The Issue An administrative complaint dated November 9, 1990 alleges that Respondent violated Chapter 458, F.S., governing the practice of medicine, by failing to conduct a complete history and medical examination, failing to order an EKG, failing to admit for cardiac observation and failing to keep adequate written medical records of a patient which he treated in a hospital emergency room in Kissimmee, Florida. The issue is whether those violations occurred and if so, what discipline is appropriate.
Findings Of Fact Respondent, Benjamin P. Delgado, M.D., is now and at all times relevant has been a licensed physician in the State of Florida, having been issued license number ME 0029222. Dr. Delgado has been licensed in Florida since 1982, and for the last nine years has maintained a private practice of internal medicine in Kissimmee, Osceola County. Dr. Delgado has also provided emergency room services, under contract, at Humana Hospital in Kissimmee. He came on duty at the emergency room on February 23, 1989, at 8:00 p.m. The patient, identified as "Patient #1" in the administrative complaint, checked into the emergency room on February 23, 1989 at approximately 8:19 p.m., accompanied by his wife. Patient #1 was a 56-year old male, approximately 6'1", weighing 181 lbs. He complained of severe upper abdominal pain. After the emergency room clerk recorded the patient's name, address, relevant insurance information and chief complaint, the patient was seen by the emergency room staff nurse, Janet Kusser, R.N. The nurse noted on her chart that the patient had complained of severe pain in his upper abdomen on and off since 3:00 a.m. She recorded his temperature, pulse, respiration rate and blood pressure; she inquired about allergies and any medications he might be on. She also completed an emergency room assessment sheet, which involved circling relevant answers on a questionnaire form addressing a brief medical history, and current physical condition. The patient was ambulatory, had normal respiration, was alert and cooperative, had warm skin with pink extremities. He exhibited tenderness in his upper abdomen, and that is where he said the pain was -- centered beneath his chest. Two attempts to notify the patient's family physician, at 8:25 and 8:55 p.m., were unsuccessful. When the nurse completed her assessment, she introduced Dr. Delgado and gave him the chart. The emergency room was not crowded, although staff was busy. A patient vocally complaining of chest pains was being seen around the same time that patient #1 checked in. Still, Dr. Delgado was able to devote full attention to Patient #1 in his examination. He went through the same questions as the nurse did on the emergency room assessment form and substantially agreed with her findings. He also found the upper abdomen to be tender. The patient clutched his stomach and was doubled over. He was not grasping his arm and he denied having pain in any extremities. The patient denied having prior medical conditions as heart disease, asthma, hypertension or diabetes. Negative findings were not recorded by Dr. Delgado on the chart. For example, he noted tenderness in the epigastrium, but did not note the lack of pain in the extremities. Dr. Delgado considered the complaints to be related to gastritis and ordered a complete blood count, urinalysis, SMA-7 and X-rays of the abdomen. The results of those tests are attached to the emergency room chart for the patient. The total time Dr. Delgado spent with the patient was approximately 30 minutes. Dr. Delgado also inquired of the patient from time to time as to how he felt, as the other emergency room patients being attended were on stretchers nearby. The patient's wife remained in the waiting room and was not interviewed by the nurse or physician. After reviewing the laboratory reports and X-rays, Dr. Delgado diagnosed the problem as gastritis and released the patient with Donnatol for his stomach and suggested he contact his family physician in the morning. The patient checked out around 10:10 p.m. The patient returned home with his wife. He died in bed early in the morning at approximately 2:30 a.m., on February 24, 1989. After an autopsy, the medical examiner, G.V. Ruiz, M.D., determined the immediate cause of death was cardiac arrhythmia due to arteriosclerotic cardiovascular disease. This is also referred to as sudden death due to clogging or hardening of the arteries. In this case the patient had severe occlusion, up to 75% in some areas, in all three main coronary arteries. Based on a reading of the medical record, the pathologist's report and deposition of the pathologist, Petitioner's expert witness, Jay W. Edelberg, a Board-certified emergency room physician, opined that the patient's chart was not adequately documented and that the patient should have been worked up for the possibility of cardiac problems. From ten to twenty percent of people with cardiac problems present symptoms that mimic gastrointestinal complaints. A variety of risk factors needs to be documented to rule out or minimize the risk of a complaint being cardiac- related. Those risk factors include smoking, family history, history of hypertension, blood sugar problems, sedentary lifestyle, overweight, and high cholesterol. Dr. Edelberg was unaware that Dr. Delgado did pursue questions with regard to those risk factors and simply did not note the negative findings. Dr. Delgado did observe that the patient was a smoker -- he had his cigarettes with him -- and did not note that on the record. The other risk factors identified by Dr. Edelberg were essentially negative. Moreover, Dr. Delgado had no substantial clue from his examination that cardiac problems should be suspected: there was no prior history of heart disease, no reported pains in the neck or arms, no observed sweating or shortness of breath. For that reason, the EKG or other cardiac work-up was not ordered. David John Orban, M.D., Medical Director at Shands Teaching Hospital at the University of Florida, Board certified in emergency medicine, testified as an expert witness on behalf of Dr. Delgado. Dr. Orban agreed that the complaints and symptoms of the patient pointed to gastritis rather than heart disease, and that the medical record adequately reflected the basis for the diagnosis. Although brief, the notes focus on the problem at hand. The patient's vital signs were normal. An EKG is not generally indicated for patients who present abdominal pain. The chart is typical of charts found in busy community emergency departments. Reasonable, competent, expert physicians simply disagree on whether Dr. Delgado's treatment and his medical records violate a standard of care. Dr. Edelberg stops short of saying that any 56 year old male who appears in an emergency room with upper abdominal pain should receive a cardiac work-up. On the other hand, Dr. Orban concedes that a reasonable prudent physician does not simply rely on what a patient tells him without further inquiry and observation. Dr. Delgado's conduct falls between those two extremes. He conducted a physical examination and an inquiry into the patient's history and symptoms. He made cursory notes without duplicating the information already obtained by the emergency room staff nurse. He failed to document that the patient was a cigarette smoker, but in other respects documented relevant positive findings, such as tenderness in the epigastrium. The patient's external physical signs, his history, and the complaints he articulated reasonably led Dr. Delgado to conclude that the patient was suffering from gastritis. The patient's age and his smoking habit did not, given his other signs and symptoms, require a cardiac work-up, and Dr. Delgado reasonably did not suspect nor pursue possible cardiac complications. Dr. Delgado's failure to record the fact of cigarette smoking does not alone make his medical records of the patient inadequate. Essential information was noted, albeit briefly, and was consistent with standards for community emergency facilities.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered dismissing the Administrative Complaint against Respondent, Benjamin P. Delgado, M.D. DONE AND RECOMMENDED this 16th day of October, 1991, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1991. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Rejected as unnecessary. Adopted in paragraph 1. Adopted in paragraph 3. Rejected as contrary to the evidence or immaterial. Rejected as immaterial or contrary to the evidence. The questions were asked or the conditions were observed and primarily positive findings were recorded. Rejected as contrary to the evidence. 7.-8. Rejected as immaterial. Evidence indicates the examination and tests were sufficient for the symptoms presented. Rejected as contrary to the evidence. See Joint Exhibit #1, where the test results are found attached. Adopted in paragraph 9. Adopted by implication in paragraph 9. Adopted in paragraph 10. 13.-14. Rejected as contrary to the weight of evidence. Adopted in paragraph 12. Adopted in paragraphs 3 and 9. Adopted in paragraph 9. Rejected as immaterial. Rejected as contrary to the evidence. Rejected as immaterial. Adopted in paragraph 12. Adopted in paragraph 7. 23.-24. Rejected as contrary to the weight of evidence. Respondent's Proposed Findings Adopted in paragraph 1. Rejected as unnecessary. Adopted in paragraph 3. 4.-5. Adopted in substance in paragraph 15. Adopted in paragraph 12. Adopted in paragraph 15. Adopted in paragraph 12. 9.-10. Adopted in substance in paragraph 12. Adopted in substance in paragraph 15. Adopted in paragraph 10. Adopted by implication in paragraph 12. COPIES FURNISHED: William B. Nickell, Sr. Atty. Dept. of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792 Robert Rao, Esquire 20 S. Rose Avenue Kissimmee, FL 34741 Mark Dabold, Esquire Suite 1550, Firstate Tower 255 South Orange Avenue Orlando, FL 32801 Dorothy Faircloth, Exec. Director DPR-Board of Medicine 1940 N. Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Dept. of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: During times material hereto, and particularly from January 1, 1983 through December 31, 1985, Respondent, Eusebio Subias, M.D., was a licensed medical doctor in Florida, board certified in Psychiatry and an eligible Medicaid provider of psychiatric services pursuant to the Medicaid contract he is party to with DHRS dated October, 1982. (Petitioner's Exhibit 1). Medicaid regulations and guidelines require physicians to meet board certification in psychiatry before they may provide reimbursable psychiatric services to Medicaid eligible recipients. As part of his agreement to participate in the Medicaid Program, Respondent agreed to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance in the state plan. Respondent also agreed to abide by the provisions of pertinent Florida administrative rules, statutes, policies, procedures and directives in the manual of the Florida Medicaid Program. (Petitioner's Exhibit 2). During 1986, the Surveillance & Utilization Review System unit of the Medicaid Office indicated that the amount of Respondent's medicaid billing greatly exceeded that of his peers. Based on that indication, the Office of Program Integrity asked Respondent to provide them with copies of certain medical records for the year 1982. Respondent provided the Department with those records as requested. (Petitioner's Composite Exhibit 3). Those records were forwarded to the peer review committee for evaluation. The records were reviewed by both the local and state peer review committees. The 1982 records contained inadequate information for the peer review committee to document or otherwise justify the number of office visits per patient. The records did not contain reasons for treatment, reasons for frequency of visits or what specific services were rendered to patients. (Petitioner's Exhibits 16 and 17, Pages 3 and 4 and Composite Exhibit 3). On April 21, 1986, Petitioner notified Respondent that it determined that he overbilled Medicaid in the amount of $17,820.09 for the calendar year 1982. Respondent was then notified that a similar review would be conducted for the period January 1, 1983 through December 31, 1985. That review and the results thereof are the subject of this proceeding. The Department subsequently requested, and Respondent provided medical records for 85 specific recipients which were selected by means of the "Disproportionate Stratified Random Sampling" (DSRS). (Petitioner's Exhibit 7). Respondent's 1983-85 records contain substantially more details than the records he provided Petitioner during the 1982 review period. Petitioner had its medical consultant, Dr. Forsthoefel, review the 1983-85 records. He was a member of the peer committee which made the peer review determination in 1982 which was used as a guide for the degree of overutilization. Forsthoefel denied those office visits that he determined were not supported by documentation in the medical records and concluded that the visits were not medically necessary. As a result, Petitioner sent Respondent a letter advising that he had overbilled medicaid in the amount of $79,093.05 for the years 1983-1985. (Petitioner's Exhibits 9 and 13). By letter dated September 5, 1986, Respondent requested a meeting to discuss the Department's proposed action and such a meeting was granted on October 31, 1986 at 1:30 p.m. Dr. Forsthoefel, Dr. Conn, Petitioner's Chief Medical Consultant in 1982, Millie Martin, and Respondent attended the October 31 meeting. During the meeting, Respondent attempted to individually review each of the approximately 3200 medical records for patients he treated during the years 1983-85 such that he could explain and document the medical necessity of each of the patient's office visits. He also requested that Petitioner have the records reviewed by a psychiatrist. Neither Dr. Conn nor Dr. Forsthoefel are psychiatrists. Dr. Conn left soon after the meeting began. Dr. Forsthoefel, unable and unwilling to comply with Respondent's request that each medical record be individually reviewed, concluded that continuing the meeting would not be productive and left after approximately 2 hours. The Department again denied those visits which it had early concluded were not medically necessary based on the review by its medical consultants. By letter dated November 10, 1986, Petitioner again advised Respondent that the Department would seek a $79,093.05 overpayment for the years 1983-85 and advised him of his rights to a formal hearing. Drs. Mutter and Tumarkin were commissioned by Petitioner to review the medical records under scrutiny with each doctor reviewing one half of the records. Based on their review, Respondent was denied reimbursement for even more office visits based on their opinion that the records did not contain sufficient documentation or notations that would indicate continued office visits were medically necessary. (Petitioner's Exhibits 17a and 18). Dr. Tumarkin made his comments on Respondent's medical records in green ink. Those records which did not contain green marking were records numbered 3 and 27 resulting in the Department's overstating the overpayment claim by $125.01. Respondent introduced information regarding Medicaid's denial of claims which should have been billed to Medicare. During the period from May 1985 through December 31, 1985, certain denials fall within the 1983-85 review period and since the Department never paid such claims, the Department agreed at hearing to reduce its overpayment amount by $6,421.44. Also at hearing, Petitioner determined that it made an error in its computation of the figures stated in the November 10, 1986 letter and was now seeking $78,661.93 minus $6,421.44 for the amount claimed to be overbilled by Respondent as $72,240.49. Respondent, who is of hispanic origin, treats a substantial number of Spanish speaking patients. Respondent graduated from medical school in Cuba at the age of 22 and participated in a rotating internship at Mercy Hospital in Hampton, Ohio. He came to Florida in 1963 and was licensed in 1964. In April, 1963, Respondent was employed at Hollywood Memorial Hospital. Respondent was the third Spanish speaking doctor to practice in South Florida and was the first to be promoted to a chairmanship at Hollywood Memorial Hospital. Respondent was the first clinical director at Coral Reef's Hospital. He is a member of several medical societies and was involved in the development of several psychotic drugs, including Elavil. Respondent is board certified in psychiatry. Respondent has staff privileges at Hollywood Memorial Hospital and three other area hospital. He has practiced psychiatry for more than 25 years in the United State and is accomplished in the treatment of severe psychotic patients. Respondent was tendered and received as an expert in psychiatry. Southeastern Florida was inundated during the early 1980's with mentally ill refugees during the Mariel Boat Lift. That area has a uniquely high need for psychiatric services due to its characteristic as a metropolitan area with a large homeless population. The Marlowe Study which was commissioned by Petitioner to review the need for psychiatric services in Dade County during the period which coincided with the Respondent's 1983-1985 office practice here under review, concluded that insufficient resources were earmarked for the treatment of mentally ill residents of Dade County, Florida. Respondent prefers to treat severely psychotic patients on an outpatient basis. He has been very successful in utilizing this method of treatment and it has resulted in substantial public benefit in the form of substantial financial savings that would have otherwise been required to hospitalize such patients for treatment. Respondent is paid $35.01 for a 45 minute session for each Medicaid patient whereas the average cost for inpatient treatment at an area hospital is approximately $400.00 per day. Respondent modified his record keeping practice in 1982 so that his medical records for 1983-85 contained the minimum requirements for medical records necessary to support Medicaid billings as specified in Rule 10C- 7.030(1)(m) and 10C-7.062(1(n) Florida Administrative Code. All of the medical experts testified that Respondent's records for the period at issue here met the minimum requirements specified in the required regulations and DHRS's procedure manuals. Those requirements are: dates of services; patients name and date of birth; name and title of person performing the service, when it is someone other than the billing practitioner; chief complaint on each visit; pertinent medical history; pertinent findings on examinations; medications administered or prescribed; description of treatment when applicable; recommendations for additional treatments or consultations; and tests and results. Petitioner presented testimony through Ms. Martin to the effect that Respondent had admitted during his October 1986 meeting with the medicaid consultants that he had, from memory, gone back and recreated his medical records for 1983-85. Respondent denied this at hearing and credibly testified that based on the deficiencies found in the latter part of 1982 concerning his medical records, he commenced to prepare a complete medical record for each patient visit. Respondent's testimony in this regard is credited and none of the medical professionals, save Ms. Martin, presented any evidence which would call into question the accuracy of Respondent's records during the period 1983- Ms. Martin's testimony to the contrary is rejected. Dr. Forsthoefel candidly admitted that he is not qualified to render an opinion with respect to medical necessity and appropriateness of specialized psychiatric services. Respondent is the first psychiatrist reviewed by the Medicaid officials of Petitioner for over-utilization as Petitioner's officials were unaware of any other psychiatrist who had been reviewed prior to Respondent. The peer review process for determination of over-utilization and mis- utilization of Medicaid services is designed so that the physician being reviewed may discuss individual patient records and cases with the Committee, as well as the Medicaid consultants who later apply peer review findings, and such discussion will be considered in arriving at a final determination. (Peer Review SOP, April, 1987, Respondent's Exhibit 12). An integral part of peer review for the physician being reviewed is to be able to discuss individual cases with the reviewer prior to a final determination being made concerning medical necessity and appropriateness. Such interplay and explanations regarding certain aspects of a case can lead to a more detailed determination concerning an overpayment issue. Respondent's October 1986 review should have been a complete new review of individual records affording him an opportunity to discuss specific cases with the physician consultants, provide him an opportunity to substantiate certain treatments based upon his recollection and justify the treatment modality he utilized for the 85 patients which comprised the random sampling. 2/ Respondent was not permitted to meaningfully discuss those individual cases even though he requested an opportunity to do so. This is so despite Petitioner's consultant's admission that such a consultation would have aided them and perhaps changed their opinion with respect to medical necessity and appropriateness of specific treatments rendered by Respondent. (Testimony of Conn, Forsthoefel, Tumarkin and Whiddon). While some experts would treat severely psychotic patients on a less frequent basis than Respondent and hospitalize them sooner, Respondent's method of treatment is well accepted among qualified board certified psychiatrists. Dr. Tumarkin's different treatment philosophy wherein he favored inpatient treatment for severely psychotic patients while Respondent showed a preference for outpatient treatment, is in no way indicative of inappropriateness by Respondent's method of treatment since his method was proven to be successful. Additionally, one expert, Dr. Tumarkin would have allowed more visits as being medically necessary and appropriate had he been advised by Petitioner's representatives that he should apply the community standard for medical necessity and appropriateness of psychiatric services. A Medicaid provider of psychiatric services is required to provide services equivalent to that of their peers. Had Dr. Tumarkin consulted with Respondent, his opinion concerning medical necessity and appropriateness would have been affected and he would have requested such had he known that he was allowed to. This is especially so based on the fact that his treatment preference is more hospital oriented. It is thus concluded that Respondent was not given a fair opportunity to present circumstances relevant to the overpayment amount in question here, despite his request to do so. (Petitioner's Exhibit 14). A review of a Peer Comparison Analysis with Respondent's practice respecting the number of office procedures per patient performed by him in contrast to other medicaid psychiatrists, indicates that Respondent saw his patients, on average, less than the average for other psychiatrists in Dade, Monroe and Broward Counties between the years 1983-85. (Petitioner's Exhibit 22). Dr. Stillman is board certified in psychiatry and has been practicing for more than 30 years. He reviewed, as Respondent's expert witness, all of the 85 patient charts in question. Dr. Mutter rendered a specific report about the even numbered charts that he reviewed. His reports indicates, with respect to many charts, that he was unable to find specific documentation supporting the reasons and medical necessity for treatment. This testimony was sharply contradicted by that of both Dr. Stillman and Respondent who easily located specific record documentation which indicated the medical necessity and reasons for services provided to patients by Respondent. Examples of over-utilization from Dr. Mutter's report were inquired about and on each occasion, Respondent and Dr. Stillman were able to identify documents not referred to by Dr. Mutter that substantiated the medical need and reasons for treatment. Drs. Subias and Stillman's testimony was not contradicted by Petitioner. Without going through each patient's records, a review of the findings concerning several patients is illustrative and will be herein discussed. Patient number 85, S. T., Jr. 3/ was a schizophrenic, suffering from epilepsy with borderline intellectual functioning. He was a very psychotic patient who was, during his early years, treated in an institution. (Petitioner's Composite Exhibit 5). He was obese, apprehensive, disoriented, suffered from impaired insight and judgment, a depressed mood, flat affect and a constant feeling of rejection. Respondent commenced treating patient number 85 twice weekly as an outpatient and as his condition improved, he was seen once a week and office visits were reduced further as his condition continued to improve. Without this intense continuity of treatment, patient number 85 would have decompensated and would have required an extensive institutionalization. Respondent provided substantial documentation as to the need for each of S. T.'s visits. Patient number 83, C. C., was a schizophrenic who suffered from depression, was delusional with a flat affect, poor reality contact and went through extended periods of depression on a monthly basis. Respondent prescribed benadryl to counteract patient C. C.'s delusional symptoms and otherwise justified his method of treatments, frequency and reason for each visit. Respondent substantiated that it was medically necessary to treat patient C. C. on each occasion where treatment was provided. Respondent's medical records provided the documentation for treatment in each instance. Patient number 81, F. D., was a schizophrenic who suffered severe mental depression. His condition had deteriorated to the point whereby family therapy sessions had to be scheduled by Respondent. Respondent was able to keep F. D. out of the hospital, he remained with his family and his condition improved to the point where the frequency of visits were reduced. Respondent's records justified the medical necessity and reasons for the treatment he provided patient F. D. Respondent testified as to his method of treatment as to patients 88, 78, 77, 52, 56, 48, 46, 38, 40, 60, 68 and as to each of those patients, Respondent's records document that the patients treatment and visits were medically necessary and appropriate. Dr. Stillman demonstrated that on each occasion, there was substantial record documentation which supported the necessity for the treatment as provided by Respondent. Based upon the inconsistent evidence presented by Petitioner respecting its claim that Respondent failed to document the medical necessity for the treatment he provided to the patients during the years 1983-85 and the direct evidence presented by Respondent which established that all of the services rendered by him to Medicaid recipients were medically necessary and appropriate under the circumstances, it is concluded that Petitioner failed to establish by a preponderance of the evidence that any of the treatments here in dispute were unnecessary, inappropriate or were not otherwise documented by the medical records under review. Moreover, all of the experts agree that the treating psychiatrist is best able to determine the medical necessity and appropriateness of specific treatments to render to a patient as that psychiatrist has direct contact with, and is best able to fully apply his or her training and experience. Respondent amply demonstrated that the services here at issue were medically necessary, appropriate and was of clear benefit to the patient. Petitioner has failed to meet its burden of establishing any basis for an overpayment as claimed. 4/
Recommendation Based on the foregoing Findings of- Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Health and Rehabilitative Services enter a Final Order finding that there was no overpayment to Respondent during the years 1983- 85. Respondent is entitled to a refund of all monies held pursuant to the overpayment calculation by the Department in this cause together with 10% for annual interest pursuant to Rule 10C-7.060(12), Florida Administrative Code. DONE and ORDERED this 18th day of November, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1988.
The Issue Whether disciplinary action should be taken against Respondent's license to practice medicine based on allegations that Respondent violated the provisions of Subsections 458.331(1)(m) and (t), Florida Statutes, arising from his treatment and care of Patient R.E., as alleged in the Administrative Complaint in this proceeding.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes, and Chapters 456 and 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0057927. Respondent practices primary care and internal medicine. He is board-certified in internal medicine, and has never had disciplinary action taken against his license. Patient R.E., a male who was 78 years old in January 2001, had a history of diabetes, hypertension, heavy smoking, high blood pressure, and circulatory problems. Respondent had first treated Patient R.E. on August 28, 2000, while covering for the physician with whom Respondent shared a practice. Patient R.E. had been a patient of the practice for several years. In August or September 2000, Respondent purchased the other physician's portion of the practice. The other physician remained as an employee of the practice until January 2001, when Respondent assumed the total care of Patient R.E. On January 16, 2001, Patient R.E. presented to Respondent with a complaint of redness and swelling in the right ankle that made walking difficult. Patient R.E. did not have a regularly scheduled office visit, but Respondent "squeezed him in" after Patient R.E. telephoned Respondent's office complaining of a great deal of pain. On January 16, 2001, the complete patient chart from the previous physician was available to Respondent and became part of Respondent's office chart for Patient R.E. Patient R.E.'s chart contained a "problem list" reflecting diagnoses made throughout his treatment at that office. A problem list assists the physician in tracking on- going problems with a patient. Patient R.E.'s problem list included a diagnosis of "PVD," or peripheral vascular disease. Peripheral vascular disease describes reduced blood flow to the extremities. It can be caused by a narrowing of large blood vessels, and exacerbated by diabetes-related small vessel disease. Prior to Respondent's involvement with his treatment, Patient R.E. had been evaluated for peripheral vascular disease, and was referred to a vascular specialist who recommended revascularization by way of bypass surgery. However, Patient R.E. declined the referral and elected to undergo chelation therapy instead. Mainstream physicians do not consider chelation an effective therapy for peripheral vascular disease, though Patient R.E. believed that it relieved his symptoms. After the November 11, 1999, physical exam, Patient R.E. was seen by the previous physician for three-month follow- ups on February 24, 2000, and June 5, 2000, with no particular complaints. As noted above, Respondent first saw Patient R.E. on August 28, 2000. This visit was for shortness of breath, diagnosed as bronchitis and treated with antibiotics and inhalants. Patient R.E. returned to see the previous physician on September 11, 2000, with chest congestion and coughing. This was his last office visit prior to January 16, 2001. The office visit of January 16, 2001, was a complaint- driven visit, meaning that Respondent's exam addressed Patient R.E.'s specific complaint. Such an exam is appropriate where the physician has a chart with a record of a complete history and physical exam. Respondent checked Patient R.E.'s blood pressure and listened to his heart and lungs, which were clear. Respondent then examined Patient R.E.'s right ankle, finding erythema (redness) and tenderness to palpation. Respondent did not perform an examination to address peripheral vascular disease, because he did not consider peripheral vascular disease as the presenting problem and was already aware that peripheral vascular disease was present in this patient. Respondent recorded a diagnosis of "? gout vs. cellulitis." Gout is an inflammation of the joints caused by deposition of uric acid crystals in the joint fluid. Cellulitis is a term given to an infection of the tissue, typically skin and underlying soft tissue. Gout and cellulitis are symptomatically similar conditions, in that both typically present with pain, stiffness, swelling, and redness of the affected area. Respondent prescribed Levaquin, an antibiotic, and Indocin, a medication for gout with some pain-relieving properties. Respondent told Patient R.E. to follow up in ten days, and gave Patient R.E. a quantity of medication for ten days' duration. Respondent's office chart did not clearly indicate instructions for the frequency or duration of the Levaquin prescription. The chart indicated that the Indocin was to be taken three times per day, but did not indicate a duration for taking the medication. On January 17, 2001, Patient R.E. telephoned Respondent's office to request a walker. On January 18, 2001, Respondent ordered a walker through a home health care provider and had it delivered to the patient's home. Respondent heard nothing from Patient R.E. on January 19, 2001. On Saturday, January 20, 2001, Respondent's office was closed. That evening, he received a telephone call from Patient R.E.'s wife, who told him that her husband was in a lot of pain. Respondent told the wife that Patient R.E. had not been on the prescribed medications long enough to cure his condition, and that if his pain became worse she should take him to the hospital emergency room. Shortly after 8:00 p.m., on January 20, 2001, Patient R.E. presented at the emergency room of Oak Hill Hospital complaining of pain and tenderness in his right ankle. There was an intact red blister over the ankle. The emergency room physician performed an examination, ordered blood tests, and confirmed the diagnosis of cellulitis. Patient R.E. was given injections of insulin and of Rocephin, an antibiotic. The emergency room physician instructed Patient R.E. to continue taking the Levaquin, and to stop taking the Indocin for the suspected gout. Respondent consulted with the emergency room physician by telephone. At Respondent's suggestion, the emergency room physician also prescribed Flagyl, another antibiotic, to ensure coverage against all potential anaerobes or aerobes that could cause cellulitis. The emergency room physician told Patient R.E. to follow up with Respondent on Monday, January 22, 2001. The emergency department of Oak Hill Hospital provided Patient R.E. with written discharge instructions for his cellulitis, including the following information: With antibiotic treatment, the size of the red area will gradually shrink in size until the skin returns to normal. This will take 7-10 days. The red area should never increase in size once the antibiotic medicine has been started. FOLLOW UP with your doctor or this facility as directed. If you were not given a specific follow-up appointment, look at the infected area in two days for the warning signs listed below. RETURN PROMPTLY or contact your doctor if any of the following occur: Increasing area of redness Increasing swelling, or pain Appearance of pus or drainage Fever over 100.5 orally Patient R.E.'s wife telephoned Respondent's office on Tuesday, January 23, 2001, to schedule a follow-up visit. The office visit was scheduled for January 26, 2001. On the scheduled date, Respondent examined Patient R.E. and found that his ankle had worsened and begun to develop necrosis. Respondent referred Patient R.E. to Dr. Malik Piduru, a vascular surgeon, for debridement, instructed him to continue taking the prescribed antibiotics, and to soak his foot in soapy water, which would help to debride the necrotic tissue in the interim. On February 1, 2001, Dr. Piduru examined Patient R.E. and noted a blue-black discoloration on the right lateral aspect of the lower right leg. The physical examination notes stated: "On the right lateral aspect of the leg approximately 6 x 4 cm necrotic, gangrenous patch of skin which appeared to be very fluctuant indicating underlying either abscess or hematoma of necrosis. The foot itself does not appear to be acutely ischemic and appears to be pink and viable." Dr. Piduru recommended hospitalization, excision of the necrotic area, and evaluation for further peripheral vascular disease correction. He also discussed the option of amputation if the leg did not heal. The surgeon noted that Patient R.E. understood the options presented to him, and the risks involved, but that Patient R.E. preferred to pursue another course of chelation therapy rather than undergo the recommended bypass surgery to correct the PVD. On February 5, 2001, Patient R.E. was admitted to the hospital for debridement of the right ankle. While in the hospital, Patient R.E. underwent an angiogram that revealed multiple occlusions of the blood vessels of the right leg. Dr. Piduru recommended bypass surgery, though he estimated the chances of success at around 30 percent. After discussion of all the options, Patient R.E. elected to have his right lower leg amputated. Dr. Piduru agreed that this was a reasonable decision in light of all the known factors. Patient R.E.'s right leg was amputated below the knee on February 12, 2001. In March 2001, Patient R.E. suffered an infection of the stump requiring additional hospitalization for debridement. His health continued to decline due to his multiple medical problems, including pain and peripheral vascular disease. On April 14, 2001, Patient R.E. was again admitted to Oak Hill Hospital with cellulitis of the left foot and the right stump. He declined any invasive procedures to restore circulation to his left leg. Patient R.E. was discharged to a hospice on April 20 and died on April 23, 2001. Dr. Patrick Hennessey, Petitioner's expert, testified that he reviewed all of the pertinent medical records concerning the treatment and care provided by Respondent to Patient R.E. and that based upon his review of these records and based upon his education, training, and experience, it was his opinion to within a reasonable degree of medical probability that Respondent deviated from the accepted standard of care in his treatment and care of Patient R.E., which constituted a violation of Subsection 458.331(1)(t), Florida Statutes. Dr. Hennessey also testified that in his opinion, Respondent violated Subsection 458.331(1)(m), Florida Statutes, in that he failed to compile appropriate medical records reflecting the treatment and care provided to Patient R.E. Dr. Hennessey's opinion as to the standard of care was based on several criticisms of the examination conducted on January 16, 2001. First, Dr. Hennessey opined that Respondent should have scheduled a follow-up appointment within three days to evaluate Patient R.E.'s clinical response to the prescribed medicines. The quick follow-up was indicated because of Patient R.E.'s advanced age, and because Patient R.E.'s diabetes and peripheral vascular disease could cause the cellulitis to progress rapidly. Dr. Hennessey also noted that peripheral vascular disease can reduce the effectiveness of antibiotics, further indication of the need for a prompt follow-up examination. Dr. Hennessey also believed that a three-day follow-up was necessary to definitively rule out the differential diagnosis of gout, if Respondent seriously believed gout was a possibility. Dr. Hennessey testified that Indocin should have provided relief from gout within three days, and that Levaquin should have stopped any increase in swelling, pain, or size of the affected area if Patient R.E. was suffering from cellulitis. In Dr. Hennessey's opinion, a three-day follow-up appointment would have allowed Respondent to determine whether Patient R.E. was obtaining relief and, if not, to try a different antibiotic regime or pursue other avenues of treatment. Dr. Hennessey also believed that Respondent should have tested Patient R.E.'s blood sugar level on January 16, 2001. Dr. Hennessey testified that diabetes has an impact on a person's ability to fight infection, and that the right antibiotic would be inadequate if the patient had uncontrolled diabetes. Thus, Respondent should have assessed Patient R.E.'s current and recent diabetic controls. Finally, Dr. Hennessey criticized Respondent for failing to give Patient R.E. adequate instructions for monitoring his own progress after the January 16, 2001, appointment. Dr. Hennessey testified that the instructions that the Oak Hill Hospital emergency room provided to Patient R.E. on January 20, 2001, set forth in full above, were precisely the kind of instructions Respondent should have given to Patient R.E. on January 16, 2001. Dr. Hennessey could not say whether the amputation of Patient R.E.'s right leg was inevitable, though he conceded it was likely to occur within a year or two even if his preferred course of treatment had been followed. He concluded that, on January 16, 2001, the correct alternative was to undertake an "aggressive evaluation" and to make the case to Patient R.E. that he should undergo surgical re-vascularization immediately, while the skin was still intact. Dr. Hennessey's "best guess" was that this course could have given Patient R.E. "probably fifty percent or better likelihood" of avoiding amputation, though he also conceded that "there's a lot of unknowns in there." Dr. Hennessey concluded that the time lost between January 16 and February 1, when Patient R.E. was seen by Dr. Piduru, the vascular surgeon, made a successful outcome much less likely. Respondent's expert, Dr. Kent Corral, testified that he reviewed all of the pertinent medical records concerning the treatment and care provided by Respondent to Patient R.E. and that based upon his review of these records and based upon his education, training, and experience, it was his opinion to within a reasonable degree of medical probability that Respondent did not deviate from the accepted standard of care in his treatment and care of Patient R.E. Dr. Corral also testified that in his opinion, Respondent did not violate Subsection 458.331(1)(m), Florida Statutes, by failing to compile appropriate medical records reflecting the treatment and care provided to Patient R.E. Dr. Corral testified that Respondent's examination of Patient R.E. was within the standard of care. The examination was complaint-driven, directed at the immediate presenting problem, a common and acceptable method employed by nearly all physicians in office practice. Dr. Corral testified that gout versus cellulitis is a very common differential diagnosis, especially in a patient with diabetes. Because there was inflammation of the ankle, peripheral vascular disease would fall very low on the list of possible diagnoses. Had Patient R.E. presented with a cold, necrotic foot, then peripheral vascular disease would have been more likely to be the presenting problem. Respondent knew that Patient R.E. had peripheral vascular disease, and it was apparent from the presenting symptoms that peripheral vascular disease was not the acute problem on January 16, 2001. Dr. Corral agreed that setting a three-day follow-up appointment would have met the standard of care. However, Dr. Corral disagreed that it was necessary to do so. He believed that Respondent reasonably elected not to schedule a three-day follow-up, but to follow up in ten days. Based on the information available on January 16, 2001, it was not unreasonable for Respondent to test the ten-day course of the prescribed antibiotics before scheduling a follow-up appointment. Dr. Corral testified that no laboratory tests were necessary to arrive at the differential diagnosis of gout versus cellulitis. He agreed that there was "potentially" some benefit to be derived from testing Patient R.E.'s blood sugar, but did not agree that Respondent's failure to do so amounted to practice below the standard of care. When Patient R.E.'s blood sugar level was checked in the emergency room on January 20, 2001, it was only slightly elevated. Dr. Corral also disagreed that Respondent failed to meet the standard of care in not giving Patient R.E. instructions on monitoring his own progress. Dr. Corral concluded that instructions would have made no difference. In his opinion, the antibiotic therapy was the only essential treatment to pursue on January 16, 2001. Dr. Corral believed that anything beyond the antibiotics would amount to "a hope and a prayer." In summary, Dr. Corral found the examination adequate and the diagnosis correct. He believed that the criticism of Respondent was due entirely to the poor outcome for Patient R.E., and that the poor outcome was not caused by anything Respondent did or did not do on January 16, 2001. In his own defense, Respondent testified that, prior to the January 16, 2001, appointment, he knew he was dealing with a very difficult patient who had a history of declining surgical intervention to resolve his circulatory problems. Respondent testified that his "first and foremost belief" was that Patient R.E. had cellulitis, and that the only other option, given the presenting symptoms, was an acute attack of gout. The potential for gout led him to prescribe Indocin as well as the antibiotics, because the Indocin would control the pain. Respondent noted that the emergency room physician confirmed his diagnosis of cellulitis on January 20, 2001. Respondent did not chart peripheral vascular disease on January 16, 2001, because that was not the presenting problem. Further, Respondent testified that Patient R.E.'s cellulitis was not necessarily related to peripheral vascular disease. Patient R.E. had several other problems, such as his heavy smoking and his diabetes, that could have generated cellulitis independently of peripheral vascular disease. Respondent disagreed with Dr. Hennessey's suggestion that "aggressive evaluation" and immediate surgery might have saved Patient R.E.'s foot, because it would not be prudent to undertake surgery until the cellulitis infection was cleaned up. Immediate surgery would have the potential of infecting the bypass grafts. On January 16, 2001, Patient R.E.'s foot was not gangrenous, and Respondent believed it essential to give Patient R.E. a reasonable trial of antibiotic therapy before sending him for surgical evaluation. Respondent's opinion on this issue was supported by Dr. Malik Piduru, the vascular surgeon who performed the amputation on Patient R.E.'s right leg. Dr. Piduru testified that in a patient with peripheral vascular disease and a diagnosis of cellulitis with no acute gangrenous changes or acute pain, the standard of care is to treat the infection first, then perform the re-vascularization. The weight of the evidence does not support an ultimate finding that Respondent failed to practice medicine with an acceptable level of care in the treatment of Patient R.E. Dr. Hennessey's conclusion that a more "aggressive evaluation" might have improved the chances of saving Patient R.E.'s leg rests on the assumption that Patient R.E. would have agreed to the proposed surgery had it been recommended on January 16, 2001. Patient R.E. rejected bypass surgery on his left leg before he became Respondent's patient, rejected it again in February 2001, and rejected it a third time in April 2001 when his right leg was threatened by cellulitis. There is little reason to assume that his decision would have been different on January 16, 2001. In view of all the evidence, the expert testimony of Dr. Corral was at least as persuasive as that of Dr. Hennessey in regard to the standard of care and Respondent's actions in this matter. Dr. Hennessey believed that the standard of care required a more aggressive approach to Patient R.E.'s presentation from the outset. Dr. Corral agreed that Dr. Hennessey's approach to the case would have met the standard of care, but also concluded that Respondent's approach was unexceptionable. Further, Dr. Hennessey could state with no degree of confidence that his own approach would have changed the ultimate outcome for Patient R.E. Dr. Hennessey opined that Respondent should have taken a blood sugar level and have given Patient R.E. detailed instructions for self-monitoring similar to those he later received at Oak Hill Hospital. Dr. Corral agreed that a blood sugar level might have been helpful, but was not necessary to meet the standard of care given the presentation and differential diagnosis. Dr. Corral believed that the failure to provide instructions was de minimus at most. Given the facts presented, Dr. Corral's opinion on these issues was at least as persuasive as Dr. Hennessey's. The evidence did not support a finding that Respondent took lightly Patient R.E.'s condition, or failed to consider any of the many variables created by Patient R.E.'s complicated history in arriving at a therapeutic approach. Respondent correctly diagnosed Patient R.E.'s cellulitis, and reasonably decided to attempt a course of antibiotic treatment to heal the infection before pursuing surgical options. The evidence presented at the hearing failed to establish that Patient R.E.'s poor outcome could be fairly attributed to Respondent's treatment of Patient R.E. on January 16, 2001. The main evidence submitted in support of the contention that Respondent failed to keep adequate medical records was directly related to the standard of care claim. Dr. Hennessey conceded that Respondent's medical record was minimally sufficient to justify the treatment provided. His chief criticism of Respondent's records for the January 16, 2001, appointment focused on the lack of documentation to explain actions that Respondent did not take, i.e., set a three- day follow-up appointment, order laboratory tests, and provide detailed instructions to Patient R.E. Because it has been found that the standard of care did not require Respondent to take these actions, his medical records cannot be faulted for failure to explain why he did not take them. However, Dr. Hennessey rightly criticized the lack of examination detail noted in the records of the January 16, 2001, examination. It was established at the hearing that Respondent charted by exception, meaning that he noted only positive findings rather than every unremarkable detail of the examination. Dr. Hennessey noted that, while this method of charting is acceptable practice, it was not acceptable that Respondent provided no description of the size or location of the erythema or the extent of the swelling of the ankle. Such detail would be essential to a subsequent treating physician in determining whether Patient R.E.'s condition had worsened. Further, Respondent did not note the frequency or duration of the Levaquin prescription, or the duration of the Indocin prescription, though Respondent credibly testified that he gave Patient R.E. oral instructions as to both medications. Again, a subsequent treating physician would need to know the details of Patient R.E.'s current medications before undertaking treatment. Finally, Respondent's notes were in several places illegible. Petitioner did establish that Respondent's records failed to document the office notes in a completely legible manner. The detail in Respondent's records was sufficient to justify the course of treatment on January 16, 2001, but their illegibility and lack of detail made them of limited use to anyone other than Respondent in assessing Patient R.E. for subsequent treatment. Patient R.E. was not exposed to potential injury because Respondent was consistently available to consult with the other treating physicians, but this fact does not cure Respondent's failure to keep adequate, legible records.
Recommendation Based on all the evidence of record, it is RECOMMENDED that the Board of Medicine enter a final order holding that the evidence is not clear and convincing that Respondent has violated Subsections 458.331(1)(t), Florida Statutes, in his treatment of Patient R.E., and that the evidence is clear and convincing that Respondent has violated Section 458.331(1)(m), Florida Statutes, in his failure to keep appropriate written medical records regarding his treatment of Patient R.E. and that Respondent be reprimanded for that violation. DONE AND ENTERED this 17th day of July, 2003, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 17th day of July, 2003. COPIES FURNISHED: Bruce A. Campbell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Christopher J. Schulte, Esquire Burton, Schulte, Weekley, Hoeler & Beytin, P.A. 100 South Ashley Drive, Suite 600 Tampa, Florida 33602 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 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
The Issue The Administrative Complaint in DOAH Case No. 99-4377, charged Respondent with violating Section 458.331(1)(t), Florida Statutes (failure to practice medicine with care, skill and treatment); Section 458.331(1)(m), Florida Statutes (failure to keep written records justifying treatment); Section 452.331(1)(x), Florida Statutes (violation of a rule of the Board or Department) by violating Rule 64B8-9.003(2), Florida Administrative Code, relating to legibility of medical records, in connection with Respondent's emergency room treatment of Patient B.W. on July 21, 1995. The Administrative Complaint in DOAH Case No. 99-4378, charges Respondent with violation of Section 458.331(1)(s), Florida Statutes (being unable to practice medicine with reasonable skill and safety to patients by reason of illness, use of any material, or as the result of any mental or physical condition).
Findings Of Fact At all times material to the incidents alleged in the Administrative Complaints, Respondent was a licensed medical physician in the State of Florida, having been issued License No. ME 0016828. Respondent specialized in internal medicine and emergency medicine but has never been board certified in any specialty. Respondent's license has been delinquent since January 31, 2000, but because delinquent licenses may be subject to renewal, the Petitioner has persisted in prosecuting these cases. DOAH Case No. 99-4377 On July 21, 1995, B.W., a 56-year-old female, presented to Respondent in the emergency room of Florida Hospital Waterman, with complaints of chest, epigastric, and left shoulder pain. B.W. had a history of dermatomyositis, for which she had been taking 100 mg of Prednisone for a month, along with other medications. Prednisone in such large doses can cause gastrointestinal irritation, ulceration, and bleeding. The day before, B.W. had been prescribed Imuran by her rheumatologist for immunologic problems. Dermatomyositis is a degenerative disease of skeletal muscle that can lead to a multitude of complications, including rheumatologic problems evidenced by abnormal laboratory results. The standard of care in the examination and treatment of a patient with chest pain requires an emergency physician to obtain a history including a complete medical history, family history, and social history. Additionally, in order to meet the standard of care, the emergency physician must perform a complete physical examination, including a review of systems. The emergency room records for Respondent's treatment of B.W. show the information contained above in Finding of Fact No. 4. The emergency room records do not show that Respondent obtained or documented a complete medical history, family history, or social history of B.W. Respondent violated the standard of care in that he failed to obtain or document a complete medical history, family history, or social history of B.W. Respondent also violated the standard of care in that he failed to perform or document a complete physical examination, including a review of systems. Respondent ordered an electrocardiogram (EKG), a chest X-ray, a complete blood count (CBC), complete cardiac enzymes testing (CPK and CKMB), and a metabolic profile or chemistry panel (MPC). He also did a rectal exam which was negative for blood. He did all appropriate tests. He did not fail to order any appropriate tests. The EKG and the chest X-ray yielded normal results, but B.W.'s blood count revealed several abnormal values, including a decreased platelet of 21,000 and a markedly elevated white count of 24,000. A platelet count of 21,000 is extremely low and grounds for major concern, as is the elevated 24,000 white count. Together, in the presence of the other symptoms and abnormal blood values present, which included low RBC, anemic hemoglobin, and low hemocrit, the standard of care requires that an emergency physician obtain a consultation with a specialist, such as a rheumatologist or a hematologist. In light of all the foregoing results and normal corpuscular volume, which B.W. also had, the emergency physician should have recognized that B.W. did not have simple iron deficiency anemia. Under some circumstances, the emergency room physician's consultation with B.W.'s primary care physician, who in this case was also a rheumatologist, would have been sufficient. Respondent maintained that he had obtained a history from B.W. as set forth in Finding of Fact No. 4, and an oral report from the hospital lab technician to the effect that a blood test ordered by B.W.'s treating rheumatologist the preceding day, July 20, 1995, had shown a platelet count of 18,000, and that because Respondent presumed B.W.'s platelets were increasing with the use of Imuran plus other factors, Respondent did not admit B.W. to the hospital, but, instead, discharged her without even consultation. Despite Respondent's foregoing explanation, it is clear that Respondent did not record or document on B.W.'s chart his oral conversation with the lab technician, if, in fact, such a conversation occurred. This was below the acceptable standard of medical care and record-keeping for an emergency room physician. Respondent stated that he felt that because the treating rheumatologist had not admitted B.W. to the hospital or transfused B.W. the previous day, she should not be admitted or transfused on July 21, 1995. He stated that he also relied on a medical text (Merck's Manual) which allegedly states that platelet transfusions should not be given until the count falls to 10,000. Respondent stated that he ruled out a myocardial infarction on the basis that both the CKMB on B.W. and the CKMB Index were not elevated and B.W.'s EKG was normal. However, Dr. Tober, who is certified in emergency medicine, testified more credibly that he had never seen a CPK test so high; that interpretation of CPK and CKMB in such a patient as B.W. would be confounded by the co-existence of the dermatomyositis, grossly throwing off these tests in an acute cardiac setting, sometimes causing several EKGs to come back normal in the course of a myocardial infarction; that B.W.'s extremely low platelet count should cause great concern about the hemologic system and clotting response if B.W. started to hemorrhage; and that the suspiciously low lymphocytes and all blood parameters should have caused Respondent not to discharge B.W. prior to a consultation with a specialist. Respondent failed to meet the standard of care by the treatment he rendered to B.W., in that he did not obtain a consultation from either the primary care physician, another rheumatologist, or a hematologist, before discharging her. That standard of care requires an emergency physician to determine an appropriate diagnosis and treatment as related to the patient's complaint and results of examinations. Respondent violated the standard of care in that he merely wrote into B.W.'s chart a portion of her medical history, "dermatomyositis," instead of a current diagnosis which addressed her current abnormalities when she presented in the emergency room. Thus, Respondent did not discern an appropriate diagnosis while appropriately treating B.W.6 Respondent's chart on B.W. is illegible to the extent that Dr. Tober was unable to read most of 23 lines of it. Because proper care of patients requires that medical records be sufficiently legible for successive professionals to discern what the writer has done and analyzed, I find that Respondent is guilty of keeping written medical records that are illegible and difficult to decipher. I do not consider Hospital Waterman's failure to provide dictation or transcription equipment and/or personnel to excuse this flaw. DOAH Case No. 99-4378 On or about July 14, 1995, Respondent was convicted of driving under the influence and placed on probation for 12 months, and his driver's license was revoked for 12 months. About two years later, on July 12, 1997, Respondent's vehicle collided with another vehicle. Respondent and the driver of the other car were injured. Blood was drawn from Respondent at the hospital. Laboratory studies performed by the Florida Department of Law Enforcement revealed that Respondent's blood alcohol level was 0.10 grams of ethyl alcohol per 100 ml. Under Florida law, a driver is legally intoxicated when his blood alcohol level is 0.08 grams of ethyl alcohol per 100 ml or higher. On August 12, 1997, Respondent was arrested and charged with one count of serious bodily injury while driving under the influence, and two counts of property damage while driving under the influence. On July 2, 1998, Respondent entered a plea of guilty7 to one count of serious bodily injury while driving under the influence and was sentenced to imprisonment for a period of seven years, one month, and eight days. On or about January 13, 1998, Walter J. Muller, M.D., a board-certified psychiatrist, performed a psychiatric evaluation of Respondent. Dr. Muller diagnosed Respondent with major depression, dysthymic disorder, and alcohol abuse, pursuant to The Diagnostic and Statistical Manual-IV. At that time, these conditions were active and not in remission. The diagnosis of major depression correlates with impaired social and occupational functioning. A diagnosis of dysthymic disorder is an indication of impairment and the inability to practice medicine with skill and safety to patients. A diagnosis of alcohol abuse can be an indication of inability to practice medicine with skill and safety to patients, but would depend upon when the abuse is occurring and how long it has been since the abuse occurred. In the expert opinion of Dr. Raymond Pomm, who is board certified in adult psychiatry and general psychiatry, with added qualifications in addiction psychiatry, and who relied on Dr. Muller's evaluation, the combined three diagnoses of major depression, dysthymic disorder, and alcohol abuse revealed that, to a degree of reasonable medical certainty, Respondent was unable to practice medicine with skill and safety to patients on the date of Dr. Muller's report. Respondent was evaluated at Menninger Clinic in Kansas, on or about May 26, 1998, and diagnosed with alcohol dependence. After six weeks of treatment at the Menninger Clinic, Respondent was released as being "in early remission." The treating physician made a number of recommendations for rehabilitation of Respondent, including treating his alcohol dependence by entering into a monitoring contract with the Physician's Resource Network in Florida and requiring a further evaluation by a neurologist of Respondent's apparently diminished cognitive skills. Dr. Pomm did not have the opportunity to read the entire evaluation by the Menninger Clinic, and did not rely upon it in forming his opinion of Respondent's inability to practice medicine with skill and safety to patients. However, according to Dr. Pomm, there is no cure for alcohol dependence. It is a life-long illness, which is incurable, and which at best, can only be "in remission." In Dr. Pomm's opinion, one who is alcohol-dependent cannot practice with skill and safety to patients without undergoing a monitoring program. While I accept Respondent's testimony that he has remained sober since approximately May 27, 1998, because he has been in prison, I also note that Respondent has not entered into a monitoring contract or been monitored in a recovery program because he has been in prison. Accordingly, there is no evidence that Respondent's circumstances have changed sufficiently since January 13, 1998, so as to demonstrate that he is able to practice medicine with skill and safety to patients in the real world.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of all violations charged, and as a penalty therefore, suspending Respondent's license to practice medicine in Florida until such time as Respondent presents to the Board and proves that he can practice with skill and safety. DONE AND ENTERED this 15th day of June, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 15th day of June, 2000.
The Issue The issues are whether Petitioner is entitled to repayment of Medicaid reimbursements paid to Respondent, pursuant to section 409.913(11), Florida Statutes; and, if so, the amount of the overpayment to be repaid; the amount of any fine to be imposed against Respondent, pursuant to section 409.913(15)- (17), Florida Statutes; and the amount of any investigative, legal, and expert witness costs to be assessed against Respondent, pursuant to section 409.913(23)(a), Florida Statutes.
Findings Of Fact Introduction Respondent operates a large group medical practice with a focus upon psychiatric services. Although Respondent serves patients in varied locations, including its offices and patients' nursing homes, all of the recipients in this case were in hospitals when Respondent's physicians rendered the services for which Respondent obtained reimbursement. The audit in question examined all of the claims paid on account of 30 randomly selected recipients to whom Respondent provided services from March 1, 2008, through February 28, 2010. Petitioner duly issued a preliminary audit report and received feedback from Respondent. On July 31, 2012, Petitioner issued the FAR. As distinguished from its challenge to the statistical estimation process, Respondent has not challenged the procedures followed in the preparation and issuance of the FAR, so the Administrative Law Judge infers that it is in compliance with all applicable law. The overpayments that Petitioner found in the 30-recipient sample arise from three sources. Petitioner denied 83 reimbursement claims for a lack of medical necessity and two reimbursement claims for double billing.3/ Petitioner "adjusted" (i.e., reduced) 16 reimbursement claims for upcoding the services provided to recipients. Petitioner's expert witnesses are Dr. Rahul Mehra, who is Board certified in psychiatry, and Dr. Nanette Hoffman, who is Board certified in internal medicine and geriatrics. Respondent's expert witnesses are Dr. Scott Segal, who is the founder of Respondent and Board-certified in psychiatry, and Dr. Tanver Sobhan, who is employed by Respondent and Board- certified in psychiatry. CPT Codes Pursuant to the Florida Medicaid Physician Services, Coverage, and Limitations Handbook in effect during the audit period (Physician Handbook), the coding of claims for Medicaid reimbursement is governed by the Current Procedural Terminology® (CPT). Physician Handbook at 3-1. References to the CPT will be to the 2009 edition.4/ Hospital and office visits are covered in the CPT's "Evaluation and Management Service Guidelines." The CPT identifies seven components of Evaluation and Management (E/M) services: 1) history, 2) examination, 3) medical decisionmaking, 4) counseling, 5) coordination of care, 6) nature of presenting problem, and 7) time. CPT at 3. The first three components are the "key" factors in selecting the correct level of service for an E/M service. The next three components are "contributory" factors. Id.5/ The "extent of the history is dependent upon clinical judgment and on the nature of the presenting problem(s)." Id. at 7. The extent of history may be characterized by any of four levels of service: Problem focused: Chief complaint; brief history of present illness or problem. Expanded problem focused: Chief complaint; brief history of present illness; problem pertinent system review. Detailed: Chief complaint; extended history of present illness, problem pertinent system review extended to include a review of a limited number of additional systems; pertinent past, family, and/or social history directly related to the patient's problems. Comprehensive: Chief complaint; extended history of present illness; review of systems that is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems; complete past, family, and social history. Id. The "extent of examination performed is dependent on clinical judgment and on the nature of the present problem(s)." Id. The extent of examination may be characterized by any of four levels of service: Problem focused: A limited examination of the affected body area or organ system. Expanded problem focused: A limited examination of the affected body area or organ system and other symptomatic or related organ system(s). Detailed: An extended examination of the affected body areas(s) and other symptomatic or related organ system(s). Comprehensive: A general multisystem examination or a complete examination of a single organ system. For the purpose of these CPT definitions, the following body areas are recognized: head, including the face; neck; chest, including breasts and axilla; abdomen; genitalia, groin, [and] buttocks; back; [and] each extremity. For purposes of these CPT definitions, the following organ systems are recognized: eyes; ears, nose, mouth, and throat; cardiovascular; respiratory; gastrointestinal; genitourinary; musculoskeletal; skin; neurologic; psychiatric; [and] hematologic/lymphatic/immunologic." Id. "Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by: The number of possible diagnoses and/or the number of management problems that must be considered. The amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed, and analyzed. The risk of significant complications, morbidity, and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), and/or the possible management options. Id. Four types of medical decision making are recognized: straightforward, low complexity, moderate complexity, and high complexity. To qualify for a given type of decision making, two of the three elements in Table 2 [see below] must be met or exceeded. Comorbidities/underlying diseases, in and of themselves, are not considered in selecting [an E/M level of service] unless their presence significantly increases the complexity of the medical decision making. Table 2 governs determinations of the complexity of medical decisionmaking and provides: Number of Amount and/or Risk of Compli- Type of Diagnoses Complexity of cations and/or Decision Or Manage- ment Options Data to be Reviewed Morbidity or Mortality Making minimal minimal or none minimal straight- forward limited limited low low complexity multiple moderate moderate moderate complexity extensive extensive high high complexity Id. at 8. As for time in a hospital setting, the CPT states: [U]nit/floor time . . . includes the time that the physician is present on the patient's hospital unit and at the bedside rendering services for that patient. This includes the time in which the physician establishes and/or reviews the patient's chart, examines the patient, writes notes, and communicates with other professionals and the patient's family. In the hospital, pre- and post-time includes time spent off the patient's floor performing such tasks as reviewing pathology and radiology findings in another part of the hospital. This pre- and post-visit time is not included in the time component described in these codes. However, the pre- and post- work performed during the time spent off the floor or unit was included in calculating the total work of typical services in physician surveys. Thus, the unit/floor time associated with the services described by any code is a valid proxy for the total work done before, during, and after the visit. Id. at 5. CPT ##99231, 99232, and 99233 cover "subsequent hospital care," which includes "reviewing the medical record and reviewing the results of diagnostic studies and changes in the patient's status (i.e., changes in history, physical condition and response to management) since the last assessment by the physician." CPT #99231 is for subsequent hospital care, per day, of a patient who requires at least two of three of the following components: a problem focused interval history, a problem focused examination, and medical decisionmaking that is straightforward or of low complexity. The patient is usually "stable, recovering or improving," and the physician typically spends 15 minutes at the bedside and on the hospital floor or unit. A psychiatric example of CPT #99231 is: Subsequent hospital visit for a 14-year-old female in middle phase of inpatient treatment, who is now behaviorally stable and making satisfactory progress in treatment. Id. at 503. CPT #99232 is for subsequent hospital care, per day, of a patient who requires at least two of three of the following components: an expanded problem focused interval history, an expanded problem focused examination, and medical decisionmaking of moderate complexity. The patient is usually "responding inadequately to therapy or has developed a minor complication," and the physician typically spends 25 minutes at the bedside and on the hospital floor or unit. CPT #99233 is for subsequent hospital care, per day, of a patient who requires at least two of three of the following components: a detailed interval history, a detailed examination, and medical decisionmaking of high complexity. The patient is usually "unstable or has developed a significant complication or a significant new problem," and the physician typically spends 35 minutes at the bedside and on the hospital floor or unit. Psychiatric examples of CPT #99233 are: Follow-up hospital visit for a teenage female who continues to experience severely disruptive, violent and life-threatening symptoms in a complicated multi-system illness. Family/social circumstances also a contributing factor. Subsequent hospital visit for an adolescent patient who is violent, unsafe, and noncompliant, with multiple expectations for participation in treatment plan and behavior on the treatment unit. Subsequent hospital visit for an 18-year-old male being treated for presumed PCP psychosis. Patient is still moderately symptomatic with auditory hallucinations and is insisting on signing out against medical advice. Id. at 505. CPT ##99221, 99222, and 99222 apply to ascending levels of initial hospital care, meaning that the initial day of inpatient care is billed under one of these codes and subsequent days of inpatient care are billed under CPT ##99231-99233. CPT #99221 requires a detailed or comprehensive history, a detailed or comprehensive examination, and medical decisionmaking of low complexity or that is straightforward. CPT #99222 requires a comprehensive history, a comprehensive examination, and medical decisionmaking of moderate complexity. CPT #99223 requires a comprehensive history, a comprehensive examination, and medical decisionmaking of high complexity. CPT ##99238 and 99239 apply to hospital discharge services. CPT #99238 applies if, on the day of hospital discharge, the physician spends 30 minutes or less with the patient, performing such tasks as a final examination, issuance of discharge instructions, and preparation of discharge records, prescriptions and referral forms. If the physician spends more than 30 minutes on these tasks, CPT #99239 applies. Medical Necessity of Psychiatric Services In this case, all of the denials for a lack of medical necessity pertain to psychiatric services, and all of the reductions for upcoding pertain to medical services that are not psychiatric in nature. (Although psychiatry is a branch of medicine, this recommended order generally6/ will refer to "medical" services to mean nonpsychiatric medical services.) Not raising difficult issues of fact or law, the upcoding issues are straightforward or, at most, of low complexity; Petitioner has prevailed on all but one upcoding claim, and it conceded this claim at the hearing. By contrast, many of the medical necessity issues, which are relatively consequential in estimating the total overpayment,7/ are highly complex, raising difficult issues of fact and law. Respondent has prevailed on most of these claims, in several instances, due to recurring shortcomings in Petitioner's evidence. In general, the expert witnesses offering psychiatric testimony were all highly qualified. Respondent's experts are interested in the outcome of the case. On the other hand, Dr. Mehra's experience over the past three years in treating psychiatric patients has not included inpatient care. By contrast, Dr. Sobhan and Dr. Segal have considerable experience in providing inpatient psychiatric services. Moreover, Respondent's experts, particularly Dr. Segal, have considerable knowledge and experience as to the entire range of local, regional, and state settings for the psychiatric treatment of patients, particularly those sharing the demographic characteristics of the recipients involved in this case. Dr. Mehra's experience does not appear to approach the experience of Drs. Segal and Sobhan in this important respect. Of course, the knowledge and experience of Drs. Segal and Sobhan extend to assessing the suitability of particular patients for particular settings. In addressing medical necessity, all of the psychiatric experts understood that, as noted in the Conclusions of Law, a billed service must be a generally accepted preventative, curative, or palliative service in the diagnosis or treatment of a recipient. All of the psychiatric experts understood that, to meet the definition of medical necessity, a billed service must be needed, not in excess of the recipient's needs, and the least costly, effective service among services that are available statewide. This Recommended Order will refer to services that are provided when no services are needed as Inappropriate Services and services that are provided in excess of the services that are needed as Excessive Services. However, Inappropriate Services and Excessive Services play a minor role in this case. As noted in the Conclusions of Law, the special provision of the rule applying only to inpatient services provides that billed inpatient services are not medically necessary if they could have been appropriately and effectively furnished less expensively on an outpatient basis or in an inpatient facility of a different type. This Recommended Order will refer to services that could have been furnished less expensively in another setting as Costlier-Setting Services. Almost all of the medical-necessity determinations in this case turn on whether certain psychiatric services are Costlier- Setting Services. Unfortunately, the expert psychiatric testimony focused on whether certain psychiatric services could have been appropriately and effectively furnished in a lower level of care--to the exclusion of any consideration of the cost of these services in another setting. As discussed in the Conclusions of Law, the burden of going forward with the evidence as to this aspect of medical necessity is on Petitioner, so that the shortcomings of Dr. Mehra's testimony were more consequential than the shortcomings of Drs. Segal and Sobhan's testimony. Exacerbating the shortcomings of the psychiatric testimony as to relative costs, much of the psychiatric level- of-care testimony was vague. Dr. Mehra identified the descending "levels of care" in psychiatric medicine: in order, starting with the highest level of care, these settings are inpatient, residential, partial hospitalization, and outpatient. Dr. Mehra identified specific circumstances that warranted the highest level of care, meaning inpatient psychiatric services.8/ But Dr. Mehra never specified for any recipient what lesser level of care would have been safe at any particular time. Ms. Eddleman identified a number of local behavioral programs--all available in South Florida--with a level of care less than hospitalization or partial hospitalization, but greater than treatment in an office or private residence. Persons at risk of hospitalization may obtain behavioral health day treatment services, which are more intensive than regular outpatient services and bundle psychosocial rehabilitation services to help build skills with individual and family therapy sessions. Persons may obtain mental health targeted case management services, automatically for 30 days after hospital discharge, and, without regard to hospitalization, if the person suffers from a severe and persistent mental disorder. The case manager helps the person obtain services, such as housing and the community behavior services described immediately above, to help stabilize psychiatric symptoms. Separate medication administration programs are also available to try to help persons with mental disorders obtain and take their medications. Ms. Eddleman provided very useful level-of-care testimony. But its utility in this case is limited by its timing. Petitioner obtained the testimony after Dr. Mehra had testified. If the testimony had been available earlier, Dr. Mehra might have been able to add much-needed detail to his level-of-care testimony. Regardless of the timing of Ms. Eddleman's testimony, no evidence links a particular date of inpatient services to a particular community-based behavioral service, so as to support a determination that a lower level of care was suitable on that date. Of course, as a layperson, Ms. Eddleman could not have provided this link. But, again, the larger problem was that the level-of- care testimony provided by Dr. Mehra and Ms. Eddleman was not supplemented by any testimony about relative costs. While requiring that the psychiatric services be appropriate so as to ensure patient safety, the subject audit is a cost audit, not a quality-of-care audit. The only explanation for why the three psychiatrists concerned themselves exclusively with level-of- care issues in addressing Costlier-Setting Services is that they assumed lower levels of care would mean lower costs. As shown below, though, the reimbursement rates do not bear a direct relationship to the level of care of the setting in which the services are provided.9/ A quick look at the CPT's treatment of E/M services reveals an obvious flaw in Dr. Mehra's failure to account for actual costs in his level-of-care testimony: the first and third levels of care in Dr. Mehra's list are combined into a single CPT code for E/M services, as noted above. CPT at 12. So, even if a recipient could have been treated safely on a partial-hospitalization basis, this would not deprive the inpatient services of medical necessity, as Costlier-Setting Services, because the same reimbursement rate applies to services in both of these settings. The larger problem is that the provision of a service in a hospital setting does not command the highest reimbursement rate. In fact, an inpatient service is invariably cheaper than the same level of service provided in the patient's boarding home or private home and is often cheaper than the same level of service provided in a patient's skilled nursing facility or a physician's office. Petitioner Exhibit #17, which contains the reimbursement rates for various CPT codes, reveals the relative costs. In the following table, which is for 2009,10/ "PF" means problem focused, "Ex" means expanded problem focused, "Det" means detailed, "Comp" means comprehensive, "Straight" means straightforward, and "Mod" means moderate. The first reference to any of these descriptors is to the history or interval history, the second reference is to the examination, and the third reference is to the complexity of the decisionmaking. The first numerical reference is to the CPT and the second is to the 2009 reimbursement rate. For each CPT listed below, only two of three criteria must be met. SUBSEQUENT HOSPITAL CARE PF/PF/Straight or Low 99231 $20.36 Ex/Ex/Mod 99232 $36.60 Det/Det/High 99233 $52.45 OFFICE OR OTHER OUTPATIENT CARE: ESTABLISHED PATIENT PF/PF/Straight 99212 $21.84 Ex/Ex/Low 99213 $26.61 Det/Det/Mod 99214 $41.46 Comp/Comp/High 99215 $60.27 NURSING FACILITY SERVICES: SUBSEQUENT NURSING FACILITY CARE PF/PF/Straight 99307 $21.72 Ex/Ex/Low 99308 $32.89 Det/Det/Mod 99309 $43.64 Comp/Comp/High 99310 $64.98 BOARDING HOME: ESTABLISHED PATIENT PF/PF/Straight 99334 $30.33 Ex/Ex/Low 99335 $46.77 Det/Det/Mod 99336 $65.58 Comp/Comp/High 99337 $93.75 HOME SERVICES: ESTABLISHED PATIENT PF/PF/Straight 99347 $28.77 Ex/Ex/Low 99348 $42.86 Det/Det/Mod 99349 $62.25 Comp/Comp/High 99350 $86.33 It is more difficult to compare the cost of inpatient services to the cost of services in an office or skilled nursing facility. But, in the context of this case, as found below, many of the psychiatric inpatient services represented a problem focused history, extended problem focused or detailed examination, and decisionmaking that is straightforward or of low complexity. These components earn a CPT #99231 and a reimbursement of $20.36 in a hospital, a CPT #99308 and a reimbursement of $32.89 in a skilled nursing facility, and a CPT #99213 and a reimbursement of $26.61 in an office or other outpatient setting. Thus, for this very common aggregation of components, the services provided to a recipient in a hospital setting were cheaper than the same services provided to a recipient in a skilled nursing facility, office, or other outpatient setting.11/ Petitioner's proof of Costlier-Setting Services encountered other problems, besides vagueness as to alternative suitable settings and an absence of relative cost data. Neither Petitioner nor Dr. Mehra ever dealt with the issues that, especially given the absence of direct admits in this case, Respondent's physicians had to treat these patients where they found them--in a hospital--and Petitioner has not sought to recover the reimbursements that it paid to the hospitals for the stays at issue in this case. Recipient 1 illustrates these problems. Recipient 1 primarily required detoxification with some psychiatric support during the process. To the extent that detoxification was a medical process, Recipient 1's medical needs required hospitalization. If, somehow, his psychiatric needs could be analyzed in isolation from his medical needs, they perhaps could have been addressed in another setting, and perhaps the reimbursement rate in the other setting might have been lower. But these services could not be isolated from the medical, detoxification process through which nonpsychiatric physicians were guiding him. By contrast, Recipient 2 also required detoxification, but her psychiatric issues were more prominent than Recipient 1's. Recipient 2's abuse of drugs injured herself and her fetus, so her psychiatric needs were necessarily more urgent and her case perhaps more complicated psychiatrically. Compared to Recipient 1, then, the high level of care provided by the hospital setting was clearly appropriate, even considering Recipient 2's psychiatric needs in isolation from her medical needs. Rather than repeat the foregoing findings of Costlier- Setting Services in the following discussions of each recipient, they are incorporated by reference and highlighted or differentiated, as needed, in discussions of specific recipients. Recipients Introduction 39. At issue are Recipients 1, 2, 11, 12, 23, 26, 27, 29, and 30. Based on Attachment C, the parties are litigating five denied claims as to Recipient 1; 16 denied claims as to Recipient 2, one denied claim and seven reduced claims as to Recipient 11; five denied claims and one reduced claim as to Recipient 12; 19 denied claims and seven reduced claims as to Recipient 23; six denied claims as to Recipient 26; five denied claims as to Recipient 27; four denied claims as to Recipient 29; and 24 denied claims and one reduced claim as to Recipient The two denied claims for double billing pertain to Recipient 12. Concessions of the parties first offered during the hearing will be noted in the discussion of the appropriate recipient. Recipient 1 For Recipient 1, a 34-year-old male diagnosed with depressive disorder, only one hospitalization is at issue. From December 2-7, 2009, Recipient 1 was hospitalized at Memorial Regional Hospital for detoxification to treat an opiate dependency. Recipient used heroin on the day prior to the admission, averaged three intravenous injections daily, and worried that he would continue to take heroin if he were not hospitalized. At issue are the following billed CPT codes: December 2: #99223 December 3: #99232 December 4: #99232 December 5: #99232 December 7: #99232 Petitioner denied these psychiatric claims for a lack of medical necessity. Misreading the chart, Dr. Segal testified that Recipient 1 had threatened to kill himself. As pointed out by Dr. Mehra, the medical records clearly disclose that Recipient 1 denied any thoughts of suicide--or, for that matter, homicide. Dr. Segal misunderstood a reported statement of Recipient 1 that he was going to kill himself--more or less inadvertently--through the continued use of drugs. Recipient 1 had been using heroin since he was 26 years old. He had previously completed treatment programs and enjoyed three years' sobriety. On admission, Recipient 1 was already suffering from muscle aches, hot and cold sweats, back pain, diarrhea, and nausea. The medical records state that, on admission, Recipient 1 "was experiencing an exacerbation of psychiatric symptoms," although these symptoms are not detailed in the records. The medical records do not describe in much detail the role of psychiatric services during this detoxification process. At one point during Recipient 1's six-day hospitalization, the medical records state: "The patient reported a reduction of psychiatric symptoms on the current medication regime " But the records do not identify the symptoms or the inpatient psychiatric services--apart from a mention of individual therapy--nor do the records explain how the medications or services may have contributed to a reduction in psychiatric symptoms. In general, the psychiatric notes are vague and provide little, if any, insight into any psychiatric symptoms, diagnoses, or treatments. Dr. Mehra testified that Recipient 1 underwent what was essentially an uncomplicated detoxification process. In hindsight, Recipient 1's detoxification was uncomplicated, but, of course, no one knew in advance that it would be. The possibility of difficulties during detoxification is suggested by the prescription for an anti-seizure medication, should the need have arisen. Dr. Mehra's implication that the hospital setting for this detoxification was an excessive level of care fails to address the medical needs of the recipient during this relatively brief detoxification process. Dr. Mehra contended for a lower level of care based on the absence of any threat of harm to self or others and the absence of any indication of a recent history of treatment failure. Failing to address the issue mentioned in the preceding paragraph, Dr. Mehra never discussed why, under the circumstances, the absence of these threats militates in favor of nonhospitalization, rather than a relatively brief hospitalization, especially as a brief hospitalization appears to have been necessitated by Recipient 1's medical needs in association with his detoxification. Dr. Mehra also failed to identify a lower level-of- care facility at which Recipient 1 could have been safely treated. Recipient 1's past failure to maintain sobriety after three years without heroin use and his well-founded fear that he would resume heroin use if treated on an outpatient basis precluded treatment in a lower level-of-care setting. Dr. Mehra never suggested that the billed psychiatric services were Inappropriate Services or Excessive Services, and Respondent has proved that they were not, notwithstanding the shortcomings in the medical records. Dr. Mehra suggested that the psychiatric services were Costlier-Setting Services, but Petitioner has failed to prove that they were. Petitioner therefore improperly denied these five psychiatric claims for a lack of medical necessity. Recipient 2 For Recipient 2, a 32-year-old female diagnosed as 21 weeks gravid and with depressive disorder, only one hospitalization is at issue. From December 1-18, 2008, Recipient 2 was hospitalized at Plantation General Hospital for detoxification from alcohol abuse, including binge drinking. Actually admitted on November 29, 2008, to the Broward Addiction Recovery Center within the hospital, Respondent's physician initially diagnosed Recipient 2 with Antepartum Polysubstance Dependence.12/ At issue are the following billed CPT codes: December 2: #99232 December 3: #99232 December 4: #99232 December 5: #99232 December 6: #99231 December 7: #99231 December 8: #99232 December 9: #99232 December 10: #99232 December 11: #99232 December 12: #99232 December 13: #99231 December 14: #99231 December 15: #99232 December 16: #99232 December 17: #99232 Petitioner denied these billed psychiatric claims for a lack of medical necessity. Recipient 2 was homeless. She had been working as a prostitute and, at one point during her hospitalization, reported that she had become pregnant while having sex with a customer. Recipient 2 had been treated briefly in 2006, but had relapsed immediately and had enjoyed only one, six-month period of sobriety since the inception of her alcohol addiction in 2001. Recipient 2 had no family support. Her father had been an alcoholic, and her mother had been a crack addict, so her grandmother had raised her from the age of six months. Recipient 2 claimed to have support from her boyfriend, but there is doubt that the boyfriend, with whom Recipient 2 appears to have had no contract during her hospitalization, was much more than Recipient 2's pimp. Dr. Sobhan treated Recipient 2 at the hospital and prepared for her a detailed treatment plan. Dr. Sobhan found that Recipient 2 had "very weak ego strength" and was in a "very fragile mental state." She maintained unrealistic expectations of others and used the defenses of displacement and drugs to deal with her feelings. She had minimal insight and often used inappropriate laughter as a defense. Dr. Sobhan found that Recipient 2's life "has been totally destroyed by her drug addiction," and she "has lost all volitional capacity to abstain from drugs or deal effectively with life on life's terms." Her drug use "has persisted and steadily worsened despite negative consequences in her life." At admission, Dr. Sobhan determined: "A lower level of care at this time would place the patient at risk for relapse, harm to herself and harm to the fetus." Recipient 2 required "stabilization of her mental health," and "[i]npatient services will be needed to prevent regression and restore patient to a state of competence where she can move on to a lower level of care in 21 days but still remain in a residential setting." Dr. Sobhan's treatment plan was for Recipient 2 to work on her substance abuse problems by attending individual and group therapy, meet with a psychiatrist, increase coping skills to prevent relapse and identify triggers to relapse, and begin a 12-step program to rid herself of her addiction. Intra-hospitalization progress notes document the therapeutic work involved in preparing Recipient 2 for a lower level of care. Such work included helping Recipient 2 forgive herself for past failings, find appropriate leisure and recreational activities, develop relaxation techniques (such as meditation and guided imagery), and prepare for the delivery of her baby. Recipient 2 was referred to the hospital by personnel at Gratitude House, which is a residential and day facility for treating women with drug or alcohol addictions. It is not clear whether she was in the residential or day program at Gratitude House immediately prior to her hospitalization, but Recipient 2 was transferred to the residential program at Gratitude House upon discharge from the hospital. The pregnancy addiction program that served Recipient 2 at Plantation General Hospital was once located at Adventura Hospital--under Dr. Segal's administration. At that time, the program called for 45 days of inpatient treatment of the pregnant addict, and Medicaid reimbursed this inpatient treatment. Medicaid reduced its reimbursements to 28 days of inpatient treatment in such a program a few years ago, at which time the program relocated to Plantation General. At all times, Medicaid-required reimbursement conditions provided that a physician must see the recipient daily in the hospital. Dr. Segal testified that the 21-day program to which Recipient 2 was admitted at Plantation General was the only program available for treating pregnant patients with active alcohol or drug addictions. The twin purposes of the program are to provide the pregnant inpatient with medications to assist with detoxification and the psychiatric therapy required to help her conquer her addiction. Dr. Mehra countered, though, that Recipient 2 had not used cocaine since September 2008 and marijuana since October 2008. The medical records also disclose that Recipient 2 reported that she last used Xanax in September 2008. Nothing in the record suggests Inappropriate Services or Excessive Services. Petitioner's theory of a lack of medical necessity rests on Costlier-Setting Services, which is rejected for the above-discussed reasons. From a level-of-care perspective, Recipient 2's hospitalization was bookended by treatment at Gratitude House, and it may be inferred that Gratitude House staff had agreed with the need for an interim hospitalization. Certainly, Respondent's psychiatrists had made this determination. In contrast, Dr. Mehra appears to have had no idea as to what alternative settings would have been appropriate for Recipient 2 and her fetus--let alone the costs of psychiatric services provided in such settings. Petitioner therefore improperly denied these 16 psychiatric claims for a lack of medical necessity. Recipient 11 For Recipient 11, a 26-year-old male diagnosed with paranoid schizophrenia, only one hospitalization is at issue. From February 17-28, 2010, Recipient 11 was hospitalized at Broward General Medical Center to treat a recent exacerbation of his psychiatric illness. Recipient 11 was brought to the hospital emergency room by someone from his assisted living facility, where he had been residing for only one day and was refusing to take his psychotropic medication. Recipient 11 presented at the hospital with delusional thoughts and anxiety, claiming that his brain was in convulsion, and displaying a bizarre, though cooperative, demeanor. Due to disordered thought, Recipient 11 was unable to give an accurate history on admission. Recipient 11 received a second diagnosis on the second day of his hospitalization: acute hepatitis C. Recipient 11 had undergone a half dozen previous psychiatric admissions. The medical records for the subject hospitalization record Recipient 11's past medical history as follows: "According to the records, positive for human immunodeficiency virus and hepatitis C, but the recent tests in 2005 was [sic] not confirmatory." The axis II diagnosis on February 17 was thus: "History of questionable human immunodeficiency virus and hepatitis C. We will repeat laboratories in the morning." On February 18, a physician's report notes that Recipient 11's "laboratory data is normal." From February 18 through discharge, then, Recipient 11 did not bear a diagnosis of either HIV or hepatitis C. At issue are the following billed CPT codes: February 18: #99232 February 21: #99232 February 22: #99232 February 23: #99232 February 24: #99232 February 25: #99232 February 26: #99232 February 28: #99232 Petitioner denied the February 18 psychiatric claim for a lack of medical necessity and downcoded the remainder of the claims, which involve medical services, from CPT #99232 to #99231. At the hearing, Dr. Mehra conceded the medical necessity of the psychiatric services covered by the February 18 billing. (Tr. 284) Petitioner therefore improperly denied this psychiatric claim for a lack of medical necessity. Dr. Hoffman addressed the downcodings. By not later than February 22, any questions about HIV and hepatitis C had been answered in the negative. Dr. Segal testified that Recipient 11's remaining diagnoses were weakness, obesity, and headache. Dr. Segal admitted that the headache resolved during the course of the hospitalization. The February 20 progress note adds that the weakness, too, had at least become stable by that date. The February 21 progress note states that Recipient 11 "feels better physically" and lists as diagnoses only mild obesity and improving weakness. Respondent's upcoding of these medical claims is obvious. As Dr. Hoffman testified, from February 22 through February 28, the medical decisionmaking was straightforward, and the histories were problem focused with no more than a mention of a chief complaint. Dr. Hoffman admitted that the examinations were more intense than problem focused, but she correctly noted that the CPT #99231 requires only that two criteria be met. Here, the history and medical decisionmaking satisfied CPT #99231, not a higher code. Petitioner therefore properly downcoded from CPT #99232 to #99231 the medical claims on February 21-26 and 28. Recipient 12 For Recipient 12, a 19-year-old male diagnosed with bipolar disorder, only one hospitalization is at issue. From May 23-28, 2009, Recipient 12 was hospitalized at Florida Medical Center for treatment of an exacerbation of bipolar symptoms, including manic behaviors, disorganized thinking, loose association, and poor judgment. Respondent had recently moved to South Florida from Tennessee and had not taken his psychotropic medications for one month. At issue are the following billed CPT codes: May 23: #99222 May 24: #99232 May 24: #99232 May 24: #99232 May 26: #99232 May 28: #99232 Petitioner denied the May 23 claim, one of the May 24 claims, and the May 26 claim for a lack of medical necessity; all of these were for psychiatric services. Petitioner denied two of the May 24 claims for double billing. Petitioner downcoded the May 28 medical claim from CPT #99232 to #99231. At the hearing, the parties conceded as to all dates of service except for the double billings on May 24. Respondent's counsel conceded the downcoding of the May 28 claim. (Tr. 488) Dr. Mehra conceded that the psychiatric services on May 23 were medically necessary. (Tr. 232) After hearing a detailed explanation of the psychiatric services, Dr. Mehra conceded that the services on all three dates--May 23, 24, and 26--were medically necessary. (Tr. 240) Petitioner thus improperly denied these psychiatric claims. These concessions leave the only issue for disposition as to Respondent 12 the so-called double billings on May 24. Dr. Segal conceded that Respondent received these double reimbursements. It is equally evident that Respondent did not repay these over-reimbursements to Petitioner prior to their discovery during the audit. These are the crucial facts. Dr. Segal's argument against the extension of these double reimbursements on the ground that Respondent did not double bill them is unpersuasive. Regardless of whether these duplicated items represent double billings and reimbursements or merely double reimbursements, the point is that, prior to their discovery during the audit, Respondent failed voluntarily to repay these unearned sums. There is thus no reason not to include these sampled overpayments in the estimation process by which Petitioner determines the total overpayment. Recipient 23 For Recipient 23, a 57-year-old male diagnosed with depression, six hospitalizations are at issue. From September 8-14, December 12-18, and December 21-24, 2009, and January 10-12, February 6-8, and February 22-23, 2010, Recipient 23 was hospitalized at several facilities to treat his psychiatric illness. Recipient 23 has a history of use of cocaine and marijuana and abuse of alcohol. Not long before the first hospitalization, Recipient 23 had been released from an eight- year term in prison for robbery. At issue are the following billed CPT codes: September 9: #99232 September 10: #99232 September 11: #99232 September 12: #99232 September 13: #99232 September 14: #99238 December 12: #99222 December 12: #99254 December 13: #99232 December 14: #99232 December 14: #99232 December 15: #99232 December 15: #99232 December 16: #99232 December 16: #99222 December 17: #99232 December 17: #99232 December 18: #99238 December 18: #99232 December 23: #99232 December 23: #99232 December 24: #99238 December 24: #99232 January 12: #99238 February 6: #99223 February 7: #99223 February 8: #99233 Petitioner denied all of the claims for a lack of medical necessity except for the downcodings from CPT #99232 to #99231 on December 14-18 and 23-24. The psychiatric denials will be addressed before the medical downcodings. On September 8, Recipient 23 was transported to the hospital from jail by law enforcement officers. He had been exhibiting suicidal and homicidal tendencies while in jail. He presented with hyperverbal speech, bizarre appearance, withdrawn and uncooperative behavior, irritable mood, persecutory and paranoid delusions, auditory hallucinations, and poor judgment. Recipient 23 required 24-hour supervision. His history included the suicide of his mother when he was a young child. Dr. Mehra testified that the progress notes for this hospitalization were vague--failing, for instance, to specify the nature of the delusions. Dr. Mehra faulted the medical records for failing to detail how Recipient 23's psychiatric symptoms were impacting him. For instance, did Recipient 23 require restraints or as-needed administration of antipsychotics? In terms of Recipient 23's suicidal tendencies, Dr. Mehra noted a lack of a plan for suicide. Dr. Mehra also raised the question of whether the patient merely wanted to escape a nonpreferred setting--jail--by admittance to the hospital. Dr. Segal testified that Recipient 23 had been Baker Acted recently on one or two other occasions preceding the September 8 hospitalization. His treatment plan included, among other things, increasing the dosage of Risperdal that he had been taking. During this brief hospitalization of no more than six days, the psychiatrist also increased the patient's Seroquel to control psychiatric symptoms. As soon as Recipient 23 did not seem suicidal, Respondent had him discharged to Second Chance Recovery, a halfway house representing a lower level of care, where he would be followed by another of Respondent's psychiatrists. Dr. Sobhan admitted that, with this kind of psychiatric patient, it is necessary to discharge him as soon as he says that he is doing better and no longer represents a risk of suicide or homicide. Just as Respondent's psychiatrists are concerned about a patient's acting out on suicidal or homicidal ideation, they are also concerned that unnecessarily long hospitalizations will make the patient dependent on the hospital. It is difficult to characterize Dr. Mehra's medical- necessity concerns. They seem equally applicable to Inappropriate Services, Excessive Services, and Costlier-Setting Services. However, Respondent has proved that the psychiatric services during this relatively brief hospitalization were appropriate and not excessive. Presumably aware that inmates would prefer a hospital to a jail and might fake psychiatric symptoms, correctional officers nonetheless felt it necessary to transport Recipient 23 to the hospital due to his suicide threats. Upon arrival at the hospital, Recipient 23 exhibited symptoms consistent with a serious mental disorder. Respondent's psychiatrists treated Recipient 23 until, in fairly short order, he stabilized and was discharged without delay. Nor has Petitioner proved that the psychiatric services were Costlier-Setting Services for the reasons already discussed. The inpatient psychiatric services provided on September 9-14 were thus medically necessary. The next hospitalization took place from December 12-18. At the hearing, Dr. Mehra conceded the medical necessity of the CPT #99222 on December 12. (Tr. 259) But he testified that medical necessity was lacking for the psychiatric services provided from December 13-18. Again, Recipient 23 presented to the hospital with suicidal ideations. His plan was to cut his wrists, as, he claimed, to have done previously. Multiple stressors in his life included homelessness, unemployment, cocaine use, and alcohol abuse. His global assessment of functioning, on a scale of 0-100, was 30, which is, as Dr. Mehra graciously conceded, "on the low side." (Tr. 257) Respondent's psychiatrist gradually increased Recipient 23's Seroquel, but also placed him on Prozac during this hospitalization. Reflecting the seriousness with which hospital staff took Recipient 23's suicidal ideation, they put him on visual observation, followed by a check every 15 minutes. The psychiatric records reveal that, on December 13, Recipient 23 still suffered auditory hallucinations and suicidal ideation. He was still receiving 24-hour supervision. The Seroquel was increased the following day, as well as on December 16, after the patient's symptoms had not improved. After increasing the Seroquel again on December 17, Respondent's psychiatrist discharged Recipient 23 to Second Chance Recovery, although, instead of reporting to this halfway house, Recipient 23 returned to his halfway house in Pompano Beach. It is puzzling why Petitioner denied the December 13- 18 claims for a lack of medical necessity. If anything, Recipient 23 required a longer hospitalization: three days after discharge, he slashed his arm with a razor blade, leaving a 30 cm-long gash. The circumstances of the December 13-18 hospitalization plus the suicide attempt three days after discharge establish the medical necessity of the December 13-18 hospitalization. After slashing his arm, Recipient 23 was involuntarily Baker Acted on December 21 to a receiving facility, where Respondent's psychiatrist treated him. On admission, Recipient 23 revealed a plan to kill himself by running into traffic. Petitioner challenged the medical necessity of only the third and final days of this hospitalization--December 23 and 24. As Dr. Sobhan testified, ten years ago, Recipient 23 would have qualified for long-term commitment to a state hospital under the Baker Act. This was not necessarily the better approach to Recipient 23's mental illness. Because Recipient 23 eats and takes his medicine in the local hospital, he achieves sufficient short-term stabilization that short-term hospitalization followed by outpatient treatment produce a better prognosis than long-term hospitalization. However, as Dr. Segal concluded, Recipient 23's multiple hospitalizations over a relatively short period of time demonstrate the inadequacy of community resources, like halfway houses, whose levels of care are not sufficient for the treatment of Recipient 23's psychiatric symptoms during periods of exacerbation. Somewhat surprisingly, given his testimony that inpatient psychiatric services at local hospitals were not medically necessary, Dr. Mehra did not argue for lower-level-of- care settings, but for an equal or higher level-of-care setting--a state hospital. (Tr. 266) Addressing the patient's "best interest," if not medical necessity, Dr. Mehra opined that past failures of coordination of care in settings with lower levels of care than local hospitals militate against the providing of services in local hospitals. It is unnecessary to resolve the disagreement between Dr. Sobhan and Dr. Mehra about the efficacy of treating Recipient 23 in a state hospital. Petitioner did not prove that the state hospital is a lower level of care or that psychiatric services in this setting are reimbursed at a different rate than those provided in the local hospital. More importantly, both experts implicitly agreed that a lower level-of-care would not have been appropriate for Recipient 23 at the time. In a wider-ranging discussion triggered by the December 23 and 24 claims, but obviously not limited to Recipient 23, Dr. Mehra testified: "my concern has been not even whether the patients need to be in the hospital, but it's just kind of the documentation to kind of communicate that urgency or that need for things. So obviously, that's why on some of these cases where maybe I have overlooked it, I am very much willing to concede those dates that maybe I've missed." (Tr. 270) It seems that Dr. Mehra was approaching a concession as to the psychiatric services on December 23 and 24--and perhaps other dates of service regarding Recipient 23 and even other recipients. With or without his concession, the inpatient psychiatric services on December 23-24 were medically necessary. Recipient 23's next hospitalization took place less than three weeks after discharge on December 24. For the January 10-12, 2010, hospitalization, Petitioner denied, as noted above, the CPT #99238 on January 12. This hospitalization was necessitated by Recipient 23's calling 911 and stating that he was holding a blade wanting to kill himself. Sheriff's deputies disarmed him and transported him to the hospital where he was admitted under the Baker Act, although Recipient 23 later agreed to hospitalization. As before, while hospitalized, Recipient 23 ate, took his medicine, and improved. Dr. Sobhan noted in the medical records a concern that the patient was manipulative, but testified that denying admission to patients such as Recipient 23 is impossible when they appear in emergency rooms threatening to kill themselves and emergency room physicians admit them under the Baker Act. Dr. Mehra sensibly seized on the possibility that Recipient 23 was manipulating the system in order to be hospitalized. Dr. Mehra asked whether physicians were really helping this patient by repeatedly admitting him. With equal logic, though, Dr. Sobhan responded that it is hard to deny admission or discharge a patient who tells everyone that he is suicidal, so that it is well-documented in the records. Dr. Segal stated that, if a patient has a good support system, he does not believe that he must hospitalize such a patient, even if she has voiced suicidal ideas. But Recipient 23 was unstable, lacked outside support, and had recently cut himself badly in a suicide attempt. This is a closer call, but the final day of inpatient hospital services was medically necessary. As Dr. Segal testified, the day of discharge is time-consuming for the treating physicians to try to ensure that the patient will receive continuity of care post-hospitalization and perhaps avoid the need of rehospitalization. This is exactly what the subject CPT code covers. The importance of such efforts is underscored in a case such as Recipient 23, as he was in and out of the hospital repeatedly in a brief period of time. Lastly, as to psychiatric services and their medical necessity, Recipient 23 was hospitalized February 6-8. Petitioner denied each CPT #99223 on February 6 and 7, as well as the CPT #99232 on February 8. Although these dates of service appear on Attachment C, the expert witnesses neglected to discuss these dates of service. Of the 476 pages of medical records for Recipient 23 included in the present record, only pages 2290-91 address this hospitalization. Page 2290 is irrelevant to this case. Dated February 6, page 2291 covers psychiatric services, mentions a treatment plan, and refers to Recipient 23's presenting on that day at the hospital with suicidal ideation, depression, and substance dependence. Given the richly developed record concerning Recipient 23 and the proximity of the February 6 date of service to earlier and later hospitalizations, the spare comments on page 2291 support a finding of medical necessity for February 6, but not February 7 and 8, for which no evidence whatsoever exists. Additionally, even though a different psychiatrist saw Recipient 23 on February 7 than who saw him on the prior day, the February 7 date of service did not qualify for another CPT #99253.13/ Respondent's failure to prove that the February 7 and 8 psychiatric services were not Inappropriate Services or Excessive Services means that Petitioner's denial for a lack of medical necessity is sustained. As noted above, the downcodings involve the medical services provided on December 14-18 and 23-24. At the time of admission on December 12, 2009, Respondent presented medically with hyperlipidemia, hypertension, ademia, localized osteoarthrosis, seborrheic dermatitis, and gastroesophageal reflux disease (GERD). On December 14, the progress notes record only dermatitis, a toothache, and a third condition, which is illegible. Dr. Hoffman testified that this was a problem focused interval history, detailed examination, and straightforward medical decisionmaking. She is correct. The skin condition and toothache appear minor, and the patient was "stable, recovering or improving." There was no complexity to the decisionmaking, and the history was no more than problem focused. On December 15, the progress notes record GERD, hypertension, seborrheic dermatitis, and a fourth condition that is illegible. The patient's vital signs were within normal limits. Dr. Hoffman testified that the medical decisionmaking was of low complexity and implied that the history was problem focused. She is correct. On December 16, the progress notes record dental pain over night, hypertension, and seborrheic dermatitis. Dr. Hoffman testified that the medical decisionmaking was still of low complexity, and the history was problem focused. Again, Dr. Hoffman is correct.14/ On December 17, the progress notes record GERD, seborrheic dermatitis, and tooth pain. The tooth pain had decreased, and the dermatitis remained a minor issue, although the hypertension had turned to hypotension. Dr. Hoffman testified that the medical decisionmaking remained of low complexity, and the history problem focused. On December 18, the progress notes record GERD, tooth pain, seborrheic dermatitis, and hypertension. The tooth pain had improved. As Dr. Hoffman testified, the medical decisionmaking remained of low complexity, and the history problem focused. Dr. Hoffman's testimony was correct as to these dates of service. Dr. Segal's rebuttal for the medical claims for this hospitalization occasionally blended the psychiatric services into the medical services. He stressed a more complicated past history, but failed to explain how these potentially complicating components were relevant to the subject hospitalization. Dr. Segal helpfully pointed out the potential complexity of medical decisionmaking in terms of the management of the many medications that Recipient 23 was taking. But ultimately Dr. Segal failed to overcome Dr. Hoffman's testimony about the complexity of the medical decisionmaking. The multiple medications were a complicating factor, but were more than offset by the limited number of possible diagnoses and management options, the lack of complexity of medical records and diagnostic tests, and the absence of risk of significant complications, morbidity, or mortality associated with the relatively minor presenting problems. Obviously, the December 21-24 hospitalization was driven by the patient's psychiatric deterioration, which, as noted above, resulted in a serious wound to the arm during an apparent suicide attempt. As Dr. Hoffman testified, for December 23, the progress notes reveal that the chief complaint was the wound to the arm; without more, this was a problem focused history. Although the examination was detailed, the medical decisionmaking was of low complexity. For December 24, the progress notes state that the wound was healing, and mild hypotension and dehydration were concerns. As Dr. Hoffman testified, this was a problem focused history with medical decisionmaking of low complexity. The downcodings are all correct. Petitioner therefore improperly denied all of the psychiatric claims except for those of February 7 and 8 and properly downcoded all of the medical claims. Recipient 26 For Recipient 26, a 13-year-old male diagnosed with bipolar or depressive disorder, only one hospitalization is at issue. From April 29-May 5, 2009, Recipient 26 was hospitalized at Memorial Healthcare System for treatment of a recurrence of aggressive behavior, including threatening to kill his mother with a butter knife. At issue are the following billed CPT codes: April 30: #99232 May 1: #99232 May 2: #99232 May 3: #99232 May 4: #99232 May 5: #99232 Petitioner denied these claims involving psychiatric services for a lack of medical necessity. At hearing, after a discussion between Dr. Segal and Dr. Mehra as to the care of Recipient 26, Dr. Mehra conceded the medical necessity of April 30 and May 1. The remaining dates still in dispute are thus May 2-5. As Dr. Segal testified, Respondent's psychiatrists are "very careful" about putting children on medications, but, to control Recipient 26's symptoms, it was necessary to put him on four powerful medications: Prozac, Abilify, Trazodone, and Buspar. From April 29 to May 2, Recipient 26 was also on Ativan. Early in the hospitalization, Recipient 26 displayed depression and poor eye contact, and he was nonverbal. He was on elopement precautions during his hospitalization. On May 1, Recipient 26 was also responding to internal stimuli. The lack of improvement in symptoms caused the psychiatrist to establish a rule-out diagnosis of pervasive development disorder. Because Recipient 26 was no longer displaying aggressive behavior that posed a risk to his mother, Respondent's psychiatrist decided to discharge him on May 5. Dr. Mehra's testimony predicated a lack of medical necessity for the final four days of this seven-day hospitalization on the lack of need to continue to observe and stabilize the child. Dr. Segal responded that they were treating a "very sick child" and could not have dealt with the situation, including the introduction of new medications, any faster in the inpatient setting. Recipient 26 had undergone another psychiatric admission on February 18-24, 2009, during which time he was placed on suicide and elopement precautions. For this earlier hospitalization, Recipient 26 had been Baker Acted for assaulting his younger sister. For the entire hospitalization, Recipient 26 had refused to respond to questions during psychotherapeutic sessions, responding instead with gestures. The child's mother had advised, at one time, that he only spoke at home. This hospitalization had concluded with a reference to the Henderson Community Mental Health Center and instructions for the child to attend an aftercare program. The subject hospitalization took place only two months later. Following the subject hospitalization, Recipient 26 was next hospitalized, according to the medical records, in December 2009. Dr. Mehra is right about this case. Neither the documentary record nor Dr. Segal's testimony establishes the medical necessity for psychiatric services after May 1. Notwithstanding the apparent illness of the child, the evidentiary record fails to establish if it was necessary to provide services to monitor the introduction of new drugs or existing drugs in higher doses, to provide services to continue to stabilize the child, or to provide services toward a diagnosis concerning pervasive development disorder. For these reasons, Respondent has failed to prove that the services provided after May 1 were not Inappropriate Services. Petitioner therefore improperly denied the psychiatric claims of April 30 and May 1, but properly denied the remaining psychiatric claims. Recipient 27 For Recipient 27, a 52-year-old male diagnosed with bipolar disorder, depression, and alcohol and cocaine dependence, only one hospitalization is at issue. From August 26-September 1, 2009, Recipient 27 was hospitalized at Broward Health for treatment of an exacerbation of the symptoms of his bipolar disorder and depression. At issue are the following billed CPT codes: August 27: #99232 August 28: #99232 August 29: #99232 August 30: #99231 August 31: #99232 Petitioner denied these claims involving psychiatric services for a lack of medical necessity. Recipient 27 was homeless. He had no support from family or friends. The evidentiary record documents repeated hospitalizations during the audit period. All of the hospitalizations follow a pattern. Recipient 27 fails to take his medications, ingests cocaine and/or large volumes of alcohol, feels hopeless and sometimes suicidal, and is hospitalized for a brief period so that his habitual use of intoxicants can be abated, medications can be reestablished, and psychiatric condition can be stabilized. During these hospitalizations, Recipient 27 receives medical treatment for a variety of conditions, mostly associated with his largely untreated diabetes. According to the medical records, Respondent's psychiatrist ordered an increase in Recipient 27's antipsychotic medication, Seroquel, on August 27. On that day, Recipient 27 continued to demonstrate childlike behavior, poor contact with reality, disorganized thought, and persecutory delusions. Recipient 27's condition was unchanged until August 31, when he exhibited some improvement. Dr. Mehra's main criticisms involved the medical records. For instance, the form prompts the psychiatrist to describe the persecutory delusions, if present, and Respondent's psychiatrist did not do so. Likewise, the form prompts the psychiatrist to supply a chief complaint, but Respondent's psychiatrist did not do so. And the medical records reveal little of what is going on with the patient. Dr. Mehra made a good case for downcoding the CPT #99232 to #99231 for August 27-29 and August 31, but Petitioner has staked its challenge on a lack of medical necessity, not upcoding. In a closer case, the omitted information on the forms might have proved material, but, on these facts, Respondent has proved that the psychiatric services in question were not Inappropriate Services or Excessive Services. Petitioner has failed to prove that they were Costlier-Setting Services. Recipient 27 is a good example of the effects of transportation, motivation, and substance-abuse problems combining with a lack of insight to preclude successful treatment in lower levels of care. Dr. Mehra did not suggest a lower-level-of-care setting, but seemed to focus on what he viewed as the inadequacy of the medical records. Petitioner therefore improperly denied the psychiatric claims of August 27-31. Recipient 29 For Recipient 29, a 33-year-old male diagnosed with schizophrenia, only one hospitalization is at issue. From April 21-30, 2009, Recipient 29 was hospitalized at Broward General Medical Center for treatment of an exacerbation of the symptoms of his schizophrenia. At issue are the following billed CPT codes: April 27: #99232 April 28: #99232 April 29: #99232 April 30: #99238 Petitioner denied these claims involving psychiatric services for a lack of medical necessity. After listening to Dr. Segal's testimony, Dr. Mehra conceded the medical necessity of the inpatient services on April 27-28. (Tr. 300) Dr. Mehra testified, though, that the patient was ready for discharge by April 29. Dr. Mehra did not address the fact that Recipient 29 was readmitted to the hospital on May 9--just 10 days after when Dr. Mehra opined that he had been ready for discharge and eight days after he had been actually discharged. Dr. Mehra did not address that, on readmission, Recipient 29 presented with suicidal and homicidal ideations--both with plans--and command delusions, among other symptoms. At the time of the subject admission, Recipient 29 was hearing voices telling him to hurt himself and others. Reportedly, Recipient 29 had access to a gun. On April 24, Recipient 29 stated that a voice was telling him to kill people. His insight and judgment remained limited. Until April 26, the reason cited in the medical records for continued hospitalization was a need to continue to plan. On April 27, the reason was changed to monitor changes in medications. On April 28, Recipient 29 reported hallucinations of ghosts and asked for an increase in his antipsychotic medication, Trilafon--an unusual request from a psychiatric patient. At that time, lab work indicated that blood levels of Depakote were low, so Respondent's psychiatrist had to increase the Depakote and Trilafon. Although the patient was still childlike, bizarre, irritable, and disorganized of thought, the psychiatrist determined that he could be safely discharged on his newly adjusted medications. The unsettled condition of Recipient 29 on April 28 precluded his discharge the next day. The mental illness and psychiatric symptoms that necessitated this hospitalization amply justified the last two dates of service at issue, as further evidenced by another psychiatric hospitalization eight days after discharge. Recipient 30 For Recipient 30, a 52-year-old female diagnosed with schizoaffective disorder and bipolar disorder, four hospitalizations are at issue. From August 5-10, October 8-20, October 28-November 3, and December 11-22, 2009, and February 12-17, 2010, Recipient 29 was hospitalized at Broward General Medical Center for treatment of exacerbations of the symptoms of her schizophrenia. At issue are the following billed CPT codes: August 6: #99232 August 7: #99232 August 8: #99232 August 10: #99238 October 17: #99232 October 18: #99232 October 19: #99232 October 20: #99232 October 29: #99232 October 30: #99232 October 31: #99232 November 1: #99232 November 2: #99232 December 17: #99232 December 18: #99232 December 19: #99232 December 19: #99232 December 20: #99232 December 21: #99232 February 12: #99223 February 13: #99233 February 14: #99231 February 15: #99233 February 16: #99233 February 17: #99239 Petitioner denied these claims for a lack of medical necessity, except that it downcoded one of the CPT #99232 claims for services on December 19 to CPT #99231. All of the claims at issue were for psychiatric services, except the downcoded claim was for medical services. At the hearing, after learning that illegible notes pertained to chest pain, Dr. Hoffman conceded that the December 19 medical service was properly billed at CPT #99232. (Tr. 516) The remaining services at issue are psychiatric. At the hearing, Dr. Mehra conceded the medical necessity of the psychiatric services for August 6-7 (Tr. 306-07) and February 12-14. (Tr. 324) The four hospitalizations in this case all took place within seven months; the first three of these hospitalizations took place within five months. The first hospitalization was the result of a Baker Act. Recipient 30 presented at the emergency room with depression, homicidal and suicidal ideation, psychosis, auditory hallucinations, and a history of polysubstance abuse, including cocaine, marijuana, and alcohol. Lab work subsequently revealed the presence of alcohol, cocaine, and marijuana. She was violent, hitting and biting at hospital personnel, who had to restrain her at the wrists and ankles. On August 6, Recipient 30 continued to be depressed and displayed, among other things, symptoms of alcohol withdrawal, psychotic behaviors, rocking, and flight of ideas. The next day, Recipient 30 continued to display depression, disorganized thinking, and hallucinations. Dr. Segal described the psychiatric services from August 5-7, but he skipped to August 10 in his testimony, explaining the discharge on that date by noting that the patient was on her medications and, with much greater insight, recognized that she was doing better. (Tr. 305) Dr. Mehra likewise skipped the last two days in question from this hospitalization. (Tr. 306-07) The physician's progress note for August 8 states that Recipient 30 was more depressed, but no longer had suicidal or homicidal ideation. Her thought process had improved from a flight of ideas to disorganized thought. Her cognition was grossly intact. There does not appear to be any note for August 9. Respondent has proved that the psychiatric services on August 8 were not Inappropriate Services or Excessive Services, and Petitioner has failed to prove that they were Costlier-Setting Services. However, Respondent has failed to prove that the psychiatric services on August 10 were not Inappropriate Services. The next dates at issue are October 17-20. The start of this hospitalization was October 7, again involuntarily under the Baker Act. Through October 17, Recipient 30 displayed rocking, auditory hallucinations, depression, disorganized thought, and paranoia, according to Dr. Segal and the records. The next day was the first that the patient was not rocking, although she still suffered from paranoia and auditory hallucinations. The rocking returned on October 19, and she exhibited increased suicidal ideation--clear signs of regression, as testified to by Dr. Segal. She exhibited marked improvement on the following day, at which time she was discharged. Dr. Mehra questioned whether the auditory hallucinations were of the command variety, and he dismissed the rocking as justification for continued hospitalization. Dr. Segal responded that Recipient 30 was rehospitalized about one week after this discharge. Through October 20, Dr. Segal reasoned that Recipient 30 was still psychotic, manic, and unsafe for a lower level-of-care setting, such as the assisted living facility at which she resided. Dr. Segal observed that, shortly after discharge on October 20, Recipient 30 was cycling between mania and depression. Dr. Segal noted that Recipient 30 was Baker Acted again on October 28. She was suffering from suicidal ideation and again intoxicated with alcohol, drinking massive quantities of beer daily and consuming cocaine and marijuana. The next day, Recipient 30's mood was less stable, her thinking more disorganized, and her irritability more pronounced. These symptoms continued unchanged through October 30. On October 31, Recipient 30 continued to suffer from hallucinations and delusions, disorganized thought, depression, and poor judgment, but she was no longer entertaining ideas of suicide. On November 1, Recipient 30 was no longer entertaining thoughts of suicide, but she continued to have unspecified delusions and hallucinations. On November 2, Recipient 30 was free of delusions and hallucinations, and she was discharged. Dr. Mehra rightly complained about the documentation for the second October hospitalization. (Tr. 314) Despite the close proximity of these hospitalizations--although the next one was nearly six weeks thereafter--the medical necessity of psychiatric services on October 31-November 2 is absent; Respondent has failed to prove that these services were not Inappropriate Services. Psychiatric services were necessary through October 30, which was the last day of reported suicidal ideation, but not thereafter. By contrast, Respondent has proved that the psychiatric services provided from October 17-20 were not Inappropriate Services or Excessive Services, and Petitioner has failed to prove that they were Costlier-Setting Services. On these days, Recipient 30 continued to display varying levels of symptoms, including suicidal ideation. Worrisome regression had taken place in this brief period. If anything, her discharge on October 20 was premature, as suggested by her readmission eight days later. The next hospitalization started December 11, as Recipient 30 was again Baker Acted with suicidal and homicidal ideations. Her blood alcohol level at admission was .355. She had been living on the streets prostituting herself. She had been participating in the community mental-health services provided by the Henderson Mental Health Center, but Henderson personnel had encouraged her to enter the hospital at this time, evidently due to a recent exacerbation in symptoms. As pointed out by Dr. Segal, the Henderson wraparound services, including mental health targeted case management, were insufficient for Recipient 30. On December 17, Recipient 30 was still in withdrawal from alcohol. Her thinking was disorganized with a flight of ideas. She was depressed. She no longer suffered from suicidal or homicidal ideations. The next day, though, Recipient's suicidal ideation returned. There was a question whether she was suffering from hallucinations and delusions. For the next two days, December 19-21, Recipient 30 continued to exhibit depression with compromised insight and judgment, and she felt hopeless and was unable to agree not to hurt herself, if discharged. Dr. Mehra objected again to the documentation. (Tr. 318) Noting that Recipient 30's symptoms "seem to be pretty consistent, irrespective of whether she says [in the hospital] for three days, five days or ten days," Dr. Mehra agreed that "there's some type of psychiatric condition here that needs some type of treatment. The question beckons, at what level of care . . .?" (Tr. 319) As Dr. Mehra noted, Recipient 30 presented with one or more psychiatric conditions that required treatment during this and all hospitalizations at issue. Dr. Mehra did not contend that the psychiatric services in the December hospitalization were Inappropriate Services and appears not to contend that they were Excessive Services. In either event, Respondent has discharged its burden of going forward as to these issues. The underlying objection of Dr. Mehra seems to be that the psychiatric services from December 17-21 are Costlier- Setting Services. Perhaps exhibiting frustration with the apparent lack of progress with Recipient 30, Dr. Mehra implies that the appropriate setting is at a lower level of care. These claims fail for the reasons discussed above. As to level of care, Dr. Mehra's criticism ignores that, immediately preceding this hospitalization, Recipient 30 was receiving fairly intensive community services, and clearly these services were insufficient. Dr. Mehra's level-of-care testimony also fails to account for the repeated failures of hospital-based psychiatric services. The psychiatric services during the December 17-21 hospitalization were medically necessary. Recipient 30's final hospitalization at issue took place from February 12-17, of which only the last three dates require consideration after Dr. Mehra's above-described concession at hearing. This hospitalization was due to suicidal and homicidal ideation and depression. Recipient 30 had been living in Second Chance Recovery, but had regressed into violent behavior, severe depression, severe anxiety, manic behavior, and auditory and visual hallucinations. After having enjoyed 60 days of sobriety, Recipient relapsed from alcohol abstention. On February 15, Recipient 30 continued to display the features of her manic episode: agitation, loud and pressured speech, and hostility. On February 16, she continued to demonstrate irritability, loose associations, and loud and pressured speech. Respondent's psychiatrist was still waiting for lab work on her Depakote level. On February 17, Recipient 30 was improved. In fact, the progress notes for February 17 as to psychiatry reflect a lined-out entry: "Pt interviewed. Chart reviewed and [discussed with] staff." In the place of this somewhat formulaic note is: "Pt doing better. Improved. No need for further stay." There are some illegible notations, but one note reports the Depakote level at 70.9. (Petitioner Exhibit 30, p. 4591) Dr. Mehra rightly questioned how the patient progressed from February 16 when she suffered from a flight of ideas and loose associations to discharge-ready the following day. (Tr. 324-25) Although he admitted that such an improvement is possible, Dr. Mehra implied that it is likelier that no such sudden improvement ever took place. The consequences that follow this implication require careful consideration. If the sudden-improvement scenario were disregarded, then Dr. Mehra had two options: discredit the notes of the preceding days and credit the cheery note on the day of discharge or credit the notes of the preceding days and discredit the cheery note on the day of discharge. By choosing the former option, Dr. Mehra was able to deny a couple of days of services for a lack of medical necessity. But recent experience with Recipient 30 does not support Dr. Mehra's choice. Recipient 30 had been hospitalized repeatedly for serious psychiatric symptoms. She had had an unusually long 11-day hospitalization in December. In October, she had required rehospitalization eight days after discharge, suggesting, if anything, a premature discharge. On February 17, Respondent's psychiatrist obtained the Depakote level, which apparently was satisfactory. If one had to choose between the manufacturing of symptoms on the February 15-16 records and an optimistic, but selective, effort to justify discharge on the February 17 records, the evidence would favor the latter, as the psychiatrist, perhaps daunted by the prospect of another lengthy hospitalization, may have been tempted to downplay any remaining symptoms to facilitate an early discharge. More relevantly, among the three scenarios--the manufacturing of symptoms, an unduly sunny rendering of symptoms, and a dramatic overnight recovery--the record permits only the finding that February 15-16 records are unlikely to have been inaccurate. This was a sick patient with recurrent, persistent symptoms. It is unnecessary to determine which of the remaining two scenarios explains the February 17 records. Respondent has proved that the February 15-17 psychiatric services were not Inappropriate Services or Excessive Services, and Petitioner has failed to prove that they were Costlier-Setting Services. Petitioner has therefore properly denied the psychiatric claims of August 10 and October 31-November 2 for a lack of medical necessity, but has improperly denied the remaining psychiatric claims. Conclusion As noted above, Attachment C itemizes 83 denials of reimbursements of psychiatric claims for a lack of medical necessity, two denials of reimbursements for double billing, and 16 "adjustments" (i.e., reductions) of reimbursements of medical claims for upcoding. Of the 83 denials, Petitioner has prevailed as to only 10. Of the two denials, Petitioner has prevailed as to both. Of the 16 reductions, Petitioner has prevailed on 15--failing to prevail only as to one reduction that Petitioner conceded at hearing. Statistical Estimation of Total Overpayment In addition to disputing Petitioner's overpayment determinations among the sampled recipients, Respondent has contested the means by which Petitioner has inferred the total overpayment for the population of 2765 recipients from the overpayment determined for the 30 recipients. Each party presented an expert witness to provide statistical evidence supporting or discrediting the process by which Petitioner inferred the total overpayment. Petitioner's expert was Dr. Fred Huffer, and Respondent's expert was Dr. Bruce Kardon. Both experts patiently explained important statistical concepts and applied them to this case. Their testimony has been most useful. Dr. Kardon defined the nomenclature to describe different processes by which one could proceed from the overpayment for the sample to the overpayment for the population. The most accurate method to determine the total overpayment is not inference at all; it is counting. Apart from the time and expense, nothing prevents Petitioner from auditing each of the 2765 recipients and each of the 27,681 claims associated with these recipients, just as Petitioner has done with each of the 30 recipients and each of the 387 claims associated with them. For obvious reasons, Dr. Kardon did not propose this approach. Between counting and its opposite--guessing--is what Dr. Kardon identifies as estimation, which is produced by any statistically valid process by which the determined overpayment from the sample is extended to a total overpayment among the population. Dr. Kardon testified that the estimation process used by Petitioner in this case is invalid. For the reasons set forth below, this testimony has been rejected. In summary, Petitioner's estimation process in this case commenced with the selection of a random sample of 30 recipients. Petitioner determined the sample overpayment after analyzing each of these claims for accuracy. Dividing the sample overpayment total by 387 claims, Petitioner obtained the average overpayment per claim. Multiplying the average overpayment per claim by 27,681 claims in the population yielded the point estimate of total overpayments for the population. Petitioner's estimation process did not stop with the point estimate, though. Petitioner next determined the standard error, which is a measure of how variable the point estimate is. In this case, the standard error was about $99,600. Obtaining the appropriate multiple from statistical tables to derive the 95% confidence interval identified below, Petitioner then calculated a multiple of the standard error, which it then subtracted from the point estimate to arrive at the lower limit of the 95% confidence level. The estimated total overpayment corresponding to this lower limit of the 95% confidence level is the amount of overpayment identified in the FAR. Petitioner's estimation process involved only a few steps. First, Petitioner selected a random sample of recipients from the population. Petitioner routinely selects 30 recipients for each of its samples. Dr. Kardon objected dutifully to the randomness of the sample. But his objection may have been due to the failure of Petitioner to have provided him timely with all of the supporting statistical documentation. In fact, there is no reasonable doubt as to the randomness of the sample. Dr. Huffer testified that Petitioner's database management program contains a suitable random number generator. Dr. Huffer admitted that, some years ago, random number generators sometimes were flawed, but these problems are no longer common. After identifying the recipients to be sampled, Petitioner identified the number of claims per recipient during the audit period. In all audits, Petitioner must determine if the number of claims per recipient is small enough to permit analysis of each claim. If it is, Petitioner proceeds to analyze each claim of each sampled recipient. If the number of claims is too large, Petitioner selects a random sample of claims for each recipient and analyzes these claims, rather than all of the claims of the randomly selected recipients. These two approaches represent the single-stage or two-stage cluster sampling process for estimation. The clusters are the recipients. In this case, the number of claims was small enough to permit analysis of each claim, so Petitioner performed a single-stage cluster sampling. If a sampling of claims had been required to produce a more manageable number of claims for audit, Petitioner would have performed a two-stage cluster sampling. Essentially, Dr. Kardon challenges Petitioner's estimation process on two related grounds: the sample size of 30 recipients is too small, and consequently the sample is unrepresentative of the population.15/ Additionally, Dr. Kardon argues for the use of the unbiased estimator--described below-- to extend the sample overpayment to the population overpayment. Essentially, Dr. Huffer defends these challenges on two grounds: Petitioner invariably uses the same methods for the same sampling conditions to avoid charges of unfairness, and simulations conducted by Dr. Huffer demonstrate the validity-- and fairness--of the methods used by Petitioner to estimate the total overpayment. In all cases involving a one-stage cluster sample, Petitioner uses a ratio estimator to generate the point estimate. This was reflected in the multiplication of the average overpayment per sampled claim by the total number of claims in the population, as discussed above. In all cases involving a two-stage cluster sample, Petitioner uses an unbiased estimator to generate the point estimate.16/ Dr. Kardon's preference for the unbiased estimator for the one-stage cluster sample--or at least Respondent's one- stage cluster sample--not only invites individualized decisionmaking by Petitioner to shape outcomes, but fails to address the suitability of the ratio estimator when applied to monotone relationships. Given the direct relationship between the number of claims and size of the overpayment, the ratio estimator typically provides more accuracy than the unbiased estimator. Dr. Huffer ran several million simulations using a 30-unit cluster sample--some with the ratio estimator and some with the unbiased estimator. For one set of simulations, in which Dr. Huffer scaled the 30-unit cluster to the 2765-unit population, Dr. Huffer demonstrated that the ratio-estimator approach was more "precise"--as in leading to a "much smaller standard deviation for the point estimate." (Id. at p. 22) Dr. Kardon's argument for invalidity based on the nonrepresentative nature of the cluster sample fails to account adequately for the fact that Petitioner's estimation process did not stop with the identification of the point estimate. As noted in the preceding paragraph, his argument for the unbiased estimator is wrong. For one-stage cluster estimations where the number of claims is in direct relationship to the size of the overpayment, Dr. Huffer demonstrated that the 95% confidence interval is narrower using the ratio estimator than for estimations using the unbiased estimator. Dr. Kardon's argument for a greater sample size is stronger. All other factors remaining equal, a larger sample size would produce a narrower 95% confidence interval. But the shortcomings of a smaller sample size are offset--at least with a 30-unit sample size--by a wider 95% confidence interval-- especially, where, as here, Petitioner selects the lower limit of the interval to establish the provider's overpayment liability, rather than the point estimate or some other point within the confidence interval. Obviously, Petitioner's selection of the lower limit of the 95% confidence interval is more favorable to a provider than the selection of any other value within the 95% confidence interval, including the point estimate. As Dr. Huffer testified (id. at p. 30), Dr. Kardon's criticisms seem, at times, to fail to give adequate weight to this point. Dr. Huffer's simulations quantify the extent to which Petitioner's selection of the lower limit of the 95% confidence interval favors providers. Based on his work, Dr. Huffer estimated the probabilities of a five percent overcharge at about 1.4% and a 10 percent overcharge at about 0.5%. On average, Petitioner's estimation method undercharges a provider by about 30% of the total, actual overpayment. Overall, Petitioner's estimation undercharges a provider 95% of the time. Based on an illustration provided by Dr. Huffer (id. at p. 29), these probabilities and the magnitude of the consequences of various contingencies can be seen by using an example of a mortgage debt of $100,000. The lender offers all of its borrowers a chance to discharge their debt by paying an amount to be determined randomly, but pursuant to a process that ensures that the randomly generated payoff amount will average only 70% of the outstanding indebtedness and will be less than the outstanding indebtedness 95% of the time; however, 1.4% of the time the randomly generated payoff amount will exceed the outstanding indebtedness by 5%. If a borrower's outstanding indebtedness is $100,000, her offer is that the average payoff will be only $70,000 and 95% of the time the payoff will be less than $100,000, but 1.4% of the time the payoff will be $105,000. Dr. Kardon's argument for a larger sample size requires close consideration. At some point, it would seem, the sample size becomes so small and, correspondingly, the 95% confidence interval becomes so wide as to call into question the utility, if not the validity, of the estimation process.17/ Dr. Huffer's simulations quantify the effect of doubling the sample from 30 to 60 units. Of course, doubling the sample size would produce gains in accuracy, but not much. In the simulations, if all other factors remained equal, doubling the sample size decreased the average underpayment from about 30% to about 20%. (Petitioner Exhibit #24, second volume, p. 104) So, a doubling of the sample size--with a doubling of the effort of the agency and provider in audit and litigation-- would produce only a 33% improvement in accuracy--an improvement in accuracy that almost invariably would come at the expense of the provider. Interestingly, noting the weak relationship between increases in the size of the sample and the size of the estimated overpayment, Dr. Huffer explained Petitioner's apparent largesse in undercharging providers 95% of the time and using a sample of merely 30 recipients: Petitioner can do more audits, using the same resources. (Id.) In other words, Petitioner could audit 60 recipients and, on average, increase the estimated overpayment by 33%--or it could audit only 30 recipients and, with the same resources, conduct a second audit of a different provider, which would go unaudited in the first example. Lastly, Dr. Kardon argued for stratification of the data to produce more accurate results. As noted above, under the estimation process used by Petitioner, more accurate results are not required for statistical validity or basic fairness. Stratifying the sampled data would likely be a case-specific exercise, leaving Petitioner open to challenges that it chose to stratify or chose specific stratification criteria in order to maximize overpayments. So, while properly selected stratification criteria would produce a narrower 95% confidence interval--and likely a higher lower limit--this would be an example of the medical adage that better is the enemy of good.18/
Recommendation It is RECOMMENDED that: Petitioner shall enter a final order determining the sampled overpayment as set forth in the Findings of Fact and directing a re-run of the statistical estimation process described in the FAR and this Recommended Order to determine the total overpayment; and If, after Petitioner determines the new total overpayment, the parties are unable to agree on costs and fines, Petitioner may remand the matter(s) to DOAH for further proceedings as to either or both of these issues, to which DOAH retains jurisdiction. DONE AND ENTERED this 23rd day of August, 2013 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2013.
Findings Of Fact At all times material hereto, Respondent has been licensed as an osteopathic physician in the State of Florida, having been issued license number OS-0001053 in 1954. According to Respondent's office records for a patient named Barry Belikoff, Respondent saw Belikoff in his office on twenty-five (25) occasions between September 5, 1980, and July 24, 1981, and during this time wrote twenty-four (24) prescriptions for a total of 344 Quaaludes (Methaqualone) with a dosage of 300 mg. each. According to his patient records, Respondent also saw Belikoff on thirteen (13) occasions between October 31, 1981 and June 18, 1982 and wrote four (4) prescriptions for controlled substances, including Talwin, Restoril, and Percodan. Respondent was treating Belikoff for back pains and insomnia. According to expert testimony, the records kept by Respondent of this patient's office visits were inadequate and do not provide the required documentation which would support and explain the controlled substances prescribed in this case. In addition, a proper course of patient care would not include the on-going prescription of Quaaludes over almost a one year period at a rate of over one a day without a record of additional tests, x-rays, or neurological exams during this period. Belikoff's patient records do not show any such additional tests, x- rays or exams. Without such documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Belikoff were without medical justification, excessive and inappropriate, according to expert testimony. Respondent was treating a patient named Lyndon Ellis during 1981 and 1982. Ellis was hospitalized on four occasions while under Respondent's care, and according to expert testimony the level of care and medical records for this patient, while hospitalized, were excellent. As a result of office visits by Ellis, Respondent wrote thirty-eight (38) prescriptions for controlled substances between April 20, 1981 and September 29, 1982 which included Percocet 5, Demerol, and Fiorinal. Ellis was being treated by Respondent for chronic headaches and pain from accident injuries, and also for a problem with his toe. However, according to expert testimony, the records kept by Respondent on Ellis' office visits were inadequate and do not provide documentation which would support and explain the controlled substances prescribed in this case. The absence of a thorough patient medical history, exam, evaluation, x- rays and lab tests in this patient's office records is explained by Respondent by the fact that this information was available in hospital records for this patient. Nevertheless, Respondent's office records for Ellis are totally inadequate. These office records do reflect that Respondent was aware of Ellis' overuse of controlled substances and the need to detoxify this patient on October 29, 1982. Yet he prescribed Percocet, a controlled substance, on five additional occasions after October 29, 1982. Without adequate documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Ellis were without medical justification, excessive and inappropriate, according to expert testimony. Between July 14, 1980 and April 23, 1982, Respondent treated a patient named Alan Fogler. During this time Respondent wrote twelve (12) prescriptions for a total of 464 Percodan, a controlled substance. Respondent was treating Fogler for headaches, whiplash and a concussion reported by the patient, as well as allergies, but patient records reveal no x- rays, brain scans, lab work or neurological exams. According to expert testimony, patient records in this case are inadequate and do not justify the treatment rendered which consisted primarily of prescriptions for Percodan. Without adequate patient medical records, the prescriptions for controlled substances were without- medical justification, excessive and inappropriate, accordingly to expert testimony. While treating patients Belikoff, Ellis and Fogler, Respondent repeatedly reissued prescriptions for controlled substances without a substantiation of medical reasons in the patients' office medical records. According to expert testimony concerning the standards expected of osteopathic physicians in keeping office medical records on patients, Respondent did not perform with reasonable skill, nor meet the standards expected of physicians in this aspect of their practice. Vicki Cutcliffe, a deputy sheriff with the Broward County Sheriff's Office, saw Respondent in his office on March 30, April 11 and April 25, 1984 using the alias "Vicki Tarra". After taking a brief medical history which revealed that "Tarra" used alcohol daily, Respondent began treating her for situational anxiety by prescribing controlled substances, including Librium and Tranxene. On April 25 "Tarra" told Respondent she wanted some extra pills for her friend named Jo Ann and asked him to write her friend a prescription. Respondent said he could not do that, but did give "Tarra" a prescription for Tranxene and two refills, after initially giving her a prescription which allowed for only one refill. He told her that she could give some of the pills to her friend and then she could refill the prescription twice. Respondent knew that "Tarra" wanted the extra pills for a friend and that she would give them to her friend who was not a patient of Respondent. According to expert testimony, the treatment given to "Tarra" by Respondent, which consisted simply of prescriptions for controlled substances without adequate documentation of the reasons for this course of treatment in the patient's medical records, was totally inappropriate. Increasing a prescription when a patient says they want some extra pills for a friend is never justified and constitutes malpractice, according to expert testimony.
Recommendation Based upon the foregoing it is recommended that a Final Order be issued suspending Respondent's license for a period of two ( 2) years. DONE and ENTERED this 30th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 3 2301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John W. Gaul, D.O. 11360 Tara Drive Plantation, FL 33325 Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 ================================================================ =
Findings Of Fact At all times pertinent to the issues herein, the Board of Medicine was the state agency responsible for the licensing of physicians and the regulation of the practice of medicine in this state. Respondent was licensed as a physician in Florida and holds license number ME 0017915. He practices medicine, specializing in psychiatry, in Clearwater, Florida. He is board certified in that specialty. On September 7, 1987, Patient #1, a 55 year old married female, whose husband had recently separated from many years in the armed service of the United States, came to see Respondent at his office, complaining of severe headaches, loneliness, depression, and a lowering of self esteem. She had been referred to him by physicians at the U.S. Coast Guard Station Dispensary. Respondent examined Patient #1 and found her to be of limited intelligence, considerably overweight, anxious, depressed and confused. She was ashamed of her new status in life as a result of her husband's inability to find work and was experiencing difficulties with him and her children. She was suffering from severe insomnia. Respondent's examination of Patient #1 was limited. He was satisfied with the medical work-up which had been conducted by his colleagues at the Dispensary. Because he was consulting psychiatrist for that facility, he knew all the physicians there and was familiar with the caliber of their work. Based on the medical information furnished him from the Dispensary and his own examination, he diagnosed Patient #1 as suffering a major depression and a psychogenic pain disorder manifested by headaches and insomnia. He developed a treatment plan for the patient which included a wide variety of psychotherapy interventions, the first of which was to effect relief of the symptoms. This included clarification of relationships, interpretation of dreams and fantasies, and allowed for catharsis. When Respondent found out that empathy and intervention alone would not work on this patient, and he had established a relationship with her, he started psychotropic medications including Elavil, the drug of choice for this type of condition in 1988. Elavil is a "superb" antidepressant. While the antidepressant factor is "cranking in", the medication also works as a sedative. For this reason, it is normally prescribed for administration at bedtime. Patient #1 responded to this course of treatment and she and the Respondent established a good and friendly working relationship, which he noted in his April 4, 1988 letter and treatment report to the Coast Guard and to CHAMPUS. In that treatment report, however, Respondent noted Patient #1 had a suicidal ideation. The term "suicidal ideation" does not import that the patient was, at that time, seriously considering suicide. Her mentioning suicide was but an overcompensation - more an alerting statement of depression and sadness with emptiness and angst. She never indicated to Respondent any thought of or plan to commit suicide. Patient #1 thrived for many months in Respondent's therapy. She complained often of her impoverished condition, however, and as a result, he wrote prescriptions for her in such a way that they could be filled at the Coast Guard dispensary without charge. This required writing prescriptions for more tablets of a drug at a lower strength which was stocked by the Dispensary. It was a surprise to him to learn, later on, that she was filling her prescriptions at Eckerds. Throughout the period he treated her, Dr. Fireman prescribed psychotropic drugs for Patient #1, which consisted primarily of amitriptyline, (Elavil), and butalbital, (Fiorinal), in varying strengths, and, at times, in compounds with other substances. As was noted previously, Elavil is an antidepressant with sedative effects. The recommended daily dose for a patient in an outpatient setting is indicated as 150 mg by the Physicians' Desk Reference, (PDR), which also recommends suicidal patients not be allowed unrestricted access to it because of the danger of intentional overdose. Other qualified psychiatrists who testified, including Dr. Spreyhe and Dr. El Yousef, indicate up to 300 or even 350 mg/day may be appropriate. As Dr. Spreyhe noted, it is not so much the daily dose on any given day which is pertinent but the aliquot over an extended period. In that regard, he notes, Dr. Fireman's prescriptions for both Elavil and Fiorinal were within recommended maximums and, therefore, within the appropriate standard of care. Fiorinal is a barbiturate anti-anxiety agent and muscle relaxant with habit forming potential. Fiorinal #3 contains codeine, a legend drug and narcotic. Generally, according to Dr. El Yousef, it should be dispensed for use at a rate of between 8 to 12 tablets per day over the short term, but over a 9 month period he would prescribe between 4 and 9 tablets per day. Pharmacy records indicate that over the period he treated patient #1, Respondent gave her numerous prescriptions for both Elavil and Fiorinal which, at first glance, appear to be excessive. For example, the records reflect that on December 29, 1987, Respondent wrote prescription number 390073 for 100 Elavil 25 mg tablets. Though the prescription clearly indicates no refills were authorized, and the back of the prescription form, where refills are noted by the pharmacist, fails to reflect any refills were authorized by the physician, the pharmacy records indicate two additional dispensings by the pharmacy for 100 tablets each on January 11 and April 20, 1988. There is no evidence to indicate how these additional fillings came about; who arranged for them, or who received them. On February 22, 1988, Respondent wrote prescription number 394289 to the patient for 12 Fiorinal #3 tablets. Again the prescription form authorizes no refills and the back of the prescription form indicates but one coordinated refill but the pharmacy records show the prescription was filled twice - once on April 6, 1988 and once on April 23, 1998. Only the latter is annotated. On March 3, 1988, Respondent wrote prescription number 397144 to the patient for 60 Fiorinal tablets. While the doctor's refill note reflects none were allowed, the computer printout sticker for the bottle reflects 2 refills were authorized. The back of the prescription form shows no refills annotated thereon as required, but the pharmacy's computer listing of all prescriptions indicates the prescription was refilled on May 28 and again on June 3, 1988. No further explanation is given. Prescription number 396378, written to the patient by Respondent on March 14, 1988 for 50 Fiorinal tablets, reflects no refills authorized by the physician nor does the reverse of the form bear any refill annotations. Nonetheless, the pharmacy records as shown on the computer printout indicates a refill on March 27 and April 6, 1988 with no explanation therefore. Before the last refill, however, Respondent wrote prescription number 397091 to the patient on March 29, 1988, for 21 Fiorinal #2, later approved for #3's. He also, on April 4, 1988, wrote prescription number 398853 for 35 Fiorinal tablets. Respondent claims he would not authorize a refill of a prior prescription for the same medication for which he is writing a new prescription, and, since neither of the refills of the earlier prescription properly reflect any physician authorization, it is so found. On May 2, 1988, Respondent wrote prescription 399717 for 50 Fiorinal tablets, and prescription 399718 for 100 Elavil 25 mg tablets. Both reflect Respondent's instruction that no refill be given, and neither form bears an annotation for authorized phone refills. Yet, the pharmacy's computer printout indicates that the prescription for Elavil was written on May 31, 1988 even though the bottle sticker shows it was filled on May 3, 1988. On August 1, 1988, Respondent wrote prescription 405572 for 100 Fiorinal and 475573 for 100 Elavil 100 mg tablets. Both were filled the next day but neither form bears any annotation of authorized refill, consistent with the physician's instructions. On August 16, 1988, Respondent prescribed another 100 Fiorinal by Prescription 406536. It was not refilled. On August 29, 1988, Respondent wrote prescription 407201 for 150 Elavil 50 mg tablets to patient #1, and number 407202 for 100 Fiorinal tablets. Both prescription forms clearly reflected no refills, but the back of the forms reflect refills were authorized. The Elavil prescription was refilled on September 10, 1988 by pharmacist Ivan Funkhouser who contends he refilled on the basis either of a call to or from the doctor's office. He cannot recall which. He also, at the same time, refilled the Fiorinal prescription under the same conditions. The Elavil prescription was filled again, this time for 225 tablets, on September 30, 1988, by pharmacist Robert Wivagg who also indicated phone refills made only on the basis of a call to or from the physician's office. In this case, however, he believes that because of the amounts involved, he would have spoken to the physician himself before filling the prescription. He cannot be sure of this, however, and Respondent denies having ever prescribed 225 Elavil tablets, regardless of strength, at one time. Mr. Lewis, the pharmacy expert, indicates that proper pharmacy practice would have allowed the pharmacist to issue fewer tablets than on the prescription but not more without express approval of the physician. The Fiorinal prescription, refilled on September 30, 1988, this time for 150 tablets, is not reflected on the prescription form though it is on the computer printout. Respondent denies that he ever called in prescriptions for Patient #1 because he never had to. She came to his office frequently enough that he was able to provide her with a new prescription for whatever medication she needed. Indeed, his medical office billing records reflect that in June, 1988 he saw her on June 6, 13, 20, and 27; in July, 1988 on July 5, 12, 19, and 26; and in August, 1988, on August 2, 9, 16, and 30. It would appear, therefore, that the refills of prescriptions reflected on the pharmacy computer printout either are in error or were arranged for under some unexplained process not involving Respondent. There appears to be no reason for him having had to authorize refills since he saw the patient so frequently, notwithstanding his comments to Ms. Sutton, during the investigation, that 90 percent of the refill calls are authorized by him personally, and only 10 percent through his secretary. There was no showing that the authorization comment Ms. Sutton recalls was related to this particular patient. Further, according to Ms. Maguire, Respondent's secretary, Respondent frequently refuses to grant refills, and, to her knowledge, he never gives refills to psychiatric patients. Since most, if not all Respondent's patients are psychiatric patients, this does not make sense. Respondent does not deny writing the two prescriptions on August 29, 1988. At that particular time patient #1 was planning a trip to New York to make peace with her dying mother. As a result, and since her headaches had gotten worse, as had her depression, he decided to increase her dosage of Elavil. This was a medical decision which is not in issue here. He admits that Elavil is a drug which is often used to commit suicide and that prescribed at even its lowest strength, a full prescription can be lethal. This became, therefore, an assessment problem wherein Respondent, the physician, had to evaluate the risk of the patient's depression against the benefits to be gained by the use of the drug. Respondent gave patient #1 enough Elavil to hold her through her visit up north. He had previously given her sixty 50 mg tablets to be taken 6 per day for a 300 mg dose at bedtime. He now told her not to use the 50 mg tablets any more and to destroy them. He believed she did. He then gave her a new prescription for one hundred and twenty 25 mg tablets for her trip. He unequivocally states that he never prescribes more than 300 mg/day of Elavil. He admits, however, that while she was on that dosage, he neither hospitalized her nor had blood work done on her. Respondent feels his original treatment plan and diagnosis were sufficient and his records pertaining to those factors were adequate. He uses checkoff forms because he believes they are the most open way of showing how he sees his patient and what he is doing for her. This same conclusion was reached by Dr. Spreyhe, another Board certified psychiatrist who is Clinical Professor of psychiatry at the University of South Florida Medical School, who has served as an expert witness for the Department in the past, and who continues to serve as a contract consultant for it and as a member of the Medical Advisory Committee of the Department. Examination of Respondent's medical records pertaining to Patient #1 indicates that the medical history and treatment plan are in the form of check sheets on which the physician makes no more than minimally worded entries. The Department's witness, Dr. Greener, an expert in the completeness of medical records, is of the opinion that Respondent's records should have reflected an initial detailed assessment of the patient's condition, including the reasons for her referral to him, a complete medical history, and a subsequent detailed mental status examination. This should be followed by a formulation of her problems and a treatment program. After the initial evaluation, according to Dr. Greener, the physician should make regular progress notes as to treatments, communications with others, phone calls received, prescriptions issued, and matters of that nature. This is done to memorialize the particulars for the patient and to keep a tally of which and how much of any drug is given to the patient. This would show over or under use as a possible flag as to how well the patient follows instructions or if the patient develops a use addiction problem. Based on Dr. Greener's review of Respondent's records for patient #1 and the prescription records relevant to her, he concluded those records were "totally inadequate." This conclusion is based on his opinion that the initial evaluation is cursory and without detail and there are few progress notes in the records. Those which are there are inadequate in detail and full of conclusions without the required supporting information such as drug side-effects, the patient's ability to follow instructions, follow-up, changes in dosages, and the like. He complains that Respondent's records do not really outline a plan of treatment designed specifically for that patient. For example, the forms used by Respondent are merely check-off forms even though, during the period, the patient was receiving continuing analgesic medications. From Respondent's records, it was impossible to determine how the patient was doing on the medications prescribed or whether additional medical evaluation was required. It is important to put this information in patient records to memorialize what is done and not just to keep the information in the treating physician's memory. Respondent denies that his initial evaluation and treatment plan, prepared by the use of form check sheets, is below standard. Dr. Spreyhe concluded the use of such check sheets is not inappropriate for the initial work-up of a patient and he opined that Respondent's forms, and the information thereon provide sufficient information for an independent understanding of the patient's situation and are within an appropriate standard of care. It is so found. However, the medical progress notes which make up the bulk of the remaining medical records are not so complete and, in Dr. Spreyhe's opinion are insufficient. Respondent concurs and admits this. It is so found. As to Respondent's prescribing practices, Dr. Greener is far more conservative than Respondent in prescribing Elavil. He starts with a low dose and gradually works up to a therapeutic level dosage depending upon the patient. He would start an average patient out at 25 mg/day and work up to a maintenance dose of 150 mg/day. Elavil is a dangerous drug and the doctor must closely monitor the patient for possible side effects and the direct effect it is having on the patient. It should never be ordered "prn", (as needed) when that designation relates to the amount to be taken. Based on Respondent's records for this patient, it would appear to Dr. Greener that the medication was being used improperly. There appears to have been no monitoring of the amount of the drug the patient was getting and it would appear that the patient was given the prerogative as to dose, which is not a good thing to do. In his opinion, a dose at 300 mg/day of Elavil is very and unnaturally high and he would not use so high a dose. He would do other tests first to see why the medication was not working at the lower dosage. As was seen before, however, other physicians of equal expertise disagree. Fiorinal is habit forming and, according to Dr. Greener, should be used only over the short term. If needed for a longer period, the patient should be reviewed to see why. The doctor must keep in mind the addictive properties of the drug. Here, Dr. Greener is of the opinion that Respondent prescribed excessive amounts of Fiorinal for patient #1. From January 27, 1988 through March 2, 1988, a period of 34 or 35 days, Respondent prescribed 302 tablets and Dr. Greener would be concerned that the patient was addicted. On March 21, 1988 Respondent prescribed another 50 tablets, and on March 27,1988, he prescribed 50 more followed by another 60 somewhat later and more after that. All of these were being prescribed for a patient whose records reflect she was doing "OK", and was "nicely stabilized". To Dr. Greener, this is just too much, especially for a patient who is obviously addicted and who appears to be taking the medication only to prevent withdrawal symptoms. By his prescription regimen, a patient would get no more than 10 tablets a day for no more than 4 to 5 days, and he would prescribe this drug for 9 months, as here, only with support for it in the patient records, including the opinions of other specialists to whom the patient would have been referred. While it is obvious Dr. Greener is more conservative in his approach to medication than is Respondent, the evidence does not clearly show Respondent's approach fell below standards. Dr. Spreyhe is of the opinion that the levels of Elavil and Fiorinal prescribed by Respondent for this patient were appropriate in both dosage and amounts. He has patients of his own who take such doses and he is not swayed by the PDR recommendations for dosage which, he believes, is too conservative. As for the Fiorinal, he would prescribe no more than 8 per day because there is some information that a patient may develop a tolerance for the substance. In any case, the drug is appropriate for the treatment of psychogenic headaches as were suffered by Respondent's patient here. Both W.L.P. and M.J.S. have been patients of Respondent. Both found him to be concerned and available. When patient #1 died, Ms. Sherman was in a therapy group with her. She did not appear to be suicidal and was looking forward to her proposed trip to New York. Patient #1 died on October 8, 1988. The report of the Hillsborough County Medical Examiner reflected her death as suicide from the combined effects of amitriptyline, (Elavil), butalbital, (Fiorinal), and salicylate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued herein, finding Respondent not guilty of all allegations except those relating to his failure to keep adequate medical records regarding Patient #1 as alleged in Count One, of which he is shown to be guilty, and imposing an administrative reprimand and a requirement for continuing medical education in the area of proper record keeping. RECOMMENDED this 31st day of August, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5048 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. 3. - 6. Accepted and incorporated herein. 7. Accepted as a restatement of witness testimony but not as a Finding of Fact. 8. Accepted as a restatement of witness testimony but not as a Finding of Fact. 9. & 10. Accepted that the medications were dispensed based on prescriptions written under the patient's name. 11. & 12. Accepted and incorporated herein. 13. & 14. Accepted as a restatement of witness testimony. - 18. Accepted and incorporated herein. Rejected as not a necessary conclusion to be drawn. Accepted. - 23. Accepted as restatements of witness testimony. Accepted and incorporated herein. - 26. Accepted and incorporated herein as pertaining to the dosage level of Elavil used and the balance accepted as a restatement of witness testimony. Accepted and incorporated herein. Accepted as a restatement of witness testimony. Accepted and incorporated herein. Accepted. & 32. Rejected as Findings of Fact, and found to be Conclusions of Law. FOR THE RESPONDENT: Accepted and incorporated herein. - 4. Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted and incorporated herein. - 12. Accepted and incorporated herein. 13. & 14. Accepted. 15. & 16. Accepted and incorporated herein. 17. & 18. Accepted. 19. & 20. Accepted and incorporated herein. 21. Accepted. 22. This Proposed Finding of Fact is, in reality, a restatement of the evidence presented, in several subparagraphs, some of which are identified by letter and some of which are not. It is, however, accepted as an accurate restatement of the evidence admitted at hearing on this point, except where it becomes argument. 23. & 24. Accepted and incorporated herein. 25. First four sentences accepted and incorporated herein. Balance considered only as argument in support of the position taken. 26. Accepted and incorporated herein. 27. Accepted. 28. Rejected as a Conclusion of Law and not a Finding of Fact. 29. - 31. Accepted as basic findings. This does not go to their adequacy, however. 32. & 33. Rejected as contra to the weight of the evidence. & 35. Accepted as the substance of the witness' testimony. Accepted and incorporated herein. Accepted. Accepted. Rejected as a Conclusion of Law. COPIES FURNISHED: Steven Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard Suite 210 Tampa, Florida 33619 Bruce D. Lamb, Esquire Christopher J. Schulte, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. Post Office Box 2378 Tampa, Florida 33601 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Dr. Marm Harris Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Robb E. Ross was a licensed physician engaged in the practice of family medicine as a sole practitioner. He was licensed to practice medicine in the State of Florida in 1966 and holds license number 12433. He was board certified in family practice in 1970. Respondent also holds a license as a pharmacist. Respondent treated patient N.B. from September of 1970 through October of 1986. She initially presented as a new patient moving into the area, aged 61, for maintenance of her general physical medical care, primarily relating to her mild depression that she had for years following a mastectomy. While believing that patient N.B. had previously been under the care of a psychiatrist or psychologist, respondent never requested her prior medical records. Patient N.B. informed the respondent that she had been taking Biphetamine, a steroid amphetamine that is no longer produced, for the past ten years. Respondent continued patient N.B. in that treatment modality for over ten years, as well as treating her for other complaints. At some point, he did attempt to titrate her from Biphetamine, but she did not function as well with a substitute drug. When the drug Biphetamine was phased out of the market in either 1980 or 1982, respondent prescribed Dexedrine to patient N.B. and continued to do so approximately every six months. Respondent maintained her on Dexedrine due to her mild depression and the fact that she had been on amphetamines for many, many years. He was reluctant to take her off Dexedrine for fear that she could become overtly depressed. Since she did well with Dexedrine, respondent maintained her on that regiment due to the adverse side effects of other compounds utilized to control depression. The respondent's medical records for patient N.B. contain virtually no patient history or background information. For each patient visit, there is a brief notation which includes N.B.'s temperature, blood pressure and weight and also a reason for the visit. The reason noted on the records are either "check- up" or a brief statement of the patient's complaint on that particular day. The medication prescribed is noted, though very difficult to read. While the symptom or patient complaint is often noted, the patient records contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from N.B.'s medical records the reason that Dexedrine was prescribed for this patient. While N.B. complained of tiredness, she did not suffer from narcolepsy. Patient G.B. was under respondent's care from August of 1979 through May of 1985. He initially presented, at age 56, with problems relating to emphysema, lung collapse, exhaustion, impotency and aches and pains. Respondent prescribed various medications for him, including Nitroglycerin for chest pains. Respondent felt that due to his age and his complaints, patient G.B. had some type of arteriosclerosis. Patient G.B. frequently complained of being weak, exhausted and having no endurance or energy. For this reason, respondent prescribed Dexedrine for him on March 30, 1984. Other medications to increase his energy were tried before this and after this time. Nothing appeared to give him any relief. After determining that patient G.B. "liked his medicine too much," respondent terminated his treatment of him. The respondent's medical records for patient G.B. are brief and difficult to decipher. Again, the patient's temperature, blood pressure and weight are recorded for each visit, and there is a brief statement of the patient's complaint. There is no statement indicating a medical diagnosis or a treatment plan. The medications prescribed at each visit are written on the records, but are difficult to read. D.M. was a patient under respondent's care from December of 1976 until his death, at age 84, in March of 1986. He initially presented with stomach problems and subsequently had a host of other medical problems, surgeries and hospitalizations throughout the years. This patient was given so many different medications for his various physical problems that respondent did not always write each of them down on his records after each office visit. It appears from respondent's medical records that he first started patient D.M. on Dexedrine in January of 1984. At that time, D.M.'s chief complaint was "dizziness, falling, no pep." Respondent maintained D.M. on Dexedrine or an amphetamine type of compound from that period until his death, primarily because of his weakness, dizziness, falling down and low blood pressure. Other specialists were consulted regarding D.M.'s fainting and falling episodes, caused by postural hypotension, and were unable to remedy the problem. Respondent was of the opinion that the administration of Dexedrine enabled patient D.M. to function more properly and that it worked better than anything else. Patient D.M. expired in March of 1986. Respondent listed the cause of death as "cardiac arrest." The respondent's medical records on patient D.M. are typical of those previously described for patients N.B. and G.B. The office visit notes list patient complaints or symptoms and no medical diagnosis or comprehensive assessments. There are indications in the record that D.M. complained of chest pains in 1983, 1984 and 1985. The medications prescribed indicate the presence of cardiac disease. Respondent's record-keeping with regard to patients N.B., G.B. and D.M. are below an acceptable standard of care. They fail to include an adequate patient history and initial assessment of the patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the patient's background. The respondent's only notation of treatment is a listing, and a partial listing in the case of D.M., of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken. Dextroamphedimine sulfate, also known as Dexedrine, is a sympathomimetic amine drug and is designated as a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Commonly, it is referred to as "speed" or an "upper." It is addictive and highly abusive. While individual patients react differently to Dexedrine, its consumption can cause psychosis, marked elevations of blood pressure and marked rhythmic disturbances. As such, its use is contraindicated in patients with coronary disease. In addition, because Dexedrine is an "upper" and makes a patient "feel good," it can mask a true physical condition and prevent the patient from being treated for the physical ailment he is experiencing. A patient should not be relieved of pain without first knowing what is causing the pain. In Florida, Dexedrine may only be prescribed, administered or dispensed to treat specifically enumerated diseases, conditions or symptoms. Section 458.331(1)(cc), Florida Statutes. Neither respondent's medical records nor his testimony indicate that patients N.B., G.B. and/or D.M. suffered from the conditions, symptoms or diseases which warranted the statutorily approved and limited use of Dexedrine. Respondent was not aware that there were statutory limitations for the use of Dexedrine. He is aware of the possible dangers of amphetamines and he prescribes Dexedrine as a treatment of last resort when he believes it will help the patient. Respondent further testified that his medical record-keeping is adequate to enable him, as a sole practitioner, to treat his patients, though he admits that his medical records could be improved.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 458.331(I), subparagraphs (cc),(q),(t) and (n), Florida Statutes, and that the following penalties be imposed: an administrative fine in the total amount of $2,000.00, and probation for a period of twelve (12) months, with the following conditions: (a) that respondent complete continuing medical education courses or seminars in the areas of medical record-keeping and the dangers and authorized use of compounds designated as Schedule II controlled substances, and (b) that respondent submit to the Board on a monthly basis the medical records of those patients for whom a Schedule II controlled substance is prescribed or administered during the probationary period. Respectfully submitted and entered this 2nd day of September, 1987, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3483 The proposed findings of fact submitted by counsel for the parties have been carefully considered. To the extent that the proposed factual findings are not included in this Recommended Order, they are rejected for the following reasons: Petitioner: The 48 proposed findings of fact submitted by the petitioner consist of summaries or recitations of the testimony of the witnesses presented by the petitioner in this proceeding. While the summaries and/or recitations constitute an accurate representation of the testimony received by those witnesses at the hearing, and are thus accepted, they do not constitute proper factual findings by themselves. Instead, they (along with the testimony presented by the respondent) form the basis for the findings of fact in this Recommended Order. Respondent: Page 4, Paragraph 1 The reference to 30 years is rejected as contrary to the evidence. COPIES FURNISHED: David E Bryant, Esquire Alpert, Josey, Grilli, Paris and Bryant 100 South Ashley Drive Suite 2000 Tampa, Florida 33602 David J. Wollinka, Esquire P. O. Box 3649 Holiday, Florida 33590 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of, Florida having been issued license No. 0033496. Respondent's address is 133 Darnell Avenue, Spring Hill, Florida 33626. Respondent rendered medical care and treatment to patient B.R. during the period July 11, 1985 to July 15, 1985 while she was a patient at the Oak Hill Community Hospital, Spring Hill, Florida for, among other things, acute transmural myocardial infarction. On or about July 15, 1985, patient B.R. died from acute myocardial infarction after resuscitative procedures were unsuccessful. Patient B.R. was brought to the emergency room at Oak Hill Community Hospital on July 11, 1985 by her husband after complaining of chest pains. Shortly after arrival she suffered a myocardial infarction and "coded." She was resuscitated and placed in the intensive care unit. As the medical services physician on call, Respondent was contacted and assumed the care of patient B.R., a 65 year old female. Respondent is Board-certified in internal medicine and is Board eligible in cardiology having completed a fellowship in cardiology at George Washington University in 1968. B.R. had formerly worked as a licensed practical nurse who suffered a back injury some years ago which resulted in back surgery three times. In 1978, some 10 years before her demise, B.R. suffered a heart attack. She also had a history of diabetes and recently had undergone a thyroidectomy. With this medical history she presented a complex case for care and treatment. With patient presenting the history and symptoms of B.R., a reasonably prudent physician would have ordered daily chest X-rays, had an echocardiagram taken, inserted a Swan-Ganz catheter and consulted with a cardiologist on the treatment of this patient. None of these were done by Respondent. While acknowledging those procedures above listed were clearly indicated, Respondent testified he suggested those procedures to B.R. but, while she was fully competent to understand his recommendation, B.R. refused to be further X-rayed, refused the echocardiagram because she thought it produced some type of nuclear radiation, and also specifically refused to have any tubes inserted in her veins which would result if the Swan-Ganz catheter was inserted. None of the patient's refusals to accept recommended procedures was charted in B.R.'s hospital records. Respondent testified that B.R. specifically directed him to not chart on her hospital record her refusal to undergo the test and procedures recommended by Respondent. Respondent further testified that following her refusal to undergo the test and procedures and under directions to him not to chart those refusals on the hospital chart, he put this history in his office notes. To corroborate thin testimony Respondent presented Exhibit 5, a copy of those office notes containing entries dated July 12, 13, 14, 15, and 23, August 13, September 26, December 13, 1985 and January 29, 1986, comprising 4 typewritten pages. While a patient has a absolute right to refuse treatment or procedures recommended by his/her physician, the patient does not have the right to direct the physician to prepare an incomplete record of his treatment and progress. The principal purpose of the chart is to record medical evidence of the patient's condition, treatment rendered and results obtained to provide a history from which another physician can, if necessary, adequately take over the care of the patient. The record also provides a history of the patient's response to treatment. Respondent's explanation that if he had expected to be away and another physician had to take over the care and treatment of B.R. he would have made the other physician aware of B.R.'s refusal to undergo the recommended procedures totally failed to satisfy the need for a complete record of the patient in one place. To prove the validity of the office notes as a "business record," Respondent testified that for the past 30 years he has maintained office notes in which he has placed information the patient didn't want in the hospital record. An expert witness in the field of questioned documents testified that each dated entry on Exhibit 5 was typed following a new insertion of the paper in the typewriter rather than all entries being typed at the same time or with the same insertion of the paper in the typewriter and this was consistent with what would be expected in normal office procedures. Respondent's office manager and secretary during the times reported on Exhibit 5 testified she was the one who normally transcribed Respondent's dictated notes, that Exhibit 5 was consistent with the normal office practice which would be to date the entries when they were typed, and, although she does not specifically recall typing each entry on Exhibit 5, they were probably all typed by her. Evidence questioning the validity of Respondent's testimony that the office notes were dictated contemporaneously with his treatment of B.R. and typed on the dates indicated included the testimony of the husband of B.R. that B.R. had a zest for life and it would be contrary to her nature to refuse certain procedures or consultations; the fact that on July 14, 1985 B.R. was intubated with the Respondent present; that there was no financial consideration involved as B.R. was adequately insured; the office manager and secretary of Respondent during the period the office notes are alleged to have been prepared is the daughter of Respondent; and the fact that at the peer review committee inquiry into the facts surrounding the death of B.R., Respondent never mentioned the existence of office notes although he was extensively questioned regarding his failure to maintain a more complete medical record in this case. From the foregoing it is found that B.R.'s refusal to submit to the procedures allegedly recommended by Respondent were not contemporaneously recorded in Respondent's office notes and Exhibit 5 was prepared after Respondent appeared before the hospital peer review committee if not also after the administrative complaint was filed in this case.
