The Issue Whether the Respondent Department complied with the pertinent statutes and rules when it amended and extended a certificate of need previously granted to the Intervenor, Bayonet Point Hospital, Inc., without notice to Petitioner, Port Richey Medical Center, Inc. The Petitioner, Port Richey Medical Center, Inc., an association of six (6) osteopathic physicians, applied for a certificate of need in the service area of Pasco County, Florida, in which the Intervenor, Bayonet Point Hospital, Inc., had previously been granted a certificate of need. Subsequent to the filing of Petitioner's application, Bayonet Point was granted an increase in its approved capital expenditure of 5.2 million dollars, its certificate was amended to move the construction site, and the certificate of need was extended for a period of six (6) months. The amendments and extension were approved by the Respondent, Department of Health and Rehabilitative Services, without notice to Petitioner. Petitioner filed an administrative action.
Findings Of Fact A one (1) year certificate of need, #960, was issued to Bayonet Point Hospital, Inc. on November 13, 1978, to expire November 12, 1979, pursuant to an order of the appellate court in Samson v. Bureau of Community Medical Facilities Planning of Department of Health and Rehabilitative Services, Fla. app., 363 So.2d 412 reversing a denial on May 24, 1976 of an application for a certificate of need for the construction of a 200-bed hospital in the Bayonet Point Community, Pasco County, Florida at a total cost of 4.8 million dollars. On June 19, 1979 Port Richey Medical Center, Inc. filed a letter of intention to file an application for a certificate of need and thereafter, on September 5, 1979, filed its application to build a 100-bed osteopathic hospital in the same service area in which Bayonet Point held its certificate. On July 23, 1979 Bayonet Point requested a letter of authorization to change the cost of the project from 4.8 million dollars to 10 million dollars (Petitioner's Exhibit 9). The administrator of the office of Community Medical Facilities consulted with the supervisor of the architectural and engineering unit and granted the increase on August 16, 1979 (Petitioner's Exhibit 13). On October 10, 1979 Petitioners filed a petition demanding a hearing ". . .to demonstrate that. . .the actions taken by the Department of Health and Rehabilitative Services have been outside the scope of the applicable statutes." Bayonet Point's Motion to Intervene filed October 19, 1979 was granted. On October 26, 1979 Bayonet Point requested an extension of time to its certificate and supported its request with documentation as required by Rule 10- 5.13(2), Florida Administrative Code. In addition the request stated that the administrative action filed by Petitioner on October 10, 1979, plus the finding that the designated site of the project was located in a flood-prone area were good cause to extend the certificate. The certificate of need was extended to terminate May 12, 1980, without notice to Petitioner. The Hearing Officer finds that: (a) The Respondent Department is required to determine need in the service area of a proposed health care facility but is not required to approve site location. The change in the site of the facility is within the service area previously approved and can be made without prior approval of Respondent; and (b) the Intervenor, Bayonet Point Hospital, Inc., is a subsidiary of Hospital Corporation of America, Inc., which has acquired its stock, but Bayonet Point Hospital, Inc. holds the certificate of need and proposes to construct and operate the hospital. No transfer of the certificate of need has been made. The parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based on the foregoing Findings and Conclusions of Law the Hearing Officer recommends that: The issues raised in the Port Richey Medical Center, Inc. petition be reviewed and determined by the agency upon notice to Petitioner; and An extension of time to the certificate of need held by the Intervenor be granted for a period of six (6) months from the date of the Final Order. DONE and ORDERED this 18th day of February, 1980, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Eric J. Haugdahl, Esquire Department of HRS 1323 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301 Kenneth G. Oertel, Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301 Jon C. Moyle, Esquire 707 North Flagler Drive Post Office Box 3888 West Palm Beach, Florida 33402 Cynthia S. Tunnicliff, Esquire Suite 750 Barnett Bank Building Post Office Box 82 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES PORT RICHEY MEDICAL CENTER, INC., Petitioner, vs. CASE NO. 79-2052 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent, vs. BAYONET POINT HOSPITAL, INC., Intervenor. /
Findings Of Fact Selwin Coleman is the record holder of land located near Maytown Road three miles west of Oak Hill, Florida, at latitude 28o51'25" North, longitude 80o54'26" West in Sections F and G, Township 19 South, Range 34 East in Volusia County (the proposed site). He has authorized his son-in-law, Ron Biritz, to seek DOT site approval and a license for a private airport as the proposed site. Petitioners and intervenors own land in the general vicinity, and Robert L. Hart owns extensive mineral rights, including rights to any minerals underlying the proposed site. Other land owners, including Warren J. Brull, who owns part of the land over which the existing air strip runs, C.R. "Dick" Powell, and Vaughn L. Grasso, who owns a crop duster he stores in a building he characterizes as agricultural, also made Mr. Biritz their agent for purposes of the pending application. Known as "Blue Ridge Flightpark," a 4,000-foot grass air strip at the proposed site had been used by light planes for some time, until recently. The air strip has been significantly improved within the last two years; at one time watermelons were grown on the property. Originally, scrub hickory and gopher tortoise holes made its use as an air field impractical. When John Bronson Monteith, the aviation specialist for DOT's District Five, learned the grass strip at the proposed site was "operational," he contacted the owners and instructed them to close down operations until site approval was granted; and told them how to apply for site approval. As one result, they caused a large "X" to be placed on the strip, indicating the field was closed to operation. When Mr. Monteith visited the proposed site on November 21, 1991, he saw rust on a brake disc on Mr. Biritz's airplane, suggesting disuse. After DOT received the application, Mr. Monteith determined that it was complete and seemed to meet all rule and statutory criteria, so he prepared a notice to grant the application for Nancy Houston's signature. He caused copies of the notice of intent to be sent by certified mail to all airports and municipalities within 15 miles and to all landowners within 1,000 feet of the proposed site. The notice of intent was published in the News Journal, and a public hearing was held on July 18, 1991. There is some question regarding the true nature of several largish buildings along the air strip. Treated as "agricultural" for purposes of construction without building permits, the buildings look to some more like hangars than barns. But, as to the air strip itself, Volusia County zoning officials have recognized a nonconforming use antedating adoption of County zoning ordinances, a use which the ordinances allow to continue, as long as it does not entail construction of any new structures. Respondent's Exhibit Nos. 4 and 7. As experience has demonstrated, the proposed site is "feasible" and "adequate." Despite military air traffic in the general vicinity, the Federal Aviation Authority concluded that, if limited to private use, the "airport will not adversely affect the safe and efficient use of airspace by aircraft." Respondent's Exhibit No. 3. Only a windsock and markings, including threshold markings, are needed to meet licensing requirements.
Recommendation It is, accordingly, RECOMMENDED: That DOT grant site approval on the conditions stated in Order No. 91-34; and, after the requirements of Section 330.30(2), Florida Statutes (1991) have been satisfied, issue a private airport license to Ron Biritz. DONE and ENTERED this 28 day of May, 1992, in Tallahassee, Florida. own. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28 day of May, 1992. APPENDIX Both intervenors adopted petitioner's proposed findings of fact as their Petitioner's proposed findings of fact Nos. 1, 2 and 4 have been adopted in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, the legal status was not clear. With respect to petitioner's proposed finding of fact No. 5, a preponderance of the evidence established that flights had stopped recently. Respondent's proposed findings of fact Nos. 1 through 6 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 7 is properly a conclusion of law. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458 Dan R. Warren, Esquire 315 Silver Beach Avenue Daytona Beach, FL 32118 Bruce Best Post Office Box 2793 New Smyrna Beach, FL 32170 Cheryl M. Sanders Post Office Box 2793 New Smyrna Beach, FL 32170 James S. Morris, Esquire Storch, Hansen & Morris, P.A. 1620 South Clyde Morris Blvd., #300 Daytona Beach, FL 32219 Vernon L. Whittier, Esquire 605 Suwanee Street Tallahassee, FL 32399-0458
The Issue The issue is what is the correct amount of workers’ compensation reimbursement to Oak Hill Hospital for emergency services rendered to patient J.M. for a work-related injury?
Findings Of Fact Petitioner, Dollar, is a carrier within the meaning of Subsections 440.02(4) and (38), Florida Statutes, and Florida Administrative Code Rule 69L-7.602(1)(w). Respondent, the Department, is charged with the review and resolution of disputes regarding the payment of providers by carriers for medical services rendered to injured workers. The Department has exclusive jurisdiction to decide reimbursement disputes. § 440.13(7) and (11)(c), Fla. Stat. Intervenor, Oak Hill, is a health care provider within the meaning of Subsections 440.13(1)(h) and (3)(f), Florida Statutes. Oak Hill is an acute care hospital located in Spring Hill, Hernando County, Florida. On July 14, 2009, Oak Hill provided emergency services to the patient J.M., a 47-year-old male, who was injured at his place of work. J.M. was examined by Oak Hill’s emergency department physician, was administered Hydromorphone, an opiate pain medication and was given an injection of pain medication. The emergency physician also ordered a computed Tomography (CT) scan of the lower spine. The results of the CT was negative for fractures. Oak Hill's total charges for J.M.’s outpatient emergency services were $5,590.00. Oak Hill submitted its claim for reimbursement using the standard “uniform billing” form, UB- 04. The UB-04 sets out each service provided to J.M., the individual charge for each service, and the total charge. The individual services on the UB-04 submitted for patient J.M. are listed as follows: pharmacy; CT scan of the lower spine; the emergency department visit itself, and the pain medication. Oak Hill’s claim was received by MCMC, an organization described as a “third-party administrator,” and was referred in turn to Qmedtrix. Qmedtrix is a medical bill-review agent located in Portland, Oregon. Qmedtrix performs bill review by referral from carriers and third-party administrators, and performed for Dollar a bill review of the bill submitted by Oak Hill. For its compensation, Qmedtrix is paid a percentage of the difference, if any, between the amount billed by the facility and the amount paid by the carrier. Following Qmedtrix’ review, Oak Hill received a check from Dollar in the amount of $827.73, along with an “Explanation of Medical Benefits” review (EOBR), which is required to be sent along with the bill payment. The EOBR sets out the four individual components of Oak Hill’s claim. For the first component (the pharmacy charge), the EOBR indicates that “Reimbursement for the outpatient service is based on 75% [sic] the hospital’s charges.” The CT scan, with charges of $4,110.25, is paid at $247.00 with the explanation, ”Payment in accordance with the Georgia Hospital Inpatient Fee Schedule.” The emergency department visit references CPT code 99284, the same as appears on the UB-04, but is paid at $524.70 rather than at 75 percent of charges. That adjustment is explained as follows: “Reductions are due to charges exceeding amts reasonable for provider’s demographic area. Please direct questions to Qmedtrix 800/833/1993.” The last component of the claim, for the pain medication, is paid at $48.90 with the same explanation. The EOBR has one column entitled “Reason Code.” In completing an EOBR, insurers must select a code from a list of approximately 50 codes found in Florida Administrative Code Rule 69L-7.602(5)(o)2., which identifies the reason for the disallowance or adjustment. For the emergency room visit, the EOBR shows a code of 93, which is explained as follows: “Paid: No modification to the medical bill: Payment made pursuant to contractual arrangement.” As mentioned above, the EOBR indicates a “code” of 99284, the same code used on the UB-04 submitted by Oak Hill. These codes are among five codes that are used by hospitals to bill emergency department visits based on “level” of intensity rendered. These codes are taken from the American Medical Association’s Current Procedural Terminology (or CPT), a coding system developed for physician billing, not for hospitals. Over the years, these CPT codes were adopted by hospitals for billing emergency department visits. Emergency department services are billed with CPT codes 99281 through 99285. After receiving the payment and EOBR, Oak Hill timely filed a Petition for Resolution of Reimbursement Dispute, with attachments, to the Department. Oak Hill alleged in its Petition that the correct reimbursement amount owed was $4,192.50, leaving an underpayment of $3,364.77. However, subsequently, Oak Hill received a second check from Dollar, and an accompanying EOBR. The second check was for $2,835.69. The EOBR indicated that the second payment was for the CT scan of the lower spine. The sum of two payments for the CT scan is $3,082.69, which amounts to 75 percent of Oak Hill’s charges for the procedure. No further allowance was made for the other three components of Oak Hill’s claim. Qmedtrix, acting as Dollar’s representative, then filed Dollar’s Response to Petition for Resolution of Reimbursement Dispute and attachments with the Department. Attached to the Response was a letter from Mr. von Sydow dated October 19, 2009. The letter asserted that the correct payment to the hospital (Oak Hill) should be determined on an average of usual and customary charges for all providers in a given geographic area, rather than the hospital’s usual and customary charges. As authority, Mr. von Sydow cites the case of One Beacon Insurance v. Agency for Health Care Administration, 958 So. 2d 1127 (Fla. 1st DCA 2007). The letter also requested that the Department “scrutinize the bill in question in order to determine, first, whether the hospital in fact charged its usual charge for the services provided and, second, whether the billed charges are in line with the customary charges of other facilities in the same community.” The letter further alleges that the hospital “upcoded” the emergency room visit, billing using CPT code 99284, asserting that the proper billing code should have been 99282. The letter concludes that the amount paid, $524.70, for the emergency department visit exceeds the amount “usual and customary” charges that Qmedtrix asserts, on behalf of Dollar, is applicable to the claim. On October 29, 2009, the Department issued its Determination. The Determination states in pertinent part: Rule 69L-7.602(5)(q), F.A.C., stipulates the EOBR codes that must be utilized when explaining to the provider the carrier’s reasons for disallowance or adjustment. The carrier appended EOBR codes 92 or 93 to the billed items. For the line items appended with EOBR code 92, the reimbursement fails to equal the maximum reimbursement allowances (MRAs) provided in the 2006 HRM. Furthermore, the carrier failed to substantiate the existence of a reimbursement contract between Oak Hill and the carrier. Therefore, the reimbursement adjustments to line items appended with EOBR codes, 92 and 93, are unsubstantiated. Moreover, the carrier appended to the billed line items three unique codes which indicate: “Reductions are due to charges exceeding amts reasonable for provider’s demographic area”[sic], “Reimbursement for this outpatient service is based on 75% of the hospital’s charges”, and “Payment in accordance with the Georgia hospital inpatient payment fee schedule.” These explanations fail to afford the petitioner any understanding for the reimbursement adjustments documented on the EOBR. Furthermore, the Florida Statutes and Rules do not support the carrier’s reasoning for the reimbursement adjustments documented on the EOBR. Therefore, the carrier failed to substantiate its adjustment to reimbursement on the EOBR as required by Rule 69L-7.602, F.A.C. Lastly, the 2006 HRM, Section 12.A., vests specific authority in the carrier to review the hospital’s Charge Master to verify charges on the itemized statement and to disallow reimbursement for specifically itemized services that do not appear to be medically necessary. None of the submitted documentation indicates the carrier elected to exercise this option. Whereas, the carrier did not allege that any service was deemed not “medically necessary,” or that the charges on the billing form failed to match the petitioner’s Charge Master, the OMS finds the charges billed by the hospital are the hospital’s usual and customary charges. The 2006 HRM provides for reimbursement of emergency room services at seventy-five percent (75%) of the hospital’s usual and customary charges. Whereas, the carrier failed to substantiate is[sic] adjustments to reimbursement on the EOBR, the OMS determines correct and total reimbursement equals $4,192.50 ($5590.00x.75). The determination letter also informed Dollar of its right to an administrative hearing. Dollar timely filed a Request for Administrative Hearing, which gave rise to this proceeding. CODING FOR J.M.’S EMERGENCY SERVICES As mentioned above, Oak Hill reported the emergency department visit using CPT Code 99284. No one from the hospital testified, but Oak Hill’s expert, Allan W. March, M.D., reviewed Oak Hill’s hospital record for J.M. Dr. March is a graduate of Dartmouth College and Johns Hopkins University Medical School. He has extensive experience in, among other things, hospital physician practice and utilization review. Dr. March describes utilization as the oversight of medical care to affirm that it is appropriate, cost-effective, and medically necessary. Dr. March has worked as an emergency department physician and has personally treated upwards of 5,000 workers’ compensation patients. Dr. March testified on behalf of Intervenor and Respondent. Dr. March described J.M. from the hospital record as follows: “This patient is a 47-year-old man who immediately, just prior to presentation, fell off a ladder 7 feet above the ground and injured his back and presented with pain in the right lower back, with a swollen and tender area that was visible and palpable to the examining physician, with pain on movement of his lower back.” Dr. March reviewed Oak Hill’s hospital record for J.M. to analyze whether Oak Hill appropriately used CPT code 99284. Oak Hill’s coding for the emergency department visit is based on the American College of Emergency Physicians’ “ED Facility Level Coding Guidelines” (ACEP Guidelines). Oak Hill’s medical record for J.M.’s care includes an “Emergency Department Charge Sheet” corresponding precisely to the ACEP Guidelines, and in which the abbreviation “CT” is circled in the section for CPT code 99284. By using the ACEP Guidelines, Oak Hill used a nationally recognized methodology in determining the level of service to which the hospital should bill. Under the ACEP guidelines, the CPT code level assigned is always the highest level at which a minimum of one “possible intervention” is found. In this case, Dr. March determined that J.M. was given a CT scan. In Dr. March’s opinion, Oak Hill correctly assigned a 99284 code to J.M.’s emergency department visit, and that assignment is substantiated by the medical record under the ACEP Guidelines. Dr. March further explained that the coding level of a hospital does not correspond directly to the coding level assigned by the physician. The physician’s services are coded under the CPT-4 coding book. According to Dr. March, the CPT coding manual is applicable to facility coding only if the hospital chooses to use this as a basis in their methodology for coding. Further, Dr. March explained that the separate billing of the emergency department visit captures separate and distinct costs incurred by hospitals that are not included in line-items for procedures. The claim submitted by Oak Hill was sent to Qmedtrix for a bill review. Its data elements were first entered into Qmedtrix’ proprietary bill-review software known as “BillChek.” The software placed Oak Hill’s claim on hold for manual review. The claim was then manually reviewed by William von Sydow, Director of National Dispute Resolution for Qmedtrix. Although his educational background is in law, Mr. von Sydow is a certified coder certified by the American Health Information Management Association (AHIMA). Mr. von Sydow determined in his bill review that Oak Hill should have used code 99282 instead of 99284, although payment was based on code 99283 at 75 percent of what he calculated to be the average charge in the community for 99283. Mr. von Sydow described what he considers to be inconsistencies between certain diagnosis codes under the International Classification of Diseases, Ninth Edition (ICD-9) and the CPT codes used to classify the emergency department visit. He considers the ICD-9 codes on Oak Hill’s claim to be inconsistent with CPT code 99284. In his view, the ICD-9 codes correspond more closely with CPT code 99282. Moreover, Mr. von Sydow referenced a study by American Hospital Association (AHA) and AHIMA, which suggests that hospitals should count the number and kind of interventions to approximate the CPT factors, but that a hospital should not include in this count interventions or procedures, such as CTs or -rays, which the hospital bills separately. He further acknowledged that the federal Centers for Medicare and Medicaid Services (CMS) allow hospitals to use their own methodology in applying the CPT codes. David Perlman, M.D., received his undergraduate degree from Brown University and his medical degree from the University of Oregon. He has considerable experience as an emergency room physician. For the past six years, he has worked for Qmedtrix initially doing utilization review and as their medical director since 2005. Dr. Perlman testified on behalf of Dollar. Dr. Perlman is also familiar with the ACEP guidelines relied upon by Dr. March and the AHA/AHIMA study relied upon by Mr. von Sydow. He is also familiar with the CPT code handbook. Dr. Perlman suggested that the use of the ACEP guidelines could result in reimbursement essentially already provided in a separate line-item. He agrees with the methodology recommended by the AMA/AHIMA study. That is, counting the number and kind of interventions or procedures to approximate the CPT book’s factors to consider in selecting the code billed for emergency department services, but not including in this count interventions or procedures, such as CTs or X-rays, which the hospital bills separately. In Dr. Perlman’s opinion, J.M.’s injuries supported assignment of CPT code 99283 rather than 99284. The fact that J.M. underwent a CT scan did not alter this conclusion. According to Dr. Perlman, use of a CT scan in a patient’s emergency department treatment determines that the facility may assign a 99284 code under the ACEP guidelines. In his opinion, this does not necessarily reflect the severity of the illness or injury. Dr. Perlman acknowledged, however, that hospitals are free to use the ACEP guidelines and that many hospitals do so. The preponderance of the evidence establishes that there is no national, standardized methodology for the manner in which hospitals are to apply CPT codes 99281-99285 for facility billing. The preponderance also establishes that, while there is a difference of opinion as to whether ACEP guidelines are the best method, it is a nationally recognized method used by many hospitals. Oak Hill’s use of this methodology is supported by the weight of the evidence as appropriate. J.M.’s hospital record amply documents the interventions required for the assignment of CPT code 99284 under the ACEP guidelines. Therefore, coding J.M.’s emergency department visit as 99284 by Oak Hill was appropriate. There is no dispute that Oak Hill’s charges as represented on the UB-04 form conform to its internal charge master, or that the services represented were in fact provided, or that they were medically necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers' Compensation, enter a Final Order requiring Petitioner to remit payment to Oak Hill consistent with the Determination Letter dated October 29, 2009, and Section 440.13(7), Florida Statutes. DONE AND ENTERED this 17th day of June, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 17th day of June, 2010.
