Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 63.8%, with 230 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. The Petitioner testified that several questions were misspelled in the examination booklet which he received at the exam site. The actual question booklets used for the July, 1989, exam were introduced in evidence, but the Petitioner failed to establish, by competent substantial evidence, that there were any significant misspellings in these booklets which would in any way impair the fairness or validity of the examination results. The Petitioner also urges that the administration of the exam was unfair and that he had insufficient time to take the morning session of the exam. He suffers from low blood sugar, and during the morning exam session he felt faint. The exam proctor had prohibited all candidates from bringing candy or Cokes into the examination room, and therefore, he had to leave the exam while it was in progress to get a Coca-Cola in order to elevate his blood sugar. He claims he had to walk a very long way to find a Coke machine, and that as a result, he lost significant time from the morning session of the exam. However, unrebutted exam records show that only one candidate was still in the examination room during the last 50 minutes of the morning session, and that candidate was not the Petitioner. Therefore, the Petitioner has not established that he lacked sufficient time to complete the morning session of the exam due to his low blood sugar problems. It is also asserted by the Petitioner that he was given insufficient time to review his examination and to identify problems in the grading of his examination. The review session was conducted on October 24, 1989, and the Petitioner attended. The review session concluded at 1:00 p.m. on that date, but unrebutted records of this review establish that the Petitioner completed his review and left the review room at 12:28 p.m. Thus, the Petitioner has failed to establish, by competent substantial evidence, that he lacked sufficient time to complete his review. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2798 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. Adopted in Finding 4. Adopted in Finding 5. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact On March 16, 1989, Petitioner Womer filed with the Board of Chiropractic an application for licensure by endorsement from the Commonwealth of Pennsylvania. On March 31, 1989, Petitioner Krakow filed with the Board of Chiropractic an application for licensure by endorsement from the Commonwealth of Pennsylvania. On April 11, 1989, Womer was advised that his application was incomplete because the Board had not received the signed Licensure Verification Form from the Pennsylvania Board of Chiropractic. Because it was incomplete, Womer withdrew his application from consideration at the April 13, 1989, Board meeting. The Licensure Verification Form for Womer was received by the Board on April 24, 1989. With the Form, Womer also sent a letter to the Board which stated: It is my understanding, upon receipt of the enclosed form by the Florida Board of Chiropractic, that Dr. Womer's application for licensure by endorsement is now complete. If you agree, please reagenda Dr. Womer's Application for Licensure by Endorsement for the next chiropractic board meeting, and advise regarding the time and place of same. No further timely request from the Board for additional information was received by Womer. The Board first verbally notified Womer of its intent to deny his application for licensure by endorsement at its public meeting in Orlando, Florida, on July 27, 1989, ninety-four days after receipt by the Board of the Licensure Verification Form which made his application complete. Womer is licensed since 1946 by the Pennsylvania State Board of Medical Examiners as a Drugless Therapist with the right to treat the sick by chiropractic. This was the only form of licensure available to chiropractors at that time. Womer has practiced as a chiropractor since his licensure in 1946. The Pennsylvania Board of Chiropractic, which came into existence in the early 1950's, refused to complete and sign the Licensure Verification Form for Womer because Womer is not licensed by it. Womer continues to be licensed to practice chiropractic by the medical board. The Board denied Womer's application on the following grounds: The licensing requirements of Pennsylvania are not substantially similar to, equivalent to, or more stringent than Florida's licensure requirements. Specifically, the Pennsylvania practical examination does not test on physical diagnosis or x-ray interpretation and Pennsylvania does not require passage of Part I and II and the written Clinical Competency Examination of the National Board within the past ten years. Pennsylvania does not have the ten-year requirement regarding passage of the National Boards. In fact, the Clinical Competency Examination only came into existence in 1987 and could not have been taken by anyone prior to that year. On April 14, 1989, the Board acknowledged receipt of Krakow's application for licensure by endorsement and stated that the only document not received was a "valid State Endorsement Questionnaire Form from the State of Pennsylvania." The letter further stated that the Questionnaire had to be received on or before July 1, 1989, in order for Krakow's application to be considered at the next board meeting. The Board received the Questionnaire regarding Krakow on April 17, 1989, and his application was complete on that date. No further timely request from the Board for additional information was received by Krakow. By letter dated June 1, 1989, Krakow requested that his application be considered at the next scheduled board meeting. The Board of Chiropractic first verbally notified Krakow of its intent to deny his application for licensure by endorsement at its meeting in Orlando, Florida, on July 27, 1989, one hundred and one days after receipt by the Board of his complete application. The Board denied Krakow's application on the following grounds: The licensing requirements of Pennsylvania are not substantially similar to, equivalent to, or more stringent that Florida's licensure requirements. Specifically, the Pennsylvania practical examination does not test on physical diagnosis or x-ray interpretation. Subsequent to the denial of licensure to both Womer and Krakow, the Board attempted to raise additional grounds for the denials. Specifically, the Board alleges that licensure should be denied because Pennsylvania does not require a score of 75% on each portion of the state licensure examination, because neither of the Petitioners has passed the National Chiropractic Board Examination, Parts I and II, and the Written Clinical Competency Examination, and because Womer is not a licensed chiropractor in the State of Pennsylvania. However, the Board has not provided adequate notice of these additional alleged grounds for denial and they will not be considered. Except for the licensure requirements discussed herein, Womer and Krakow have satisfied all other requirements for licensure by endorsement. Petitioners offered the testimony of Joseph R. McQuaite, D.C., to show that the licensure requirements in Florida and Pennsylvania are substantially similar. However, Dr. McQuaite was not offered, tendered, or accepted as an expert in comparisons of states' licensure requirements. Accordingly, his opinions are not given weight as expert opinions, but are instead treated only as laymen's opinions. The Board offered David L. Bolton as a witness to show that the examination requirements between Florida and Pennsylvania are not substantially similar. While Bolton's testimony at hearing was not expert, his deposition testimony was stipulated between the parties to be expert testimony on the Florida practical examination. The Florida practical examination tests extensively on x-ray interpretation and physical diagnosis. These portions of the practical examination constitute two of the four sections of the practical examination. Florida considers these two aspects of the examination to be so important that a passing grade of 75% must be made on each section instead of a mere 75% average for the entire practical examination. The Pennsylvania practical examination is solely on chiropractic technique and jurisprudence and does not cover physical diagnosis and x-ray interpretation. Physical diagnosis and x-ray interpretation are covered in Pennsylvania only to the extent that the subjects are covered in the National Board examinations. The Florida practical examination is more thorough and covers more areas than does the Pennsylvania examination. The additional areas covered in Florida, x-ray interpretation and physical diagnosis, are significant and are important. In these respects, the Florida licensure requirements are not substantially similar to those of Pennsylvania. The differences are sufficient to support denial of licensure by endorsement. Petitioners maintain that the Board's denial of licensure by endorsement is impermissibly based on an anti-competitive bias on the part of the entire Board against applicants for licensure by endorsement. The greater weight of the credible, competent and substantial evidence does not support these assertions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Professional Regulation, Board of Chiropractic enter a Final Order and therein issue licenses by endorsement to William O. Womer and Elliott S. Krakow based on Section 120.60(2), Florida Statutes. RECOMMENDED this 9th day of August, 1990, in Tallahassee, Florida. DIANE K. KIESLING, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1990. APPENDIX TO THE RECOMMENDED ORDER, CASE NOS. 90-0580 and 90-0581 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, William O. Womer and Elliott S. Krakow Each of the following proposed finding of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 37 & 38(10). Proposed findings of fact 1-8, 10, 19, 20, 29, 35, and 36 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 9, 11-18, 21-25, 28, and 40 are rejected as being mere summaries of testimony and not properly stated as proposed findings of fact. To the extent that the contents of these proposed findings of fact are reflected in this Recommended Order, the contents are adopted. The remainder is subordinate. Proposed findings of fact 26, 27, 31, 32, 34, and 39 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 30 and 33 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Board of Chiropractic Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 4(30; 5 & 6(4); 7-10(5-8); 11 & 12(11 & 12); 14(14); 15(13); 18(15); and 30(10). Proposed findings of fact 3, 21, 28, 29, and 31 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 13, 16, 19, 20, and 22 are irrelevant or unnecessary. Proposed findings of fact 17, 26, and 27 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 23-25 are considered and discussed in the Conclusions of Law in the Recommended Order. COPIES FURNISHED: Lynne Hankins-Fielder Attorney at Law 402 Appelrouth Lane, Suite 10 Key West, Florida 33040 Theresa M. Bender Assistant Attorney General Suite 1603--The Capitol Tallahassee, Florida 32399-1550 Patricia Guilford Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Petitioner is licensed to practice chiropractic in the State of Florida, and is seeking certification in physiotherapy. She took the practical examination in physiotherapy administered by the Respondent on November 11, 1989, receiving a grade of 71.8%. The minimum passing grade on this practical exam was 75%. Thereafter, Petitioner timely requested a hearing to determine if she should be granted additional credit on this practical exam, and based thereon, whether she should receive certification in physiotherapy. It was established that the practical exam was properly administered, appropriate standardization procedures were followed, and each examiner independently graded Petitioner's exam and was qualified to serve as an examiner. At hearing, the Petitioner solely disputed the score she received in the content areas of ultrasound and cryotherapy. In each of these areas, she received a score of 3 out of a possible 4 credits. A four point scoring system is used on the practical examination. A score of 4 means that the candidate demonstrated an exceptional knowledge and understanding of the subject area; a score of 3 represents an adequate understanding; a score of 2 indicates an inadequate knowledge of the subject area; and a score of 1 indicates that the candidate would be a danger to the public if allowed to practice in that particular subject area. If a grader feels that the candidate's answer demonstrates a degree of knowledge that is between two of these scores, a .5 credit can be given. This is a subjective, rather than an objective, scoring system that requires each examiner to use his own judgment in evaluating the completeness of a candidate's response; generally, there are no simple right or wrong answers to practical exam questions. In arriving at a candidate's overall percentage score, a score of 4 equals 100 points, a score of 3 equals 75 points, 2 equals 50 points, and 1 equals 25 points. A .5 score equals 12.5 points. For example, a score of 3.5 would equal 87.5 points. Each content area of the practical exam is weighted equally, and there were 4 content areas in the November, 1989 physiotherapy practical exam. Two examiners are used to score each candidate's practical examination, and the scores given by each examiner are then averaged to give the candidate's overall grade. In this instance, each examiner graded Petitioner's practical examination the same in all four content areas. Instead of the score of 3 on both the ultrasound and cryotherapy portions of the physiotherapy exam, if Petitioner received a 4 on either portion from one of the two examiners, a 3.5 on either portion from both examiners, or a 3.5 on both portions from only one examiner, she would receive an overall grade of 75%, which is the minimum passing score. Thus, if she received one additional raw point in these two content areas which are under challenge, she would receive a passing score. Regarding the practical exam content area of ultrasound, the Petitioner used a device known as a "coupling cushion" in applying ultrasound over bony prominences in the shoulder area in order to protect her patient from burning. This cushion is basically a water-filled container placed between the ultrasound device and the patient's skin. In addition, when the patient complained of no improvement in his condition after five days, the Petitioner raised the intensity of the ultrasound. Both Drs. Jeffrey Gordon and Ronald Scott, who were accepted as experts in physiotherapy, testified that the Petitioner's use of a coupling cushion and increasing the intensity of ultrasound after five days in response to patient complaints were acceptable methods of treatment. Support for the use of a coupling cushion over bony prominences while administering ultrasound is also found in authoritative treatises, Applied Physiotherapy and Physical Agents for Physical Therapists, excerpts of which were introduced at hearing. Dr. Scott was one of the two examiners who graded Petitioner's practical exam. He testified he gave her a score of 3 in ultrasound because, while Petitioner did demonstrate an adequate knowledge and understanding of the use of ultrasound, she did not demonstrate a depth of understanding regarding the use of ultrasound over bony prominences without a coupling cushion. He testified that there are other acceptable, and perhaps more efficient, ways of applying ultrasound to a shoulder than through a water coupling. However, he conceded that the Petitioner was never questioned about different theories or techniques of application for ultrasound. On the "comments" portion of the examination grade sheet, Dr. Scott included the following note next to Petitioner's grade in ultrasound: "limited and instructed poorly". He explained that this meant Petitioner had demonstrated limited knowledge of the content area. However, this conflicts with his assessment at hearing, and with the excerpts from treatises in the record which confirm the method of treatment demonstrated by the Petitioner. While Dr. Scott testified that there are other acceptable methods of applying ultrasound over bony prominences, none were specifically described. Indeed, Dr. Gordon pointed out that the failure to use a coupling cushion over a bony prominence would be neglectful since it would likely subject the patient to burning. There is no basis in the record to support Dr. Scott's comment that Petitioner was instructed poorly, and to the contrary, the only treatises in the record support the treatment methods used by the Petitioner. The other examiner, who was not present to testify, made the comment on his grade sheet for the Petitioner that she "needs work" in ultrasound. No evidence was presented to support this rather imprecise assessment. It is conceded by Respondent's expert witness, Dr. Scott, that Respondent's answer was acceptable. Based on the evidence in the record, it is found that Petitioner was incorrectly graded on the ultrasound portion of her practical examination. Rather than a grade of 3, meaning she gave an adequate answer, the evidence establishes that the technique she used was consistent with the only authoritative treatises in the record, as well as with the expert testimony of Dr. Gordon. The use of a coupling cushion over bony prominences is recommended to avoid burning the patient while administering ultrasound. Increasing the intensity of ultrasound after five days when the patient complains of no improvement, is reasonable and acceptable practice. However, since Dr. Scott testified that there are other unspecified methods which could also have been used in this situation, it cannot be found that Petitioner's answer was "exceptional", and therefore deserving of a grade of 4. Rather, she demonstrated a degree of knowledge and understanding between the grades of 3 and 4, or 3.5, which she should have received from both examiners on the ultrasound portion of this exam. Regarding the exam content area of cryotherapy, the Petitioner treated the patient, diagnosed as having a mild to moderate lumbar sprain/strain injury, by applying a cold pack wrapped in a warm, moist towel for ten to twenty minutes. Drs. Scott and Gordon acknowledged that this was an acceptable form of treatment for this condition. Authoritative treatises introduced in evidence confirm that this treatment is recommended, although other forms of treatment were also noted, including placing a cooled pack directly on the skin, or wrapping it with a dry towel. There is a conflict among the authorities regarding the placement of a cold pack directly on the skin. In her response on this content area, the Petitioner did not demontrate that she understood this conflict in authorities, but rather expressed the view, adopted by one authority, that cold packs should never be placed directly on the skin. Based upon the evidence in the record, it is found that Petitioner received the correct grade of 3 from both examiners on the cryotherapy portion of the practical examination. In contrast to the ultrasound portion of the exam, for cryotherapy there is clear evidence of conflicting methodologies for the treatment of a lumbar sprain/strain with cold packs. Petitioner did not demonstrate her knowledge of these conflicting methodologies, but simply demonstrated the one method which she prefers, which while acceptable, is not exclusively appropriate. Since the Petitioner's score should have been increased by .5 point on both examiners' grading sheets in the content area of ultrasound, she should have received one additional raw point, which results in her achieving an overall average of 75% on the practical examination, the minimum passing score.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to her grade in cryotherapy, but granting her challenge to the ultrasound portion of the November, 1989, chiropractic physiotherapy certification examination and awarding Petitioner a grade of 3.5 in ultrasound instead of 3, thereby increasing her overall grade from 71.8% to 75%, the minimum passing score, and as a result, approving Petitioner's certification in physiotherapy. RECOMMENDED this 18th day of October, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. CASE NO. 90-3402 Rulings on Petitioner's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. Adopted in Finding 6, but otherwise Rejected as unnecessary. Adopted in Findings 7-10. Adopted and Rejected, in part, in Findings 11, 12. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding 1. 2-3. Rejected as unnecessary. Adopted in Finding 2. Adopted in Findings 7, 8, but otherwise Rejected as unnecessary. Adopted in Findings 3, 6, 8. Adopted in Finding 12, but Rejected in Finding 10. Adopted in Finding 8, but Rejected in Findings 9, 10. Adopted in Findings 11, 12. Adopted in Finding 12, but Rejected in Findings 10, 13. COPIES FURNISHED: Patricia Guilford Executive Director Board of Chiropractic 1940 North Monroe Street Tallahassee, FL 32399-0792 Brian S. Fischer, Esquire 3695 W. Boynton Beach Blvd. Suite 8 Boynton Beach, FL 33436 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Kenneth E. Easley, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issues are whether Petitioner is entitled to repayment of Medicaid reimbursements that it made to Respondent, pursuant to section 409.913(11), Florida Statutes; and, if so, the amount of the repayment; the amount of any sanctions, pursuant to section 409.913(15)-(17), Florida Statutes; and the amount of any investigative, legal, and expert witness costs, pursuant to section 409.913(23)(a), Florida Statutes.
Findings Of Fact During the audit period of March 1, 2001, through February 28, 2003, Respondent practiced medicine in Miami and was an enrolled Medicaid provider with the specialties of vascular surgery, cardiovascular surgery, and thoracic surgery. At the time of the hearing, Respondent had not had a license to practice medicine for several years, nor was he an enrolled Medicaid provider. Under the Medicaid Provider Reimbursement Handbook (Reimbursement Handbook) in effect during the audit period, "records must be accessible, legible and comprehensible[,]" and "[m]edical records must state the necessity for and the extent of services provided." Medicaid Handbook, pp. 2-45 through 2-46. "Medicaid payments for services that lack required documentation or appropriate signatures will be recouped." Id. at p. 2-47. "Medicaid may recoup payment for services or goods when the provider has incomplete records or cannot locate the records." Id. at p. 5-7. Under the Florida Medicaid Physician Services, Coverage, and Limitations Handbook in effect during the audit period (Physicians Handbook), only the services shown in Appendix J are reimbursable. Physicians Handbook, p. 2-2. The Physicians Handbook adds: Medicaid reimburses for services that are determined medically necessary and do not duplicate another provider's service. . . . Id. For Medicaid reimbursement, a physician must use the service and procedure codes contained in the Physicians Current Procedural Terminology® (CPT).1/ Physicians Handbook, p. 3-1. The CPT handbook provides important information for coding certain services, such as initial inpatient consultations and subsequent hospital care: The extent of the history is dependent upon clinical judgment and on the nature of the presenting problem(s). The level of . . . services recognizes four types of history that are defined as follows: 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 which 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. * * * The extent of the examination performed is dependent on clinical judgment and on the nature of the presenting problem(s). The level of . . . services recognize four types of examination that are defined as follows: 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 area(s) and other symptomatic or related organ system(s). Comprehensive: a general multi-system examination or a complete examination of a single organ system. . . . * * * 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 options 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; and the risk of significant complications, morbidity, and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options. * * * Comorbidities/underlying diseases, in and of themselves, are not considered in selecting a level of . . . services unless their presence significantly increases the complexity of the medical decision making. * * * Table 2. Complexity of Medical Decision Making Number of Amount and/or Risk of Type of Diagnoses Complexity of Complications Decision Making or Data to be and/orManagement Reviewed Morbidity orOptions Mortality minimal minimal or none minimal straightforward limited limited low low complexity multiple moderate moderate moderate complexity extensive extensive high high complexity When counseling and/or coordination of care dominates (more than 50%) the physician/patient and/or family encounter (face-to-face time in the office or other outpatient setting or floor/unit time in the hospital or nursing facility), then time may be considered the key or controlling factor to quality for a particular level of . . . services. . . . The extent of counseling and/or coordination of care must be documented in the medical record. CPT handbook, pp. 5-7. Petitioner's auditor selected a random sample of 30 recipients for the audit. For these recipients, the auditor identified 510 reimbursements from Petitioner to Respondent during the audit period. Accordingly, Petitioner's auditor requested and received from Respondent the medical records pertaining to these 510 claims. An MPI nurse reviewer employed by Petitioner examined the medical records and bills for these 510 claims. Next, Petitioner retained a cardiologist, Dr. Potu, who examined the medical records to determine the reimbursability of these 510 claims. As a cardiologist, Dr. Potu was not a "peer" of Respondent, as that word is defined in the Conclusions of Law. On September 15, 2004, Petitioner issued to Respondent a Provisional Agency Audit Report (PAAR). In the PAAR, Petitioner stated that the audit of the 510 claims revealed that Petitioner had overpaid Respondent $11,172.70, which, following statistical analysis, extended to an overpayment of $37,427.80 for the total population. After further review, on August 9, 2005, Petitioner issued the Final Audit Report (FAR). In the FAR, Petitioner stated that the final audit of the 510 claims revealed that Petitioner had overpaid Respondent $10,871.35, which extended to an overpayment of $36,509.18 for the total population. Prior to the hearing, Petitioner retained a cardiovascular surgeon, Dr. Tomas Martin, to review Respondent's medical records and determine the reimbursability of the 510 claims. Dr. Martin is Respondent's "peer," as that word is defined in the Conclusions of Law. Varying freely from the determinations of Dr. Potu, Dr. Martin offered testimony that was uninfluenced by the prior work of Dr. Potu. After the hearing, Petitioner filed ALJ Exhibit 1 with a cover letter dated June 22, 2012. By this means, Petitioner revised its analysis of the 510 claims to conclude that Petitioner had overpaid Respondent $9069.56, which extended to an overpayment of $31,390.30 for the total population. As noted in the letter, this final revision incorporates the testimony of Dr. Martin, but only to the extent that it would raise the reimbursement amount allowed by Dr. Potu. The sampling for the audit and extension performed in the FAR and ALJ Exhibit 1 are pursuant to accepted and valid statistical methodologies and consistent with generally accepted statistical methods. Almost all of the 510 claims at issue in this case arose from procedures or services provided at the South Shore Hospital, which was located in Miami Beach. The hospital closed sometime after the audit period. Respondent testified that important evidence is no longer available to him, but the record does not support this claim. Recipient 1 is A. H., who was 53 years old as of the first date of service. Petitioner claims a total overpayment of $138.52 based on nine reimbursements. On February 5, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. On the next day, Respondent billed a CPT code 36013 for an introduction of a catheter to the right heart or main pulmonary artery, which is the sole claim allowed in full for this recipient. For the next seven days, Respondent billed a CPT code 99233 for subsequent hospital care. Finally, on February 14, Respondent billed a CPT code 36010 for an introduction of a catheter to the superior or inferior vena cava. Petitioner downcoded the first claim from CPT code 99255 to 99254. CPT code 99255 is for an "initial inpatient consultation" of a new or established patient. The consultation must include three elements: "a comprehensive history; a comprehensive examination; and medical decision making of high complexity." CPT code 99255 explains: "Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 110 minutes at the bedside and on the patient's hospital floor or unit." CPT code 99254 requires the same consultation to satisfy the same three elements, except that the third element is reduced to "medical decision making of moderate complexity." CPT code 99254 explains: "Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 80 minutes at the bedside and on the patient's hospital floor or unit." Petitioner has proved that the February 5 claim is properly a CPT code 99254. Suffering primarily from obesity and cellulitis, A. H. was admitted on February 5 with complaints of pain in her left lower extremity. The treating physician referred A. H. to Respondent for the placement of a central venous pressure (CVP) line with telemetry. In a consultative note of nine lines, Respondent advised against an upper body central line due to the patient's "severe obesity" and recommended instead a right femoral CVP line. Presumably, Respondent made the critical finding of "severe obesity" in a quick glance at the patient; it is likely that the medical decision making took much less than 80 minutes and unlikely that it was of moderate complexity. As noted above, Respondent's claim the following day for a CPT code 36013, which is the introduction of a catheter, was allowed in full. Respondent testified that he was consulted on this patient, as was the case with many patients, for a broad range of cardiovascular issues, not merely for a catheterization. As was the case with all of these patients, though, the medical records do not support this claim of Respondent, whose credibility, as noted below, is very poor. Petitioner downcoded the next seven claims, over the seven succeeding days, from CPT code 99233 to 99232. CPT code 99233 is for "subsequent hospital care, per day, for the evaluation and management of a patient." The care must include two of three elements: "a detailed interval history; a detailed examination; [and] medical decision making of high complexity." CPT code 99233 explains: "Usually, the patient is unstable or has developed significant complication or a significant new problem. Physicians typically spend 35 minutes at the bedside and on the patient's hospital floor or unit." CPT code 99232 requires the same care to satisfy two of three elements: "an expanded problem focused interval history; an expanded problem focused examination; [and] medical decision making of moderate complexity." CPT code 99232 explains: "Usually, the patient is responding inadequately to therapy or has developed a minor complication. Physicians typically spend 25 minutes at the bedside and on the patient's hospital floor or unit." Petitioner has proved that the seven claims from February 7-13 are properly CPT code 99232. According to Respondent's notes, the February 6 procedure was successful and "uneventful." There is no indication that the patient was "unstable" or had developed a "significant complication or . . . new problem." Neither the interval history nor the examination was detailed, and the medical decision making was not of high complexity. As noted above, Respondent's credibility is very poor. He falsified progress notes to support his claims for upcoded services. These spurious records are conveniently identified in the exhibit binder because they are printed on yellow or orange pages. Respondent did not explain why he failed to provide these clear, concise records--here, of daily visits at the bedside of A. H.--with the initial records that he provided Petitioner. Nor did Respondent explain why the progress notes are identical from day to day, as to A. H., and vary little from patient to patient. Also, these progress notes oddly state that A. H. denied "limb pain," even though the main reason that A. H. was hospitalized was cellulitis in the left lower extremity. But the improbable becomes the impossible on closer examination. As Dr. Martin pointed out, a cardiovascular surgeon, who was consulted merely to introduce a CVT line, does not daily visit the patient to look up her nose to report the pink color of her "bilateral nasal mucosa," examine her psychiatric status to report that she "appears sad with flat affect," and perform a neurological exam to report that her cranial nerves II through XII are grossly intact and she is appropriately sensitive to vibration. As Dr. Martin noted dryly, these neurological findings would require a busy cardiovascular surgeon to hurriedly perform his daily rounds equipped with a small reflex hammer and a tuning fork. Petitioner downcoded the last claim, on February 14, from CPT code 36010 to 99232. This appears to have been a mistaken billing by Respondent, as this is the date that A. H. was discharged--her cellulitis "improved," according to the discharge note written by her treating physician. She did not have a catheter introduced on the day of her discharge. Petitioner has proved that it properly downcoded all of the claims discussed above. Recipient 2 is N. R., who was 55 years old as of the first date of service. Petitioner claims a total overpayment of $956.13 based on 19 reimbursements. On October 26 and November 19, 2001, and February 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. On October 27, October 30, November 6, November 20, and December 10, Respondent billed a CPT code 36013, except for November 6 and December 10, for which he billed a CPT code 36010, which is an introduction of a catheter to the superior or inferior vena cava. On October 28-29, October 31, November 2-5, December 1, and December 3-9, Respondent billed a CPT code 99233. On November 21-30, Respondent billed a CPT code 99291, which is for the first 30-74 minutes of critical care, evaluation, and management of a critically ill or critically injured patient. Petitioner allowed in whole the billings for services on October 27 and 30, November 6, 20, and 21, and December 1 and 3-10. Petitioner downcoded the first claim from CPT code 99255 to 99251. CPT code 99251 is for an "initial inpatient consultation" of a new or established patient. The consultation must include three elements: "a problem focused history; a problem focused examination; and straightforward medical decision making." CPT code 99251 explains: "Usually, the presenting problem(s) are self limited or minor. Physicians typically spend 20 minutes at the bedside and on the patient's hospital floor or unit." Petitioner has proved that the October 26 claim is properly a CPT code 99251. The record contains relatively little information about N. R. during her hospitalizations. Suffering from multiple medical problems, including ascitis, liver failure, and edema of the feet, N. R. was a complicated patient, but, as Dr. Martin testified, Respondent's involvement on October 26 was to consult in preparation for nothing more than the insertion of an IV line. This consultation required no more than 20 minutes of straightforward medical decision making. Petitioner downcoded to CPT code 99231 two claims, on October 28 and 29, that were billed as CPT code 99233. CPT code 99231 is for "subsequent hospital care, per day, for the evaluation and management of a patient." The care must include two of three elements: "a problem focused interval history; a problem focused examination; [and] medical decision making that is straightforward or of low complexity." CPT code 99231 explains: "Usually, the patient is stable, recovering or improving. Physicians typically spend 15 minutes at the bedside or on the patient's hospital floor or unit." Petitioner has proved that these two claims from October 28 and 29 are properly CPT code 99231. This was routine followup by a consultant who had performed a routine procedure on a patient for whom he was not the primary caregiver. Respondent performed no more than a problem focused interval history and examination and engaged in medical decision making that was straightforward or of low complexity. Petitioner allowed the claim billed as CPT code 36013 on October 30, but downcoded the claims billed on October 31 and November 2-5 from CPT code 99233 to 99231. Although the allowed procedure involved an introduction of a CVP line through the femoral artery, as Dr. Martin testified, the same reasons that justify the downcoding of subsequent hospital care on October 27 and 28 justify the downcoding of subsequent hospital care on October 31 and November 2-5. Dr. Martin and Petitioner have coded the subsequent hospital care following an introduction of a catheter to the right heart or main pulmonary artery differently from patient to patient. For A. H., as noted above, and A. R., as noted below, Dr. Martin and Petitioner coded such care as CPT code 99232. However, for N. R. and, as noted below, M. M. and U. L., Dr. Martin and Petitioner coded such care as CPT code 99231. Although there is some factual variability among these two sets of patients, the better fit is CPT code 99232, but the Administrative Law Judge will not disturb the higher codes allowed by Dr. Martin in the cases of A. H. and A. R. Petitioner has proved that the claims billed on October 31 and November 2-5 are properly CPT code 99231. Petitioner downcoded the claim billed on November 19 from CPT code 99255 to 99253. CPT code 99253 is for an "initial inpatient consultation" of a new or established patient. The consultation must include three elements: "a detailed history; a detailed examination; and medical decision making of low complexity." CPT code 99253 explains: "Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 55 minutes at the bedside and on the patient's hospital floor or unit." N. R. had taken a turn for the worse and had been transferred to ICU for profuse gastrointestinal bleeding. She was hypotensive and in such respiratory distress as to require intubation. But the primary caregiver consulted with Respondent strictly for the purpose of obtaining IV access. Dr. Martin correctly testified that this service was of no more than low complexity. Petitioner has proved that the November 19 claim is properly a CPT code 99253. Petitioner downcoded ten successive claims, from November 21-30, from CPT code 99291 to 99233. As noted by Dr. Martin, CPT code 99291 is for the primary caregiver, not a consultant. Here, Respondent's procedure note states that the introduction of a catheter, which was allowed under CPT code 36013, was "[u]neventful." As noted above, Dr. Martin and Petitioner typically allowed, at most, CPT code 99232 for subsequent hospital care following an introduction of a catheter to the right heart or main pulmonary artery. Evidently due to the serious condition of N. R., they allowed a CPT code 99233 for the subsequent hospital care. Petitioner has proved that the ten successive claims, from November 21-30, are properly under CPT code 99233. Lastly, Petitioner downcoded a claim billed on February 13, 2002, from CPT code 99255 to 99252. CPT code 99252 is for an "initial inpatient consultation" of a new or established patient. The consultation must include three elements: "an expanded problem focused history; an expanded problem focused examination; and straightforward medical decision making." CPT code 99252 explains: "Usually, the presenting problem(s) are of low severity. Physicians typically spend 40 minutes at the bedside and on the patient's hospital floor or unit." Petitioner proved, as Dr. Martin testified, that this was merely a consultation involving straightforward medical decision making, so Petitioner proved that the February 13 claim is properly a CPT code 99252. Recipient 3 is M. W., who was 40 years old as of the first date of service. Petitioner claims a total overpayment of $173.38 based on six reimbursements. On November 7, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. For each of the next five days, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded the first claim from CPT code 99255 to 99253. Respondent's consultation report states that he was consulted to provide a central venous line to provide IV access for treatment and, if necessary, resuscitation of a critically ill patient with gastrointestinal bleeding. As Dr. Martin testified, the medical decision making is low, not high, so Petitioner proved that this claim is properly a CPT code 99253. Petitioner downcoded the next five claims from CPT code 99233 to 99231. Again, as Dr. Martin testified, the complexity of the medical decision making imposed on Respondent, as a consultant called upon merely to provide IV access to the patient, is low, not high, and no more than a problem focused interval history and examination was required, so Petitioner proved that these claims are properly CPT code 99231. Recipient 4 is R. M. Petitioner has not claimed any overpayments with respect to this patient. Recipient 5 is D. D., who was 65 years old as of the first date of service. Petitioner claims an overpayment of $77.85 based on one reimbursement. On March 12, 2001, Respondent billed a CPT code 99255 for an initial inpatient consultation. On the next day, Respondent billed a CPT code 99291 for critical care. Of the 15 billings based on D. D., the March 13 billing is the sole one that Petitioner disallowed in whole or in part, as Petitioner downcoded it to 99232. D. D. had been admitted from a nursing home with a malfunctioning gastrostomy tube. Respondent was consulted for venous access only. CPT code 99291 is not available for this level of consultation, which is properly coded CPT code 99232. Petitioner has proved that the March 13 claim is properly a CPT code 99232. Recipient 6 is F. C. Petitioner has not claimed any overpayments with respect to this patient. Recipient 7 is G. B. Petitioner has not claimed any overpayments with respect to this patient. Recipient 8 is R. R., who was 64 years old as of the first date of service. Petitioner claims a total overpayment of $245.50 based on four reimbursements. On February 19, June 20, September 27, and October 18, 2002, Respondent billed a CPT code 99255 for an initial patient consultation. Petitioner downcoded these claims to CPT code 99252, except for the claim on June 20, which Petitioner downcoded to CPT 99253. These various hospital admissions were due to fainting, irregular heart rate, and chest pain. During the initial patient consultation on February 19, Respondent determined that R. R. needed a pacemaker, subject to clearance from cardiology and internal medicine. Respondent was not the primary caregiver for this patient, and, as Dr. Martin noted, his notes for February 19 are not extensive. Absent evidence of more than straightforward medical decision making, Petitioner proved that the February 19 claim is properly a CPT code 99252. During the next three initial patient consultations, as Dr. Martin testified, Respondent served merely as a consultant, not the primary caregiver. Petitioner proved that the June 20 claim is properly no higher than a CPT code 99253, and the September 27 and October 18 claims are properly a CPT code 99252. Recipient 9 is S. G., who was 66 years old as of the first date of service. Petitioner claims a total overpayment of $131.78 based on two reimbursements. On April 30 and October 3, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded each of these claims to CPT code 99252. These hospital visits were to check the status of S. G.'s pacemaker. As Dr. Martin testified, the medical decision making was straightforward, not of high complexity, so Petitioner proved that the April 30 and October 3 claims are properly a CPT code 99252. Recipient 10 is A. C., who was 73 years old as of the first date of service. Petitioner claims an overpayment of $63.89 based on one reimbursement. On November 17, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded this claim to CPT code 99252. As Dr. Martin testified, Respondent was consulted strictly for the purpose of establishing a central venous line. Petitioner has proved that the November 17 claim is properly a CPT code 99252. Recipient 11 is T. F., who was 40 years old as of the first date of service. Petitioner claims a total overpayment of $528.33 based on 29 reimbursements. On July 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation, which Petitioner allowed. Respondent was consulted solely to provide IV access, so, as Dr. Martin testified, the subsequent hospital care from July 14-30 was properly a CPT code 99232. ALJ Exhibit 1 misses this testimony of Dr. Martin, so Respondent is entitled to reimbursement at CPT code 99232, not 99231, for the following dates: July 20-21, 23, 27, and 29, as Dr. Martin testified. As of July 19, 2002, the difference in the amounts allowed for CPT code 99232 and 99231 was $11.65 ($29.73 less $18.08). Multiplied by five dates of service, the sum amounts to $58.25, which is the amount by which Petitioner's claimed overpayment must be reduced. On November 4 and December 25, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded these claims to CPT code 99253. As Dr. Martin testified, Respondent was consulted for matters that required medical decision making of no more than low complexity, so Petitioner proved that these claims are properly CPT code 99253. Petitioner likewise proved that the subsequent hospital care from December 26, 2002, through January 5, 2003, did not rise to CPT code 99233, as billed. However, ALJ Exhibit 1 fails to reflect Dr. Martin's testimony that all of the subsequent hospital care from December 26, 2002, through January 5, 2003, was CPT code 99232, so Respondent is entitled to reimbursement at this higher rate, not at the lower rate borne by CPT code 99231, for December 26 and 29 and January 4-5. During this period, the difference in the amount allowed for each CPT code 99232 and 99231 was $11.65 ($29.73 less $18.08). Multiplied by four dates of service, the sum amounts to $46.60, which is the amount by which Petitioner's claimed overpayment must be reduced. Recipient 12 is V. D., who was 61 years old as of the first date of service. Petitioner claims an overpayment of $1.00 based on one reimbursement. On March 13, 2001, Respondent billed a CPT code 36013 for an introduction of a catheter in the right heart of main pulmonary artery. Petitioner downcoded this claim to CPT code 36010 for an introduction of a catheter in the superior or inferior vena cava. As Dr. Martin testified, this is a simple miscoding of the performed procedure, so Petitioner has proved that the March 13 claim is properly a CPT code 36010. Recipient 13 is A. R., who was 87 years old as of the first date of service. Petitioner claims a total overpayment of $85.28 based on eight reimbursements. From April 21-28, 2002, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded each of these claims to CPT code 99232. The patient was very sick, suffering from heart failure and pneumonia, and she died on April 28. Dr. Martin gave due weight to the complexity of this unfortunate patient when he overrode the PAAR, which had downcoded the initial inpatient consultation to 99251, and allowed the billed CPT code 99255. Of course, Respondent received full reimbursement for the introduction of a central venous pressure line. On the other hand, Respondent's standard, yellow progress notes of April 20, "2006," et seq. represent not only the usual departure from the professional and programmatic dictates of honesty, but also from good taste, given their preparation long after the patient had expired. As Dr. Martin noted, R. A. was in no condition to provide the detailed history that Respondent reported that he obtained on April 20--and again on April 21, 22, 23, 24, 25, 26, 27, and 28. Respondent prepared the fabrication in this case with an unscrupulous lack of care: on the day of A. R.'s death, Respondent's progress note repeats the fiction that A. R. was "resting comfortably, in no acute distress," her vital signs were "stable," her heart displayed a "regular rate and rhythm," her lower extremities showed no signs of swelling, and she appeared "sad with flat affect." As Dr. Martin testified, Respondent was consulted merely for the placement of a central venous line. The medical decision making for the subsequent hospital care was of no more than moderate complexity, and the interval histories and examinations were no more than expanded problem focused. Petitioner has proved that the April 21-28 claims are properly a CPT code 99232. Recipient 14 is R. M., who was 70 years old as of the first date of service. Petitioner claims an overpayment of $51.83 based on one reimbursement. On January 31, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded this claim to a CPT code 99253. Again, Respondent was consulted for limited purposes that involved medical decision making of no more than low complexity. This time, Respondent's yellow progress notes reflect another aspect of their fabrication--that Respondent devoted little thought to his fraudulent effort. The progress note for January 31, 2002, reports that R. M.'s deep tendon reflexes were "equal in upper and lower extremities" and that the popliteal and pedal pulses were "palpable bilaterally"--both findings quite impossible in a patient whose left leg had been previously amputated above the knee. Petitioner has proved that the January 31, 2002, claim is properly a CPT code 99253. Recipient 15 is J. D., who was 63 years old as of the first date of service. Petitioner claims a total overpayment of $130.00 based on nine reimbursements. On January 7, 2002, Respondent billed a CPT code 92555 for an initial inpatient consultation. For the next eight days, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded the January 7 billing to CPT code 99254 and the ensuing billings to CPT code 99232. J. D. was hospitalized for a slow heart rate with syncope and a likely staph infection. Respondent was consulted for a broad cardiovascular examination, which was appropriately coded at no higher than CPT code 99254, as it involved no more than moderate complexity. Respondent's recommendation to rule out sick sinus syndrome by conducting a 24-hour Holter and echocardiogram does not appear to have been the product of more than 80 minutes' time with the patient and on his hospital floor. As Dr. Martin testified, the "moderate need for followup" justified no higher than a CPT code 99232 for the ensuing billings, as the medical decision making was of no more than moderate complexity and the interval history and examination were expanded problem focused. Recipient 16 is C. R., who was 39 years old as of the first date of service. Petitioner claims a total overpayment of $122.48 based on four reimbursements. On October 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Two days later, Respondent billed a CPT code 99233 for subsequent hospital care. One week later, Respondent billed a CPT code 36013 for an introduction of a catheter in the right heart or main pulmonary artery and a CPT code 36493 for repositioning a previously placed central venous catheter under fluoroscopic guidance. Petitioner downcoded the initial inpatient consultation to CPT code 99252 and the subsequent hospital care to CPT code 99232. Petitioner disallowed the two billings on October 22 because they were allowed as part of another procedure on the same date for which Respondent was reimbursed. As Dr. Martin explained, the limited scope of the initial consultation drives the downcoding of the initial patient consultation and subsequent hospital care. Petitioner has proved that these claims are properly CPT codes 99252 and 99232. On October 22, Petitioner reimbursed Respondent $210.53 for a billing under CPT code 36533, which is for the "[i]nsertion of implantable venous access device, with or without subcutaneous reservoir." As Dr. Martin testified, this code includes CPT codes 36013 and 36493, so Petitioner has proved that the CPT codes 36013 and 36493 were properly disallowed. Recipient 17 is J. G., who was 54 years old as of the first date of service. Petitioner claims a total overpayment of $131.51 based on two reimbursements. On May 27, 2001, Respondent billed a CPT code 99255 for an initial patient consultation, and, the next day, he billed a CPT code 99291 for critical care. Petitioner downcoded these claims to CPT codes 99253 and 99232. As Dr. Martin testified, Respondent was consulted to provide venous access, and Petitioner has proved that it properly downcoded both claims. Recipient 18 is M. C., who was 26 years old as of the first date of service. Petitioner claims a total reimbursement of $196.94 based on ten reimbursements. On August 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. For eight of the next nine days, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded the August 13 claim to CPT code 99254 and the last four days of subsequent hospital care to CPT code 99232. As Dr. Martin testified, the initial inpatient consultation was for a cardiac problem and involved medical decision making of moderate complexity, so that Petitioner properly downcoded the August 13 billing to CPT code 99254. Dr. Martin testified that the subsequent hospital care from August 19-22 was CPT code 99231. However, in ALJ Exhibit 1 and its predecessor Petitioner Exhibit 21, Petitioner took the position that these billings should be reimbursed under CPT code 99232. Although it is difficult to find any basis in the record to support medical decision making that is more than straightforward or of low complexity, as well as an interval history and examination that is more than problem focused, the Administrative Law Judge declines to credit Dr. Martin's testimony over the position repeatedly taken by Petitioner as to these dates of service--namely, that they are properly CPT code 99232. On January 25, 2003, Respondent billed a CPT code 99255 for an initial inpatient consultation. From January 26- 30, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner allowed the January 26 billing, but downcoded the January 25 billing to CPT code 99253 and the January 27-30 billings to CPT code 99232. Given the limited scope of Respondent's initial consultation, which was providing IV access, these downcodings are proper. Recipient 19 is M. R., who was 57 years old as of the first date of service. Petitioner claims a total overpayment of $676.97 based on 17 reimbursements. On September 3, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. For the next two days, he billed a CPT code 99291 for critical care. For nine of the next ten days, Respondent billed a CPT code 99233 for subsequent health care. Petitioner downcoded the September 3 billing to CPT code 99252, the September 4-5 billings to CPT code 99231, and the remaining billings to CPT Code 99231. As Dr. Martin testified, although the patient was very ill with metastatic ovarian carcinoma, Respondent's consultation was limited to providing IV access. Petitioner has proved that the downcodings set forth in the preceding paragraph were appropriate. On September 6, Respondent billed CPT codes 36533, 36013, and 71090, which is for the insertion of a pacemaker. Petitioner disallowed CPT code 36013 because, as Dr. Martin testified, it is included in CPT code 36533. On October 9, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. The next day, he billed a CPT code 36534, which is for the "[r]evision of implantable venous access device, and/or subcutaneous reservoir." Petitioner downcoded these billing to CPT codes 99253 and 36550, which is the "[d]eclotting by thrombolytic agent of implanted vascular access device or catheter." As Dr. Martin testified, the October 9 date of service required medical decision making of no more than low complexity. As for October 10, Respondent only flushed a catheter, for which most practitioners would not bill. But, in any event, flushing a catheter constitutes no more than declotting a catheter; it is not revising a venous access device. On December 4, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded the claim to CPT code 99253. As Dr. Martin testified, given the limited scope of the consultation, the medical decision making was of no more than low complexity, so Petitioner proved that the downcoding is appropriate. For the same reason, Petitioner proved that the downcoding of the claim on December 6 for subsequent hospital care from CPT code 99233 to 99231 was appropriate. Recipient 20 is M. G., who was 64 years old as of the first date of service. Petitioner claims a total overpayment of $253.58 based on eight reimbursements. On August 8, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. On August 10 and 12, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded these claims to CPT codes 99253 and 99231. Similarly, on October 5, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. On October 6-9, Respondent billed a CPT code 99233. Petitioner downcoded these claims to CPT codes 99253 and 99231. As Dr. Martin testified, Respondent's scope of consultation, which was providing IV access, justified no higher than the downcoded codes. Recipient 21 is M. R., who was 56 years old as of the first date of service. Petitioner claims a total overpayment of $85.95 based on two reimbursements. On June 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. As of the first date of service of the consultation, the patient bore diagnoses of left lower extremity deep vein thrombosis and rule-out arterial embolus. Her left foot was painful and had been cold for four days. Her right femoral pulse was weak. The medical decision making was of moderate complexity, and Dr. Martin and Petitioner properly coded this as CPT code 99254. On January 7, 2003, Respondent billed a CPT code 99245 for an "[o]ffice consultation for a new or established patient." The consultation must include three elements: "a comprehensive history, a comprehensive examination; and medical decision making of high complexity." CPT code 99245 explains: "Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 80 minutes face-to-face with the patient and/or family." Dr. Martin and Petitioner downcoded this claim to CPT code 99243, which is an "[o]ffice consultation for a new or established patient." The consultation must include three elements: "a detailed history; a detailed examination; and medical decision making of low complexity." CPT code 99243 explains: "Usually, the presenting problem[s] are of moderate severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family." As Dr. Martin testified, the January 7 office visit was routine followup and involved medical decision making of no more than low complexity. Recipient 22 is I. M.-D., who was 50 years old as of the first date of service. Petitioner claims a total overpayment of $1608.56 based on 18 reimbursements. On June 11, 2001, Respondent billed a CPT code 99255 for an initial inpatient consultation. For the ensuing 17 days, Respondent billed a CPT code 99291 for critical care. Petitioner downcoded these claims to CPT codes 99252 and 99231. The scope of Respondent's consultation was providing IV access--specifically, in the form of a port-a-cath system. As Dr. Martin testified, the medical decision making was of low complexity, both at the initial and subsequent dates of service. Petitioner proved that these claims are properly downcoded to CPT code 99252 and 99231. Recipient 23 is H. M. Petitioner has not claimed any overpayments with respect to this patient. Recipient 24 is M. M., who was 72 years old as of the first date of service. Petitioner has claimed a total overpayment of $86.20 based on two reimbursements. On March 9, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Two days later, he billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded these claims to CPT codes 99252 and 99231. The consultation was for the placement of a central venous pressure line and, as Dr. Martin testified, the medical decision making for the initial consultation was no more than straightforward. For the subsequent care, the medical decision making was no more than straightforward, and the interval history and examination were no more than problem focused. Petitioner has proved that it properly downcoded these claims. Recipient 25 is M. S., who was 61 years old as of the first date of service. Petitioner claims a total overpayment of $739.92 based on nine reimbursements. On May 25, 2001, Respondent billed a CPT code 99255 for an initial inpatient consultation. From May 29 through June 3, Respondent billed a CPT code 99291 for critical care. Petitioner downcoded the first claim to CPT code 99252, the claims for May 29 and 30 to CPT code 99231, and the remaining claims to CPT code 99233. The initial consultation was merely to place a central line, so Petitioner has proved that this claim is properly a CPT code 99252. For the reasons noted above, the subsequent hospital care does not qualify for CPT code 99291. Dr. Martin testified that the May 29-June 3 claims were all CPT code 99231, and he could not explain why the May 31-June 3 claims were CPT code 99233. The better fit is CPT code 99231, but the Administrative Law Judge will not disturb the higher codes allowed by ALJ Exhibit 1. On June 6, 2001, Respondent billed CPT codes 60200 and 31645 for a tracheostomy with the insertion of a tracheostomy tube, incision of the isthmus thyroid, and bronchial washing. CPT code 60200 is for a "[e]xcision of cyst or adenoma of thyroid, or transection of isthmus," and CPT code 31645 is for endoscopy "with therapeutic aspiration of tracheobronchial tree, initial . . .." Petitioner downcoded the CPT code 60200 to a CPT code 31600, which is a "[t]racheostomy, planned," and disallowed the CPT code 31645. As Dr. Martin testified, the tracheostomy performed by Respondent is a CPT code 31645, and the additional procedure is part of a planned tracheostomy. Petitioner has proved that the June 6 claims are properly billed as a single CPT code 31600. Recipient 26 is U. L., who was 35 years old as of the first date of service. Petitioner claims a total overpayment of $973.03 based on 28 reimbursements. On March 9, 2001, Respondent billed a CPT code 99291 for critical care. He billed the same code for March 11-15. These dates of service involved subsequent hospital care following the introduction of a central line. As Dr. Martin testified, the services involved medical decision making of no more than low complexity and no more than a problem focused interval history and examination. Petitioner has proved that these claims are properly a CPT code 99231. On August 10, 2001, Respondent billed a CPT code 99255 for initial inpatient consultation, and, on the next day, he billed a CPT code 36013 for an introduction of a catheter. The inpatient consultation was in connection with the insertion of a central venous line, which, as Dr. Martin testified, involved medical decision making of no more than moderate complexity. Also, the proper code for the catheterization that Respondent performed was CPT 36010. Petitioner has proved that these claims are properly CPT codes 99254 and 36010. From August 14-September 3, 2001, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded August 14-24 to CPT code 99231, August 25-27 to CPT code 99232, and August 28-September 2 to CPT code 99231. As Dr. Martin testified, CPT code 99231 is the proper coding for all dates of service, except August 25 and 26, for which CPT code 99232 is proper. Following up on the initial service of providing venous access involved no more than straightforward medical decision making and a problem focused interval history and examination for all these service dates, except for August 25 and 26, where the medical decision making rose to moderate complexity. Although Dr. Martin testified that CPT code 99231 is proper for August 27, the Administrative Law Judge will not disturb the higher code allowed by ALJ Exhibit 1. Recipient 27 is J. T., who was 60 years as of the first date of service. Petitioner claims a total overpayment of $838.54 based on five reimbursements. On August 13, 2002, Respondent billed CPT codes 60200, 31600, and 31645 for an incision of the thyroid isthmus and bronchial washing. Petitioner downcoded the first claim to CPT code 31603, which is for "[t]racheostomy, emergency procedure; transtracheal." Petitioner disallowed the second and third claims. As disclosed by Respondent's notes of August 12 and 13, the procedure of August 13 was an emergency tracheostomy, so Petitioner proved that it was properly billed as a CPT code 31603. As Dr. Martin testified, Respondent's notes do not mention a bronchoscopy, so Petitioner properly disallowed the CPT code 31645. Obviously, billing CPT code 31603, which is an emergency tracheostomy, precludes billing, for the same procedure, a CPT code 31600, which is a planned tracheostomy, so Petitioner properly disallowed CPT code 31600. Also, as Dr. Martin testified, about 60 percent of all tracheostomies require dividing the isthmus, so, even when this procedure is performed, it is included in the tracheostomy code--here, CPT code 31603. On September 27, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. This service was placing a central line, so, as Dr. Martin testified, the medical decision making was no more than straightforward, and Petitioner properly downcoded this claim to CPT code 99252. On September 30, 2002, Respondent billed CPT codes 35206 for the repair of a blood vessel, upper extremity; 33208 for the insertion or replacement of pacemaker, atrial and ventricular; and 71090 for radiological supervision and interpretation, by fluoroscopy and radiography, for the insertion of a pacemaker. As Dr. Martin testified, Respondent did not repair a blood vessel, so Petitioner properly disallowed CPT code 35206. The only vessel work performed by Respondent was properly part of the insertion of the pacemaker. Also, as Dr. Martin testified, the radiological work in CPT code 71090 is not allowable to Respondent in the same procedure that he is billing for the insertion of a pacemaker. So, Petitioner properly disallowed CPT codes 35206 and 71090. Dr. Martin testified that Respondent is allowed CPT code 33208 and noted that, after disallowing the pacemaker billed as CPT code 35206 on the same day, Petitioner improperly "halved" Respondent's reimbursement for this procedure. According to ALJ Exhibit 1, which is credited, the unreduced payment for CPT code 33208 is $297.92 Petitioner already allowed $141.76 for the service, and Respondent is owed another $156.16 for this billing. Recipient 28 is J. G., who was 60 years as of the first date of service. Petitioner disallowed a total overpayment of $78.41 based on two reimbursements. On June 26 and July 10, 2001, Respondent billed a CPT code 99255 for initial patient consultations. Petitioner downcoded these claims to CPT code 99253. As Dr. Martin testified, the June 26 consultation was for a central line, but was complicated by an infected abdominal wound, evidently the result of past surgery, according to Respondent's notes. Dr. Martin testified that this claim should be downcoded to CPT code 99254, not 99253, as reflected on ALJ Exhibit 1. Respondent is owed the difference, if any,2/ between the procedure allowed by Petitioner--a CPT code 99253--and the amount that Dr. Martin testified that he should have been allowed--a CPT code 99254. The July 10 consultation, which was strictly for the placement of a CVP line, appears relatively uncomplicated and, as Dr. Martin testified, Petitioner properly downcoded it to CPT code 99253. Recipient 29 is A. B., who was 48 years old as of the first date of service. Petitioner claims a total overpayment of $417.20 based on three reimbursements. On April 18, 2002, Respondent billed a CPT code 35456, which is a balloon angioplasty. Petitioner disallowed the claim on the ground of a lack of documentation. As Dr. Martin testified, Respondent's records contain no mention of this procedure, so Petitioner properly disallowed it. On June 28, 2002, Respondent billed CPT codes 27880, which is an "amputation, leg, through tibia and fibula"; 27705, which is an osteotomy of the tibia; and 27707, which is an osteotomy of the fibula. As Dr. Martin testified, the procedures described under CPT codes 27705 and 27707 are included within CPT code 27880, so Petitioner properly disallowed the claims under these two codes. Recipient 30 is V. B., who was 60 years old as of the first date of service. Petitioner claims a total overpayment of $432.78 based on seven reimbursements. On July 25, 2001, Respondent billed a CPT code 99255 for an initial inpatient consultation. From July 26-29, Respondent billed a CPT code 99291 for critical care. Dr. Martin testified that he did not address the July 25 claim because Petitioner had failed to include it in his folder. The basis for denial is upcoding, not the absence of documentation, so there appears to have been a miscommunication between Petitioner and its expert witness. As explained in the Conclusions of Law, the burden of proof and burden of going forward with the evidence remain with Petitioner, so Petitioner has failed to prove this downcoding. This results in the allowance of an additional $28.72, which is the difference between the $104.66 billed and the $75.94 allowed. However, Dr. Martin testified that the subsequent care provided by Respondent, which could not qualify for CPT code 99291, could qualify for no more than CPT code 99232. Notes for this care are in the record, and Dr. Martin's testimony is credited. Petitioner has proved that the July 26- 29 claims are properly a CPT code 99232. On June 20 and November 7, 2002, Respondent billed a CPT code 99255 for initial inpatient consultations. Petitioner downcoded these claims to CPT code 99254. As Dr. Martin testified, the medical decision making on these consultations was of no more than moderate complexity, so Petitioner has proved that these claims are properly a CPT code 99254. As noted above, the total overpayment stated in ALJ Exhibit 1 is $9225.56 must be reduced by the following sums: $104.85 for Recipient 11 (two adjustments), $156.16 for Recipient 27, and $28.72 for Recipient 30.3/ Petitioner has thus proved a total overpayment on the 510 audited claims of $8935.83 ($9225.56 - $289.73), which Petitioner may extend, pursuant to the statistical methods used in the FAR and ALJ Exhibit 1, to the total population.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order requiring Respondent to repay Petitioner an overpayment extended by the accepted and valid statistical methods used in FAR and ALJ Exhibit 1 from the sampled overpayment of $8935.83,5/ to pay a fine of $1500, and to repay Respondent all of its investigative, legal and expert witness costs, which may be determined by subsequent DOAH hearing, if necessary. DONE AND ENTERED this 16th day of August, 2012, 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 16th day of August, 2012.
The Issue The issue in this case is whether Petitioner should receive a passing score on the clinical portion of the August 2000 optometry licensure examination.
Findings Of Fact In August 2000, Petitioner took the optometry licensure examination and failed to pass the clinical portion of the exam. The clinical portion is where the candidate is required to perform certain patient procedures. The student, or candidate, is evaluated in the process of performing those procedures by two examiners. Each examiner grades the candidate independently of whatever score the other examiner may award on a particular procedure. With regard to the contested questions in this matter, Petitioner objected to the awarding of credit by one examiner and failure of the other examiner to grant credit. In the conduct of the clinical portion of the examination, each procedure is performed twice, once for each examiner. The examiners are not permitted to confer as they apply uniform grading standards to a candidate's performance in demonstrating a particular procedure. Additionally, the examiners have been previously subjected to standardization training where they are trained to apply grading standards in a consistent manner. Both examiners in Petitioner's examination were experienced examiners. Where one examiner gives a candidate one score and the other examiner gives a different score, the two scores are averaged to obtain the candidate's score on that question. With regard to Question 1C on the examination, the candidate is required to tell the patient to look at his or her nose. At the same time, the candidate must hold up a finger in a stationary, non-moving manner. By his own admission, Petitioner failed to comply with this requirement in that his hands were moving. With regard to Question 7A, the candidate was required to tell the patient to look at a distant target. Petitioner told the patient to look straight ahead and argued at final hearing that his instruction was adequate for him to assume that the patient was looking at a distant target. Notably, this question on the examination seeks to elicit a candidate's skill at administering a neurological test of the patient's eye and brain coordination and requires that the candidate specifically tell the patient to look at a distant target. With regard to Question 13C, the candidate must perform a procedure designed to detect retinal lesions. The candidate and the examiner simultaneously look through a teaching tube where the candidate is asked to examiner the patient's eye in a clockwise fashion. When told to look at the nine o'clock position of the retina, Petitioner failed to look at the correct position. By his own admission Petitioner stated that since he had to perform the procedure twice, it is possible that he did not perform the procedure correctly for one examiner. Question 34A relates to Tonometry; the measure of intraoccular pressure (IOP) in the eye. Petitioner was not given credit by one examiner because Petitioner rounded the pressure results he observed. He argued that his answer of 12 was acceptable since he had rounded to the result within 0.5mm of what the machine detected in regard to the patient's eye. One of the purposes of this procedure is to determine whether the candidate can accurately read the dial to the machine. Consequently, Petitioner's failure to perform properly with regard to this procedure was appropriately graded.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing Petitioner's challenge to the grade assigned him for the August 2000 optometry licensure examination. DONE AND ENTERED this 23rd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DON W. 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 23rd day of February, 2001. COPIES FURNISHED: Jayeshkumar Vallabhbhai Patel, O.D. 1601 Norman Drive, Apartment GG-1 Valdosta, Georgia 31601 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue This order addresses three cases consolidated for hearing. The first case chronologically is DOAH Case No. 00- 1964, which arises from the pre-licensure inspection initiated as a result of Respondent's application for a certification to provide limited nursing services, and seeks to levy fines for repeated violations originally noted in the biennial inspection of September 10, 1999. The second case chronologically is DOAH Case No. 00-1963, which arises from the re-inspection of the pre-licensure inspection performed on February 21, 2000, and relates to fines for repeated violations of the rules. The third case chronologically is DOAH Case No. 00-1965, which is related to issuance of the Department’s denial of certification to provided limited nursing services; however, it is based upon the same factual predicate as Case No. 00-1963. The issues in each of the cases are as follows: Case No. 00-1964: Should fines be levied against the Respondent as the result of an inspection which (1) was conducted without notice contrary to the letter concerning the inspection from the Department, and (2) in the absence of specific proof that the specific violation was repeated. Case No. 00-1963: Should fines be levied against the Respondent for failure to correct violations identified in an inspection that was not noticed contrary to the information provided to the Respondent, and when the Respondent was not rendering any services to which the violation applied. Case No. 00-1965: Should Respondent be denied a certification to provide limited nursing services based upon the violations discovered in the inspections of January 18, 2000 and February 21, 2000.
Findings Of Fact General Facts The Department is the agency charged with the inspection, regulation, and licensure of adult living facilities. The Respondent is an adult living facility owned and operated by Christal L. Caso. On November 11, 1999, Mr. Robert Cunningham conducted a biennial inspection of Respondent’s adult living facility (ALF). He identified a number of deficiencies that were written up in a detailed inspection report. Mr. Cunningham identified copies of his report which were a part of the Petitioner's Bound Exhibits in Case Nos. 00-1964 and 00-1963. A re-inspection was conducted in December of 1999, and all of the deficiencies noted had been corrected. The Administrative Complaint in Case No. 00-1964 alleges that on January 18, 2000, certain deficiencies found during Mr. Cummingham’s inspection on November 11, 1999, were repeated. His inspection report and its findings will be referenced and discussed in conjunction with the consideration of the report for January 18, 2000; however, there are no issues involved directly with Mr. Cunningham’s inspection or his report in any of the three pending cases. The Respondent applied for an additional certification to provide limited nursing services (LNS) at its facility. This application was duly processed and the Respondent was notified by letter, dated January 13, 2000, from the Department’s Tallahassee office that the facility must notify the Department within 21 days that it was ready for an operational survey (inspection), and that an announced inspection would be scheduled within several weeks. On January 18, 2000, Ms. Eleanor McKinnon, an inspector with the Department, arrived unannounced at the facility to conduct the pre-licensure inspection. Ms. Caso was not present at the facility at the time Ms. McKinnon arrived. When Ms. Caso arrived at the ALF, she advised Ms. McKinnon that she was not prepared and her inspection was inconsistent with the information Caso had received. Ms. McKinnon continued the inspection citing a policy that their inspections were unannounced. The letter Ms. Caso received from the Department’s Tallahassee office was termed, at hearing, inconsistent with agency procedure by personnel attached to the local office. It was clear Ms. Caso received and relied upon the information contained in the letter, and she had no reason to believe that it was not an accurate statement of how inspections would proceed. Ms. McKinnon prepared a detailed inspection report that was identified as an exhibit in all of the bound volumes. She did not have a clear recollection of the specific findings at the time of the hearing. The inspection reports identify specific areas of operations by alphanumeric designators termed "Tags." These tags relate to a specific area of concern in an inspection such as storage of drugs, medical records, or safety. The tags are listed in a separate column on the inspection reports, and specific violations will be identified and discussed in this order by reference to specific tags as they were at hearing. Licensure Inspection, January 18, 2000 Findings of Fact Specific to Case No. 00-1964 Although the Department's letter of January 13, 2000, said that the Respondent should notify the Department when it was ready for inspection, the Department has the right to inspect at any time for compliance with the rules. Regarding Tag A401, the first violation alleged to have been repeated, the inspection report for November states that "Three of five residents did not have a Health Assessment on file." The January inspection report states, "Review of two resident records revealed that one of the two residents had no health assessment on their medical record." Ms. Caso testified regarding individual records. These records she kept at her office at her house off the ALF’s premises. She was willing to retrieve these records; however, the inspector maintained that they were required to be maintained on site. Regarding the second alleged repeated violation, the November inspection report states, "Medications for Resident No. 3 which were discontinued in August were still in the centrally stored medicine closet." The January inspection report stated at Tag A612, "Tour of the medication room on the day of the survey revealed that medications from residents who the administrator said had been gone for over two years were still in the medication closet." This is alleged in the Administrative Complaint to have violated Rule 58A- 5.0182(6)(d), Florida Administrative Code. The Petitioner included in its exhibit a copy of the cited rule. Regarding the third alleged repeated violation, the January report states that over-the-counter medication was maintained in the medicine storage area without the name of the individual for whom it was prescribed being on it. This was alleged to be a violation of Rule 58A-5.0182(6)(f), Florida Administrative Code. A review of the current rules indicates that Rule 58A-5.0182(6)(d) and (f) do not address the substance of the alleged violation, and that the last amendment to the rule occurred in October 17, 1999. This provision had been repealed before the first inspection. Conclusions of Law for Case No. 00-1964 The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this and the other consolidated cases. This case seeks to fine the Respondent for violations allegedly violated in the original inspection of November 11, 1999, and repeated on the inspection of January 18, 2000. The Department can conduct a compliance inspection at any time. However, to consider such an inspection a pre- licensing inspection is contrary to the letter regarding the inspection procedures sent to the Respondent by the Department’s Tallahassee office. I conclude that, although findings may be considered for general enforcement purposes and fines potentially levied for violations, they cannot be considered a pre-licensing inspection. The practical effect of this is that a general violation applicable to an ALF can be cited and considered; however, fines cannot be levied for those matters related to LNS because the Respondent was not licensed or engaged in rendering LNS. In addition, the Respondent is not subject for fines for violation of those portions of the rules applicable only to providing LNS because the Respondent was entitled to request an announced inspection pursuant to the Department’s letter. The Administrative Complaint of Case No. 00-1964 cites Rule 58A-5.0191(3)(a), Florida Administrative Code, as having been violated presumably a reference to Tag A401 relating to admission standards. Specifically, the cited fault related to health assessments. Rule 58A-5.0191(2)(a), Florida Administrative Code, provides as follows: (2) HEALTH ASSESSMENT. Within 60 days prior to the residents admission to a facility but no later than 30 days after admission, the individual shall be examined by a physician or advanced registered nurse practitioner who shall provide the administrator with a medical examination report, or a copy of the report, which addresses the following: The physical and mental status of the resident, including the identification of any health-related problems and functional limitations; An evaluation of whether the individual will require supervision or assistance with the activities of daily living; Any nursing or therapy services required by the individual; Any special diet required by the individual; A list of current medications prescribed, and whether the individual will require any assistance with the administration of medication; Whether the individual has signs or symptoms of a communicable disease which is likely to be transmitted to other residents or staff; A statement that in the opinion of the examining physician or ARNP, on the day the examination is conducted, the individual’s needs can be met in an assisted living facility; and The date of the examination, and the name, signature, address, phone number, and license number of the examining physician or ARNP. The medical examination may be conducted by a currently licensed physician or ARNP from another state. The Administrator testified that health assessments were maintained for the residents, but were maintained at her office in her home. The inspector took the position that these assessments had to be maintained on-site; however, there is nothing in the rule upon which to base that conclusion. The rule provides that the physician or advanced registered nurse practitioner will provide the administrator with a copy of the assessment. The inspector did not permit the administrator time to retrieve the assessment for her inspection. In the absence of an inspection of the records, it cannot be determined whether the 30 days' grace period was applicable. I conclude that a health assessment does not have to be kept on site pursuant to Rule 58A-5.0181(2)(b), Florida Administrative Code. The Inspector should have given the Respondent time to retrieve the records. Then a determination could have been made whether the appropriate information was contained in the records. There is no violation and no basis for levying a fine. The alleged violations of Rule 58-5.182(6)(d) and (f), Florida Administrative Code, cannot be a basis for fines or denial of the license because the rule was repealed before the biennial inspection, the pre-licensure inspection, or the re-inspection. Findings of Fact Case Nos. 00-1963 and 00-1965 Ms. McKinnon conducted a re-inspection of the ALF on February 21, 2000. This inspection was the basis for levying fines for alleged repeated violations, and for denying licensure. Therefore, these factual allegations will be discussed together. Ms. McKinnon’s report of inspection is contained in the bound volumes pertaining to Case Nos. 00-1963 and 00-1965. The first tag number is N201, and the Rule alleged to have been violated is Rule 58A-5.031(2)(d), Florida Administrative Code. In the inspection report of January 18, 2000, the inspector made the following observation: "Review of the facility records and interview with the administrator revealed that no log had been prepared for the admission residents to receive limited nursing services." At the time of the inspection, the facility was not licensed to provide limited nursing services. Such services were not being rendered. This log is nothing more than a piece of paper upon which a chronological record of services is kept. This record is not required to be kept until services are rendered under the provisions of the rule. The next tag number of the next violation is N205 on the inspection report of January 18, 2000. Tag N205 alleges violation of Rule 58A-5.0131(2)(ff), Florida administrative Code, because, "Review of the facility records and interview with the administrator revealed that there was no documented information on what services would be provided under limited nursing or who would provide the services." The next tag at issue is N302. It cites a violation of Rule 58A-5.031(2)(a), Florida Administrative Code, and states, Interview with the administrator and review of facility documentation revealed that no provision had been made to have currently licensed nurse in the facility to perform limited nursing services, nor was there a contract with a RN or MD to supervise the services provided. Again, the rule cited in the complaint is wrong. Rule 58A- 5.031(2)(d), provides that the facility must have a contract for nursing services. It was explained at hearing that there was no contract present for a nurse to supervise Ms. Caso, and no contract with Ms. Caso during the first inspection. Ms. Caso testified regarding this. She did not originally believe she was required to have a contract with herself, and, at the time of the second inspection, had a contract drawn with the nurse who was going to be the supervisor; however, the woman was seriously ill and had not been able to sign the contract. At the time of this inspection, the facility was not providing services and could not legally do so until licensed. Tag A401 of the February report cites a violation of Rule 58A-5.0181(3)(a)1, Florida Administrative Code, and states, "Resident No. 5 was admitted on January 31, 1999, and there was no dated health assessment on his record." Conclusions of Law for Case Numbers 00-1963 and 00-1965 Again, the Division of Administrative Hearings has jurisdiction over the parties and the subject matter of the cases. The various tags will be discussed in reverse order. Regarding Tag A401 of the February report citing Respondent for failing to have a dated health assessment for a resident, the proper citation of the rule alleged to have been violated is 58A-5.0181(2), Florida Administrative Code. As stated above, subparagraph (a) of paragraph (2) provides that the physician or advanced registered nurse practitioner shall provide the administrator with a medical examination report no later than 30 days after admission. In this instance, the reports were on-site and were inspected. However, this is not a repeat violation because there is no rule that requires these reports to be maintained on-site (the previously cited violation), and the records were not inspected on the previous visit. Therefore, this was the first time this violation was discovered. Regarding the violation regarding the absence of a signed contract by the supervising nurse (Tag 302), the facility was not licensed to provide LNS, and there were no services being rendered at the time. Therefore, there is no basis for a fine. In so far as this violation relates to the denial of licensure, Rule 58A-5.031(2), Florida Administrative Code, provides: In accordance with rule 58A-5.019, the facility must employ sufficient and qualified staff to meet the needs of residents requiring limited nursing services based on the number of such residents and the type of nursing service to be provided. * * * Facilities licensed to provide limited nursing services must employ or contract with a nurse(s) who shall be available to provide such services as needed by residents. The facility shall maintain documentation of the qualifications of nurses providing limited nursing services in the facility’s personnel files. While the absence of the contract is a reason not to issue a license, under the circumstances in this case, it would have been more appropriate for the inspectors to note the discrepancy, and permit the Respondent to send them a copy of the contract when it was signed. It is not a basis for levying a fine. Regarding the alleged violation for failing to maintain a policy for how services will be rendered (Tag N205), first, there is no Rule 58A-5.0131(2)(ff), Florida Administrative Code, as cited by the Agency. Rule 58A-5.0131, Florida Administrative Code, contains various definitions, none of which relate to the alleged violation cited in the inspection report. A review of Rule 58A-5.031, Florida Administrative Code, which deals with the providing of limited nursing services, starts off by stating that a facility must be licensed before it can provide these services. From the description of the violation cited and the testimony of the witnesses, this apparently relates to the absence of a policy setting forth what services will be provided. There is no requirement in Rule 58A-5.031, Florida Administrative Code, for such a policy. The only provision of this rule remotely related to a requirement for some policy and procedure provides: The facility must ensure that nursing services are conducted and supervised in accordance with Chapter 464, F.S., and the prevailing standard of practice in the nursing community. The rule does not mandate how the facility will ensure this. In sum, there is no rule that requires such a policy be on site. Regarding the alleged violation of Rule 58A- 5.031(2)(d), Florida Administrative Code, by failing to maintain a log of nursing services rendered (Tag N201), there was no requirement to maintain the log in the absence of performing the services.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department dismiss the complaints in Case Nos. 00-1963 and 00-1964. That the Department not license the Respondent with regard to Case No. 00-1965, but permit the Respondent to re- file for the subject license without jeopardy due to any of the inspections which have been the subject of Case Nos. 00- 1963 and 00-1964. DONE AND ENTERED this 9th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2001. COPIES FURNISHED: Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Christal L. Caso, Administrator Paradise Manor 2949 Carriage Drive Daytona Beach, Florida 32119 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3116 Tallahassee, Florida 32308
Findings Of Fact Based upon my observation of the witnesses, their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I make the following findings of fact: In order for Petitioner to obtain a license as a podiatrist in Florida, he is required to successfully complete a licensure examination. The exam is administered by the Department of Professional Regulation. There are nine subject areas determined by the Board and set forth in the Board Rules which are tested on the exam. The questions are developed by consultants and reviewed by individuals within the profession. After the exam, the results are evaluated and those questions that were missed by a significant portion of the applicants are again reviewed by content experts before the final "correct answer" is determined. In July of 1989, Petitioner took the licensure exam and received a grade of 261. A score of 270 was necessary for Petitioner to receive a passing grade on the exam. Each of the challenged questions are worth one point. Therefore, Petitioner must receive credit for nine of the challenged questions in order to achieve a passing score. The exam instructions direct the candidates to select the best answer or the most appropriate answer. The examination is developed to test minimum competency for an entry level podiatrist. Although Petitioner challenged the overall validity of the examination, no evidence was presented to substantiate the contention that the exam does not reasonably test minimum competency. During the hearing, Petitioner abandoned his challenge to questions 28, 45, 62, 64, 101, 139 and 160 on the A.M. portion of the exam and no evidence was presented in connection with those questions. Question 46 on the A.M. portion of the exam deals with enzyme catalyzed reactions. While Petitioner testified that he did not understand the question, the question was not unreasonably written or unduly confusing. The evidence established that the answer deemed "correct" by Respondent was the only choice listed which properly answered the question. Question 47 on the A.M. portion of the exam asked the applicant to pick the enzyme that is lacking as a result of the inborn error of galactose metabolism, galactosemia. Petitioner selected answer B, galactose-1-phosphate uridylyltransferse. The evidence established that there is no such substance as that listed in answer B. The correct answer according to the Respondent is answer C, hexose-1-phosphate uridylyltransferse. While Petitioner contends that he was not familiar with the spelling of the enzyme listed in answer C, the evidence indicates that the spelling in that answer is an accepted alternative spelling and answer C was the most correct answer. Question 79 on the A.M. portion of the exam asks the exam taker to select the answer that explains what indirect bilirubin refers to. Petitioner challenged the question as confusing. Petitioner testified that he was unfamiliar with the term "indirect bilirubin" which is contained in the stem of the question. The evidence indicates that the term is used interchangeably with the term "conjugated bilirubin" with which Petitioner was familiar. The term "indirect bililrubin" is well-known and accepted in medical fields and included in most medical texts. Therefore, the question was not unduly misleading or confusing. There is no dispute that the answer deemed correct by Respondent's was the only choice listed which correctly answered this question. Question 116 on the A.M. portion of the exam requires the exam taker to choose the age by which the babinski reaction is normally outgrown. The correct answer according to the Respondent is answer B, two and a half years. Petitioner selected answer A, 10 months. The reference cited by Respondent in support of its answer indicates that the babinski reaction may persist until two and half years. However, some recognized medical texts state that the babinski reaction is typically outgrown by the age of eight (8) to ten (10) months. Because the question is framed in terms of "normally outgrown", it is misleading and Petitioner's answer should be accepted as correct. With respect to question 139 on the A.M. portion of the exam, after reviewing the question and the Respondent's answer, Petitioner agreed that the Respondent's answer was the only correct response. Therefore, Petitioner withdrew his challenge to this question. Question 189 on the A.M. portion of the exam concerns a patient who presents with a persistent complaint of bluish red mottling upon exposure to cold. The question requires the applicant to choose the most likely diagnosis. The correct answer according to the Respondent is answer B, livedo reticularis. Petitioner's chose answer C, raynaud's disease. There is no dispute that Petitioner's answer is incorrect. Petitioner contends that the question is misleading because the skin of a patient with livedo reticularis may return to normal upon warming. However, while the skin of some patients may return to normal, there is no evidence that the skin of all patients with the condition will return to normal upon warming. Thus, the question is not misleading. With respect to question 1 on the P.M. portion of the exam, after reviewing the question and the Respondent's answer, Petitioner agreed that the Respondent's answer was the only correct response. Therefore, Petitioner withdrew his challenge to this question. With respect to question 12 on the P.M. portion of the exam, after reviewing the question and the Respondent's answer, Petitioner agreed that the Respondent's answer was the only correct response. Therefore, Petitioner withdrew his challenge to this question. Question 18 on the P.M. portion of the exam requires the exam taker to choose the primary physiologic action of secretin. According to the Respondent, the correct answer is B, stimulate pancreatic bicarbonate secretion. Petitioner concedes that the Respondent's answer is one of the physiological actions of secretin. However, he contends that it is not the "primary" physiological action. Even if Petitioner's contention is true, none of the other possible answers were physiological actions of secretin. Therefore, the Respondent's choice of the correct answer was the best answer available. With respect to question 24 on the P.M. portion of the exam, both parties concede that none of the answers listed are correct and, therefore, the question should be disregarded. Other than the questions discussed above, Petitioner presented no evidence in support of a challenge to any other questions. The evidence established that Petitioner is entitled to credit for two (2) of the questions that he challenged on the exam. Granting him credit for those questions would raise his score to 263. Petitioner still has not achieved a high enough score to pass the exam.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's request that his July, 1989 examination for a podiatrist's license be regraded in order to award him a passing grade be DENIED. DONE and ORDERED this 30 day of July, 1990, in Tallahassee, Florida. J. STEPHEN MENTON 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 30 day of July, 1990. APPENDIX The Respondent submitted a Proposed Recommended Order including proposed findings of fact and conclusions of law. The Petitioner did not submit any post-hearing filings. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Included in the preliminary statement. Included in the preliminary statement. Included in the preliminary statement. Included in the preliminary statement. Included in the preliminary statement. Included in the preliminary statement. Adopted in substance in the preliminary statement and in Findings of Fact 4 and 5. Rejected as constituting argument rather than a finding of fact. The subject matter is addressed in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 7. Adopted in substance in Findings of Fact 8. Adopted in substance in Findings of Fact 9. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 11. Adopted in substance in Findings of Fact 13. Adopted in substance in Findings of Fact 16. Adopted in substance in Findings of Fact 17. Included in the preliminary statement. Adopted in substance in Findings of Fact 18. COPIES FURNISHED: E. Harper Field, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Adam Auster 801 South Federal Highway Pompano Beach, Florida 33062 Patricia Guilford Executive Director Department of Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Petitioner is entitled to credit for her response to Question 36 or for her response to Question 41 of the X-ray interpretation portion of the Chiropractic Licensure Examination administered in November 2000.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a Final Order. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the X-ray portion. The X-ray portion consists of 60 multiple-choice questions, with each question having four possible answers. A chiropractic or pathology film is displayed for each question. The candidates are instructed to select from four possible answers the best answer to the written question pertaining to the accompanying film. The candidates are given 90 seconds to answer each question. The X-ray portion of the examination tests minimal competency and does not provide the candidates a certification or specialty in the field of radiology. Petitioner received a failing score on the X-ray portion of the examination. A candidate must correctly answer 45 of the 60 scores to pass. Petitioner received credit for correctly answering 44 questions. If Petitioner is awarded credit for correctly answering Question 36 or Question 41, she will be entitled to a passing score on the X-ray portion of the examination as well as the over-all examination. The written portion of Question 36 described certain symptoms being experienced by a 60-year-old female. The X-ray depicted a patient whose trachea was deviated to the left of its usual position. Candidates were asked to select the answer that best responded to the question "what is your impression of the radiograph." The parties agree that two of the four answers were incorrect. The other two answers will be referred to as Answer A and Answer B. Answer A, the answer Respondent considered the correct answer, was that the radiograph showed the trachea was deviated to the left of its usual position. Answer B, the answer selected by Petitioner, is a possible reason the trachea was deviated to the left. Petitioner agrees that the radiograph showed that the trachea was deviated to the left, but argues that because the question asks for the candidate's impression, she should attempt to answer why the body part was deviated. 2/ The written portion of the question and the radiograph do not provide sufficient information for a candidate to determine that Answer B was the reason the trachea was deviated to the left. Additional testing would be required before a practitioner could reach a correct diagnosis for the cause of the deviation. Answer A was the best answer to Question 36. Petitioner should not be awarded credit for her answer to Question 36 because her answer was not the best answer to the question. The written portion of Question 41 advised that the candidate's examination of a patient did not find a reason for the patient's mild back pain. The candidate was required to select the best answer to the question "[w]hat does the X-ray disclose." The greater weight of the credible evidence established that the only correct answer was the answer selected by Respondent as being the correct answer. Petitioner concedes that the X-ray disclosed what Respondent asserted was the correct answer, but chose another answer because Respondent's answer would not account for the patient's pain. Petitioner chose the answer that the X-ray disclosed a bilateral fracture. There was a dispute among the experts as to whether the X-ray contained jagged lines, which would indicate a fracture. Respondent's expert testified that there were no significant jagged areas. Dr. Stern testified that there may be some jagged areas, but that further testing would be necessary to reveal a fracture. Dr. Richard Santo testified that there were jagged areas that disclosed a severe fracture. The conflicting evidence is resolved by finding that the X-ray did not clearly disclose an area that had been fractured and did not disclose a bilateral fracture. Petitioner should not be awarded credit for her answer to Question 41 because her answer was not the best answer to the question. Respondent's psychometrician evaluated the responses to Question 36 and Question 41, and found that both questions performed at an acceptable level. For Question 36, 77% of the candidates who took the examination with Petitioner chose Respondent's correct answer, while 17% of the candidates choose Petitioner's answer. For Question 41, 74% of the candidates chose Respondent's answer, and 24% chose Petitioner's answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for her responses to Questions 36 and 41 of the X-ray portion of the Chiropractic Licensure Examination administered in November 2000. DONE AND ENTERED this 11th day of October, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 11th day of October, 2001.
Findings Of Fact 1. The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated by reference as modified by Rulings on Respondent’s Exceptions noted above. 2. There is competent, substantial evidence to support the Findings of Fact.
Conclusions Based upon the foregoing findings of fact and conclusions of law, it is Ordered that Petitioner’s challenge to the licensure examination taken December 6, 2000, is Denied and his petition is Dismissed. This order takes effect upon filing with the Clerk of the Department of Health. Done and Ordered this ( , day of , 2002. BOARD OF PODIATRIC MEDICINE
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Department of Health and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal. That Notice of Appeal must be filed within thirty days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Certified Mail to Charles Pellegrini, Katz, Kutter, Alderman, Bryant & Yon, P.A., 106 E. College Ave., Suite 1200, Tallahassee, FL 32301, and Perry Verleni, 7624 S.W. 56th Avenue, Gainesville, FL 32608, and by interoffice mail to Cherry Shaw, Department of Health, 4052 Bald Cypress Way, Tallahassee, FL 32399-1783, Ella Jane P. Davis, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060, and to Ann Cocheu, Office of the Attorney General, PL 01 The Capitol, Tallahassee, FL 32399-1050, this IS. day of "\ , 2002. LE qlee F.\Usens\ ADMIN\WILMA\ Ann \pod\000208d.wpd
