The Issue This is a proceeding pursuant to the Florida Equal Access To Justice Act, Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code. Petitioner seeks to recover his attorney's fees and costs incurred when defending an action brought against him by the Department of Professional Regulation, Board of Medicine. The issue for determination is whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 90-4205, DPR Case No. 89-05921, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or if there exists special circumstances which would make an award unjust.
Findings Of Fact Respondent is a state agency which initiated a proceeding with the filing of an Administrative Complaint against Ronald F. David, M.D. As stipulated, Petitioner's Attorney's Fees and Costs are not unreasonable. Petitioner was the prevailing small business party in the underlying case, Department of Professional Regulation v. Ronald F. David, M.D., DOAH Case No. 90-04205, DPR Case No. 89-05921, when the case against Dr. David was dismissed on January 25, 1991. As stipulated, there are no known circumstances which would make an award of attorney's fees and costs unjust. The one remaining issue of fact to be determined is whether sufficient evidence was presented to the Probable Cause Panel of the Board of Medicine to support a finding of probable cause against the Petitioner, and whether the Panel properly considered that evidence. S. A. was a premature infant who had a patent ductus arteriosus (PDA). Petitioner, a pediatric surgeon with credentials to do general surgery, pediatric surgery, and chest surgery, was consulted by S. A.'s pediatrician. Petitioner, in turn, consulted Dr. Johnston, a thoracic cardiovascular surgeon, concerning surgery to close S. A.'s PDA. Dr. Johnston performed the surgery with Petitioner as assistant surgeon on May 31, 1986, at the Orlando Regional Medical Center. Petitioner had assisted in numerous such surgical procedures in the past but did not hold himself out as competent to perform them on his own. At surgery the left pulmonary artery was mistakenly ligated instead of the PDA. S. A.'s condition deteriorated and tests indicated the probable mistaken ligation. The baby was transferred to Shands Hospital where she died before a second operation could be performed. Autopsy revealed the mistaken ligation and the pathologist implicated the compromised cardiopulmonary system as a cause of death. No anatomical anomalies of the vessels were noted at autopsy. On the basis of a closed claim report to the Department of Professional Regulation, the circumstances surrounding the death of S. A. were reviewed by a physician employed by the Department's Division of Medical Quality Assurance. Petitioner was informed of this review on January 13, 1989. Review of the medical records resulted in cases being opened against three of the seven physicians who participated in the care of S. A. Petitioner was notified of the case by certified mail on August 1, 1989. Petitioner was interviewed on August 10, 1989. Dr. Johnston was interviewed by the same investigator on August 25, 1989. According to the investigator's notes, Petitioner stated that Dr. Johnston did not consult him during the surgery, that the anatomy did not appear to be the same as in prior cases, but that he did not question Dr. Johnston's decision as to which vessel to ligate. Dr. Johnston stated that he asked Petitioner to examine the anatomy when he (Johnston) had located what he thought was the ductus, and that Petitioner obliged by examining the operation field, but did not object to the procedure. The medical records of S. A. were obtained by subpoena from the Orlando Regional Medical Center. On February 5, 1990, both Petitioner's and Dr. Johnston's investigative files were sent to Dr. William Price, a thoracic and vascular surgeon, for his review. The letter requesting his opinion clearly separates the actions of Petitioner and Dr. Johnston to be considered. On February 21, 1990, Dr. Price's analysis stated, "The assistant, Dr. Ronald David, should have been accomplished enough to recognize the proper anatomy, but the ultimated [sic] responsibility was not his." (Respondent's exhibit 2, 3) The cases, Department of Professional Regulation v. Ronald F. David, M.D., DPR Case No. 89-05921, and Department of Professional Regulation v. Alan Johnston, M.D., DPR Case No. 89-05922, were prepared for the Probable Cause Panel meeting scheduled for May 11, 1990. Materials were sent to the three Panel members and their counsel at least one week in advance of the meeting. Materials sent to the panel included the complete investigative case file, including any exhibits, and a recommendation from the Department. Present at the meeting of the Panel on May 11, 1990 were: Dr. Robert Katims, Chairman of the Probable Cause Panel, Dr. Marilyn Wells and Mr. Gilbert Rodriguez, members of the Panel; Ms. Catherine Lannon, Assistant Attorney General and counsel to the Panel; Mr. Carlos Ramos and Ms. Stephanie Daniel, attorneys from the Department of Professional Regulation, and Mr. Brian Lynch, Administrative Assistant at the Department, whose duty it was to prepare and distribute materials for the Panel's consideration. Ms. Lannon instructed the Panel members to direct any questions concerning their legal duties and interpretation of laws or rules to her. She cautioned the Panel members that any factual questions concerning the investigation or why a certain recommendation was made were to be directed to the Departmental attorneys. She asked if the members had sufficient time to review all the materials sent to them; each member replied in the affirmative. And she cautioned the members that it must be clearly stated or implied from the record that the members are making independent judgments on the cases and that they are discussing the correct case. The Panel first considered Dr. Johnston's case. The Department recommended that an Administrative Complaint be filed alleging that Dr. Johnston practiced below the standard of care in that, "[He] inadvertently ligated the left pulmonary artery instead of the patient ductus arteriosus, by relying on the anesthesiologist's observation that the murmur had disappeared and the surgical assistant's failure to object or recognize the proper anatomy." (Respondent's exhibit 1, page 4-5) The Panel was informed that Petitioner's companion case was on the agenda. The Panel at this time discussed Petitioner at some length, including Petitioner's role as the referring physician, that Petitioner assisted at the surgery, that Petitioner was not a chest but a pediatric surgeon, and that Dr. Johnston and Petitioner disagreed as what was said and done by whom at the operation. Dr. Wells acknowledged that the surgeon in charge in the "captain of the ship"; the Chairman, Dr. Katims, in response to a question from Ms. Lannon, denied that the assistant surgeon is exonerated from all responsibility. Thereupon Probable Cause was found in Dr. Johnston's case and the Panel voted to file an Administrative Complaint. (Respondent's exhibit 1, page 7-8) The Panel later in the meeting considered Petitioner's case. The Department had recommended that Probable Cause be found and a letter of guidance be issued. Mr. Ramos presented the basic facts to the Panel. Both physicians on the Panel immediately disagreed with the Department's recommendation and requested an Administrative Complaint to be filed against Petitioner. The Panel affirmed its two main concerns: that Petitioner referred the patient to Dr. Johnston, and that at surgery Dr. Johnston said he specifically asked the Petitioner to review his ligation. (Petitioner's exhibit 4, page 6-7) Consideration of the transcripts of both Dr. Johnston's and Petitioner's cases reveals that there was considerable discussion and awareness by the panel of the specifics of S. A.'s case, that they were quite sensitive to the fact that Petitioner was the assistant surgeon and that he denied he was asked to verify the procedure. The vote was unanimous that Probable Cause be found and that an Administrative Complaint be filed against Petitioner. The Administrative Complaint was duly filed on May 22, 1990, alleging Petitioner fell below the standard of care by failing to object to any part of the procedure performed by Dr. Johnston and by failing to point out the proper anatomy for ligation. (Petitioner's Exhibit 1) In a subsequent meeting of the Probable Cause Panel, the Department presented it's recommendation that Petitioner's case be closed without prosecution based on a second expert's opinion that " . . . ligation of the wrong vessel was a known but although unfortunate complication of this procedure but not necessarily below the standard of care . . . " (Petitioner's Exhibit 12, 1). This recommendation was eventually accepted. The ultimate dismissal of the complaint does not negate the fact that at the time that probable cause was found, the panel had sufficient and competent information upon which it made its decision. It had conflicting statements by the two physicians; it had an expert's opinion; and it had extensive medical reports. It was not required to seek out sufficient evidence to assure success in a formal hearing on the complaint.
The Issue Pursuant to section 409.913(15), (16), and (17), Florida Statutes; Florida Administrative Code rule 59G-9.070; and the Final Audit Report issued on November 17, 2015 (FAR), the issues are whether Petitioner overpaid Medicaid reimbursements to Respondent during the audit period of January 1, 2011, through February 28, 2014 (Audit Period), and, if so, the amount of the total overpayments; whether Petitioner may impose a fine against Respondent and, if so, the amount of the fine; and whether Petitioner may recover costs from Respondent and, if so, the amount of the costs.
Findings Of Fact Respondent became a physician in Cuba in 1974. Prior to coming to the United States, Respondent provided medical services in Mozambique for five years in an HIV control program. In 1991, Respondent came to the United States, where he obtained his medical license in 1994. Respondent concentrates his practice in family medicine. Most of the hospitalizations discussed below took place at Hialeah Hospital, although some of them took place at the University of Miami Hospital. At all material times, Respondent was an enrolled Medicaid provider who submitted to Petitioner claims for reimbursement for medical assistance or services provided to Medicaid recipients or patients. By letter dated March 12, 2015, to Respondent, Petitioner advised that it was reviewing Respondent's Medicaid claims for the Audit Period "to determine whether the claims were billed and paid in accordance with Medicaid policy." To conduct this review, Petitioner employed a peer reviewer, David Liebert, M.D. Dr. Liebert concentrates his practice in family medicine and, for over 30 years, has been board certified by the American Board of Family Medicine. After completing the audit, Petitioner issued the FAR, which states that, after a review of a random sample of 35 recipients, on whose account Respondent had submitted 147 claims, Petitioner had found overpayments of $5196.84 or approximately $35.35 per claim. Extending this finding by the 4424 claims that Respondent submitted during the Audit Period, the FAR states that the total overpayments, after extension, are $156,400.08, within a 50% confidence interval, or $134,897.22, within a 90% confidence interval. The FAR adds a fine of 20% of $134,897.22, or $26,979.44. Prior to the hearing, Dr. Liebert reexamined the medical records and altered certain of his findings. As a result, Petitioner reduced the total overpayments, after extension, from $134,897.22 to $128,731.71 and the alleged fine to $25,746.34. Based on this reexamination, on January 24, 2018, Petitioner completed a Documentation Worksheet for Imposing Administrative Sanctions (Sanctions Worksheet), which asserts that 97 of the 147 audited claims were erroneous. The applicable Medicaid Provider Agreement, paragraph 5(b), requires the provider to "[k]eep, maintain, and make available in a systematic and orderly manner all medical and Medicaid-related records as AHCA requires for a period of at least five (5) years." The applicable Florida Medicaid Provider General Handbook, page 2-55, requires that a provider "retain all medical-related records as defined in [rule] 59G-1.010(154) F.A.C. and medical records as defined in [rule] 59G-1.010(160) F.A.C. on all services provided to a Medicaid recipient. . . . The records must be accessible, legible and comprehensible." The Florida Medicaid Provider General Handbook, page 2-56, requires the provider to retain medical records for five years from the date of service (DOS). The Florida Medicaid Provider General Handbook, page 2-56, states that the medical records "must state the necessity for and extent of services provided." Information to be incorporated into medical records includes a description of what was done during the visit. This information must include the history, the physical assessment, the chief complaint, diagnostic tests and results, diagnoses, the treatment plan with any prescriptions, scheduling for additional services, progress reports, dates of service, referrals, and anything else "specific to a particular service." The handbook warns that a failure to comply with recordkeeping requirements may result in the recoupment of reimbursements and sanctions. The 2010 Physician Services Coverage and Limitations Handbook was in effect during the Audit Period ("Coverage and Limitations Handbook"). Findings as to the fees corresponding to a particular code will refer to the fees in effect as of the DOS at issue.1/ Addressing primarily the principle of medical necessity, but also the appropriate level of service (LOS), the Coverage and Limitations Handbook warns that services may be reimbursed only if they are: necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; [b]e individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient’s needs; [b]e consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational; [r]eflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; and [b]e furnished in a manner not primarily intended for the convenience of the recipient, the recipient’s caretaker, or the provider. Coverage and Limitations Handbook, pp. 2-2 through 2-3. The Coverage and Limitations Handbook directs the provider to assign to each reimbursement claim a code from the Current Procedural Terminology (CPT), which is published annually by the American Medical Association (AMA).2/ Each code is assigned a reimbursement fee, which may change within the Audit Period. Coverage and Limitations Handbook, p. 2-2; Fee Schedules. Codes in this case fall under the Evaluation and Management (E/M) section of the CPT.3/ The E/M section is divided into two subsections: a brief subsection on green-tinted pages called "Evaluation and Management (E/M) Services Guidelines" (E/M Guidelines) and the longer, main subsection on white pages called "Evaluation and Management," which sets forth the E/M codes (E/M Codes). The E/M Guidelines defines terms such as "chief complaint" and "history of present illness." The E/M Guidelines also identifies the elements of a family history, social history, and past history, as well as the systems that may be reviewed for a history, and the body areas and organ systems that may be examined for an examination. Most importantly, the E/M Guidelines states the requirements for determining the level of a history, an examination, and medical decision making. In setting forth the individual codes, the E/M Codes highlights in bold the specific components of each code. For most codes in this case, the components are the history, the examination, and medical decision making. The E/M Codes is organized by type of service. Three categories capture all but one reimbursement claim in this case: "Office or Other Outpatient Services," "Hospital Observation Services," and "Hospital Inpatient Services." The first category is further divided into "New Patient" and "Established Patient" subcategories. The second and third categories are further divided into initial care, subsequent care, and discharge services. At the start of each category and subcategory in the E/M Codes is a statement of general information. Under each code description, nonboldface provisions identify the number of components required among the three components listed (i.e., two or three) and other general information that does not rise to the level of requirements, but may assist in confirming the correct coding of a difficult-to-code patient encounter. The general information included in the E/M Codes includes substantive provisions for applying the codes. For example, the general information requires that, for Initial Observation Care and Initial Hospital Care, the billed services must be provided on the date of admission to observation status or inpatient status. CPT, pp. 12-14. Also, for Subsequent Observation Care and Subsequent Hospital Care, the general information limits the data forming a history or examination to that which has accrued since the preceding billed DOS.4/ For a history, the codes themselves reinforce this point by using the term "interval history" for the codes under Subsequent Observation Care and Subsequent Hospital Care, but merely "history" for the codes under Initial Observation Care and Initial Hospital Care.5/ Preliminarily, the E/M Guidelines acknowledges that the scope of the history taken by or for a provider generally is "dependent upon clinical judgment and on the nature of the presenting problem(s)." The CPT does not elaborate upon the provider's "clinical judgment," but recognizes five levels of a presenting problem: minimal, self-limited or minor, low severity, moderate severity, and high severity. CPT, p. 6.6/ Obviously, clinical judgment may drive a higher level of history than indicated by the nature of the presenting problem.7/ The CPT recognizes four levels of history: Problem focused: Chief complaint; brief history of present illness or problem.8/Expanded problem focused: Chief complaint; brief history of present illness9/; problem pertinent system review. Detailed: Chief complaint; extended history of present illness; problem pertinent system review extended to include a review of a limited number of additional systems; pertinent past, family, and/or social history directly related to the patient's problems. Comprehensive: Chief complaint; extended history of present illness; review of systems that is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems10/; complete past, family, and social history. CPT, p. 8. The 14 systems available for review are: Constitutional symptoms (fever, weight loss, etc.) Eyes Ears, nose, mouth, throat Cardiovascular Respiratory Gastrointestinal Genitourinary Musculoskeletal Integumentary (skin and/or breast) Neurological Psychiatric Endocrine Hematologic/lymphatic Allergic/immunologic CPT, p. 6. The higher levels of history logically add criteria. A problem focused history requires only a chief complaint and a brief history of the present problem. An expanded problem focused history requires these criteria and a review of a system pertinent to the problem. A detailed history requires a chief complaint, an extended history of the present problem, a review of a system pertinent to the problem, a review of a limited number of additional systems, and a review of the pertinent past,11/ family,12/ and social history13/ (PFSH).14/ A comprehensive history requires a chief complaint, an extended history of the present problem, a review of all systems, and a complete PFSH. E/M Guidelines explains each criterion. The chief complaint is "a concise statement describing the symptom, problem, condition, diagnosis, or other factor that is the reason for the encounter, usually stated in the patient's words." CPT, p. 4. The history of the present problem is "a chronological description of the development of the patient’s present illness from the first sign and/or symptom [or from the previous encounter] to the present" that "includes," in "significant . . ." relation to the "presenting problem," a "description of location, quality, severity, [duration,]15/ timing, context, modifying factors, and associated signs and symptoms." CPT, p. 6. A review of systems is "an inventory of body systems obtained through a series of questions seeking to identify signs and/or symptoms that the patient may be experiencing or has experienced." CPT, p. 7. For all history criteria, the patient, patient's family member or nurse, or other third party with access to the patient may provide items of history to the physician: in these instances, directly or indirectly,16/ the patient relates the history to the physician. A provider also may obtain history from data, such as clinical reports or imaging studies, or analysis, such as impressions, found elsewhere in the patient's medical records.17/ There are three words and one phrase concerning history that the CPT could have defined, but did not, although the lack of definitions may not have been inadvertent. The words are a "brief" or "extended" history of the problem, a "review" of a system, and a review of a "limited number" of additional systems. CPT provisions addressing history, examination, and medical decision making are supplemented by the 1997 Documentary Guidelines for Evaluation and Management Service (Documentary Guidelines) issued by the Centers for Medicare and Medicaid Services (CMS). After notice to the parties, without objection, the administrative law judge has taken official notice of the Documentary Guidelines for the limited purpose of providing context for certain provisions of the CPT.18/ The Documentary Guidelines distinguishes between a brief and extended history based on "the amount of detail needed to accurately characterize the clinical problem(s)." Documentary Guidelines, p. 7. Relying on the above-listed details, such as the location, severity, or duration of symptoms or signs, the Documentary Guidelines requires that a brief history of the present problem include only one of these details and that an extended history of the problem include at least four details "or the status of at least three chronic or inactive conditions." Documentary Guidelines, p. 7. As noted above,19/ the Documentary Guidelines may not supply a numerical threshold, but the Documentary Guidelines illustrates one means by which to distinguish a brief from an extended history of the problem and prompts consideration of whether, depending on the facts of a patient encounter, a chronic or inactive condition, if medically relevant, may be part of a history of the problem. Ultimately, the distinction between a brief or extended history is based on the facts of an individual history, including the number of history details, and the circumstances surrounding each patient encounter, including the level of the history relative to the complexity of the medical decision making and nature of the presenting problem, the frequency of patient encounters relative to the variability of the history between encounters, and the actual and reasonable amount of time spent by the physician on the key components relative to the amount of time typically spent on these components for the subject code. A review of a system refers to physician's collection and analysis of data for one of the 14 systems set forth above. The CPT states that a review of a system is to "define the problem, clarify the differential diagnosis, identify needed testing, or serve as baseline data on other systems that might be affected by any possible management options." CPT, p. 9. In general, a "review" occurs when the history obtained is sufficient to help the physician perform any of these four tasks. Ultimately, the determination of whether sufficient physician activity has taken place to constitute a review is based on the circumstances surrounding each patient encounter, including the level of the history relative to the complexity of the medical decision making and nature of the presenting problem, the frequency of patient encounters relative to the variability of the history between encounters, and the actual and reasonable amount of time spent by the physician on the key components relative to the amount of time typically spent on these components for the subject code. A "limited number of additional systems" could mean as few as one additional system. For the Documentary Guidelines, a "limited number" means two systems.20/ Ultimately, the determination of whether a physician has reviewed a limited number of additional systems is based on the circumstances surrounding each patient encounter, including the level of the history relative to the complexity of the medical decision making and nature of the presenting problem, the frequency of patient encounters relative to the variability of the history between encounters, and the actual and reasonable amount of time spent by the physician on the key components relative to the amount of time typically spent on these components for the subject code. For an expanded problem focused history, the CPT requires only that the reviewed system be pertinent, not the most pertinent. The Documentary Guidelines states that the system to be reviewed must be "the system directly related to the problem(s)." Documentary Guidelines, p. 8. Although more than one system can be directly related to a problem, important practical considerations support the AMA's decision to require only that the reviewed system be "pertinent," rather than the "most pertinent." Textually, the modifier, "pertinent," which applies to the review of one system, as required for an expanded problem focused level of history, does not apply to the review of "additional systems," as required for a detailed level of history. Logic may suggest that the physician review first all pertinent systems before reviewing additional systems, but the CPT does not so provide. As it does for the history, the CPT first acknowledges that the level of examination generally is "dependent upon clinical judgment and on the nature of the presenting problem(s)" and then identifies four levels for examination: 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 multisystem examination or complete examination of a single organ system. . . . The CPT identifies seven body areas that may be the subject of an examination: Head, including the face Neck Chest, including breasts and axilla Abdomen Genitalia, groin, buttocks Back Each extremity CPT, p. 9. The CPT identifies 11 organ systems that may be the subject of an examination: Eyes Ears, nose, mouth, and throat Cardiovascular Respiratory Gastrointestinal Genitourinary Musculoskeletal Skin Neurologic Psychiatric Hematologic/lymphatic/immunologic CPT, p. 10.21/ Again, the higher levels of examination add criteria. A problem focused examination requires a limited examination of an affected body area or organ system. An expanded problem focused examination requires a limited examination of an affected body area or organ system and a limited examination of one or more other symptomatic or related organ systems. A detailed examination requires an extended examination of an affected body area or organ system and an extended examination of one or more other symptomatic or related organ systems. A comprehensive examination requires a general multi-system examination or a complete examination of a single system. Unlike a history, an examination may not be based on data and analysis derived from a source other than the patient or a patient representative; an examination instead requires direct, physical contact with the patient by the provider. An examination requires that the provider, relying on his education, training, talent, experience, and judgment, learn what he can of the patient's health through the use of the provider's senses--as in touching, observing, listening, and even smelling. As noted in the Documentary Guidelines, the sole exception to the requirement of direct, physical contact with the patient is that the provider may be credited for vital signs taken by staff, as long as the vitals are incorporated into the medical records. Documentary Guidelines, p. 13. There are four words concerning examination that the CPT could have defined, but did not and, again, the lack of definitions may not have been inadvertent.22/ The words are "limited" and "extended" and the singular (plural) versions of "area(s)" and "system(s)." Except for the general multi-system examination, which is not found in any of the patient encounters in this case, the CPT recognizes three types of examination: limited, extended, and complete. A complete examination of an organ system implies an examination of all elements of one organ system, but the minimum requirements of limited and extended examinations are not as easily defined.23/ Ultimately, the distinction between a limited or extended examination is based on the circumstances surrounding each patient encounter, including the level of the examination relative to the complexity of the medical decision making and nature of the presenting problem, the frequency of patient encounters relative to the variability of the examination between encounters, and the actual and reasonable amount of time spent by the physician on the key components relative to the amount of time typically spent on these components for the subject code. The CPT fails to explain the use of the alternatives of the singular and plural version of "body area(s)" or "organ system(s)." The expanded problem focused examination calls for a limited examination of the "affected body area or organ system" and "other symptomatic or related organ system(s)." The detailed examination calls for an extended examination of the "affected body area(s)" and "other symptomatic or related organ system(s)." Obviously, for an expanded problem focused examination, the CPT requires a limited examination of the--or one--affected body area or organ system, but the CPT also requires a limited examination of one or more additional areas or systems. For a detailed examination, the CPT requires an extended examination of one or more affected body areas or organ systems and one or more additional areas or systems. Each reference to one or more areas or systems requires a determination of the number of areas or systems that must be examined. Ultimately, the determination of the number of body areas or organ systems that must be examined is based on the circumstances surrounding each patient encounter, including the level of the examination relative to the complexity of the medical decision making and nature of the presenting problem, the frequency of patient encounters relative to the variability of the examination between encounters, and the actual and reasonable amount of time spent by the physician on the key components relative to the amount of time typically spent on these components for the subject code. The Documentary Guidelines provides detailed checklists for the examination of a single organ system or the general multi-system examination.24/ Documentary Guidelines, pp. 11-42. As noted above,25/ the quantitative thresholds in the Documentary Guidelines are inapplicable to the present case, but these detailed checklists are useful as extensive enumerations of potential elements of an examination. Also, by organizing the checklists by organ systems, the Documentary Guidelines suggests which elements of an examination are relevant to particular organ systems. The CPT contains a table for determining the complexity of medical decision making (fourth column) based on the presence of two of three factors (first through third columns). The table states: Number of Diagnoses Amount and/or Risk of Compli- Type of or Management Complexity of cations and/or Decision- Options Data To Be Reviewed Morbidity or Mortality making minimal minimal or none minimal straight- forward limited limited low low complexity multiple moderate moderate moderate complexity extensive extensive high high complexity The CPT explains that 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 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 The CPT adds, "[c]omorbidities/underlying diseases, in and of themselves, are not considered in selecting a level of E/M services unless their presence significantly increases the complexity of the medical decision making." CPT, p. 10. However, medical decision making does not include the interpretation of tests and studies,26/ although the interpretative reports themselves constitute part of the data to be reviewed by the provider. The Documentary Guidelines states that the number of diagnoses or management options is based on the number and types of problems addressed during the patient encounter, the complexity of establishing a diagnosis, and the management decisions that are made by the physician. The Documentary Guidelines notes that decision making is easier for a diagnosed problem than for a problem that has been identified, but not yet diagnosed. The number and types of diagnostic tests may be indicative of the complexity of medical decision making. Problems that are resolving are less complex than those that are worsening or staying the same. The complexity of the data depends on the types of diagnostic tests that have been ordered and reviewed. Indications of the complexity of medical decision making include discussions between the provider and the physician who ordered or interpreted the tests and the provider's personal examination of an interpreted test. Documentary Guidelines, pp. 43 et seq. The Documentary Guidelines states that the amount and complexity of data to be reviewed is based on the diagnostic testing ordered or reviewed. Indications of higher complexity include discussions between the provider and the physician who performed or interpreted the test and the provider's personal examination of the image, tracing, or specimen. Documentary Guidelines, p. 45. The Documentary Guidelines states that the risk of significant complications, morbidity, or mortality is based on the risks associated with the presenting problem, the diagnostic procedures, and the possible management options. The Documentary Guidelines includes a matrix for determining the risk of complications, morbidity, or mortality. The overall risk is determined by the highest level risk in any one of three categories: presenting problem, diagnostic procedure ordered, and management options selected.27/ The other components, which are called "contributory" components, are generally not as important as the "key" components of the history, the examination, and medical decision making. The first two contributory components--counseling and coordination of care--may not be present in every patient encounter. "Counseling" is defined as "a discussion with a patient and/or family" concerning one or more of the following: diagnostics, prognosis, risks and benefits of treatment options, instructions for follow-up, risk reduction, and patient and family education. CPT, p. 6. The third contributory component, the nature of the presenting problem, is present in every patient encounter. As noted above, the level of history and examination must be commensurate with the nature of presenting problem. The nature of the presenting problem and average time28/ are useful to confirm the coding of a patient encounter based on the history, the examination, and medical decision making. CPT, p. 9. However, neither of these contributory components drives a particular LOS, so it is improper to substitute time for analysis of the history and examination components29/ or the nature of the presenting problem for analysis of the medical decision making component. For "Initial Observation Care," the CPT provides three codes: 99218 Initial observation care, per day, for the evaluation and management of a patient, which requires these 3 key components: A detailed or comprehensive history;A detailed or comprehensive examination;Medical decision making that is straightforward or of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the problem(s) requiring admission to "observation status" are of low severity. 99219 Initial observation care, per day, for the evaluation and management of a patient, which requires these 3 key components: A comprehensive focused history;A comprehensive focused examination;Medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the problem(s) requiring admission to "observation status" are of moderate severity. 99220 Initial hospital care, per day, for the evaluation and management of a patient, which requires these 3 key components: A comprehensive history;A comprehensive examination;Medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the problem(s) requiring admission to "observation status" are of high severity. For "Subsequent Observation Care," the CPT provides three codes: 99224 Subsequent observation care, per day, for the evaluation and management of a patient, which requires at least 2 of these 3 key components: Problem focused interval history;Problem focused examination;Medical decision making that is straightforward or of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the patient is stable, recovering or improving. Physicians typically spend 15 minutes at the bedside and on the patient's hospital floor or unit. 99225 Subsequent observation care, per day, for the evaluation and management of a patient, which requires at least 2 of these 3 key components: An expanded problem focused interval history;An expanded problem focused examination;Medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the parent's and/or family's needs. 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. 99226 Subsequent observation care, per day, for the evaluation and management of a patient, which requires at least 2 of these 3 key components. A detailed interval history;A detailed examination;Medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the patient is unstable or has developed a significant complication or a significant new problem. Physicians typically spend 35 minutes at the bedside and on the patient's hospital floor or unit. For "Observation Care Discharge Services," the CPT provides one code: 99217 Observation care discharge day management. (This code is to be utilized by the physician to report all services provided to a patient on discharge from "observation status" if the discharge is on other than the initial date of "observation status." For "Initial Hospital Care," the CPT provides three codes: 99221 Initial hospital care, per day, for the evaluation and management of a patient, which requires these 3 key components: A detailed or comprehensive history;A detailed or comprehensive examination;Medical decision making that is straightforward or of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low severity. Physicians typically spend 30 minutes at the bedside and on the patient's hospital floor or unit. 99222 Initial hospital care, per day, for the evaluation and management of a patient, which requires these 3 key components: A comprehensive history;A comprehensive examination;Medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 50 minutes at the bedside and on the patient's hospital floor or unit. 99223 Initial hospital care, per day, for the evaluation and management of a patient, which requires these 3 key components: A comprehensive history;A comprehensive examination;Medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of high severity. Physicians typically spend 70 minutes at the bedside and on the patient's hospital floor or unit. For "Subsequent Hospital Care," the CPT provides three codes: 99231 Subsequent hospital care, per day, for the evaluation and management of a patient, which requires at least 2 of these 3 key components: A problem focused interval history;A problem focused examination;Medical decision making that is straightforward or of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the patient is stable, recovering or improving. Physicians typically spend 15 minutes at the bedside and on the patient's hospital floor or unit. 99232 Subsequent hospital care, per day, for the evaluation and management of a patient, which requires at least 2 of these 3 key components: An expanded problem focused interval history;An expanded problem focused examination;Medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the parent's and/or family's needs. 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. 99233 Subsequent hospital care, per day, for the evaluation and management of a patient, which requires at least 2 of these 3 key components. A detailed interval history;A detailed examination;Medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the patient is unstable or has developed a significant complication or a significant new problem. Physicians typically spend 35 minutes at the bedside and on the patient's hospital floor or unit. For "Hospital Discharge Services," the CPT provides two codes: 99238 Hospital discharge day management; 30 minutes or less. 99239 more than 30 minutes. Other relevant codes are for an encounter with a new patient in an office or other outpatient setting. These codes are: 99201 Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A problem focused history;A problem focused examination;Straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. 99202 Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: An expanded problem focused history;An expanded problem focused examination;Straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family. 99203 Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components:A detailed history;A detailed examination;Medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. 99204 Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A comprehensive history;A comprehensive examination;Medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. 99205 Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A comprehensive history;A comprehensive examination;Medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. Also at issue are four codes for an encounter with an established patient in an office or other outpatient setting. These codes provide: 99212 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: A problem focused history;A problem focused examination;Straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. 99213 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: An expanded problem focused history;An expanded problem focused examination;Medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. 99214 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: A detailed focused history;A detailed problem focused examination;Medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. 99215 Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: A comprehensive focused history;A comprehensive problem focused examination;Medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family. One claim involves code 93000, which provides: 93000 Electrocardiogram, routine ECG with at least 12 leads; with interpretation and report. Petitioner and Dr. Liebert repeatedly misinterpreted the above-stated codes in two respects. First, several of these codes require "at least" two of three components. Despite the quoted language, these are two-component codes because the CPT establishes minimum conditions for a specific reimbursement; a code requiring "at least" two components is satisfied by a patient encounter with only two components. Additionally, the CPT does not specify the circumstances under which a two- component code might require three components.30/ Except perhaps for alerting the over-cautious reader that the satisfaction of three components does not preclude the use of a two-component code, "at least" is surplusage. Petitioner and Dr. Liebert took a different view. They conceded that a two-component code requires only two components for coding, but read into the CPT the requirement of some performance of the third component in order for a patient encounter to satisfy a two-component code. Pet.'s proposed recommended order, ¶ 44. Petitioner's proposed recommended order cites as authority CPT Appendix C31/--more particularly, a disclaimer at the start of Appendix C. As cited by Petitioner's proposed recommended order, the disclaimer states: "The three components (history, examination, and medical decision making) must be met and documented in the medical record to report a particular level of service." CPT, p. 562. This would be an odd location for language to override the clear provisions of the two-component codes themselves. In any event, the modest role intended for this passage is revealed by the disclaimer immediately preceding it: Of utmost importance is that these clinical examples are just that: examples. A particular patient encounter, depending on the specific circumstances, must be judged by the services provided by the physician for that particular patient. Simply because the patient's complaints, symptoms, or diagnoses match those of a particular clinical example does not automatically assign that patient encounter to that particular level of service. CPT, p. 562.32/ Petitioner's argument that two-component codes require some activity in the third component is not only unsupported in the CPT, but makes no practical sense. Petitioner's argument requires a lower level of history or examination33/ below problem focused because, if its argument impliedly requires a problem focused history or examination, the argument plainly is reading the two-component language in the codes to require three components. In practice, though, there is no lower level of history or examination than problem focused because it is impossible to take any history without also obtaining a chief complaint and a brief history of the problem, and it is impossible to conduct any examination without conducting a limited examination of the affected body areas or organ systems. Also, Petitioner and Dr. Liebert repeatedly misinterpreted codes 99238 and 99239. As cited above, these codes are succinct and rely solely on time spent on "discharge day management." The general information for this subsubcategory states that these codes "are used to report the total duration of time spent by a physician for final hospital discharge of a patient." CPT, p. 16. These codes "include, as appropriate, final examination of the patient, discussion of the hospital stay, . . . instructions for continuing care to all relevant caregivers, and preparation of discharge records, prescriptions and referral forms." Id. Seizing upon illustrative language in the general information, Petitioner and Dr. Liebert incorrectly denied claims for these codes when discharge services did not include the services provided as examples. But, as two-component codes require only two components, so 30 minutes or less in any discharge services satisfies code 99238, and more than 30 minutes in any discharge services satisfies code 99239. Recipients and claims are identified by number. For example, Claim 1-1 is the first claim submitted by Respondent within the Audit Period on account of Recipient 1. Respondent billed Claim 1-1, for November 17, 2011, under code 99220. Petitioner denied the claim for insufficient documentation34/ and illegible documentation. At hearing, Respondent conceded the denial of Claim 1-1,35/ so Petitioner overpaid Respondent $78.10. Respondent billed Claim 2-1, for January 30, 2013, under code 99205. Petitioner downcoded the claim to code 99203. Claim 2-1 is for an office visit. For patient encounters in his office, Respondent used a software program called Practice Fusion, which facilitated the production of typed notes, rather than the handwritten notes that document Respondent's patient encounters in a hospital.36/ Dr. Liebert testified that the examination was comprehensive, the history was detailed, and the medical decision making was moderately complex. Respondent testified that the examination and history were comprehensive and the medical decision making was highly complex. Recipient 2 was a 36-year-old male who visited Respondent's office as a new patient. His major presenting problem was elevated blood pressure, although he also presented with a cyst on his forehead, for which Respondent referred him to a dermatologist. Contrary to the testimony of Dr. Liebert and Respondent, the history was neither detailed nor comprehensive; it was no more than expanded problem focused. The note states that Recipient 2 has high blood pressure that is asymptomatic. Recipient 2 reported changes in his visual acuity, occasional dizziness and lightheadedness, which he attributed to his eyeglasses and problems with his vision. The remainder of the software-generated note documents what Respondent did not explore: Rest of 12 systems reviewed and no changes. Allergies: Not known. Developmental history: Not recorded. Family health history: Noncontributory. Major events: Arterial Hypertension, Vision problems. Nutrition history: Not recorded. Ongoing medical problems: Not recorded. Preventive care: Not recorded. Social history: Denies smoking, alcohol nor drug abuse. "No changes" has little meaning for a new patient, such as Recipient 2, due to the absence of any documented baseline history. So, the useful history captured by this note clearly pertains to the integumentary, eyes, and cardiovascular systems and possibly pertains to the neurological and allergic/immunologic systems. Whether the chief complaint were the hypertension or the cyst, it is a stretch to find even a brief history of the problem, such as how long the patient has had the high blood pressure or cyst and how fast the blood pressure has elevated or how fast the cyst has grown. Clearly, though, there was no extended history of the present illness nor a PFSH, so the history could not qualify as detailed. Both physicians agree that the examination was comprehensive, but, again assigning as much weight as possible to their testimony, it is impossible to find that the examination was more than detailed. The examination was neither a general multi-system examination nor a comprehensive examination of a single organ system. On its face, the examination lacked the depth of a comprehensive examination of the myriad elements that constitute a single organ system. The examination did not constitute a general multi-system examination, as it touched on only three of seven body areas (counting the heart as the chest) and of five of 11 organ systems (counting the abdomen as gastrointestinal and not counting the ear due to the omission of the nose, mouth, and throat, which are part of the organ system that includes the ear). For vitals, the note shows blood pressure of 167/91 and a pulse of 64, but no temperature or respiration rate. Treating the examination as detailed also requires considerable deference to Respondent's clinical judgment over the minor nature of the presenting problems. The medical decision making was no more than straightforward. The number of diagnostic or management options, especially after treatment of the cyst was referred to another physician, was minimal, the amount or complexity of data was minimal, and the risk of complications was no greater than low, as later confirmed by the lab reports that revealed nearly entirely normal results. Because medical decision making is driven by the two lowest rankings among these three factors, the medical decision making here was straightforward. Claim 2-1 should have been billed at code 99202, so Petitioner overpaid Respondent the difference between codes 99205 and 99202. As noted above, Respondent conceded Petitioner's downcoding of Claim 3-1 from code 99223 to code 99222, so Petitioner overpaid Respondent $31.71. Respondent billed Claims 4-1, 4-2, 4-3, and 4-4 for March 3 through 6, 2013, under codes 99222, 99231, 99232, and 99238, respectively. Petitioner allowed Claim 4-2, but denied the remaining claims for insufficient documentation. At hearing, Respondent conceded the denial of Claim 4-1, so Petitioner overpaid Respondent $158.58. Recipient 4 presented at the hospital with a displaced fracture of his left elbow following a fall. Respondent cleared the patient for surgery, which was performed by another physician on March 4. For Claim 4-3, which is on the day after the surgery, Dr. Liebert testified that the history was problem focused, but neither the examination nor medical decision making was documented. Respondent testified the history was problem focused and that he conducted an examination, but it was not documented. Respondent testified that the medical decision making was moderately complicated. The history was problem focused. The administrative law judge is unable to credit Respondent's testimony of a routine examination conducted five years earlier. The notes do not support much in the way of medical decision making, except that the patient was suffering from hypoglycemia, and Respondent prescribed him a "low dose" of insulin. The medical decision making was straightforward based on a minimal number of diagnostic or management options, a minimal amount or complexity of data, and a minimal risk of complications following routine surgery. Claim 4-3 should have been billed at code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. For Claim 4-4, on March 6, Respondent failed to perform even "30 minutes or less" of discharge services because the patient was discharged late in the evening of March 7, not March 6, as billed, so Petitioner overpaid Respondent $80.79. Respondent billed Claims 5-1 and 5-2 for December 4 and 5, 2012, under codes 99223 and 99233, respectively. Petitioner denied the first claim for insufficient documentation and downcoded the second claim to code 99231. For Claim 5-1, Dr. Liebert testified that there was no note for this patient encounter. Respondent testified that he initially encountered Recipient 5 on December 4 at 11:00 p.m., but admitted that no note documents this encounter. There are no medical records evidencing a patient encounter with Respondent on December 4. Additionally, other records document that Recipient 5 was admitted on December 3, so a code for Initial Hospital Care on December 4 would not apply. Petitioner therefore overpaid Respondent $102.37 for Claim 5-1. For Claim 5-2, Dr. Liebert testified that the history and examination were problem focused. Respondent testified that the history was expanded problem focused, the examination was problem focused, and the medical decision making was moderately complex. Recipient 5 delivered a baby on December 3, and, post- delivery, had presented with hypertension, possibly indicative of pre-eclampsia. Respondent's note on December 5 at 2:00 a.m. recounts the chief complaint and brief history of the problem. The note is difficult to follow, but appears to include a problem pertinent system review. However, the note clearly does not include either an extended history of the present problem or a review of a limited number of additional systems, so the history was expanded problem focused, as Dr. Liebert testified. The note documents vital signs, including blood pressure, and a brief examination of the neurological system, as well as other systems, but clearly does not document an extended examination of these systems, so the examination was expanded problem focused. Regardless of the complexity of the medical decision making, the patient encounter on December 5 should have been billed at code 99232, so Petitioner overpaid Respondent the difference between codes 99233 and 99232 for Claim 5-2. Respondent billed Claims 6-1 through 6-5 for January 23 through 28, 2012, omitting only January 24. Respectively, Respondent billed these patient encounters under codes 99223, 99233, 99232, 99232, and 99238. Petitioner allowed the first two claims, but denied the remaining claims for insufficient documentation. For Claim 6-3, on January 26, Dr. Liebert testified that there was no evidence of an examination or medical decision making, only a history. Respondent admitted that he did not conduct an examination, but testified that the history was problem focused, and the medical decision making was of low complexity based on a limited number of diagnostic or management options, a limited amount or complexity of data, and a high risk of complications. Recipient 6, a 58-year-old male, was admitted to the hospital with three diagnoses: syncope (loss of consciousness associated with low blood pressure), low blood sugar, and closed head trauma from a fall at a train station. By January 25, imaging studies had been unremarkable, but two other conditions had been identified: uncontrolled diabetes and essential hypertension. Although the syncope had alleviated, the blood sugar had elevated and was uncontrolled. Reimbursed for a patient encounter at code 99233 for January 25, Respondent determined that Recipient 6 had improved sufficiently to be transferred from the intensive care unit to the "step-down unit," which resembles what other hospitals refer to as a progressive care unit. Respondent's medical note for January 26, at 9:00 p.m., is brief. The note mentions that the patient had had elevated blood sugar during the day. There is a comment about the patient's stool. These notations document a problem focused history because they cover the chief complaint and a (very) brief history of the problem. By this time, a consulting endocrinologist was responsible for treating the patient's problem with blood sugar. The other original problems had been addressed in terms of the closed head trauma and syncope, and there is no indication that Respondent was addressing the high blood pressure. Dr. Liebert is thus correct; there is no indication of any medical decision making by Respondent on January 26. Petitioner therefore overpaid Respondent $36.61 for Claim 6-3. For Claim 6-4, on the following day, Recipient 6 remained clinically stable and was ready for discharge. Respondent admitted that he performed no examination, but testified that the history was problem focused, and the medical decision making was of low complexity. Dr. Liebert testified that Respondent performed no medical decision making. Again, Dr. Liebert is correct; there is no indication of any medical decision making by Respondent on January 27. Petitioner therefore overpaid Respondent $36.61 for Claim 6-4. For Claim 6-5, on the discharge date of January 28, Respondent performed no more than 30 minutes of discharge services, including reconciling medications and counseling the patient about his newly discovered diabetes. Claim 6-5 was thus properly billed as code 99238, so Petitioner did not overpay Respondent. Respondent billed Claims 7-1 through 7-5 for June 20 through 24, 2013, respectively. Respondent billed these patient encounters under 99222, 99233, 99232, 99232, and 99238, respectively. Petitioner allowed each claim except Claim 7-5 for code 99238 on the date of discharge. Dr. Liebert complained that the medical records failed to document any final examination or discussion of the hospital stay; he added that the records were not a note, but an order. However, the order documents no more than 30 minutes of discharge services, including the reconciling of medications and directing of the patient to make an appointment for followup in one week. Claim 7-5 was thus properly billed as code 99238, so Petitioner did not overpay Respondent. Respondent billed Claims 8-1 through 8-5 for August 25 through 29, 2012, respectively. Respondent billed these patient encounters under 99223, 99233, 99233, 99232, and 99238, respectively. Petitioner allowed each claim except Claim 8-5 for code 99238 on the date of discharge. This is the same situation as Claim 7-5. On the date of discharge, Respondent performed no more than 30 minutes of discharge services, including reconciling medications, so Claim 8-5 was properly billed as code 99238, and Petitioner did not overpay Respondent. Respondent billed Claims 9-1 through 9-6 for November 2 and 3 and November 7 through 10, 2011, respectively. Respondent billed these patient encounters under 99223, 99232, 99231, 99231, 99231, and 99238, respectively. Petitioner denied each claim for insufficient documentation. Recipient 9 was admitted to the hospital on November 2 with a hypertensive emergency and intracerebral bleeding. As noted above, Respondent conceded Petitioner's denial of Claim 9-1, so Petitioner overpaid Respondent $96.27. For Claim 9-2, Dr. Liebert found evidence of only a problem focused history. He testified that there was no evidence of an examination or medical decision making. Respondent claimed that the history was expanded problem focused, and the medical decision making was moderately complex. The medical records support Dr. Liebert's findings, so Petitioner overpaid Respondent $36.61 for Claim 9-2. For Claim 9-3, on November 7, Dr. Liebert testified that he found a problem focused history, no examination, and straightforward medical decision making. Respondent's note does not indicate what he may have reviewed that qualifies as history. The note describes the examination as "no [changes]," but this comment has little meaning because Respondent had not previously conducted an examination of the patient. Missing two components, Claim 9-3 does not qualify for reimbursement under the two-component codes under the Subsequent Hospital Care group. Petitioner therefore overpaid Respondent $20.36 for Claim 9-3. The situation is precisely the same for Claims 9-4 and 9-5 as it is for Claim 9-3, so Petitioner overpaid Respondent $20.36 for Claim 9-4 and $20.36 for Claim 9-5. For Claim 9-6, on November 10, Respondent performed discharge services of no more than 30 minutes, including reconciling medications and counseling the patient about what she needed to do to control her blood pressure, so Claim 9-6 was properly billed as code 99238, and Petitioner did not overpay Respondent. Respondent billed Claims 10-1 through 10-5 for November 25 through 29, 2011, respectively. Respondent billed these patient encounters under 99223, 99233, 99232, 99231, and 99239, respectively. Petitioner allowed Claim 10-1, downcoded Claim 10-2 to code 99231, and denied the remaining claims for insufficient documentation; however, during the hearing, Dr. Liebert changed his opinion and testified that Claim 10-5 should be downcoded to code 99238. On November 25, Recipient 10 was admitted to the hospital complaining of abdominal pain, nausea, and vomiting. Her history included a gastric bypass. For Claim 10-2, Respondent conceded the downcoding, so Petitioner overpaid Respondent $78.10. For Claim 10-3, on November 27, Dr. Liebert testified that the history was problem focused, and the medical decision making was of low complexity, but he found no documentation of an examination. These findings are correct. The note shows that the patient was feeling better, afebrile, and without chest pain. The history included several more items, but it is unnecessary to consider them, as the history was at least problem focused, and it would not matter if it were higher: as Respondent conceded, there was no examination, and the medical decision making was straightforward due to a minimal risk of complications and minimal number of diagnostic or management options, if not also a minimal amount or complexity of data. The straightforward medical decision making coupled with a history of any level generates a code 99231. During his testimony, Respondent conceded that he should have billed Claim 10-3 as a code 99231, not a code 99232. Petitioner therefore overpaid Respondent the difference between a code 99232 and a code 99231 for Claim 10-3. For Claim 10-4, on November 28, Dr. Liebert testified that the history was problem focused, but there was no documentation of an examination or any medical decision making. From Respondent's testimony, which noted that the reports and studies had been normal and the patient was feeling well, it is impossible to find medical necessity for continued hospitalization. At any rate, there was no examination and no medical decision making, so Petitioner overpaid Respondent $20.36 for Claim 10-4. For Claim 10-5, on November 29, Dr. Liebert properly changed his opinion. Code 99238 was appropriate because Respondent performed discharge services of no more than 30 minutes. At hearing, Respondent conceded the downcoding. Petitioner therefore overpaid Respondent the difference between codes 99239 and 99238. Respondent billed Claims 11-1 through 11-8 for April 29 through 30, May 2 through 3, May 5, May 7 through May 8, and May 11 2011, respectively. Respondent billed the initial patient encounter under code 99223 and the remaining encounters under code 99232. Petitioner denied all of the claims for insufficient documentation. As noted above, Respondent conceded Claim 11-1, so Petitioner overpaid Respondent $96.37. Recipient 11, a 47-year-old female, was admitted to the hospital due to uncontrolled hypertension, chest pain, and weakness on the left side of her body. She also suffered from uncontrolled diabetes, cerebellar ataxia associated with multiple sclerosis, abdominal pain, and a migraine headache. Dr. Liebert's characterization of the patient encounters for Claims 11-2 through 11-8 is credited over the contrary testimony of Respondent. Dr. Liebert found no evidence of any examinations by Respondent. For Claim 11-2, the history was problem focused, and the medical decision making was moderately complex, which generates a code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. For Claim 11-3, the history was expanded problem focused, and the medical decision making was moderately complex, which generates a code 99232, so Respondent appropriately billed Claim 11-3, and Petitioner did not overpay Respondent. For Claim 11-4, the history was expanded problem focused, and the medical decision making was of low complexity, which generates a code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. For Claim 11-5, the history was problem focused, and the medical decision making was of low complexity, which generates a code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. For Claim 11-6, the history was expanded problem focused, and the medical decision making was of low complexity, which generates a code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. For Claim 11-7, the history was expanded problem focused, and the medical decision making was of low complexity, which generates a code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. And for Claim 11-8, the history was expanded problem focused, and the medical decision making was moderately complex, which generates a code 99232, so Respondent correctly billed Claim 11-8, and Petitioner did not overpay Respondent. Respondent billed Claims 12-1 through 12-12 for January 20, 21, 23, 24, 26, 27, and 30, February 21, and March 6 through 9, 2013, respectively. Respondent billed these patient encounters under codes 99223, 99233, 99232, 99231, 99232, 99239, 99215, 99214, 99223, 99233, 99232, and 99238, respectively. Petitioner allowed Claims 12-8 and 12-9, denied Claims 12-1 and 12-2 for illegibility, denied Claims 12-3, 12-4, and 12-12 for insufficient documentation, and downcoded the remaining claims, as indicated below. On January 19, 2013, Recipient 12 arrived at the hospital with a recent onset of shortness of breath and coughing with blood and was admitted as an inpatient on the following day. Respondent testified to an extensive examination, but the note does not bear this out. Instead, it appears that Respondent or a nurse took the vital signs of the patient. Otherwise, no other evidence of an examination is present in the note. Likewise, a legible word or two in the note touches on the patient's history of congestive heart failure. But, on the whole, this sketchy, difficult-to-read note cannot earn Respondent more than a problem focused history and problem focused examination. Because the lowest code for Initial Hospital Care--code 99221--requires at least a detailed history and a detailed examination, Petitioner properly denied Claim 12-1, so Petitioner overpaid Respondent $231.07. Recipient 12 had received a pacemaker several years earlier. On January 20, a cardiologist assumed responsibility for treating Recipient 12's congestive heart failure. For Claim 12-2, on January 21, Respondent's note likewise reveals the patient's vital signs. There appears to be a section marked in handwriting, "PE," for "physical examination," but not a word following this notation is legible. Immediately following Respondent's handwritten note is an easy- to-read record of a physical examination taken on the same day by a physician whom Respondent describes as his "medical assistant." Respondent testified that he "reviewed" this note, but it is clear that he did not conduct the examination, so his examination for January 21 did not rise above problem focused. There is nothing legible in Respondent's note that suggests a history. From other records, it appears that Respondent attended to a neck mass, ordering a scan and a biopsy, so the medical decision making was at least straightforward. The problem focused examination and straightforward medical decision making generate a code 99231, so Petitioner overpaid Respondent the difference between codes 99233 and 99231 for Claim 12-2. For Claim 12-3, on January 23, Respondent conceded that there was no documentation of an examination. He testified that he was still awaiting the results of the biopsy, but the history included the results of the CT scan of the neck. The history was expanded problem focused, but the medical decision making remained straightforward, so as to generate a code 99231. Petitioner therefore overpaid Respondent the difference between codes 99232 and 99231 for Claim 12-3. For Claim 12-4, for January 24, Respondent again conceded that there was no documentation of an examination. For history, he claimed that he reviewed three conditions: the neck mass, congestive heart failure, and pneumonia. But these conditions describe the nature of the presenting problem, not the history. There appears to have been no history for this patient encounter, so Petitioner overpaid Respondent $44.13 for Claim 12-4. For Claim 12-5, on January 26, Dr. Liebert conceded that the documentation justifies a code 99231 based on a problem focused history, problem focused examination, and straightforward medical decision making. Rather than focus on the history and examination, Respondent focused on the presenting problems to support his claim of medical decision making of moderate complexity, but the number of diagnostic or management options was minimal, the amount or complexity of data was minimal, and the risk of complications was minimal. Petitioner thus overpaid Respondent $36.30 for Claim 12-5. For Claim 12-6, for January 27, Respondent performed no more than 30 minutes of discharge services, including writing prescriptions, conducting a patient conference to instruct him to make a followup appointment, and reconciling medications. At this point, the biopsy report had not been issued, so the conference with the patient would not have taken long. Petitioner therefore overpaid Respondent $38.86 for Claim 12-6. For Claim 12-7, for January 30, Recipient 12 visited Respondent's office as an established patient. The Practice Fusion note documents a history and an examination. Respondent obtained the patient's vital signs, but not his temperature and respiration rate. The history records no chest pain, no shortness of breath, and no cough, but unpersuasively states that Respondent reviewed the "rest of 12 systems." The note adds that the PFSH is unchanged, although from what is unclear. On its face, the results of the examination of numerous body areas were unremarkable. The purpose of the January 30 office visit was for Respondent to tell the patient that the biopsy report showed a suspected carcinoma and to refer him to a specialist at another hospital. The automated note would seem to signal a reversal in Respondent's customary hospital practice, where he routinely took a low-level history, but sometimes not an examination. For this office visit, except for the claim of a review of the "rest of 12 systems," which is discredited, the history is fairly typical, but the examination is uncharacteristically in-depth, especially given the limited purpose of the visit. Of course, Recipient 12 had had little opportunity to have developed other problems; he had completed an eight-day hospitalization only three days earlier. On these facts, it is more likely than not that, in keeping with his practice, Respondent conducted a low-level examination, not a high-level examination, as documented by his automated note. The examination was limited to the neck mass and perhaps elements of the cardiovascular and respiratory organ systems and did not extend to such obscure findings, as reported, that the nose contained normal turbinates and the acuity of the patient's hearing was within normal limits. For Claim 12-7, Dr. Liebert testified that the history was expanded problem focused and the examination was comprehensive. His testimony on the history is credited, but not his testimony on the examination, which, as detailed above, does not rise above expanded problem focused. For Claim 12-7, Dr. Liebert testified that the medical decision making was moderately complex. The delivery of a biopsy report and referral to a specialist do not require much, if any, medical decision making. To assign as much weight as possible to Dr. Liebert's generous characterization of the medical decision making, it can be characterized as of low complexity. Supporting this finding is Respondent's testimony. To the extent that Respondent sought to import the complexity of medical decision making from the cancerous neck mass, the testimony is discredited due to the referral to a specialist. However, Respondent testified also that the "big issue" was when to resume anticoagulants, which was within his professional responsibility, although there is no evidence that he had more than a limited number of data or management options or that the available data was more than limited in amount or complexity. An expanded problem focused history, expanded problem focused examination, and medical decision making of low complexity generate a code 99213, so Petitioner overpaid Respondent the difference between code 99215 and 99213 for Claim 12-7. Claims 12-10, 12-11, and 12-12 for March 7 through 9, 2013, respectively, are for the final three days of a hospitalization that started on March 6 with complaints of shortness of breath and chest pain. For Claim 12-10, Dr. Liebert testified that the history and examination were problem focused, and the medical decision making was of moderate complexity. Respondent testified that the history and examination were expanded problem focused. It is hard to read Respondent's note, but it appears to contain no more than a few words of history and examination, so Dr. Liebert's testimony is credited. Claim 12-10 should have been billed at code 99231, so Petitioner overpaid Respondent $72.14. For Claim 12-11, Dr. Liebert testified that the history and examination were problem focused, and the medical decision making was of low complexity. Arguing for an expanded problem focused history and examination, Respondent admitted that Recipient 12 was feeling better, as evidenced by his discharge on the following day. Dr. Liebert's testimony is credited, so the claim should have been billed at code 99231, and Petitioner overpaid Respondent $36.30. For Claim 12-12, Respondent provided no more than 30 minutes of discharge services, including reconciling medications, and properly billed Claim 12-12 as code 99238, so Petitioner did not overpay Respondent. Respondent billed Claims 14-1 through 14-3 for September 21 through 23, 2013, respectively. Respondent billed these patient encounters under codes 99223, 99233, and 99239, respectively. Petitioner downcoded the claims to codes 99222, 99231, and 99238, respectively. Recipient 14 was admitted to the hospital with complaints of low blood sugar, dizziness, blurred vision, weakness, shortness of breath, and fever. A new problem was the onset of diabetes. For Claim 14-1, Dr. Liebert noted that the more extensive history and examination taken on September 21 were done by the emergency room physician, not Respondent. As discussed above, Respondent may be credited with history not taken by him, but not an examination. Thus, as Dr. Liebert testified, the history was comprehensive, but the examination conducted by Respondent did not rise above problem focused. It appears from the medical records that Respondent was aware of the diabetes from September 21, so the number of management options was multiple, the amount or complexity of data was limited, and the risk of complications was moderate, confirming Dr. Liebert's testimony that the medical decision making was of moderate complexity. Because the lowest code under Initial Hospital Care, which requires three components, requires at least a detailed history and examination and straightforward medical decision making, Claim 14-1 is not entitled to reimbursement due to the low level examination. Petitioner therefore overpaid Respondent $231.07 for Claim 14-1. For Claim 14-2, the examination was a limited examination of the cardiovascular, respiratory, gastrointestinal, and neurologic organ systems, which was expanded problem focused. However, the history was, as described by Dr. Liebert, only problem focused, and, as Respondent conceded, the medical decision making was of low complexity, so Claim 14-2 should have been billed at code 99231, and Petitioner overpaid Respondent $72.14. For Claim 14-3, Respondent performed no more than 30 minutes of discharge services, including reconciling medications and writing a prescription for diabetes medications, so this claim should be billed at code 99238. During the hearing, Respondent conceded the downcoding. Petitioner therefore overpaid Respondent $38.86 for Claim 14-3. Respondent billed Claims 15-1 through 15-7 for February 9 through 15, 2014, respectively. Respondent billed these patient encounters under codes 99223, 99233, 99232, 99233, 99231, 99231, and 99238, respectively. Petitioner allowed Claim 15-7, downcoded Claims 15-1 and 15-2 to codes 99222 and 99232, respectively, and denied the remaining claims for insufficient documentation. As noted above, Respondent conceded in the Stipulation the denial of Claims 15-3, 15-5, and 15-6, so Petitioner overpaid Respondent $36.88, $20.05, and $20.05, respectively, on these three claims. Recipient 15 was admitted into the hospital complaining of chest pain. For Claim 15-1, evidently crediting Respondent's testimony that he performed the history and examination signed by the emergency room physician, Dr. Liebert testified that the history and examination were comprehensive and the medical decision making was moderately complex. Respondent's testimony is identical. This testimony is credited. Claim 15-1 should have been billed at code 99222, so Petitioner overpaid Respondent $31.31. For Claim 15-2, Dr. Liebert testified that the history was expanded problem focused, the examination was problem focused, and the medical decision making was moderately complex, so that the claim should have been billed at code 99232. Again, Dr. Liebert seems to be crediting Respondent for a history taken by another physician. More clearly, Respondent's brief note does not describe any physical examination, but a moderate amount of data was developed by lab reports and management options were multiple, so Claim 15-2 satisfied the two-component code 99232. During the hearing, Respondent conceded the downcoding. Petitioner therefore overpaid Respondent $16.30 for Claim 15-2. For Claim 15-4, Dr. Liebert testified that the history was problem focused, no examination took place, and no medical decision making took place. Respondent admitted that he did not conduct an examination, but claimed that he reviewed a problem pertinent system in connection with a new chief complaint--pain in the patient's left leg that was determined to be deep vein thrombosis. Respondent is correct; the history was expanded problem focused. Respondent testified that the medical decision making was of low complexity due to a limited number of diagnostic or management options, a minimal amount or complexity of data, and a high risk of complications. Respondent's testimony is credited as to the medical decision making, so the claim should have been billed at code 99231. Petitioner therefore overpaid Respondent the difference between codes 99233 and 99231 for Claim 15-4. Respondent billed Claims 16-1 and 16-2 for December 31, 2012, and January 1, 2013, respectively. Respondent billed these patient encounters under codes 99222 and 99232, respectively. Petitioner downcoded Claim 16-1 to code 99221 and denied Claim 16-2 for insufficient documentation. Recipient 16 presented at the hospital with a fractured left forearm from a motor vehicle collision. Respondent testified that he would have done the examination himself due to the necessity of clearing the patient for surgery under general anesthesia, but the more extensive examination is signed, as is typical, by an emergency room physician; Respondent's testimony is rejected. As is often the case, Respondent's note contains only a brief history consisting of a chief complaint and brief history of the problem and does not mention an examination. As noted above, the Initial Hospital Care codes are three-component codes, so the omission of an examination precludes any reimbursement. Petitioner therefore overpaid Respondent $71.01 for Claim 16-1. For Claim 16-2, Respondent's note discloses a problem focused history and no examination. Dr. Liebert testified that he found no evidence of medical decision making. Respondent testified that the surgery had been deferred to this day, and the patient would remain hospitalized until the following day for pain management. Dr. Liebert is correct. Even though the Subsequent Hospital Care codes are two-component codes, there was no examination or medical decision making on this DOS, so Petitioner overpaid Respondent $80.43 for Claim 16-2. Respondent billed Claim 17-1, for April 18, 2012, under code 99223. Petitioner denied Claim 17-1 for insufficient documentation. Recipient 17 was admitted to the hospital on April 16 and seen by Respondent, as a consultant, on April 18. As Dr. Liebert noted, the note may support a billing under Initial Inpatient Consultation, but not under Initial Hospital Care. The CPT requires that "initial inpatient encounters by physicians other than the admitting physician" be billed under Initial Inpatient Consultation (codes 99251 through 99255) or Subsequent Hospital Care (codes 99231 through 99233). CPT, p. 14. Respondent testified that Recipient 17 had been admitted for mental health issues, and Respondent served only as a medical consultant. Respondent's note includes a reason for the consultation, but it is illegible. Recipient 17 was an alcoholic and presented with a productive cough. Respondent took an extensive history that includes PFSH. It is difficult to find an extended history of the present illness, but the history qualifies as detailed. Respondent also conducted an extensive examination that appeared to cover the affected body area or organ system and other related organ systems, although in the form of a limited, not extended, examination, so as to qualify for expanded problem focused. Respondent had a minimal number of diagnostic or management options, minimal amount or complexity of data, and minimal risks of complication, so the medical decision making was straightforward. Claim 17-1 should have been billed at code 99252. Because Petitioner has denied Claim 17-1, Petitioner must recalculate the overpayment based on the reimbursement amounts for the billed code 99223 and the correct code 99252. Respondent billed Claim 18-1, for May 16, 2012, under code 99223. Petitioner denied the claim for insufficient documentation. At hearing, Respondent conceded the denial of Claim 18-1, so Petitioner overpaid Respondent $96.27. Respondent billed Claims 19-1 through 19-3 for July 30 through August 1, 2012, respectively. Respondent billed these patient encounters under codes 99220, 99225, and 99217, respectively. Petitioner allowed Claims 19-1 and 19-3, but downcoded Claim 19-2 to code 99224. Recipient 19 presented at the hospital on July 30 complaining of abdominal pain after the removal of her gallbladder. For Claim 19-2, Dr. Liebert testified that the history and examination were problem focused, and the medical decision making was straightforward. Respondent testified that the medical decision making was of low complexity. For code 99224, medical decision making that is straightforward or low in complexity supports code 99224. Respondent testified that the history and examination were extended problem focused. The history was that the patient's pain was "stable," and had not had a bowel movement, but she did not have a headache. The examination was that the patient's abdomen was soft, but with diffused tenderness; her lungs were clear; and her heart rate was rhythmic. Also, the patient was not feverish, although other vitals were missing. Because it included a problem pertinent system review--i.e., the bowels--the history was expanded problem focused. Because it included a limited exam of other related organ systems--i.e., respiratory and cardiovascular--the examination was expanded problem focused. Claim 19-2 was therefore properly billed at code 99225, so Petitioner did not overpay Respondent. Respondent billed Claims 20-1 through 20-3 for January 5 through 7, 2014, respectively. Respondent billed these patient encounters under codes 99223, 99232, and 99238, respectively. Petitioner allowed Claims 20-1 and 20-3 and denied Claim 20-2 for insufficient documentation. Recipient 20 presented at the hospital on January 5 complaining of abdominal pain after the removal of her gallbladder. For Claim 20-2, Respondent's note reflects a problem focused history, but neither an examination nor medical decision making. Respondent testified that he had ordered lab reports in the morning and was awaiting the results, so his plan was merely to continue present treatment. He admitted that there had been no examination, but testified, unpersuasively, that the medical decision making was straightforward. Lacking two components, the patient encounter cannot be billed under Subsequent Hospital Care, so Petitioner overpaid Respondent $34.88 for Claim 20-2. Respondent billed Claims 21-1 through 21-4 for February 18, 19, 22, and 23, 2011, respectively. Respondent billed these patient encounters under codes 99222, 99232, 99231, 99238, respectively. Petitioner allowed Claim 21-1 and denied the remaining claims for insufficient documentation. Recipient 21 was admitted to the hospital presenting with a recent onset of diabetes, elevated blood sugar, and hypertension. She was placed on an insulin drip. For Claim 21-2, Dr. Liebert testified that there was no documented examination, and the history was expanded problem focused. He added that the medical decision making was of low complexity. Respondent admitted that he had performed no examination, but claimed that the history was detailed, and the medical decision making was highly complex. The medical decision making was of low complexity. Although the risk of complications from uncontrolled diabetes was moderate or high, there were a limited number of diagnostic or management options and a limited amount or complexity of data. The history described in Respondent's note for February 19, which contains only 11 lines, was not more than expanded problem focused. The note does not contain an extended history of the present problem, a review of a limited number of systems in addition to the problem pertinent system, or a PFSH. These findings support a code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231 for Claim 20-2. For Claim 21-3, for February 22, 2011, Dr. Liebert testified that there was no documented examination, the history was problem focused, and the medical decision making was of low complexity. Respondent agreed, and their testimony is credited. Therefore, Respondent properly billed Claim 21-3 as code 99231, and Petitioner did not overpay Respondent. For Claim 21-4, Respondent performed no more than 30 minutes of discharge services, including writing a prescription and reconciling medications. Respondent properly billed Claim 21-4 as code 99238, so Petitioner did not overpay Respondent. Respondent billed Claims 22-1 and 22-2 for November 17 and 18, 2011, respectively. Respondent billed these patient encounters under codes 99220 and 99217, respectively. Petitioner allowed Claim 22-1, but denied Claim 22-2 for insufficient documentation. Recipient 22 was admitted on observation status on November 17 complaining of chest pain. Claim 22-2 is for Respondent's discharge services, including reconciling medications. Respondent therefore properly billed Claim 22-2 as code 99217, and Petitioner did not overpay Respondent. Respondent billed Claims 23-1 through 23-3 for February 17 through 19, 2011, respectively. Respondent billed these patient encounters under codes 99219, 99214, and 99217, respectively. Petitioner allowed Claim 23-1 and denied Claims 23-2 and 23-3 for insufficient documentation. Respondent misbilled Claim 23-2 under an Office or Other Outpatient Services code when clearly Recipient 23 had been admitted to observation status, as reflected by the medical records and codes billed by Claims 23-1 and 23-3. The issue is whether Claim 23-2 supports a code within the Subsequent Observation Care subcategory of Hospital Observation Services. Dr. Liebert testified that the documentation of the patient encounter on February 18 reflected no examination, a problem focused history, and straightforward medical decision making. Respondent did not claim to have performed an examination and conceded that the medical decision making was of low complexity, which is treated the same as straightforward medical decision making for this group of codes. Respondent testified that the history was expanded problem focused, but, again, this makes no difference because the proper code is driven by the lower of the history or medical decision making, and medical decision making that is straightforward or low supports only the lowest of the codes in this two-component group. This patient encounter should have been billed at code 99224. Petitioner therefore should adjust the reimbursement for Claim 23-2 for a code 99224, not the billed code 99214. Recipient 23 was discharged on February 19, and Respondent performed discharge services, including a face-to-face interview and the delivery of prescriptions. Claim 23-3 was properly billed as code 99217, and Petitioner did not overpay Respondent. Respondent billed Claims 25-1 through 25-4 for March 31 and April 2, 4, and 5, 2012, respectively. Respondent billed these patient encounters under code 99223 for Claim 25-1 and code 99233 for the remaining claims. Petitioner allowed Claim 25-1, but downcoded Claims 25-2 and 25-4 to code 99231 and Claim 25-3 to code 99232. Recipient 25 was admitted to the hospital on March 31 with chief complaints of shortness of breath and respiratory insufficiency associated with chronic obstructive pulmonary disease. For Claim 25-2, Dr. Liebert testified that the examination and history were problem focused, and the medical decision making was moderately complex. Respondent testified that the history and examination were extended problem focused and the decision making was of low complexity. Covering the cardiovascular, respiratory, musculoskeletal, and neurologic or psychiatric organ systems, the examination constituted a limited examination of the affected organ systems plus other related organ systems, so it was expanded problem focused. The history qualified as expanded problem focused because Respondent reviewed the problem pertinent system--that is, the respiratory system. The medical decision making is harder to assess. On March 31, at Respondent's direction, a physician at the University of Miami examined Recipient 25's pulmonary function. Later, a psychiatrist also provided a consultation due to the patient's depression. Pulmonary consultative care continued, but psychiatric consultative care appears not to have continued. If the pulmonary and psychiatric components were eliminated, Recipient 25 presented with uncomplicated, relatively minor problems, mainly hypertension, morbid obesity, and abnormal blood chemistry. But, even with the consultations, Respondent remained responsible for the daily care of this complicated patient, so Dr. Liebert, who unlikely missed the pulmonary consultative care, is correct; the medical decision making was moderately complex. Because Respondent did not bill April 1, two days' accumulation of data required analysis in medical decision making. Claim 25-2 should have been billed at code 99232, so Petitioner overpaid Respondent the difference between codes 99233 and 99232. For Claim 25-3, on April 4, Dr. Liebert testified that the history and examination were expanded problem focused, and the medical decision making was moderately complex. Respondent testified that the examination was expanded problem focused, but the history was comprehensive, and the medical decision making was highly complex, even though he testified that the patient's respiratory condition was improving and Respondent had consulted with another specialist for low sodium in the blood. The history lacked an extended history of the present illness or any analysis of the PFSH, so it was expanded problem focused. Regardless of the complexity of the medical decision making, an expanded problem focused history and expanded problem focused examination support a code 99232, so Petitioner overpaid Respondent $15.86 for Claim 25-3. For Claim 25-4, Dr. Liebert testified that the history and examination were problem focused, and the medical decision making was of low complexity. Respondent testified that the history and examination were expanded problem focused, and the medical decision making was moderately complex. The note reports vitals, an absence of shortness of breath, rhythmic beating of the heart, a soft abdomen, and no edema in the extremities, so as to support an expanded problem focused examination. However, the history was limited to a statement that the patient was feeling better and her sodium levels had returned to normal, so as to have been problem focused. The medical decision making was of low complexity, so this claim should have been billed at code 99231. Petitioner therefore overpaid Respondent $32.10 for Claim 25-4. Respondent billed Claims 26-1 through 26-3 for January 8 through 10, 2012, respectively. Respondent billed these patient encounters under codes 99220, 99213, and 99217, respectively. Petitioner downcoded Claim 26-1 to code 99219 and denied Claims 26-2 and 26-3 for insufficient documentation. Recipient 26 was admitted to the hospital on observation status with chief complaints of nausea with vomiting and difficulty with urinating due to a likely urinary tract infection. Dr. Liebert testified that the history and examination were comprehensive, and the medical decision making was moderately complex. As to the last component, Dr. Liebert explained that, although the number of diagnostic options were multiple, the amount and complexity of the data was limited, and the risk to the patient was moderate. Respondent's only dispute was with the medical decision making, but he mistakenly claimed that the amount of data was high due to all of the lab work that he ordered. However, the data from such lab work is credited on the receipt of the lab reports, not on the ordering of lab reports. Dr. Liebert's testimony is credited. Claim 26-1 should have been billed at code 99219, so Petitioner overpaid Respondent $20.12 for Claim 26-1. Respondent misbilled Claim 26-2 as an office visit. The patient remained in the hospital on January 9, so any code would be from the codes under the group for Subsequent Observation Care. Respondent admitted that he performed no examination, but claimed that the history was expanded problem focused, and the medical decision making was of low complexity. The medical decision making was of low complexity because the number of diagnostic or management options was minimal, and the risk of complications was minimal. The barely readable note consists of five lines. The only mention of any item of history pertaining either to the vomiting or urinary tract infection was that the patient was tolerating feeding; based on the note, the history was problem focused. However, the lab reports were received on January 9, which raised the history to expanded problem focused. In the absence of an examination and the presence of any level of history, the lowest level of medical decision making drives the coding of Claim 26-2, which should have been billed at code 99224. Petitioner therefore must adjust its payment to Respondent to reflect the difference between codes 99213 and 99224 for Claim 26-2. For Claim 26-3, Respondent performed discharge services, including prescribing an antibiotic and reconciling medications. Claim 26-3 was properly billed as code 99217, so Petitioner did not overpay Respondent. Respondent billed Claims 27-1 through 27-11 for September 28, October 25, and December 29, 2012; May 22, June 20, August 8, October 16, and November 26, 2013; and January 24 and February 25, 2014, respectively. Respondent billed the first two patient encounters, a diagnostic test, and a third patient encounter under codes 99205, 99214, 93000, and 99215, respectively. Respondent billed the remaining patient encounters under code 99214. Allowing Claims 27-2 and 27-5 through 27-11, Petitioner downcoded Claim 27-1 from code 99205 to 99204, denied Claim 27-3 for insufficient documentation, and downcoded Claim 27-4 to code 99214. Recipient 27 presented at Respondent's office with a chief complaint of an unsteady gait since back surgery in Cuba in 1987. For Claim 27-1, Dr. Liebert testified that the history and examination were comprehensive, and the medical decision making was moderately complex. Respondent differed only as to the medical decision making, which he labeled as highly complex. Their joint testimony as to the history and examination is credited. The number of diagnostic or management options was multiple, the amount or complexity of data was limited, and the risk of complication was moderate, so the medical decision making was moderate. Claim 27-1 should have been billed at code 99204, so Petitioner overpaid Respondent $16.64. Claim 27-3 is for an electrocardiogram administered during the patient's second office visit, which was on October 25, 2012. Code 93000 is for a routine electrocardiogram with at least 12 leads, interpretation, and report. CPT, p. 472. Respondent met the requirements for this billing, so Petitioner did not overpay Respondent for Claim 27-3. For Claim 27-4, the patient's chief complaint was a thigh lesion. Dr. Liebert testified that the history was detailed, examination was comprehensive, and the medical decision making was moderately complex. Respondent testified that the history was comprehensive, and the medical decision making was highly complex. Dr. Liebert's description of the examination is credited. The Practice Fusion medical note indicates, for history, that the patient recalls a positive pap smear and a negative mammogram. Also, the patient's hypertension is controlled, and her back pain is partly relieved by her current treatment. The note states that Recipient 27 walks with difficulty and suffers from weakness in her legs. For PFSH, the note reports no changes, as it does for the "rest of systems." Dr. Liebert's characterization of this history as detailed is generous, but sustainable. The medical decision making was straightforward, not moderately complex, as Dr. Liebert testified. The lesion was caused by herpes simplex, and the patient was prescribed an antiviral agent. The number of diagnostic or management options and amount or complexity of data were minimal, and the risk of complications was low. Claim 27-4 should have been billed at code 99214, so Petitioner overpaid Respondent $18.82. Respondent billed Claims 28-1 and 28-2 for July 5 and 6, 2013, respectively. Respondent billed these patient encounters under codes 99223 and 99238, respectively. Petitioner allowed Claim 28-1 and denied Claim 28-2 for insufficient documentation. Recipient 28 was admitted to the hospital on inpatient status on July 5. For Claim 28-2, Respondent performed no more than 30 minutes of discharge services, including writing a prescription and reconciling medications. Claim 28-2 was properly billed as code 99238, so Petitioner did not overpay Respondent. Respondent billed Claims 29-1 through 29-6 for December 4 through 9, 2012, respectively. Respondent billed these patient encounters under codes 99223, 99233, 99232, 99232, 99232, and 99238, respectively. Petitioner downcoded Claim 29-1 to 99221, denied Claim 29-2 for insufficient documentation, and allowed the rest of the claims. Recipient 29 presented at the hospital complaining of abdominal pain, nausea, vomiting, and diarrhea. A gastrointestinal consultant recommended a colonoscopy, but Recipient 29 declined to consent to the procedure. For Claim 29-1, Dr. Liebert testified that the history and examination were detailed, and the medical decision making was highly complex. Respondent testified that the history and examination were comprehensive, and the medical decision making was highly complex. For a comprehensive history, a provider must review all body systems and obtain a complete PFSH. The note documents review of seven of 14 systems that are available for review: general (or constitutional), head, ears, eyes, nose and throat (counts as two systems), respiratory, cardiovascular, gastrointestinal, and neurological. Among the systems omitted are genitourinary, musculoskeletal, endocrine, hematologic/lymphatic, and allergic/immunologic. This was a detailed history because it included a limited number of pertinent additional systems. The bar is equally high for a comprehensive examination, which must constitute a general multisystem examination or a complete examination of a single organ system. As noted above, the CPT identifies seven body areas and 11 organ systems. The note documents an examination of one body area--the head--and three or four organ systems--ears, nose, mouth and throat, cardiovascular, skin, and possibly respiratory. The examination omitted important body areas and organ systems and did not approach a complete examination of a single organ system, so the examination was detailed. A detailed history and examination and medical decision making of any level of complexity generate a code 99221, so Petitioner overpaid Respondent $52.01 for Claim 29-1. For Claim 29-2, Dr. Liebert testified that the examination was not documented, the history was "perhaps" expanded problem focused, and the medical decision making was straightforward. Respondent did not testify that he conducted an examination, but claimed that the history was expanded problem focused, and the medical decision making was of low complexity. For the group of codes under Subsequent Hospital Care, there is no difference between medical decision making that is straightforward or of low complexity. Essentially, the two physicians agreed37/ that Claim 29-2 should have been billed at code 99231, so Petitioner overpaid Respondent the difference between codes 99233 and 99231. Respondent billed Claims 30-1 and 30-2 for October 26 and 27, 2012, respectively. Respondent billed these patient encounters under codes 99220 and 99217, respectively. Petitioner downcoded Claim 30-1 to 99218 and denied Claim 30-2 for insufficient documentation. Recipient 30 presented at the hospital complaining of an infection in her left breast, not long after delivering a baby. The emergency room physician conducted the examination. Dr. Liebert testified that Respondent did not perform an examination, the history was detailed, and the medical decision making was of low complexity. Respondent confirmed that he did not perform the examination and claimed that the history was only expanded problem focused, but the medical decision making was moderately complex. The group of codes under Initial Observation Care are three-component codes, so the absence of an examination precludes any reimbursement. Petitioner therefore overpaid Respondent $85.91 for Claim 30-1. For Claim 30-2, Respondent performed discharge services, including writing a prescription, so Respondent properly billed Claim 30-2 as code 99217, and Petitioner did not overpay Respondent. Respondent billed Claims 31-1 through 31-3 for January 23 through 25, 2012, respectively. Respondent billed these patient encounters under codes 99223, 99233, and 99233, respectively. Petitioner allowed Claim 31-1, denied Claim 31-2 for insufficient documentation, and downcoded Claim 31-3 to code 99232. As noted above, Respondent conceded the denial of Claim 31-2 and the downcoding of Claim 31-3, so Petitioner overpaid Respondent $52.46 for Claim 31-2 and $13.86 for Claim 31-3. Respondent billed Claims 32-1 and 32-2 for December 19 and 20, 2013, respectively. Respondent billed these patient encounters under codes 99220 and 99217, respectively. Petitioner allowed Claim 32-1 and denied Claim 32-2 for insufficient documentation. For Claim 32-2, Respondent performed discharge services, including writing a prescription, so Claim 32-2 was properly billed as code 99217, and Petitioner did not overpay Respondent. Respondent billed Claims 33-1 and 33-16 for July 12 through 16, 18, 19, 24 through 29, and July 31 through August 2, 2013, respectively. Respondent billed these patient encounters under codes 99223, 99233 (two), 99232 (three), 99233 (three), 99232 (three), 99231 (three), and 99238, respectively. Petitioner allowed Claims 33-1, 33-4, 33-5, 33-10, 33-14, and 33-16, denied Claims 33-6 through 33-9, 33-11 through 33-13, and 33-15 for insufficient documentation, and downcoded Claims 33-2 and 33-3 to code 99232. As noted above, Petitioner withdrew its objection to Respondent's coding of Claim 33-2, so Petitioner did not overpay Respondent. Respondent conceded the downcoding of Claim 33-3 and the denial of Claims 33-6, 33-8, and 33-11. Petitioner therefore overpaid Respondent $35.8438/ for Claim 33-3, $80.43 for Claim 33-6, $116.27 for Claim 33-8, and $80.43 for Claim 33-11. The claims remaining in dispute are thus Claims 33-7, 33-9, 33-12, 33-13, and 33-15. Recipient 33 presented at the hospital with acute liver failure, renal failure, and respiratory failure three days after cosmetic surgery to correct a leaking breast implant. For Claim 33-7, on July 19, which was one week after admission, Dr. Liebert testified that there was no documentation of an examination or medical decision making, and the history was problem focused. As Respondent testified, there was documentation of an examination; his note includes the vital signs, but the examination, Respondent conceded, did not rise above a problem focused. The history was expanded problem focused, as Respondent testified. The note indicates that the patient was feeling better, but running a low-grade fever, and lab reports indicated low levels of magnesium and a liver condition. As Respondent testified, there was a moderate amount of data to assimilate, multiple diagnostic or management options, and a moderate risk of complications, so the medical decision making was moderately complex. Claim 33-7 should have been billed at code 99232, so Petitioner overpaid Respondent the difference between codes 99233 and 99232. For Claim 33-9, on July 25, Respondent explained that the patient had had an allergic reaction to antibiotics in the form of a skin rash. She had improved sufficiently to be transferred to the medical floor. As Respondent testified, the history and examination were expanded problem focused, and the medical decision making was moderately complex, so Claim 33-9 should have been billed at code 99232. Petitioner therefor overpaid Respondent the difference between codes 99233 and 99232 for Claim 33-9. For Claim 33-12, on July 28, the patient had recovered normal renal and kidney function and was feeling better, alert and oriented, although she continued to have a skin rash in her groin and breast. Respondent and Dr. Liebert agreed that the history was expanded problem focused, and the medical decision making was of low complexity. Respondent testified to having performed an examination, but it is not apparent in the note, and Dr. Liebert's testimony that there was no examination is credited. Claim 33-12 should have been billed at code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. For Claim 33-13, on July 29, there was no documentation of any history or medical decision making, as Dr. Liebert testified, so Petitioner properly denied this claim. Petitioner therefore overpaid Respondent $44.13 for Claim 33-13. For Claim 33-15, on August 1, Dr. Liebert testified that the history was expanded problem focused, the examination was not documented, and the medical decision making was of low complexity. Respondent testified that the patient had just undergone a procedure to remove the recently repaired breast implant, which was confirmed, upon removal, to have been infected. Respondent testified that the history and examination were expanded problem focused, and the medical decision making was of low complexity. The note reveals nothing of an examination, so, given the low complexity of the medical decision making coupled with any level of history, Claim 33-15 was properly billed as code 99231, and Petitioner did not overpay Respondent. Respondent billed Claims 34-1 through 34-4 for November 23 through 26, 2013, respectively. Respondent billed these patient encounters under codes 99223, 99233, 99232, and 99238, respectively. Petitioner allowed Claims 34-1 and 34-2 and denied Claims 34-3 and 34-4 for insufficient documentation. Recipient 34 presented at the hospital complaining of pain in the lower abdomen following a hysterectomy one month earlier. She was diagnosed to have a urinary tract infection and a liver mass. For Claim 34-3, Dr. Liebert testified that the history was expanded problem focused, but there was no documentation of an examination or medical decision making. Respondent testified that the history was expanded problem focused, and the medical decision making was of low complexity. On this DOS, Respondent was determining whether the liver mass was a hemangioma. Respondent also discussed the case with a gastrointestinal specialist. The number of diagnostic or management options was limited, the amount or complexity of data was limited, and the risk of complications was limited, so Respondent is correct: the medical decision making was of low complexity. Claim 34-3 should have been billed at code 99231. Petitioner therefore overpaid Respondent the difference between codes 99232 and 99231 for Claim 34-3. For Claim 34-4, Respondent provided no more than 30 minutes of discharge services, including reconciling medications and writing a prescription. Claim 34-4 was properly billed as code 99238, so Petitioner did not overpay Respondent. Respondent billed Claims 35-1 through 35-5 for February 17 through 21, 2014, respectively. Respondent billed these patient encounters under codes 99223, 99232 (three), and 99238, respectively. Petitioner allowed Claim 35-1, denied Claims 35-2, 35-3, and 35-5 for insufficient documentation, and downcoded Claim 35-4 to code 99231. Recipient 35 presented at the hospital with respiratory insufficiency and congestive heart failure. He also was on a blood thinner. For Claim 35-2, Dr. Liebert testified that the history was problem focused, but the examination and medical decision making were not documented. Respondent testified that the history and examination were expanded problem focused, and the medical decision making was moderately complex. There is no documentation of an examination, and the history was not more than problem focused. The patient had already improved sufficient to be transferred to a unit with a lower level of care. The medical decision making was straightforward. Claim 35-2 should have been billed at code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. For Claim 35-3, Dr. Liebert testified that the examination was not documented, the history was problem focused, and the medical decision making was of low complexity. Respondent testified that the history and examination were expanded problem focused, and the medical decision making was moderately complex. The note does not indicate any examination and supports no more than a problem focused history and medical decision making of low complexity. Claim 35-3 should have been billed at code 99231, so Petitioner overpaid Respondent the difference between codes 99232 and 99231. For Claim 35-4, Dr. Liebert testified that the history and examination were problem focused, and the medical decision making was straightforward. The note supports this testimony, so Claim 35-4 should have been billed at code 99231. Petitioner therefore overpaid Respondent $16.83 for Claim 35-4. For Claim 35-5 on February 21, Respondent performed no more than 30 minutes of discharge services, including reconciling medications and writing prescriptions, so Claim 35-5 was properly billed as code 99238, and Petitioner did not overpay Respondent. Petitioner's Sanctions Worksheet contains five statements with boxes, each of which has been checked, even though the fifth statement, which has been omitted below, applies only when the sanction under consideration is suspension or termination from the Medicaid program, which is not at issue in the present case. The statements are: I have considered the seriousness & extent of the violation. I have considered whether the violation is continuing after written notice. I have considered whether the violation impacted the quality of medical care provided to Medicaid recipients. I have considered whether the licensing agency in any state in which the provider operates or has operated has taken any action against the provider. The record discloses no evidence, whether documented or not, of any consideration given by Petitioner to these factors, which militate uniformly in favor of Respondent. First, the overbilled claims were numerous, but not serious. For the most part, Respondent seems to have fallen prey to the not-uncommon tendency to code based entirely on the nature of the problems presented--the coding "principle" most apparent in Appendix C of the CPT, as well as in earlier versions of the CPT itself.39/ In any event, Respondent's upcoding solely from his misapplication of the CPT, not from the dangerous practice of a physician's alteration of medical records to satisfy the requirements of a higher code.40/ Second, there is no evidence of continued violations by Respondent of Medicaid reimbursement provisions after written notification to him of his improper or excessive claims in this case. Third, Respondent's violations had no impact on the quality of medical care provided to his patients. To the contrary, a detailed examination of the medical records reveals that Respondent consistently met the challenge of serving a socio-economic cohort of patients much in need of medical attention. In particular, Respondent must be commended for his care of Recipient 33, who was initially classified as in critical condition with only a guarded prognosis. Respondent diligently addressed the myriad problems of a very ill patient who, in surprisingly short order, responded to his care. Fourth, there is no history of disciplinary action against Respondent's license. As discussed in the Conclusions of Law, a fifth factor, omitted from the Sanctions Worksheet, is whether the provider has a prior history of criminal or administrative violations related to programs for the delivery of health care. There is no such prior history. As explained in the Conclusions of Law, based on the foregoing considerations, the maximum fine that Petitioner may impose on Respondent is the lesser of: 1) $100 per violation among the audited claims only41/ or 2) 5% of the total overpayments, after extension.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order directing Respondent to reimburse Petitioner for the total overpayments, based on the Findings of Fact as to the audited claims and as extended to all claims submitted on behalf of all recipients during the Audit Period, pursuant to Petitioner's statistical methodology; directing Respondent to pay a fine equal to $100 per violation among the audited claims or, if less, 5% of the total overpayments, as extended; and providing the parties a reasonable period of time to agree on costs in accordance with the statutory principles set forth above--failing which, Petitioner will remand the case to the administrative law judge for a determination of costs. DONE AND ENTERED this 7th day of August, 2018, 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 7th day of August, 2018.
The Issue The issue in this case is whether Dr. Bala violated Chapter 893, Florida Statutes, and failed to adhere to the professional standards for examination, treatment and prescription for patients as set forth in Counts I through XXIX of the Administrative Complaint and thereby is in violation of Chapters 458 and 893, Florida Statutes.
Findings Of Fact The general Findings of Fact made in Part II above are hereby incorporated and made a part of these findings on Count XXVIII of the Administrative Complaint. Carol Mather first saw the Respondent at his professional office in January of 1979. On her first visit, Mather filled out a personal medical history in which she recorded she was allergic to codeine, and she had her blood pressure taken. She complained of frequent headaches. The Respondent examined Mather and determined she was four to five months pregnant. Mather knew this. Respondent also noted the needle tracks in Mather's arms from injecting drugs. The Respondent advised Mather she should not use drugs if she was pregnant. Mather told the Respondent she was an addict and was going to take drugs no matter where she got them. Respondent wrote two prescriptions for Mather on her first visit, each for 40 Dilaudid 4 mg., but only after she had signed a release for any harm to the baby. Mather had no recollection of her second visit to the Respondent's office, but she went one time in November, 1979, with Detective Sullivan. On this last occasion, Respondent did not prescribe any drugs for her. Expert medical testimony based upon the community standards was received that the prescription of Dilaudid for a patient complaining of migraine headaches, particularly a patient four to five months pregnant, was inappropriate.
Conclusions The Board has charged the Respondent with violation of Sections 893.05 and 893.13, Florida Statutes (1979); Subsection 458.1201(1)(m), Florida Statutes (1978 Supp.); and Subsections 458.331(1)(h), (q) and (t), Florida Statutes (1979). As stated above, Subsections 458.331(1)(h), (q) and (t), supra, were not effective until May 30, 1979. This was after the date Respondent prescribed Dilaudid for Carol Mather. These subsections may not be applied retroactively, and the Respondent may not be charged under them. Sections 893.05 and 893.13, Florida Statutes, as stated previously in this order, remained essentially unchanged in 1977 and 1979. However, Chapter 893, Florida Statutes (1979), does not grant authority to the Board to enforce its provisions. Enforcement of Chapter 893, supra, by the Board must be authorized under the provisions of Chapter 458, Florida Statutes (1978 Supp.). Subsection 458.1201(1)(k), Florida Statutes (1978 Supp.), authorizes the Board to discipline its licensees for violation of the statutes such as Section 893.05, supra. However, the Board has not charged the Respondent under Subsection 458.1201(1)(k) Florida Statutes (1978 Supp.), which was the only statute making a violation of Chapter 893, supra, grounds for discipline at the time these acts occurred. The expert testimony was uncontroverted that prescription of Dilaudid to a patient for migraine headaches, particularly a patient four to five months pregnant, would be inappropriate. The fact that Mather signed a waiver of liability and admitted addiction did not alter this opinion. Treatment of a pregnant woman with narcotic drugs creates a risk to the fetus which, according to the expert testimony, is a fact widely known within the medical profession for many years. The record is clear that Respondent knew Mather was addicted to drugs and was pregnant and gave her two prescriptions, each of which was for 40 Dilaudid 4 mg. The testimony and evidence do show a violation of Subsection 458.1201(1)(m), Florida Statutes (1978 Supp.). Applying the rule applicable to general statutes, if this provision was reenacted substantially in 1979, the prosecution under the repealed provision may be maintained. The conduct prohibited or punishable under Subsection 458.1201(1)(m), supra, is prohibited or punishable under Subsections 458.331(1)(q) and (t), Florida Statutes (1979). The Respondent is guilty of violating Subsection 458.1201(1)(m) , Florida Statutes (1978 Supp.).
Recommendation Having found the Respondent guilty as alleged in Counts IX, XII, XVII and XXVIII of the Administrative Complaint, the Hearing Officer recommends that the Board of Medical Examiners revoke the license of Dr. Clemente C. Bala, Jr., to practice medicine within the State of Florida. DONE and ORDERED this 31st day of March, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 1982.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the final hearing, as well as the factual stipulations of the parties, the following relevant facts are found: Petitioner suffers from various medical problems, is a recipient of Medicaid benefits and is potentially eligible for supervision under the Florida Medicaid recipient case management program. The HRS policies governing recipient case management are set forth in Rule 10C-7.065, Florida Administrative Code. The purpose of the case management program is to limit inappropriate utilization of Medicaid services by recipients by enrolling them in a four-level program which includes education, counseling, a requirement of prior authorization for non-emergency medical services and "lock-in" to a single primary care provider for non-emergency services, as well as a single pharmacy provider. In a prior proceeding, Rule 10C-7.065 (formerly 10C-7.065) was challenged by the petitioner. The final result of that challenge was that those portions of the rule which require prior authorization for reimbursement of non- emergency, but medically necessary services were invalid. The remaining portions of the rule were declared valid. In an effort to remedy the defects found in the rule governing the recipient case management program, HRS now proposes two amendments to the prior rule. The first proposed amendment adds additional language to subsection (8)(c)(3) of Rule 10C-7.065. That subsection requires that a provider of services to a Level Three Medicaid recipient must contact the case manager and obtain payment authorization prior to the provision of services. The proposed amendatory language reads as follows: "Providers of medically-necessary services to a recipient at such times as the Case Manager is not available for prior authorization, such as after working hours, or on weekends, need only notify the Case Manager at a reasonable time, defined by the Department as the next working day, following provision of such services." Other provisions of Rule 10C-7.065(8)(c) pertaining to Level Three recipients require the recipient to contact the case manager prior to using his Medicaid identification card to obtain non-emergency services, require a case manager's verification on the provider claim form that prior authorization was obtained and provide that all other provider claim forms shall be denied Medicaid payment. HRS is not proposing any amendatory language to these subsections. The second challenged amendment proposed by HRS adds additional language to subsection (8)(d) 5 of Rule 10C-7.065. That portion of the rule pertains to Level Four recipients and requires such a recipient to utilize or be "locked-in" to a single primary care provider for all non-emergency services, except transportation. Subsection (8)(d) 5 requires the Level Four recipient to contact the lock-in primary care provider prior to using his Medicaid identification card to obtain non-emergency services and requires the lock-in provider to provide all necessary non-emergency care either directly or by referral. The proposed amendatory language adds the following words to subsection (8)(d) 5: "Referral by the lock-in primary care provider to a referred provider includes, but is not limited to, an acute care hospital provider for admission, or to another medical practitioner for professional consultation, special medical treatment, or temporary relief of lock-in responsibilities while on vacation, out of town, or otherwise unavailable to the recipient." The rule also provides that a lock-in pharmacy provider may be designated for Level Four recipients who have a utilization problem with prescribed drug services. In such an event, all prescribed drugs must be obtained from the lock-in pharmacy provider and no other pharmacy provider's claim forms will be reimbursable except for drugs provided in an emergency situation. Rule 10C- 7.065(8)(d) 8 and 10. No amendatory language has been proposed for those subsections of the rule pertaining to pharmacy providers. In proposing the added language to Rules 10C-7.065 (8)(c) 3 and (8)(d) 5, it was the intention of HRS to assure that reimbursement would be allowed for services provided a Level Three recipient when the case manager was not available for prior authorization and for services to Level Four recipients when the lock-in primary care provider was not available and had arranged for a referred provider.
Findings Of Fact The Petitioner, Harry M. Katz, M.D., is a medical doctor. His address is P.O. Box 192, Cedar Hill, Missouri 63016. He maintains an active family practice in the area of that location and is licensed by the agency charged with regulating and licensing medical doctors in the State of Missouri ("Missouri Board"). The Petitioner is seeking reinstatement of his medical doctor's license revoked by the Florida Board's Final Order of February 14, 1966. The Respondent is the Board of Medicine of the Department of Business and Professional Regulation located at 1940 North Monroe Street, Tallahassee, Florida. It has denied the Petitioner's reinstatement of his Florida medical doctor's license, which initial agency action resulted in this formal proceeding. The Petitioner falls within that class of physicians whose licenses were revoked prior to June 1994 and under the legal authority cited herein, are entitled to petition for reinstatement. In order to have his license reinstated, the Petitioner must demonstrate that he is capable of practicing medicine with reasonable skill and safety, as required by Subsection 458.331(4), Florida Statutes (1991). On February 14, 1966, the State Board of Medical Examiners revoked the Petitioner's medical license for aiding, assisting and promoting an unlicensed physician to practice medicine and surgery at his hospital and by apparently failing to correctly perform physical examinations upon pilots for the Federal Aviation Administration (FAA), although he certified them as physically fit. The Petitioner had employed a physician (surgeon) to practice at his hospital in Clearwater, Florida, including the performance of surgery. Sometime later, while that physician was in his employ, the Petitioner learned that his license had been either revoked or suspended. The Petitioner states that he promptly contacted the State Board of Medical Examiners to ascertain what his responsibility was in terms of employing such a physician, who was unlicensed, without the Petitioner's knowledge. The Petitioner states that he was informed by the Executive Director of the Medical Board that, in effect, he was not liable or subject to enforcement action by the Board for unknowingly allowing the unlicensed physician to practice under the circumstances described in the Petitioner's testimony in this case. Nevertheless, the Petitioner was ultimately prosecuted by the Medical Board for this activity, some of which occurred soon after he became aware of the doctor's license suspension, and also for allegedly certifying pilots as physically fit to the FAA when he had not actually done complete physical examinations. The Petitioner maintains that, indeed, he did do physical examinations on the four pilots, but testified that he did not do prostate examinations because it was not medically necessary, with pilots of such a young age to do such examinations. The Board found that he could not have done adequate physicals if the pilots were not required to disrobe. In any event, his medical license was revoked, which he freely admits. Sometime in 1972, the Petitioner was prosecuted on a federal indictment, concerning charges in the nature of "medicare fraud". In essence, the Petitioner was charged with billing the medicare system for doctor/patient visits, for patients in his hospital, for each day the patients resided in his hospital, which apparently did not conform to medicare regulations. The Petitioner maintains that, indeed, he made the visits he billed for and believed that he was billing correctly for them. Nonetheless, he acknowledges that he was convicted and sentenced to two years in the federal prison facility at Eglin Air Force Base for those charges. Shortly after his confinement, the sentence was reduced to one year. The Petitioner appealed both the state license revocation and the federal criminal conviction, but both were upheld on appeal. The Petitioner testified concerning circumstances surrounding his federal trial involving purported inappropriate, ineffective and possible failure by the prosecution to reveal potential exculpatory evidence representation by his counsel, the effect of which he was unable to overturn in the appellate process. Be that as it may, as the Petitioner concedes, he did have his medical doctor's license revoked in 1966 and suffered a federal conviction in 1972. The Petitioner's license to practice medicine in the Commonwealth of Kentucky was revoked based upon the Florida disciplinary action, and his Alabama license was voluntarily surrendered on the same basis. His application for licensure in South Dakota was denied based, in effect, upon the Florida disciplinary action, and his application for a State of Louisiana medical license was denied, as to full licensure, on the same basis. The State of Louisiana, however, did grant him a conditional license to practice medicine, which authorized him to practice as an employed physician at the Louisiana State Penitentiary at Angola. He served in that capacity and was promoted to medical director of the facility, providing medical care for some 4,000 inmates. Additionally, the Petitioner applied for licensure with the Kansas Board of Healing Arts, but elected not to pursue that licensure. The application was deemed withdrawn. The various state medical licensing boards revoked the Petitioner's pre-existing licensure or denied his applications for licensure based upon the Florida disciplinary action. Those other state boards took the position that he had to cure the licensure deficiency in Florida before he could be licensed in the other states. Those licensure actions were not based upon any independent disciplinary prosecutions in those states. The Petitioner practiced as a physician III and physician IV in the Louisiana Department of Corrections at the penitentiary at Angola from sometime in 1973 until 1981. He became medical director of that facility. He performed a competent and honorable medical practice at that facility, as shown by unrefuted testimony in this proceeding and by the testimonial letters stipulated into evidence. The Petitioner is currently licensed to practice medicine in the State of Missouri, where he has conducted a family practice since 1981. During his tenure in practice in Missouri, he had four malpractice suits filed against him. The first suit was settled for the sum of $1,200.00. The second and third suits were dismissed. The fourth suit resulted in a verdict in his favor. The verdict was later set aside, but the case was settled for the sum of $15,000.00. One of the malpractice suits resulted in the State Board of Registration for the Healing Arts in Missouri inquiring into his practice in that instance. His licensure status was not disciplined, but the Missouri Board required him to take the SPEX examination administered by the Federation of State Medical Boards. He took that examination and passed it with a score of 81. The Petitioner is held in high esteem by his colleagues in the medical profession in Missouri, as shown by the testimonial letters in evidence and by a certificate of appreciation he was awarded by the St. Louis University Medical Center for his support and medical practice in conjunction with the St. Louis University Hospital's clinical services and teaching mission in conjunction with its operations as a teaching hospital. He has referred numerous patients to that facility and has received favorable comment on his evaluation, treatment of patients, and the good standards with which he has conducted his practice. The Petitioner is licensed to prescribe narcotics without restriction. He is current with all of the required continuing medical education requirements and exceeds those requirements. He held a certificate of membership in good standing with the American Medical Association at least through July 1, 1993. He is a participant in good standing in the Medicare and Medicaid programs in the State of Missouri. He holds a valid certificate from the United States Department of Health and Human Services for clinical laboratory services. He is a participating physician in good standing with the Medicare and Medicaid programs and with the Blue Cross/Blue Shield program and is approved by the United States Department of Transportation to perform its required physicals. During his tenure in Louisiana, he was a member in good standing in the Louisiana State Medical Society from approximately 1976 to 1980 and an officer of that association. He is a member in good standing of the American Medical Association as an AMA senior physician, the Southern Medical Association, since about 1982, and the American Correctional Association. Additionally, he has been board certified in the field of family practice by the American Board of Family Practice since 1976, in good standing. The Petitioner has labored with a commendable dedication to good medical practice in amassing the above-found credits to his medical practice since suffering the above-referenced blemishes on his professional record so long ago, culminating in his demonstration to the Missouri State Board of his ability to safely engage in the practice of medicine by passing the SPEX examination with a high score. He has demonstrated that he is capable of and has practiced medicine with reasonable skill and safety, as required by Subsection 458.331(4), Florida Statutes (1991). The testimony of Georgia Leigh Katz, the Petitioner's daughter, speaks eloquently to the high level of character demonstrated by the Petitioner's single-minded dedication to his medical practice, even under his diminished professional standing for over 20 years. That demonstration of the perseverance and character with which he has approached his practice of medicine, under professionally and legally straitened circumstances during that time, certainly militates in favor of finding him rehabilitated from his prior disciplinary blemishes. Ms. Katz' testimony was unrefuted and is adopted herein by reference as true. She thus established that, although not the fault of the medical board nor the federal court, the Petitioner's disciplinary action in Florida and the federal court conviction effectively destroyed his family. Shortly thereafter, he and his wife were divorced; and he, for much of the ensuing, approximate quarter century, has had to live apart from his children, in a distant state, while attempting, with his licensure impairment, to earn a relatively meager living and to support his family. He has made herculian efforts to support his family and himself with his medical practice, which could not reach its full potential because of the blemishes upon his professional record. Ms. Katz' testimony demonstrated, in a truly heart-rending way, the effect which this has had upon the Petitioner, his children and his former wife, their mother, in terms of the lack of financial security these circumstances imposed and, more importantly, the emotional hardship caused to the Petitioner and his family. The Petitioner's dedication to his profession under these debilitating circumstances for these long years certainly demonstrates a rehabilitation of character in the Petitioner. This rehabilitation, coupled with the showing that he is competent and capable of practicing medicine with reasonable skill and safety, shows that his new licensure in Florida would pose no risk to its citizens but rather would be a benefit to them. Counsel for the Board apparently avers that the Petitioner unrealistically claims that the Florida Board of Medicine, and its counterparts in other states, are engaged in some covert conspiracy to continue to deny him licensure, to impair his professional standing and medical practice. Questions by counsel, however, as well as those by the Hearing Officer, reveal that, although it is granted that the Petitioner has a great deal of emotional investment and anguish resulting from his multiple bouts with his licensure restrictions, that he really intended to explain in his testimony, in an imperfect way, that his licensure problems in the other states are interrelated with the root disciplinary action in Florida and that the Florida disciplinary action and the federal conviction, has had a legally operative effect with the medical practice acts in the other named states which cannot be cured until his licensure status in Florida can be restored. The Hearing Officer does not find from the testimony and evidence that the Petitioner has an unrealistic thought process leading to a perception on his part that there is a real conspiracy between the medical boards of the various named states or any of their personnel. The Respondent also appears to take the position that the Petitioner cannot truly demonstrate rehabilitation unless he comes before the Board to express apology and contrition for his past conduct, and it decries his remonstrances concerning his disciplinary record. In fact, however, the Petitioner does not deny the past disciplinary actions, although he did seek to explain their circumstances in an exculpatory way. On one level, it might seem a valid criticism that the Petitioner expresses no contrition or apology for his past conduct. On the other hand, he appears to genuinely believe in his innocence or at least his lack of moral turpitude concerning his disciplinary circumstances. This genuine belief on his part has motivated him to resist expressions of apology to the Florida Board, while exercising every available remedy to overturn the disciplinary action. This fact supports an inference that he is a man who has adhered to genuinely- held convictions, even through years of professional and personal adversity such a stand may have imposed upon him; rather than to "kowtow" to expediency and, by humble contrition, surrender those convictions simply to facilitate his re-entry into a lucrative profession in Florida. Given the preponderant evidence adduced by the Petitioner in this proceeding, such a lack of expressed apology or contrition evinces more of strong character than a lack of rehabilitation. In any event, the Petitioner has certainly already suffered sufficiently for any such lack of contrition.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor, demeanor and credibility of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the license to practice medicine in the State of Florida of Harry Meyer Katz, M.D., be reinstated. DONE AND ENTERED this 28th day of June, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 28th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2797 Petitioner's Proposed Findings of Fact 1-25. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-14. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. 15. Rejected, in favor of the Hearing Officer's findings of fact on this subject matter and as subordinate thereto. 16-18. Rejected, in favor of the Hearing Officer's findings of fact on this subject matter and as subordinate thereto. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as not entirely consonant with the preponderance evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not itself dispositive of the material issues presented. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: Paul Watson Lambert, Esquire 2851 Remington Green Circle Suite C Tallahassee, Florida 32308-3749 Michael A. Mone, Esquire Gregory A. Chaires, Esquire Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue in this case is whether Petitioner is entitled to an award of attorneys' fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 60Q-2.035, Florida Administrative Code.
Findings Of Fact Based upon the oral and documentary evidence presented at the final hearing and the entire record in this proceeding, the following findings of fact are made. Respondent is the state agency charged with regulating the practice of dentistry pursuant to Section 20.30 (subsequently amended to Section 20.165) and Chapters 455 and 466, Florida Statutes (1987). At all times pertinent to this proceeding, Petitioner was a Florida licensed dentist having been issued license number DN-0004795. At all times pertinent to this proceeding, Petitioner maintained a professional dental practice in the State of Florida. At all times pertinent to this proceeding, Petitioner maintained his primary residence within the State of Florida. At all times pertinent to this proceeding, Petitioner employed no more than 25 full time employees. Petitioner has never employed more than 25 full time employees. Petitioner has a net worth of less than two million dollars, including both personal and business investments, and he has not had a new worth of more than two million dollars since the time the underlying action was initiated against his license to practice dentistry. Petitioner is the sole shareholder of a corporation known as IRN, Inc., d/b/a North Dade Dental Offices. At the time the Underlying Proceeding was initiated, Petitioner operated his incorporated business out of two separate locations. The corporation was not named as a Respondent in the Amended Administrative Complaint filed by Respondent. As noted in the Recommended Order entered in the Underlying Proceeding, there have been a number of disputes between Petitioner (then Respondent) and the Department and/or the Board relating to complaints with the Department filed regarding Respondent and investigations conducted by the Department. During the hearing in the Underlying Proceeding, Petitioner testified vociferously regarding what he believes has been selective prosecution by the Department. Petitioner contends that the Department and/or the Board have been deliberately harassing him because he is an "advertising dentist." Petitioner has filed a lawsuit in federal court naming as defendants most, if not all the Board members during the period from approximately 1980-1987 and several Department employees and attorneys based on these contentions. That lawsuit (the "Federal Lawsuit") was originally filed at some point prior to the initiation of the investigation in the Underlying Proceeding. While the developments in and status of the Federal Lawsuit are not clear, the case was apparently still pending at the time of the hearing in this matter. Respondent has submitted some exhibits in this case which set forth the complaints received by and investigations conducted by the Department regarding Petitioner. The merits of those other complaints and the results and reasons for the Department's investigations in those cases are beyond the scope of this proceeding. No persuasive evidence was presented in this case to establish that the Administrative Complaint or Amended Administrative Complaint filed in the Underlying Proceeding were initiated for improper purposes or as part of a conspiracy against Petitioner because he is an "advertising dentist." The Underlying Proceeding began on or about February 22, 1988, when E. B. (the "Patient") filed a written complaint with the Department regarding the care and treatment he had received from Dr. Rindley. There is no evidence that B.'s complaint was solicited or prompted in any way. In his written complaint, the Patient stated that: I went to Dr. Rindley to have teeth pulled and have a lower plate made. The teeth were pulled and the lower plate was made, however I am unable to wear the plate as it hurts and I can not eat with it. I have to wear my old plate. I went back to Dr. Rindley and was told I now needed my upper plate relined. I told him I can eat fine with my old plate and to remake a new plate. He refused. I must go to another dentist and have a new plate made . . . Also, He was to pull a broken tooth and fill the cavities in the one crown left for the anchor of the plate, which he has not done, when asked when he kept saying next time. The Patient also wrote a letter to MasterCard disputing his payment to Petitioner and advising MasterCard that he was filing a complaint with the Department. Petitioner argues that this action by the Patient demonstrates that the Patient and Petitioner were involved in a fee dispute over which the Department had no authority. However, the mere fact that a complaintant seeks a refund from a professional against whom he has filed a complaint does not preclude the Department from investigating the validity of the complaint. In response to the complaint, the Department began an investigation which was assigned DPR Case Number 00-95307. The Department's investigator interviewed the Patient on March 4, 1988. E. B. told the Department's investigator that he was dissatisfied with the treatment provided by the Petitioner. He gave no indication that he had refused any recommended treatment or diagnostic test. Petitioner was notified of the Patient's complaint during an interview conducted by the Department's investigator, Alison Lichtenstein, on March 10, 1988. Ms. Lichtenstein was accompanied by Jeffrey Matthews who sat in on the interview. During the interview, Petitioner provided the Department with the Patient's records and had his staff meet with the investigators. As part of its investigation, the Department sought to interview a dentist who the Patient had identified as providing subsequent treatment. That dentist had no record of having provided any treatment to E. B. On June 16, 1988, the Patient's records received from the Petitioner at the March 10, 1988 interview and the compiled investigative report were forwarded to Jerry Zimmerman, D.D.S., a Department consultant, for an expert opinion. Dr. Zimmerman met with the Patient and examined the Patient's old partial denture, the lower partial manufactured by the Petitioner and a new partial that was made by a subsequent dentist. Dr. Zimmerman asked the Patient if any x-rays had been taken before his teeth were extracted and the Patient said no. On August 5, 1988, Dr. Zimmerman wrote to the Department's attorney and noted that, in reviewing the file provided by Dr. Rindley, ". . . there [was] an unusual absence of portions of the dental records" and requested that the Department obtain a complete set of records from the Petitioner. On August 24, 1988, Dr. Zimmerman issued a written opinion based on his review of the compiled investigative report, the Patient's records provided by the Petitioner, and the results of his own examination and interview of the Patient. Dr. Zimmerman noted: Upon an interview, in my office, patient EB sought dental care from Dr. Steven Rindley of North Miami Beach. Three teeth were to be extracted, and a lower denture fabricated. Upon receipt of the immediate partial, the patient immediately complained that the teeth wobbled, and he could not eat. . . During the examination of the patient EB, it was revealed that a new partial denture had been fabricated, after the work done by Dr. Rindley. EB showed this dentist that the appliance did not rock, nor did the first partial that he wore before Dr. Rindley's work was initiated. This reviewer tried in the partial fabricated by the attending Dr. Rindley, and indeed the partial did rock from side to side upon applying downward pressure, on the occluding surfaces of the lower teeth of the partial. It was evident that the lower teeth as fabricated on the lower partial were not placed over the ridge. This condition establishes a tipping motion considering the bony ridge as the fulcrum. The action of this fabrication, or the absence of knowledge that this condition would constitute a rocking appliance, thus endangering the teeth and supporting alveolar structure constitutes negligence. This act is a violation of Rule 21-G, Chapter 466.028(1)(Y)(GG). 3/ Dr. Zimmerman's opinion noted that the records contained an ambiguous, unsigned medical history. In Dr. Zimmerman's opinion, Petitioner's extraction of teeth without the benefit of an x-ray "in conjunction with an unsigned medical record constitutes negligence and malpractice under . . .[Sections] 466.028(1)(I), (M), (Y), (GG), [Florida Statutes] . . ." On August 29, 1988, Petitioner's attorney submitted an affidavit executed by Petitioner for consideration by the Department's consultant and probable cause panel. That affidavit described E. B. as a very difficult patient who refused to follow the Petitioner's instructions and eventually walked out in the middle of his treatment. The letter was forwarded to Dr. Zimmerman. On September 29, 1988, the Department received a letter from Petitioner's attorney purporting to transmit ". . . all of the medical and corollary reports/documents/notes, relating [the case]." With the exception of a few recent entries regarding the investigation, the records provided were the same as those received from Petitioner at the March 10, 1988 interview. The records did not indicate any prior treatment by the Petitioner or indicate that the Petitioner had prior x-rays from which to determine a course of treatment for the Patient. Petitioner's records did reflect that the Patient complained of problems with the partial manufactured by Petitioner and that adjustments were performed as early as January 30, 1988. Petitioner's records also indicated that further adjustments were necessary on February 1 and 4, 1988. On February 9, 1988, Petitioner noted that the upper partial was too loose and needed a reline. The Department provided Dr. Zimmerman with all the information received from Petitioner, including the "complete" Patient records from Petitioner's attorney and the Petitioner's affidavit as well as correspondence received from Petitioner's attorney, and an internal memo issued to the investigator. In a letter dated October 11, 1988, Dr. Zimmerman indicted that he did not think it was appropriate for a consultant to consider anything other than the "dental records, radiographs, histories and testimony from the complainant." Dr. Zimmerman's letter reaffirmed his prior opinion and also noted that any problems encountered by Dr. Rindley should have been recorded in his patient records. No such problems were documented by Dr. Rindley. On October 13, 1988, E. B. forwarded the lower partial manufactured by the Petitioner to the Department. It appears that, by the time it reached the Department, the partial had been damaged. A Memorandum from a Department legal clerk to the investigator dated October 13, 1988, refers to Petitioner's Affidavit and states "Dr. Rindley is trying to establish a defense that the complainant prevented the completion of the treatment with his uncooperative behavior." The memo further requests the investigator to conduct a supplemental report accounting for "facts as remembered by the employees who were present at the dental office, patients who were scheduled for treatment at the time and the complainant himself and any witnesses who may have accompanied him to his dental appointments." It is not clear whether a supplemental investigation was undertaken. The investigative file does not contain any additional information from the Patient. On October 14, 1988, the Department's legal clerk wrote to Dr. Zimmerman stating: Furthermore, you were requested not to conduct any interviews with the witnesses as requested by the subject. These witnesses will be interviewed by the investigator. Should further probing be necessary, Ms. Snurkowski will make the decision if and when probable cause is found. On November 10, 1988, a memo was generated by a Department employee reflecting the status of the investigation. It noted that Dr. Zimmerman's opinion had not changed as a result of the information provided by Petitioner's attorney and that Dr. Zimmerman felt Petitioner had violated the Dental Practice Act with respect to the Patient as a result of his extraction of teeth without radiographs and because of the fabrication of an inadequate a lower partial. The memo further noted that Dr. Zimmerman believed there was "probable cause for further investigation and action." Ms. Snurkowski, the prosecuting attorney for the Department, prepared a draft administrative complaint on or about November 17, 1988. The draft administrative complaint did not charge Petitioner with any deficiency in his records for E. B. On December 12, 1988, the Probable Cause Panel for the Board of Dentistry met to consider the Department's compiled investigative report, including the Patient records, Dr. Zimmerman's opinion, the Department's recommendations, and Petitioner's response to the complaint. The Panel was composed of Edward F. Baines, D.D.S., and Thomas C. Kraemer. Like virtually all the other Board of Dentistry members since 1980, both of these individuals were named in the amended complaint filed in the Federal Lawsuit in June of 1988. The exact status of the Federal Lawsuit at the time of the Probable Cause Panel Meeting is not clear. The Probable Cause Panel transcript does not reflect any discussion of the Federal Lawsuit and there is no evidence that the existence of the lawsuit impacted upon the Probable Cause Panel's evaluation of the case against Petitioner. There is no evidence that these Panel members were even aware of the Federal Lawsuit. There is also no evidence that Dr. Baines or Mr. Kraemer were aware of or involved in any prior disciplinary matters regarding Petitioner and/or that they knew Dr. Rindley was an "advertising dentist." Petitioner argues that there is no competent evidence of the materials provided to the Panel. However, it was established that the usual and customary practice of the prosecuting attorney, Ms. Snurkowski, was to provide the Panel members with copies of the Department's entire file and its recommendation in advance of the Probable Cause Panel meeting. There is no evidence to indicate that she failed to conform to her usual and customary practice in this case. At the outset of the Probable Cause Panel meeting, the Panel members indicated on the record that they had received copies of the Department's materials, and that they had an opportunity to review the materials and to familiarize themselves with the materials. The Department's investigative file was attached to the transcript of the proceeding to reflect the materials reviewed by the Panel in accordance with the Department's standard procedure. Dr. Baines testified that it was customary for him to receive materials related to cases to be considered by the Probable Cause Panel at least thirty days in advance of the meeting and that those materials always included the patient records, witness interviews, consultant's reports, and the Department's investigative file. By the time of the December 12, 1988 Probable Cause meeting, Dr. Baines had made an independent evaluation of the case after reviewing all the material presented to him. At the Probable Cause Panel meeting, Ms. Snurkowski had in her possession the Department's original file in case the members had any questions or problems with the materials previously provided to them. No problems with the materials were noted by the members. During the meeting, Dr. Baines briefly described the case and noted that the factual allegations underlying the one count violation alleged in the draft administrative complaint were very serious, particularly the failure to take an x-ray. Dr. Baines asked if there was any additional discussion. When no questions were raised, he entertained a motion for a determination of probable cause of a violation of Section 466.028(1)(y), Florida Statutes, as alleged in the draft administrative complaint. The Panel determined that there was probable cause of a violation and directed the Department to file an Administrative Complaint against the Petitioner's license. The Department filed an Administrative Complaint against the Petitioner on December 23, 1988, alleging that Petitioner had violated Section 466.028(1)(y), Florida Statutes. Paragraph 5 of the Administrative Complaint stated: 5. The treatment rendered by [Dr. Rindley] to failed to meet the minimum standards of diagnosis and treatment as evidenced by, but not limited to, the following: failure to take radiographs; the partial denture rocked from side to side upon applying downward pressure; the lower teeth, as fabricated, were not placed over the ridge; the rocking partial endangered the teeth and the supporting alveolar structure. extracting teeth without the benefit of a radiographic examination. The Administrative Complaint did not include any allegations of a record-keeping violation by Dr. Rindley. No allegation of such a violation was contained in the draft administrative complaint or discussed by the Probable Cause Panel. In his response to the Administrative Complaint, Petitioner's counsel made specific reference to Petitioner's pending lawsuit against the Board and the Department's previous efforts to discipline Petitioner as well as purported investigations by the Federal Trade Commission on the allegations made by Petitioner in the Federal Lawsuit. The Department retained a private law firm on a contract basis to handle the prosecution of the case. On June 7, 1989, the contract attorney for the Department wrote to Nancy Snurkowski about a conversation he had with Dr. Zimmerman and noted that: [Zimmerman] did not think this case was particularly strong. However, Zimmerman stated that he was able to find probable cause for DPR based on the fact that Rindley did not take x-rays before surgery. Zimmerman further stated that: because this case involved only a partial plate, he is afraid the hearing office [sic] might throw it out because it is so small. Zimmerman stated that the hearing officer might not rule in our favor because the patient could have gone back to Rindley for additional treatment in order to have his partial plate fitted correctly. However, Zimmerman will still testify that x-rays were not taken before surgery, which he feels is in violation of Florida Statutes. After he learned that the Administrative Complaint filed against Petitioner did not include a count charging Petitioner with failing to properly document his treatment plan for the Patient, Dr. Zimmerman wrote to Nancy Snurkowski on July 5, 1989 stating that he was withdrawing from the case and would not testify because the prosecution had "been so poorly executed" and that he felt "most strongly that my efforts have been totally ignored, . . ." Dr. Zimmerman testified in the hearing in this case that, while he was disturbed by the way the prosecution was being handled, he felt at the time and still feels that, based on the evidence he reviewed, there was probable cause to find that Petitioner violated the provisions of law set forth in his August 24, 1988 letter. The contract attorney wrote to Ms. Snurkowski on July 11, 1989, regarding Dr. Zimmerman's concerns. That letter provided as follows: As we discussed in our telephone conversation on July 7, 1989, we are having some problems with our expert, Dr. Jerry Zimmerman. Dr. Zimmerman apparently is of the opinion that this case involves poor record keeping, rather than negligence or incompetence. In fact, he has gone so far as to say that unless we amend our Administrative Complaint to reflect a charge for poor record keeping, he will no longer be our expert in this case. . . . You and I both agree that Dr. Zimmerman has 'missed the boat' on his opinion because this is a case of negligence or incompetence, and not poor record keeping. Dr. Zimmerman believes that the Respondent's failure to take x-rays is evidence of poor record keeping. You and I agree that it would have only been poor record keeping if he had taken the x-rays and then discarded or lost them. [Dr. Rindley's] failure to take the x-rays at all is evidence of incompetence or gross negligence. I also advised you that Dr. Zimmerman felt that our case was weak anyway. The parties proceeded with discovery and preparations for a formal hearing. In a letter dated September 18, 1989, the contract attorney advised the Department that a good argument could be made in defense of the Administrative Complaint that the Patient did not give the Petitioner "ample opportunity to adjust the lower plate to fit properly or permit the [Petitioner] to make a new upper plate." Counsel also expressed his opinion that the Patient was a "terrible witness" who was easily roused to anger and emotional outbursts." The attorney pointed out that the Patient had obtained a new upper and lower plate from a subsequent dentist. These factors led the contract attorney to conclude that chances of success at formal hearing were remote. With the consent of both parties, the hearing in the Underlying Proceeding was continued at least twice. On January 30, 1990, the contract attorney wrote to Ms. Snurkowski confirming a discussion they had regarding the weakness of the case "based upon the nature of our complainant's testimony and demeanor combined with the problems we have with our expert witness, Dr. Jerry Zimmerman." The letter also confirms that Ms. Snurkowski authorized the contract attorney to propose a settlement pursuant to which Respondent would dismiss the Administrative Complaint filed in the Underlying Proceeding in exchange for Petitioner's agreement to waive any rights to seek fees or costs against Respondent and "not to endeavor to utilize this particular prosecution in connection with any unrelated allegations [Dr. Rindley] has or will be bringing against the DPR." This reference to the unrelated allegations was apparently an allusion to Petitioner's Federal Lawsuit. The letter indicates that Petitioner's counsel refused the settlement offer unless two other pending disciplinary cases against Petitioner were included. The contract attorney stated that if an agreement could not be reached along the lines proposed by Petitioner's attorney, it would be necessary to either dismiss the case unilaterally or "immediately retain a new expert witness, in hopes that his opinion, as in the case of our prior expert, is a favorable one." The Department's contract attorney sought input from two additional expert consultants. He obtained the opinion of John Jordan, Jr., D.M.D., on April 9, 1990, and the opinion of Peter A. Keller, D.D.S., on March 5, 1990. Both Dr. Jordan and Dr. Keller felt that the failure to take an x-ray before extracting teeth was below community standards. Dr. Jordan was unable to comment on the lower partial manufactured by Petitioner and Dr. Keller found that, under the circumstances of the case and as revealed by the evidence, Petitioner's manufacture of the partial was not below community standards. On May 31, 1990, the deposition of the Patient, E. B., was taken. At some point during that day, the Patient spoke off the record with the attorneys. As a result of those discussions, the Patient signed a written statement dated May 31, 1990, which was drafted with the assistance of Petitioner's counsel. That statement provided as follows: To whom it may concern: . . . as I have stated now on numerous occasions to various people associated with the Department of Professional Regulations and the various attorneys assigned to this matter, I do not want to prosecute or pursue this matter. As was stated both throughout my prior deposition and at several conversations after the deposition . . . I wanted only certain work performed and he indicated [sic] needed only what I requested, but other work. I was only going to be in town for a short period of time and I wanted what I wanted done quickly. Dr. Rindley had, in the past, done work for me in a timely and satisfactory manner and I got angry with him and he got angry with me. I left his office without allowing him to complete and/or adjust the work done. It is not clear from the evidence presented in this case whether Petitioner refunded the Patient's money or otherwise made any accommodation to him in return for the Patient's execution of this statement. Because (a) Dr. Zimmerman had withdrawn from the case, (b) the Patient no longer wanted to cooperate and (c) the lower partial made by Petitioner had apparently been damaged, there was very little evidence to support paragraphs 5(b), 5(c), and 5(d) of the original Administrative Complaint regarding the alleged improper fabrication of the partial. After seeking and obtaining the necessary approval from the Hearing Officer, an Amended Administrative Complaint was filed by the Department on July 6, 1990. The Amended Administrative Complaint dropped the charges regarding the fabrication of the partial denture and narrowed the issues in the case to whether Petitioner's alleged failure to obtain x-rays violated Section 466.028(1)(y), Florida Statutes. At the time, after probable cause had been found, the Department could only close a file by taking the case back to a Probable Cause Panel or to the entire Board. On July 27, 1990, the Department's attorney took the case back to the Probable Cause Panel with a recommendation to terminate the prosecution because of what she felt was a lack of clear and convincing evidence of a violation This second Probable Cause Panel was composed of Robert T. Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. Dr. Ferris and Dr. Cadle were named defendants in Petitioner's Federal Lawsuit. Mr. Hudson was apparently not named as a defendant. The transcript reflects that both Drs. Ferris and Cadle were aware during the Probable Cause Panel hearing that they were defendants in the federal case. Ms. Snurkowski advised the panel that: The second [reason for dropping the case], in all candor, references Dr. Rindley and his past disciplinary history with the Department and his federal action and whatnot. . . . I just felt that it was not worth getting into additional potential federal litigation or potentially try to go to hearing and lose the case, and then looking at attorney's fees and costs imposed upon the Board . . . It wasn't worth at that point trying to litigate the case, albeit a remaining issue is still viable. As noted above, it was Ms. Snurkowski's usual and customary procedure to provide the panel members with a complete copy of the Department's investigative file in advance of the Probable Cause Panel meeting. When a case was re-presented to the Probable Cause Panel after it had been in litigation, the Probable Cause Panel would not necessarily receive the entire litigation file. Petitioner argues that there were extensive depositions taken during discovery in the Underlying Proceeding which were not provided to the Second Probable Cause Panel for consideration. Many of those depositions had not been transcribed. In any event, Petitioner has not shown that there was any information that was known to the Department at the time that was not presented to the Second Probable Cause Panel and would likely have changed the conclusions reached by the Second Probable Cause Panel. The transcript of the Second Probable Cause Panel hearing does not include any attachments to confirm what information the Panel considered. Each of the panel members indicated on the record that they had received the Department's investigative report and had reviewed it prior to the meeting. Ms. Snurkowski admittedly had only a "bare bones file" with her at the time of the Second Probable Cause Panel. The opinions of the two experts retained in anticipation of the formal hearing by the contract attorney were only provided to the Second Probable Cause Panel in summary or verbal form. At the Second Probable Cause Panel meeting on July 27, 1990, Ms. Snurkowski recommended against pursuing the Amended Administrative Complaint. At least one member of the Panel recognized that Petitioner claimed the Patient refused to have x-rays taken. After considering the investigative report, Dr. Zimmerman's opinion, the response of the Petitioner, the Patient records, and the feelings of the Department regarding the credibility of the witnesses and the strength of the case, the Second Probable Cause Panel directed that prosecution of the case should continue with the proviso that the Department should review Dr. Keller's opinion regarding paragraphs 5(b), 5(c), and 5(d) of the original Administrative Complaint and proceed only on paragraphs 5(a) and 5(e) if Dr. Keller's opinion supported that decision. The evidence did not establish that the decision of the second Probable Cause Panel was motivated by the Federal Lawsuit or any prejudice against Petitioner because he was an "advertising dentist." Instead, the more persuasive evidence established that the members of that panel, like Drs. Zimmerman, Keller and Jordan, were very concerned about Petitioner's extraction of teeth without the benefits of x-rays. A formal hearing was conducted on April 16, 1991, on the Amended Administrative Complaint. At that hearing, the Department presented no live witnesses and only submitted the deposition testimony of Dr. Jordan and Dr. Keller. Neither of these depositions addressed the community standards expected of a dentist when a patient refuses x-rays. E. B.'s patient records were not introduced into evidence. Petitioner testified on his own behalf and presented deposition testimony from two experts in the field of dentistry. During the hearing, Petitioner testified that the Patient refused to let him take x-rays during the treatment rendered in 1987 and 1988. Petitioner contended that he utilized x-rays taken of the Patient during treatment rendered in 1981 to assist him in his diagnosis and treatment in 1987-1988. Although those radiographs were outdated, Petitioner contends that they provided some useful information regarding tooth morphology and other matters. Based upon this information and his clinical observations that the teeth that were being extracted were extremely distressed, the Petitioner proceeded with the extractions without new x-rays. Petitioner's experts testified that, under the circumstances, Petitioner's care of the Patient did not fall below community standards. This testimony of Petitioner and his experts at the April 16, 1991 hearing was not successfully rebutted or impeached. The deposition testimony of the Department's witnesses did not address the unique circumstances asserted by Petitioner at the April 16, 1991 hearing. In his prior statements to the Department's investigators and in the correspondence received from his attorney, Petitioner had never previously conveyed to the Department that he had used x-rays from his previous treatment of the Patient. Moreover, based upon this information and his clinical observations that the teeth that were being extracted were extremely distressed, the Petitioner proceeded with the extractions without new x-rays. The Patient's records provided by Petitioner to the Department did not contain the x-rays purportedly used by Petitioner in treating the Patient nor did the records contain any notation regarding the allegedly extremely distressed condition of the teeth and the Patient's refusal to permit new x-rays. Consequently, these issues were not addressed in the depositions submitted by Respondent. A Recommended Order was entered on July 18, 1991 recommending that the Amended Administrative Complaint be dismissed. Because the Amended Administrative Complaint did not include a count charging Respondent with failure to keep appropriate records, the Recommended Order did not address the adequacy of the Petitioner's records with respect to his course of treatment for the Patient. The Board of Dentistry adopted the Recommended Order and dismissed the Amended Administrative Complaint by Final Order issued December 12, 1991. It is clear that the professional members of both the first and second Probable Cause Panels felt strongly that the extraction of teeth without the benefit of x-rays was a very serious matter. While the Board of Dentistry has not adopted any rules specifically requiring x-rays before extracting teeth, the evidence presented in the Underlying Proceeding and in this case established that it is below community standards to extract teeth without current x-rays except, possibly, in very unique circumstances. No such circumstances were evident from Petitioner's records. If the Department had anticipated the defense advanced by Petitioner during the hearing in the Underlying Proceeding, it is likely that a charge for deficient record keeping would have been included in the Amended Administrative Complaint. Indeed, such a charge had been recommended by the Department's expert from the time he first received the case.
The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be imposed against the licensure of Douglas R. Shanklin, M.D., the Respondent, for allegedly falsely testifying that he had not been issued a "Letter of Guidance", in violation of Section 458.331(1)(k), Florida Statutes.
Findings Of Fact At all times material hereto, the Respondent was a physician licensed in the State of Florida. He holds license number ME0009372. The Petitioner is an agency of the State of Florida charged with regulating the licensure status and related practice standards of physicians in Florida, including making investigations and bringing Administrative Complaints against those physicians, in their licensure status, believed to be departing from those practice standards. On January 8, 1993, the Respondent testified as a defense witness, by deposition, in a medical malpractice case. The case style was Faircloth v. Coastal Empire Pathology Services, P.C., et al. The trial occurred in Savannah, Georgia. During his deposition, the Respondent was asked three times, by opposing counsel, if he had ever been issued a Letter of Guidance by any state licensing agency. The Respondent stated three times that, indeed, he had not. In fact, on May 15, 1984, a Probable Cause Panel of the Board of Medical Examiners in Florida considered a complaint against the Respondent. The Probable Cause Panel made a determination that while probable cause existed to believe that the Respondent had violated the provisions of the Medical Practice Act, the complaint should be dismissed with a Letter of Guidance. The Board stated in its Order that: Probable cause exists to believe that subject has violated the provisions of the Medical Practice Act. In light of the circumstances presented, however, this case should be and the same is hereby dismissed with a letter of guidance to subject. Thereafter, an undated letter was sent to and received by the Respondent. See Petitioner's Exhibit 2 in evidence. The Closing Order was never mailed to, nor received, by the Respondent. The Respondent was unaware of the Closing Order until March of 1993, when the investigation in this case was commenced and at which time he was first supplied a copy of that Closing Order of the Board's Probable Cause Panel. The Petitioner's Exhibit 2 in evidence, the undated letter, is not entitled or otherwise delineated as a "Letter of Guidance" and at no place in the letter is the word "guide" or "guidance" used. Consequently, at the time the Respondent received the letter, which is Exhibit 2, he did not understand or perceive it to be a Letter of Guidance but, rather, understood it to be a letter of closing indicating that he had prevailed in the complaint case. On January 8, 1993, when the Respondent testified at the deposition referenced above, he did not have in mind, nor did he remember, the undated letter. On January 8, 1993, when he testified at that deposition that he had not been issued the Letter of Guidance, he believed he was answering those questions truthfully. He did not know or understand that he had been issued a Letter of Guidance. On January 8, 1993, when he testified at the deposition, he did not testify falsely, because he had not been given the Closing Order at the time that the undated letter (Exhibit 2) was received. He thus did not understand that undated letter to be a Letter of Guidance from the then Department of Professional Regulation. He was never served a copy of the actual Closing Order which might have explained the situation to him. Consequently, he had a genuine, good-faith belief that he had not been issued a Letter of Guidance. Because his belief was genuine and he had no specific intent to tell a false story in those particulars, he made no false or fraudulent representation and committed no deception in conjunction with his answers to those questions at his deposition.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence or record, the candor and credibility of the witnesses, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty of violating Section 458.331(1)(k), Florida Statutes, and that the Complaint be dismissed in its entirely. DONE AND ENTERED this 3rd day of May, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 3rd day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5903 Petitioner's Proposed Findings of Fact 1-3. Accepted. 4-6. Rejected, as not entirely in accord with the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Steven Rothenburg, Senior Attorney Agency for Health Care Administration 9125 Bay Plaza Boulevard Suite 210 Tampa, FL 33619 Larry G. Turner, Esquire Post Office Box 508 Gainesville, FL 32602 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303
The Issue The issue in this case is whether the Petition for Relief, charging the Respondent with illegal discrimination on the basis of a perceived handicap (a history of back surgery and mild hypertension), should be granted.
Findings Of Fact On or about April 30, 1991, the Petitioner, Malcolm L. Deane, II, applied for a job as a tanker driver with the Respondent, Fleet Transport Company, Inc., at its Tampa, Florida, terminal. Tankers transport gasoline, which is classified as a hazardous material. The Respondent hired the Petitioner, who had extensive tanker experience, conditioned on passing the physical and written examinations required by the Florida Department of Transportation (the DOT). He passed the written examination. The Respondent's physician examined the Petitioner and determined that the Petitioner had mild hypertension, which the Petitioner believes was caused by stress in his personal life at the time. Under DOT guidelines, a systolic blood pressure reading of between 161 and 180, or a diastolic blood pressure reading of between 91 and 104, is considered mild hypertension. The Petitioner's blood pressure was 140/104. In accordance with DOT regulations, the physician qualified the Petitioner to drive a tanker for three months, during which time the Petitioner would be required to reduce his blood pressure to 160/90, or better, in order to continue to be qualified, physically, to drive a tanker. The Respondent's physician also prepared a medical report of his examination of the Petitioner. In it, he not only reported the Petitioner's mild hypertension, he also reported that the Petitioner had back surgery January 3, 1991, which was "O.K. now," and made the comment: "I advise Mr. Malcolm [sic] to refrain from doing heavy lifting due to his recent back surgery." After the Petitioner's back surgery, the Petitioner successfully attended an eight-week back school and was released by his physician on or about March 6, 1991, to return to work driving a truck full-time with no restrictions. Once the Petitioner received his three-month Medical Examiner's Certificate, the Respondent hired him. He started training, with another driver, on May 1, 1991. Training continued on May 2, 3 and 4, 1991. After a day off, the Petitioner began working solo. He worked May 6, was off the next day, worked May 8 and 9, was off the weekend of May 10-12, and worked May 13 through 21, at which point he was "out of hours" for the month under DOT regulations and was required to take off. Throughout his work with the Respondent, the Petitioner's work was satisfactory and merited commendations and exhortations to keep up the good work. Neither his mild hypertension nor his back hampered his ability to perform the work in any way. At the end of the work day on May 21, 1991, the Respondent's terminal manager approached the Petitioner to tell him that the Respondent was terminating his employment. The manager conceded that the Petitioner's work had been excellent but that the company considered him a medical risk the company could not afford to take, due to the mild hypertension and the prior back surgery. The Petitioner was able to confirm through others in the company what the terminal manager had told him. The Respondent pays its drivers between $500 and $550 a week. The Petitioner was unemployed for four weeks after the Respondent terminated him. (He did not collect unemployment compensation.) He then got a job as a heavy equipment operator for a landfill, making $330 a week. Under the circumstances of his discharge, he does not seek to be rehired by the Respondent. He believes that his discharge by the Respondent has made it impossible for him to be hired by any other company as a tanker driver. On or about August 30, 1991, the Respondent (and other related companies) filed a petition for relief under Chapter 11 of the federal Bankruptcy Code and became a protected debtor in possession. Creditors were given notice of commencement of the proceeding and notice of the possible operation of Section 362 of the Bankruptcy Code (which prohibits some creditors from taking certain actions against a debtor in possession).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order granting the Petition for Relief filed in this case, prohibiting the Respondent from the practice of discriminating against the Petitioner on the basis of a perceived handicap, and requiring the Respondent to pay the Petitioner $2,000. RECOMMENDED this 26th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1993. COPIES FURNISHED: Malcolm L. Deane, II 727 Brook Street Largo, Florida 34640 Norman Block, Esquire Spengler Carlson Gubar Brodsky & Frischling 520 Madison Avenue New York, New York 10022 Ronald M. McElrath Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue is whether Dr. Veloso is subject to discipline because he was convicted of the first degree misdemeanor of Medicaid fraud.
Findings Of Fact A three count information was filed against Dr. Veloso in the circuit court for Palm Beach County on April 2l, 1989, alleging that Dr. Veloso was guilty of filing a false Medicaid claim, receiving payment for a false Medicaid claim, and grand theft. A probable cause affidavit had been executed by a special agent for the Medicaid fraud control unit of the Office of the Auditor General on July 19, 1988, setting forth the results of interviews the agent had with persons on whose behalf Medicaid billings had been submitted by Dr. Veloso in 1986 and 1987. Patients stated that they had not actually been treated by Dr. Veloso. According to the judgment entered by the circuit court in Palm Beach County on October 2, 1989, Dr. Veloso entered a plea of guilty to the first degree misdemeanor of Medicaid fraud, as a lesser included offense encompassed within Count I of the information, which had charged him with the felony of filing a false Medicaid claim in violation of Section 409.325(4) (a), Florida Statutes. The judgment bears a hand interlineation that the guilty plea is an "Alford" plea. The judge withheld adjudication of guilt on October 6, 1989, and placed Dr. Veloso on probation for a period of one year, subject to a number of conditions, including that he pay restitution to the Department of Health and Rehabilitative Services of $492, along with $5,000 as the cost of investigation and $80.25 in court costs. A separate order requiring restitution in those amounts was also entered on October 2, 1989. At the time Dr. Veloso entered his guilty plea, he was represented by counsel. At the time of the events charged in the information, Dr. Veloso had been licensed as a medical doctor by the State of Florida since 1975. He was also a licensed pharmacist. Dr. Veloso has never before been the subject of disciplinary action by the Board of Medicine or the Board of Pharmacy. Dr. Veloso testified during the hearing that he is innocent of any wrong doing, and entered his plea of guilty only as a plea of convenience. He testified about the six patients who are named in Count I of the information, in an attempt to demonstrate that he had actually treated those persons, was familiar with them, and was therefore entitled to bill Medicaid for his services as a physician. Dr. Veloso also testified that he would not have pled guilty if he had known that doing so would jeopardize his licensure. The testimony of Dr. Veloso is not convincing. At the time when the State of Florida was prepared to go to trial on the criminal charges Dr. Veloso himself determined that there was a sufficient likelihood that his testimony would not be persuasive that he declined to go to trial, and entered the plea of guilty which is the basis for the board's administrative complaint. Dr. Veloso himself describes an "Alford" plea in his proposed findings of fact in the following way: A plea of "Alford" is the result of the holding in North Carolina v. Alford, 400 U.S. 25 (1970). Essentially, the Alford plea recognizes three elements: (a) a consistent affirmance of innocence, (b) a waiver of the right to a trial and (c) the existence of a record, at the time of the plea which contains overwhelming evidence against the accused. Based upon the certified copies of the documents from the criminal prosecution, Dr. Veloso's probation should have terminated by October 6, 1990. Dr. Veloso apparently has successfully completed his period of probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Veloso be found guilty of having violated Section 458.331(1)(c), Florida Statutes (1985), that his license to practice medicine be suspended for a period of six months, and that he be fined $1,500. DONE and ENTERED this 26th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5481 Rulings on findings proposed by the Respondent: Findings 1 and 2 have been accepted. Finding 3 has been rejected. The reasons for the rejection are detailed in the Findings of Fact. COPIES FURNISHED: Richard Grumberg, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Andrea Newman, Esquire Law Office of Michael P. Weisberg 1840 Coral Way, 4th Floor Miami, FL 33145 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
