and "without." The downcoding is appropriate, and the overpayment is $76.59. On the same date, Recipient 1 underwent an MRI of the neck and spine without dye. Petitioner denied this billing, which was for $233.47, for lack of medical necessity due to the absence of appropriate pain symptoms, especially radiating pain. At the hearing, Respondent explained that Recipient 1 suffered from moderate to severe stenosis, and he needed to rule out neck involvement in the patient's inability to use her left arm. The neck and spine MRI was medically necessary, so there is no overpayment for this test. On May 2, 2007, Recipient 1 underwent a muscle test, one limb--billed as CPT Code 95860; a sense nerve conduction test--billed as CPT Code 95904; and a motor nerve conduction test--billed as CPT 95903. On the next day, she underwent the identical tests--all billed under the identical codes. Petitioner denied all of these, and generated overpayments of $40.81, $73.05, $65.60, $40.81, $73.05, and $65.60, respectively. Petitioner denied these tests because Respondent had not ordered them. This does not seem to have been inadvertent on Respondent's part. None of these tests appeared to be part of Respondent's treatment plan for this patient. Petitioner thus determined correctly that these six sums are overpayments. Five billings are at issue with Recipient 3. The first is an office consultation on April 9, 2008. Petitioner has downcoded this from CPT Code 99245 to CPT Code 99244 due to a lack of complexity of decisionmaking. This generates an overpayment of $20.18. Respondent testified that Recipient 3 was a 63-year- old patient with "total body pain." Respondent testified that the patient complained of neck pain, low back pain, and chronic pain, all emanating from a bicycle accident five years earlier that had necessitated the placement of a titanium rod in the patient's leg. However, the eight diagnoses and 18 recommendations do not, on these facts, merit the complexity of decisionmaking claimed by Respondent in his billing. Petitioner has proved an overpayment of $20.18. Recipient 3 raises the issue of the reimbursability of an sNCT administered by Respondent. On April 21, Recipient 3 underwent two procedures billed as sense nerve conduction tests under CPT Code 95904 at $143.70 each. Two days later, Recipient 3 underwent two procedures billed under the same name and CPT Code at $141.70 and $143.70. Petitioner has disallowed all four of these billed amounts. CPT Codes 95900-95904 describe nerve conduction tests that measure the nerve's response to an electrical stimulation in terms of speed, size, and shape. CPT Code 95904 is "nerve conduction, amplitude and latency/velocity study, each nerve; sensory." A procedure meeting the definition of CPT Code 95904 must measure the nerve's response in terms of amplitude and latency/velocity. Amplitude is a measure of size. Latency is a measure of time of travel, so, provided travel distance is known, as it typically is, velocity, or speed, may be derived from latency. The device used by Respondent for all of the sense nerve conduction tests that he billed as CPT Code 95904 was an Axon II device. The inventor of the device testified at the hearing and explained how conventional sense nerve conduction tests, which were developed during World War II, are appropriate for the detection of gross injuries because they detect damage in the large nerve fibers. Fifty to 100 times smaller than these large fibers are the small nerve fibers, which transmit pain. Among these fibers are the fast-transmitting A-delta fibers and the slow-transmitting fibers are C-fibers. The Axon II focuses on the activity of the A-delta fibers. Originally, the witness produced a neurometer that relied on patient response to the application of increasing voltage to the point that the nerve produced a response in the form of a stimulus. Seven years later, in 2002, the witness added a potentiometer, or voltage meter, to allow what he terms a psychophysical assessment of a sensory nerve conduction test that applies electricity and records amplitude, but not latency or velocity. The witness claims that the A-delta fibers are too small for a useful test of latency or velocity. Among A-delta fibers, the only useful parameter for measurement is amplitude. He added that, similarly, the shape of the signal emanating from the nerve is also irrelevant when dealing with the smaller A- delta fibers. Whatever larger issues of medical necessity that may attach to the Axon II device, the issue in this case is whether it may be billed under Florida Medicaid law, which reimburses only those services designated in Chapter 2, Physician Services Coverage and Limitations Handbook. Pursuant to this requirement, Respondent billed the sNCTs that he performed with the Axon II device under CPT Code 95904. But, as noted above, this code requires at least a measure of latency and possibly measures of latency and velocity, and the sNCTs do not provide latency or velocity data. Respondent thus miscoded all of the sNCT procedures that he performed in this case. The sNCTs performed with the Axon II device are described by CPT Code 95999, which is assigned to unlisted neurological diagnostic procedures, and Code G0255, which is a unique code for sNCTs. If the sNCTs performed in this case were properly coded only under CPT Code 95999, another issue would emerge because the fee schedule for this code in the Physician Services Coverage and Limitations Handbook bears an "R" code. This means that the provider performing a procedure falling into the residual category of CPT Code 95999 may submit "either documentation of medical necessity for the procedure performed. . . or information . . . in order to review and price the procedure correctly." Physician Services Coverage and Limitations Handbook, p. 3-3. It is unnecessary to determine whether Respondent complied with the "by-report procedure" established for procedures classified within CPT Code 95999, or whether, consistent with the de novo nature of the proceeding, as discussed in the Conclusions of Law, Respondent could first present such evidence at hearing. The Centers for Medicare and Medicaid Services (CMS) created CPT Code G0255 for sNCTs because it determined that the devices producing this data were not medically necessary, and Medicare and Medicaid would not reimburse claims for these procedures. On March 19, 2004, CMS revised its National Coverage Determinations Manual regarding sNCTs. Noting that these procedures are different from the assessment of nerve conduction velocity, amplitude, and latency, section 160.23 of the manual states that providers may not use codes for tests eliciting nerve conduction velocity, latency, or amplitude for sNCTs. CMS has clearly expressed its intent that, although falling within the residual CPT Code 95999 procedures, sNCTs are ineligible for reimbursement, even by the "by-report procedure." Petitioner thus correctly disallowed the four procedures performed on April 21 and 23, 2008, because they were miscoded and are ineligible for Medicaid reimbursement. Recipient 3 raises another recurring issue. This one concerns an H-Reflex Test, CPT Code 95934. For Recipient 3, it was billed on May 8, 2008, for $27.49. Petitioner properly disallowed the billing because the procedure was not done. Respondent concedes that he never performed an H-Reflex Test on an upper extremity and explains that an inexperienced office worker misconstrued a handwritten mark indicative of a negative to mean that the test had in fact been ordered and conducted. The issue on the H-Reflex Test is not whether Respondent was initially entitled to reimbursement--it was not. The issues are 1) whether this overpayment may be extended to the larger total overpayment determined in this case and 2) whether Respondent has already reimbursed Petitioner for this overpayment of $27.49, if not considerably more. The answer to the first question is no, and the answer to the second question is probably not. The bottom line is that Petitioner may add $27.49 to the total overpayment, but may not include this sum in the extension calculations due to Respondent's timely correction of this billing error. Respondent discovered that his office had wrongly billed this procedure on 28 different occasions, but he (or his wife/office manager) informed Petitioner of this fact prior to the audit. Among the 30 patients randomly selected for the audit, four of them had these incorrect billings for an H-Reflex Test on an upper extremity. For obvious reasons, corrections after the start of an audit may not be allowed, but a timely correction remedies the overbilling, as though it had never taken place. Respondent contends that the situation is even more complicated. Respondent's wife testified that she voided the claims on Petitioner's automated electronic claims paying process, which is the proper procedure, but, for some reason, all other procedures performed on the same day as the procedure date reported for the H-Reflex Tests were also voided. If so, it would mean that Respondent has already reimbursed Petitioner for the $27.49 erroneous billing, and Petitioner must credit Respondent--and possibly extend the credit--for any other allowable procedures performed on the same date. For Recipient 3 on May 8, 2008, for instance, this would amount to a direct credit of $107.78 for the two other allowable procedures performed on the same day that the H-Reflex Test was reported as performed. Respondent's wife failed to detail these wrongfully aggregated voids, nor did anyone on Petitioner's side of the hearing room have any idea what she was talking about. On this record, it is impossible to credit the testimony so as to require Petitioner to restore the value of other procedures billed on the same date as the H-Reflex Test (here, $107.78), extend this value to a much higher credit, or even restore the value of the H-Reflex Test itself ($27.49). Three billings are at issue with Recipient 6. Two of them are sNCTs billed under CPT Code 95904 for two procedures done on February 27, 2008. They were billed at $141.70 and $143.70, respectively. For the reasons discussed above, these are miscoded and are ineligible for reimbursement, so they are overpayments. The third issue involves an office visit on April 3, 2008, which Respondent billed under CPT Code 99211. Respondent admitted at the hearing that he lacked documentation for this office visit, so Petitioner properly disallowed the $12.48 associated with it. One billing is at issue with Recipient 7. It is a brain MRI with and without dye, which is billed on May 23, 2007, under CPT Code 70553. Petitioner properly disallowed the entire $410.85 because it was obviously double-billed, and Petitioner allowed the "other" procedure. Three billings are at issue with Recipient 9. On November 2, 2007, Respondent billed a neck and spine MRI without dye as CPT Code 72141 and a lumbar spine MRI without dye as CPT Code 72148. On November 13, 2007, Respondent billed a head angiography without dye as CPT Code 70544. Citing a lack of medical necessity, Petitioner denied all of these items, which amount to $233.47, $236.65, and $300.09, respectively. At the time of the procedures in question, Respondent had been seeing this 37-year-old patient for only one month. Another physician had referred the patient, who, for three months, had been suffering from headaches in the right frontal temporal area. The pain was severe enough to cause the patient to go to the hospital emergency room three times. Finally, the emergency room physicians instructed the patient not to come to the emergency room, and they referred him to a neurologist--who had been dead for two years at the time of the referral. The emergency room physicians had prescribed Dilaudin, but the patient, who was also on a blood thinner, presented to Respondent with the need for a full neurological workup. He was a construction worker and needed to return to work. Respondent ordered the angiography to rule out vascular malformation, which could have caused the headaches and could be fatal. Respondent ordered the MRIs to assess significant anatomical problems and rule out metastatic disease. These three procedures were medically necessary, so there is no overpayment due in connection with them. One billing is at issue with Recipient 11. On January 10, 2007, Respondent billed an office consultation under CPT Code 99243. Petitioner allowed only an office visit, not an office consultation, resulting in an overpayment of $15.33. Respondent has not contested this adjustment, which appears to be correct. Four billings are at issue with Recipient 15. They are sNCTs billed under CPT Code 95904 for two procedures done on March 4, 2008, and two procedures done on March 24, 2008. Two of the procedures were billed at $141.70 and two were billed at $143.70. For the reasons discussed above, these are miscoded and are ineligible for reimbursement, so they are overpayments. Four billings are at issue with Recipient 16. They are sNCTs billed under CPT Code 95904 for two procedures done on January 22, 2008, and two procedures done on March 5, 2008. They are billed the same as those described in the preceding paragraph. They are miscoded and ineligible for reimbursement, so they are overpayments. Three billings are at issue with Recipient 17. They are sNCTs billed under CPT Code 95904 for one procedure done on March 17, 2008, and two procedures done on March 19, 2008. They are billed at $141.70 for two procedures and $143.70 for the third procedure. They are miscoded and ineligible for reimbursement, so they are overpayments. Four billings are at issue with Recipient 20. They are sNCTs billed under CPT Code 95904 for two procedures done one June 24, 2008, and two procedures done on June 30, 2008. They are each billed at $143.70. They are miscoded and ineligible for reimbursement, so they are overpayments. Six billings are at issue with Recipient 21. Four are sNCTs billed under CPT Code 95904 for two procedures done on February 20, 2008, and two procedures done on February 28, 2008. They are each billed at $143.70. They are miscoded and ineligible for reimbursement, so they are overpayments. The other two billings are for H-Reflex Tests of upper extremities--one on March 25, 2008, and one on April 2, 2008. As noted above, Respondent never performed these tests, but corrected the misbilling prior to the audit. The $27.49 billed for each of these tests may not be extended in determining the total overpayment, but Petitioner may add $54.98 to the total overpayment determination, and Petitioner is not required to credit Respondent for additional sums due to claimed problems in voiding these billings. Four billings are at issue with Recipient 25. They are sNCTs billed under CPT Code 95904 for two procedures done on June 5, 2008, and two procedures done on June 10, 2008. They are each billed at $143.70. They are miscoded and ineligible for reimbursement, so they are overpayments. One billing is at issue with Recipient 26. On February 15, 2007, Respondent billed an office visit under CPT Code 99205, which Petitioner reduced by $16.64 by downcoding it to CPT Code 99204. The CPT Manual describes these office visit codes as follows: 99204 Office or other outpatient visit of the evaluation and management of a new patient, which requires these three key components: A comprehensive history; A comprehensive examination; Medical decision making of moderate complexity. * * * 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. 99205 Office or other outpatient visit of the evaluation and management of a new patient, which requires these three key components: A comprehensive history; A comprehensive examination; Medical decision making of high complexity. * * * Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. Recipient 26 is a 43-year-old with migraines. She has suffered three headaches weekly since fourth grade. An MRI of her lower back in 2004 revealed a herniated disk, and she has pain in her right leg and foot numbness, if she drives too long. The medical decisionmaking was no more than moderately complex, so Petitioner properly downcoded this office visit, resulting in an overpayment of $16.64. Four billings are at issue with Recipient 27. On January 15, 2008, Respondent billed an office visit under CPT Code 99205, which Petitioner reduced by $18.64 by downcoding it to CPT Code 99204. Recipient 27 was referred by her obstetrician and saw Respondent two and one-half months post-partum. She was unable to lift her right arm. She had pain in her right outside shoulder. Her fingers were numb. Based on a physical examination, Respondent detected nerve damage in the axilla, and she reported cervical radiculopathy. The constellation of symptoms suggested three or four problems that obviously required immediate attention to facilitate her caring for her newborn. The medical decisionmaking was highly complex, so there is no overpayment for this office visit. Respondent billed two sNCTs under CPT Code 95904 for two procedures done on January 24, 2008, for $143.70 each. They are miscoded and ineligible for reimbursement, so they are overpayments. Respondent billed an H-Reflex Test under CPT Code 95934 on February 7, 2008, for $27.49. As noted above, Respondent never performed this test, but corrected the misbilling prior to the audit. The $27.49 may not be extended in determining the total overpayment, but Petitioner may add $27.49 to the total overpayment determination, and Petitioner is not required to credit Respondent for additional sums due to claimed problems in voiding these billings. Petitioner conceded error in its disallowance concerning Recipient 28, for whom Respondent billed $41.00 under CPT Code 95860 for a muscle test conducted on February 21, 2008. See Petitioner's proposed recommended order, paragraph 21. This is therefore not an overpayment. Three billings are at issue with Recipient 29. On February 7, 2007, Respondent billed an office consultation under CPT Code 99245, which Petitioner reduced by $46.24 by downcoding it to CPT Code 99205, which is for an office visit. This was an office visit, not an office consultation, as billed by Respondent, so the downcoding was correct, and there is an overpayment of $46.24. On February 16, 2007, Respondent billed for a neck and spine MRI without dye under CPT Code 72141 and a chest and spine MRI without dye under CPT Code 72146--twice each. Petitioner properly disallowed $357.60 and $305.18 for one pair of these procedures, which obviously were double-billed, so there are overpayments of these amounts. Two billings are at issue with Recipient 30. Respondent billed two sNCTs under CPT Code 95904 for two procedures done on April 14, 2008, for $141.70 and $143.70. They are miscoded and ineligible for reimbursement, so they are overpayments. The Final Audit Report claims that the audit cost $5658.09, but Petitioner failed to produce any evidence on these costs.
Recommendation It is RECOMMENDED that: Petitioner submit the file to a statistician for an extension, using generally accepted statistical methods, of the redetermined overpayments, as set forth in the Findings of Fact, to a total overpayment determination. Petitioner issue a Final Order determining that Petitioner is entitled to recoup the total overpayment determined in the preceding paragraph, statutory interest on this sum from the date of the Final Order, and a $4,000 administrative fine for multiple violations of Florida Administrative Code Rule 59G-9.070(7)(e). DONE AND ENTERED this 19th day of May, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2011. COPIES FURNISHED: George Kellen Brew, Esquire Law Office of George K. Brew 6817 Southpoint Parkway, Suite 1804 Jacksonville, Florida 32216 L. William Porter, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Monica Ryan, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Jeffries H. Duvall, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
Findings Of Fact Petitioner took the mechanical contractor examination in February, 1989. A passing score was 69.01. Petitioner received a score of 67.5, which was later adjusted to 68 after the review/regrade process was completed. Petitioner timely challenged seven questions. However, at the hearing, he dropped his challenge to six of these questions. The sole question that Petitioner challenges is MC 430, question 17. The question, which is worth two points, is: Given: A fibrous glass air duct conveys 15,000 cfm at a velocity pressure of 4.0" WG. The velocity of the air in the duct is: less than 6000 fpm. between 6001 fpm and 7000 fpm. between 7001 fpm and 8000 fpm. more than 8000 fpm. Petitioner answered "(C)." The correct answer is "(D"). The examination was an open-book test. Some, but not all, questions provided the candidate with a reference from which he could often find a formula that would help him answer the question. Question 17 did not provide a reference. However, the formula for deriving the answer to question 17 was contained in one of the reference materials that candidates, including Petitioner, brought with them to the test for use during the test. At the top of page 17-1 of the SMACNA publication entitled, "Energy Recovery Equipment and Systems," a formula appears that will solve the problem. The formula is that velocity in feet per minute equals the square root of the velocity pressure in water gauge multiplied by 4005. In this case, the square root of 4" WG is 2, which multiplied by 4005 is 8010 fpm. Petitioner did not use the SMACNA publication or the formula contained in the publication. Instead, he used what is called a ductulator to calculate the answer. The ductulator is a device consisting of two cardboard circles attached by a rivet. By sliding the two circles to line up markings indicating two factors, the operator can derive additional information concerning the design specifications' of a duct system. In this case, Petitioner lined up the air volume with the velocity pressure to derive the velocity. The ductulator is calibrated to show 7000 fpm, 7500 fpm, and 8000 fpm in the relevant range. A finer reading requires extrapolation, which is difficult because a distance of only 1/16" represents 500 fpm at this point on the ductulator. On Petitioner's ductulator, which is a Trane ductulator bearing a 1976 copyright, the answer was about 7700 fpm. However, another Trane ductulator bearing a 1950 copyright disclosed the answer as slightly over 8000 fpm, although a different 1950 Trane ductulator showed the answer as about 7700 fpm. Petitioner's reliance on a ductulator was misplaced. The scale of calibration alone should have placed him on notice of the danger of using this rough instrument to answer question 17. When he derived an answer so close to the 8000 fpm break point, he could no longer rely on the ductulator, assuming that it was reasonable to do so in the first place, especially in view of the easy-to-use formula that provided the precise answer.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation enter a Final Order dismissing Petitioner's challenge to the grading of the mechanical contractor's examination that he took in February, 1989. ENTERED this 26th day of February, 1990 in Tallahassee, Florida. ROBERT E. MEALE 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 26th day of February, 1990. COPIES FURNISHED: Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Robert A. Berki, pro se 2641 Capp Circle Kissimmee, FL 32743 G. W. Harrell, Senior Attorney Department of Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32201
