The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations of misconduct set forth in a three-count Administrative Complaint. The Respondent is charged with having violated the following statutory provisions: Sections 458.331(1)(k), 458.331(1)(m), and 458.331(1)(n), Florida Statutes.
Findings Of Fact The Respondent is, and has been at all times material to this proceeding, licensed as a physician in the State of Florida, having been issued license number ME 0059304. The Respondent is an experienced physician, having practiced medicine in several jurisdictions over a period of approximately 24 years. The Respondent is a native of Uruguay, where he studied medicine and graduated from medical school in 1974. English is the Respondent's second language. The Respondent began his private medical practice in the State of Florida in 1990. From January of 1992 until February 3, 1993, the Respondent treated patients C. P. and F. P.2 on several occasions. Patient C. P. was approximately 90 years old. His wife, patient F. P., was approximately 80 years old. At all times material, patients C. P. and F. P. were Medicare recipients. On January 12, 1993, the patient C. P. appeared at the Respondent's medical office for examination and treatment. On that day the patient C. P. had a number of complaints and concerns. The Respondent interviewed the patient, and obtained a history from the patient that included the fact that the patient had been hospitalized approximately six months earlier for injuries incurred in an automobile accident. The Respondent also examined the patient. Based on the examination of the patient and on the history obtained from the patient, the Respondent concluded that the patient C. P. needed to have some further testing of his heart rhythm. The Respondent ordered a series of tests which were to be performed with a portable Cardiotrace monitor. A total of five such tests were performed. One of the Cardiotrace tests was performed in the Respondent's office. The other four were performed at patient C. P.'s home by a technician employed by and trained by the Respondent. The Cardiotrace monitor equipment transmitted heart rhythm information by telephone line directly to equipment that prepared a tracing of the heart rhythm. A copy of the rhythm tracing was then transmitted to the Respondent by fax transmission. Five such rhythm tracings regarding the patient C. P. were received by the Respondent. The Respondent reviewed and interpreted each of the rhythm tracings. Subsequently, the Respondent billed Medicare for his review and interpretation of each of the five rhythm tracings regarding the patient C. P. The services for which the Respondent billed Medicare in this regard were services that were actually performed.3 Based on the examination of the patient and on the history obtained from the patient on January 12, 1993, the Respondent concluded that the patient C. P. also needed some physical therapy. The Respondent referred the patient C. P. for physical therapy services at the Respondent's medical office. The Respondent prepared a physical therapy plan for the patient C. P. The plan provided for the patient to initially receive physical therapy three days per week for three weeks. The plan also provided for the patient to receive six modalities of physical therapy on each treatment day. The Respondent billed Medicare for providing physical therapy to patient C. P. on January 12, 14, 16, 19, 21, 26, 28, and on February 1 and 3, 1993. For each of these physical therapy sessions, the Respondent billed Medicare for six modalities of physical therapy. These modalities included hot or cold pack therapy, therapeutic exercises for thirty minutes, functional activity therapy, ultrasound therapy, massage therapy, and kinetic therapy. The Respondent had two separate rooms in his office dedicated to and equipped for physical therapy. The Respondent had equipment in his physical therapy rooms for all six modalities of physical therapy ordered for the patient C. P. During the time when the Respondent was treating the patient C. P., it was the Respondent's practice to keep separate medical records and physical therapy records for patients who were receiving physical therapy at his medical office. The physical therapy records were kept on forms the Respondent had designed for that purpose. It was also the Respondent's practice at that time to keep the separate records in separate places. The Respondent has not been able to locate any records of any physical therapy services that were provided to the patient C. P. The Respondent's medical records for the patient C. P. contain only two references to the physical therapy. On January 12, 1993, there is a brief note to refer the patient to the physical therapy department. On February 3, 1993, there is a note to continue physical therapy. There are no other notes specifically referring to the status of or the justification for the physical therapy. Although the patient C. P. sustained injuries in a motor vehicle accident in July of 1992 which caused him to be hospitalized for several days, the Respondent's medical records contain no mention of that accident. The Respondent's records regarding his care and treatment of the patient C. P. are sufficient to justify the testing of the patient's heart rhythm, which was accomplished by means of the Cardiotrace portable monitor. The Respondent's records regarding his care and treatment of the patient C. P. are not sufficient to justify the physical therapy which was ordered by the Respondent.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case to the following effect: Dismissing Count One and Count Three of the Administrative Complaint on the basis of insufficient evidence, Concluding that the Respondent has violated section 458.331(1)(m), Florida Statutes, a charged in Count Two of the Administrative Complaint, by his failure to keep written medical records justifying the physical therapy for the patient C. P., and, Imposing a penalty for the violation of Section 458.331(1)(m), Florida Statutes, consisting of an administrative fine in the amount of $2,500.00 and a letter of reprimand. DONE AND ENTERED this 25th day of January, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 1999.
The Issue The issue presented for decision herein is whether or not Respondent's license as a Physical Therapist should be suspended or revoked or the licensee otherwise disciplined for alleged violations of Chapter 486, Florida Statutes, as is more particularly set forth hereinafter and which is contained in a Second Amended Administrative Complaint filed December 12, 1986.
Findings Of Fact Respondent, Steven R. Bernstein, is and at all times material, was a licensed physical therapist having been issued license number PT 0002304. (Stipulation) Respondent maintained two separate offices in Fort Lauderdale: 4580 North State Road 7, Suite K, and 2951 Northwest 49th Avenue, Suite 308. (Stipulation) From March 1981 to March 1983, Respondent employed Kathy Schillace as an aide at both of his offices. At no time was Schillace licensed as a physical therapist or a physical therapist assistant. (Stipulation) Schillace's duties included giving treatments to patients such as electrical stimulation, range of motion exercises and ultrasound. To perform these duties, Schillace reviewed patient charts and determined what procedures were needed based on notations which had been recorded by Respondent or one of his licensed physical therapists employed in one of the two offices. Schillace received on the job training from Respondent and Susan Trider, a licensed physical therapist, on how to operate the equipment. Susan Trider supervised Schillace during most of her employment with Respondent. Susan Trider worked for Respondent from November 16, 1981 thru June 21, 1982. Trider was licensed in Florida by endorsement on June 3, 1982. Trider was licensed in Massachusetts in April 1980. (Petitioner's Exhibit 4) From April 1982 to May 1983, Respondent employed Patricia Sears as an aide at both of his offices. At no time was Sears licensed as a physical therapist or a physical therapist assistant. (Stipulation) Sears routinely performed treatments on patients with electrical stimulation, range of motion and ultrasound exercises. Although Sears felt that she did not receive adequate training to do the treatments she performed for patients, it is found that Sears received adequate training and there were ample licensed supervisory personnel on hand to answer any inquires or provide the needed assistance. As example, it is alleged that based on the inadequate training and lack of supervision that Sears received, she burned a patient with the electrical stimulation machine. Upon review of the testimony concerning that incident, it is found that Sears was working under the supervision of an employee of Respondent, Paula Allia, a licensed physical therapist. (Petitioner's Exhibit 1, pages 12, lines 21-25; page 13 lines 1-4). Respondent had a policy of requiring licensed physical therapists to be on the premises at all times while aides were administering treatment to patients. The training included reviewing contra-indications, the indications, what procedures the equipment was capable of doing, reviewing the operating manuals and explaining the various equipment including hands-on training by licensed personnel. (TR 76-77) Prior to administering any procedures to patients, the aides were given a training exam and they had to demonstrate their abilities by passing the exam and by providing treatment to the licensed personnel. Respondent endeavors to insure that the aides were adequately trained by duplicating the training program that he received while in school to become licensed. (TR 77, lines 23-25) After they were trained, the typical case would be that the aides would only perform procedures diagnosed by a licensed physical therapist. While performing the procedures, licensed therapists were on the premises throughout the period during which the procedures were being administered. (TR 78-79) The procedures that were performed by the aides were procedures ordered by private physicians and all patients of Respondent's were referred from private physicians. Respondent constantly checked the administration of procedures by licensed personnel. (Testimony of Fran Wade, TR 97-98. Testimony of Susan Trider, TR 104) During times material herein, the procedures that Respondent's aides performed were the typical procedures engaged in by aides at other hospitals and private physical therapists in South Florida. (Testimony of Todd Williams, (TR 116-117) Respondent's offices were small and it was possible to hear communications between the patients, aides and the licensed physical therapist constantly monitored the treatment modalities administered by the aides. (Testimony of Respondent, R 92) In the opinion of Paul Hughes, an expert physical therapist, a physical therapist actively involved in the treatment or who is in the immediate area to provide supervision to an aide, is engaged in an acceptable practice in Florida. (TR 39) The testimony of other licensed physical therapists herein support Respondent's position that the treatment modalities that Respondent allowed his aides to administer were the type modalities which were considered acceptable by the local community. (Testimony of Diane Siweck, Sue Chestnut, Todd Williams and Fran Wade).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 29th day of June 1987, 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 29th day of June 1987. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Hubert, Esquire Paragon Center Suite 512 2400 East Commercial Boulevard Fort Lauderdale, Florida 33308 Dorothy Faircloth, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Wings T. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the subject Endorsement to an HMO benefit contract language is ambiguous and, if so, whether the subject subscriber is entitled to additional benefits because of the ambiguity.
Findings Of Fact At all times pertinent to this proceeding, T. C. was enrolled as a participant in the group HMO contract issued by Petitioner to a construction company for the benefit of its employees and their eligible dependents. The HMO contract consisted of a Group Health Services Agreement, a Member Handbook, and any endorsements to either document. The Member Handbook and an Endorsement to the Member Handbook in September 1999 are the documents pertinent to this proceeding. In those documents, Petitioner is referred to as HOI. Prior to September 1999, paragraph 1.08 of the schedule of benefits section of the Member Handbook (page 42) provided, in pertinent part, as follows. 1.08 Short-term physical, speech, or other therapies designed to correct functional defects which remain after a catastrophic illness or crippling injury, . . . when medically appropriate for the treatment of a Condition, provided that significant improvement of the Member's Condition, as determined by the Medical Director of HOI, is expected within two months from the first date of treatment. This benefit is limited to a maximum of two months of treatment per Member per Calendar Year. The subject HMO contract was amended in September 1999 by the Endorsement styled "Endorsement: Rehabilitation Services (85999.459/99SR)" 3/ provided, in pertinent part, as follows: All prior references to short-term physical, speech, or other therapies in the Group Health Services Agreement and/or Member Handbook and any Endorsement attached thereto is [sic] hereby deleted and replaced with the following new subsection entitled Rehabilitation Services: Rehabilitation Services Prescribed short-term inpatient and outpatient rehabilitation services [are] limited to the therapy categories listed below. In order to be covered: (1) HOI must review, for coverage purposes only, a Rehabilitation Plan submitted or authorized by the Member's 4/ Primary Care Physician; (2) HOI must agree that he Member's Condition 5/ is likely to improve significantly within 62 days from the first date such services are to be rendered; (3) such services must be provided to treat functional defects which remain after an illness or injury; and (4) such services must be Medically Necessary 6/ for the treatment of a Condition. Rehabilitation Plan means a written plan, describing the type, length, duration, and intensity of rehabilitation services to be provided to a Member with rehabilitation potential. Such a plan must have realistic goals which are attainable by the Member within a reasonable length of time and must be likely to result in significant improvement within 62 days from the first date such services are to be rendered. The Rehabilitation Plan must be renewed every 30 days. Outpatient Outpatient rehabilitation services are limited per Member per Condition to the number of Medically Necessary rehabilitation services which are received by the Member within the consecutive 62-day period which immediately follows the first date that the Member begins such services. Outpatient rehabilitation services are limited to the therapy categories listed below: Speech Therapy: . . . Physical/Occupational Therapy: Services of a Physical Therapist or Occupational Therapist or Massage Therapist for the purpose of aiding in the restoration of normal physical function lost due to illness, injury, stroke or a surgical procedure while this coverage was in force. In order for Physical Therapy, Occupational Therapy, or massage therapy to be covered under this provision, such services must be part of an approved Rehabilitation Plan and provided by a provider licensed to render such services. Cardiac Therapy: . . . Inpatient Rehabilitation services of the therapy categories described above provided during a covered inpatient confinement will be covered for the duration of the confinement. T. C. was injured in a fall on December 31, 1999. He sustained a fracture of his left proximal humerus with neurovascular compromise. He underwent surgery to reduce the fracture at St. Mary's Medical Center in West Palm Beach where he remained hospitalized until his discharge on January 10, 2000. Upon discharge, his physicians recommended and prescribed a Rehabilitation Plan which provided for physical therapy on Tuesdays and Thursdays of each week. This Rehabilitation was reviewed and approved by Petitioner, effective January 31, 2000. T. C. began receiving rehabilitation services on Thursday, February 10, 2000, from a provider known as Pediatric Therapy. On or about March 24, 2000, Petitioner notified T. C.'s family and Pediatric Therapy that additional physical therapy would not be covered after that date. On Friday, March 24, 2000, T. C.'s mother telephonically filed an expedited grievance with Petitioner requesting coverage for additional physical therapy. As part of her request, she informed Petitioner that although Petitioner's authorization period began on January 31, 2000, T. C. did not commence treatment at Pediatric Therapy until February 10, 2000. Thus, approximately ten days of the authorized period were not utilized. She further informed Petitioner that he had not completed treatment and continued to require physical therapy. Upon review of his treatment dates in relation to the authorization period and consideration of the information provided by his mother, Petitioner approved coverage for a further period of rehabilitation services from Tuesday, March 28, 2000, to April 13, 2000, the date the 62-day period starting February 10, 2000, expired. Petitioner declined coverage for rehabilitation services beyond April 13, 2000, on the basis that the benefits for outpatient therapy under the contract had been exhausted. In its correspondence to T. C.'s mother, Petitioner stated that it was relying on paragraph 1.08, page 42, of the HMO contract. The reference to this provision was an error because the provision had been replaced and superseded by the Endorsement. There was no evidence that T. C.'s family suffered any prejudice because of the erroneous reference in the denial correspondence. The operative language at issue in this proceeding is the language set forth in the Endorsement.
