Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration (“the Agency”) regarding Certificate of Need (“CON”) Application No. 10202, which sought the establishment of a 100-bed acute care hospital in Broward County, District 10, that had been filed by East Florida Healthcare, LLC (“East Florida”), in the second batching cycle of 2013. The Agency preliminarily denied the application. On December 30, 2013, East Florida filed a petition for formal hearing contesting the denial, which was forwarded to the Division of Administrative Hearings (“DOAH”). In January 2014, the above-named intervenors filed motions to intervene, which were granted. On April 15, Filed April 22, 2014 4:57 PM Division of Administrative Hearings 2014, East Florida filed a notice of voluntary dismissal and the DOAH issued an order closing the file and relinquishing jurisdiction back to the Agency. IT IS THEREFORE ORDERED AND ADJUDGED THAT: 1. The denial of CON Application 10202 is upheld. ) ORDERED this 5@Any of pur . 2014, in Tallahassee, Florida. , Secretary Agency For Héalth Care Administration
The Issue The issue to be presented is whether Respondent violated section 458.331(1)(t), Florida Statutes (2005), and if so, what penalty should be imposed?
Findings Of Fact The Department is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent, John Lee, M.D., is a licensed physician in the State of Florida, having been issued license number ME 50043. Dr. Lee specializes in obstetrics and gynecology, but is not board certified at this time. He has a solo practice. Dr. Lee has had one prior final order imposing discipline against him. On November 7, 1996, the Board of Medicine entered a Final Order approving an amended Consent Agreement entered between the Agency for Health Care Administration (the Department's predecessor with respect to regulation of health care professionals) and Dr. Lee. The Final Order imposed a letter of concern, a fine of $2,000, and 20 hours of continuing medical education. On or about November 2, 2005, patient R.R. first saw Respondent with a complaint of chronic pelvic pain and an inability to function. Based upon his examination of R.R., Respondent recommended that R.R. undergo a bilateral salpingo- oophorectomy (removal of both ovaries and fallopian tubes). R.R. decided to have the recommended surgery and on December 13, 2005, Respondent performed a bilateral salpingo- oophorectomy, as well as an appendectomy, lysis of adhesions and partial omentectomy. There are three layers to the bowel: the serosa is the thin outer protective layer; under the serosa is the muscularis; a third layer below the muscularis called the mucosa. Dr. Lee's surgical notes indicate that there was some serosal denuding of the sigmoid colon, but with no luminal extravasion (no leakage from the bowel). Dr. Lee described the serosal denuding as an irritation of the serosa from removal of adhesions, and not a complication of the surgery. In any event, there are no allegations in the Administrative Complaint claiming that either Dr. Lee's decision to perform the surgery or the performance of the surgery itself deviated from the appropriate standard-of- care, and no findings to that effect are found. R.R. was discharged from the hospital on December 15, 2005. At that time, she was ambulatory, tolerating liquids, had passed flatus and had a small bowel movement. At that time she had no documented fever and a normal white count. The next day, Friday, December 16, 2005, R.R.'s husband called Dr. Lee's office at approximately 3:00 p.m. According to R.R., she spoke to Brandi Melvin, now known as Brandi Harper (Ms. Harper), the medical assistant for Dr. Lee, and told her that she was running a fever of 101.8 degrees, did not feel well and wanted Dr. Lee to call her. She testified that at that time, she did not feel well, was achy all over, had pain in her abdomen and had chills. R.R. testified that Ms. Harper told her to increase her Dilaudid in accordance with her prescription and to continue rotating Tylenol and Motrin. She denies being told to go to the emergency room if her fever did not go down, and denies being instructed to pick up a prescription for an antibiotic. Brandi Harper is a medical assistant in Dr. Lee's office, and has been since 2004. She is a certified nurse's assistant and has completed a year and a half toward her registered nursing degree. Part of Ms. Harper's duties include screening calls that come in from patients post-surgery. In doing so, she follows a set protocol that has been established in that office. In accordance with Dr. Lee's preferences, she inquires not only about the symptoms the patients report having, but also about symptoms they may not be having. Consistent with that protocol, she testified that, with respect to the call from R.R. and her husband, she asked whether R.R. was having any drainage from the incision; any abdominal pain; or was experiencing any other symptoms. Ms. Harper testified that R.R. did not report having any abdominal pain above expected soreness, and did not report difficulty breathing or shortness of breath; drainage from the incision; vomiting; bloating or distension of the abdomen. Ms. Harper's testimony is credited. After receiving the telephone call from R.R., Ms. Harper wrote a note to Dr. Lee which referenced R.R. and stated, "[t]aking the cephalexin you gave her on discharge. Is running 102 temp, just sore. She has been rotating Tylenol and nothing has brought it down. Informed her to drink plenty of fluids. Do you want to add anything?" Neither Ms. Harper's notes nor her testimony reflect that she told the patient to increase pain medication. Nor does the note reflect that R.R. wanted to speak with Dr. Lee. Because Dr. Lee was seeing patients, Ms. Harper placed the note on his desk for his review. After reviewing the note, Dr. Lee wrote "Levaquin 500mg, #10, 1 a day." Ms. Harper then called the patient to tell her that a prescription was being called in for her and confirmed the pharmacy the patient used. At that time, consistent with the protocol established by Dr. Lee, she told R.R. or her husband that if the fever did not go down after two hours, to go to the emergency room at West Florida Hospital. She did not tell her to call the office back because, at the time of the return phone call, it was approximately 3:30 p.m. on a Friday afternoon, and in two hours the office would be closed. Ms. Harper then called the prescription in to Burklow's Pharmacy, as identified by the patient, and noted the prescription in patient's medication log. She noted the time of the call and the name of the pharmacist with whom she spoke. Ms. Harper did not note in the medical record that she advised the patient to go to the emergency room if her fever did not go down, and did not specifically note the return call to the patient. However, she plausibly explained that she could not call in the prescription to Burklow's without speaking to the patient, because there were two different pharmacies noted in her file previously. She also credibly testified that she always calls the patient back in conjunction with the call to the pharmacy, and gives standard instructions to post-operative patients regarding further action (in this case, going to the West Florida Hospital emergency room) should their condition not change. She does not necessarily document the return call because she does it so many times daily. Dr. Lee also testified that instructions to call back if the office is open or go to the emergency room if symptoms do not improve in a few hours is part of the standard protocol. Ms. Harper's and Dr. Lee's testimony is credited. R.R. did not go to the emergency room over the weekend and there was no evidence that she ever called Dr. Lee's office back after the 3:00 Friday afternoon call. She continued to not feel well, however, and on Monday morning, December 19, 2005, at approximately 5:00 a.m., she woke up in intense pain between her shoulder blades. She went by ambulance to Santa Rosa Medical Center (SRMC). R.R. went to SRMC as opposed to West Florida Hospital because it was much closer to her home. Dr. Lee does not have privileges at SRMC. Although R.R. went to the emergency room early December 19, 2005, there was no determination that first day that she had a bowel perforation, and she was not admitted to the hospital until approximately 8:30 that evening. At the time of admission, she had a white blood count of 3.3, with a differential count of 12 neutrophil bands. The history and physical taken at the hospital and signed by Dr. Michael Barber, M.D., states in part: HISTORY OF PRESENT ILLNESS: [R.R.] is a 33- year-old, . . . who underwent abdominal surgery six days ago by Dr. John Lee at West Florida Hospital. She had bilateral salpingo-oophorectomy, partial omentectomy, appendectomy, and extensive adhesiolysis. . . . She states that although this surgery was prolonged and reportedly difficulty (sic), she tolerated the surgery well and by the second postoperative day was ambulating and voiding freely, tolerating a regular diet with a bowel movement and positive flatus. She stated her pain was well managed with 4 mg of Dilaudid q4h as needed. She was sent home on Cephalexin 500 mg q6h, Phenergan 25 mg q6h and Dilaudid 4 mg q6h. She was also on Hydrochlorothiazide for chronic hypertension, Klonopin and Effexor for anxiety and depression. She states that after going home she had some anorexia that was doing well until the morning of admission. She was awakened from her sleep at approximately 6 a.m. with remarkable abdominal distention and severe diffuse abdominal pain. She developed nausea as the pain progressed but has had no vomiting. She states that other than the bowel movement immediately post surgery, she had not had any bowel activity since discharge in six days. After several hours and worsening of pain, she presented to the emergency room at Santa Rosa Medical Center. On admission, a CT scan of the abdomen was accomplished and revealed a moderate volume loss infiltrate in the left lung base, apparent present to a lesser extent on the right. There was free air noted within the abdomen and also noted to be some free fluid. This was felt to be due to the patient's prior surgery, however, a more acute process could not be ruled out. There were also some distended loops of small bowel with apparent decompression of the distal small bowel which suggested at least a partial small bowel obstruction, although again, the diagnosis included ileus. A CT of the pelvis was unremarkable except as noted on the CT scan. There was some free fluid and free air within the pelvis. Since transfer to West Florida Hospital and the patient's attending physician could not be arranged, decision was made to admit to Dr. Barber on GYN service. * * * IMPRESSION: Severe abdominal pain 6 days post exploratory surgery with bilateral salpingo-oophorectomy, partial omentectomy, appendectomy and adhesiolysis. No signs at this time of active infection or perforation. The most likely diagnosis is a severe postoperative ileus, however, the patient warrants close observation. An ileus occurs when the bowel is "asleep" and not moving. Dr. Barber transferred R.R. to the Intensive Care Unit overnight for close observation. R.R.'s temperature at the time of admission was 96.8. The History of Present Illness taken from R.R. does not mention the rise in temperature following discharge from West Florida Hospital, or the phone call to Dr. Lee's office. On December 20, 2005, Dr. Althar saw R.R. in consultation. At that time, her white count was 8.4 with 48 bands, indicating overwhelming sepsis. Dr. Althar took her immediately to surgery. Surgery revealed a bowel perforation of the sigmoid colon, and Dr. Althar performed a sigmoid colectomy, end colostomy, and Hartmann procedure. R.R. suffered some complications after surgery, which were not unexpected, and remained in the hospital until her discharge January 16, 2006. The Department presented the expert testimony of Robert W. Holloway, M.D. Dr. Holloway graduated from Vanderbilt University Medical School; completed his residency in Obstetrics and Gynecology at the University of Alabama at Birmingham; and completed a fellowship in gynecology oncology at Georgetown University Hospital. Dr. Holloway has been licensed as a medical doctor in Florida since 1990, and is board certified in obstetrics and gynecology, and gynecologic oncology. He is currently the co-Medical Director of the Gynecologic Oncology program at the Florida Hospital Cancer Institute in Orlando, Florida, and a clinical instructor for the Obstetrics and Gynecology Residency Program at Orlando Regional Medical Center. Dr. Holloway is in an office on the Florida Hospital campus, where there are four attending physicians and three follows in training. Fifty to 60 percent of his patients are oncology patients, with the remainder having benign issues. Dr. Holloway opined that in this case, the bowel perforated most likely late Sunday evening or early Monday morning, probably 6-12 hours before R.R. woke up in extreme pain. He found no violation of the standard-of-care regarding the denuding of the serosa in the original surgery, viewing it as an anticipated outcome with a difficult case of endometriosis. However, he opined that Dr. Lee fell below the appropriate standard-of-care when he failed to evaluate the patient on Friday afternoon when she had a temperature of 102 degrees. Dr. Holloway indicated that the most common indications of bowel perforation in post-operative patients are abdominal pain and fever. He knew of no cases where a perforation occurred with the patient presenting with fever alone. He also agreed that it is common for physicians to rely on their staff to triage patients, and to relay information back to patients. It is common, according to Dr. Holloway, for doctors to train staff to tell the patient to call back or go to the emergency room if a problem does not resolve itself, and staff normally does the majority of charting. With respect to the directions to the patient to call back or go to the emergency room, Dr. Holloway could not say that those directions are always noted in the chart for patients in his office, although they frequently are. Most importantly, Dr. Holloway could not conclude that Ms. Harper did not give the instructions to R.R. because it was not specifically noted in the chart, and he would be apt to give the staff the benefit of the doubt. He could not conclude from the absence of the note that proper instructions were not given. Dr. Holloway also indicated that he did not believe the bowel had perforated as of Friday afternoon when the call was made to Dr. Lee's office. Respondent presented the testimony of John Douglas Davis, M.D., who serves as the Director of Gynecology and Associate Residency Director of the Department of Obstetrics and Gynecology at the University of Florida College of Medicine. Dr. Davis graduated from medical school at Wake Forest University and received his post-doctoral training at the University of Florida. Dr. Davis is licensed as a medical doctor in the State of Florida, and has been board certified in obstetrics and gynecology since 1992. Ninety-five percent of his patients are gynecological patients. Dr. Davis did not believe that Respondent violated the appropriate standard-of-care in his treatment of R.R. He opined that it is reasonable to rely on staff to perform triage functions with respect to calls from patients, and would interpret the note from Ms. Harper as not being indicative of bowel perforation. He testified that it was more likely to assume that the fever was caused by a pulmonary source, and the prescription for Levaquin was consistent with that assumption. In addition, the CT scan upon admission to SRMC was consistent with findings of pneumonia, and in Dr. Davis' view, the eventual determination that the bowel perforated does not mean that pneumonia was not also present. Like Dr. Holloway, Dr. Davis testified that bowel perforation does not present without severe abdominal pain, which was not reported to Dr. Lee. Dr. Davis opined that R.R.'s fever of 102 degrees must be interpreted in light of the patient's situation at discharge from the hospital, which Dr. Lee already knew. Most importantly, Dr. Davis testified that not seeing R.R. on Friday afternoon did not have an impact on her subsequent clinical course. His testimony is credited. In summary, it is found that Ms. Harper did instruct the patient to go to the emergency room at West Florida Hospital should her symptoms not improve after a couple of hours with the new medication. Dr. Lee's reliance on her to give that instruction is within the standard-of-care for a reasonably prudent similar physician under similar conditions and circumstances.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order dismissing the Administrative Complaint in its entirety. DONE AND ENTERED this 23rd day of September, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 23rd day of September, 2011. COPIES FURNISHED: Elana J. Jones, Esquire Ian Brown, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell and Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302 Nicholas W. Romanello, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32299-170 Joy A. Tootle, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399
The Issue Whether Florida Hospital Medical Center is entitled to reimbursement in the amount preliminarily determined by the Department of Financial Services, Division of Workers’ Compensation, in a reimbursement dispute regarding bills submitted by Florida Hospital Medical Center to Macy’s Claims Services and Amerisure Mutual Insurance Company for medical services provided to two individuals involved in work-related accidents; and Whether Macy’s Claims Services and Amerisure Mutual Insurance Company properly adjusted those bills of Florida Hospital Medical Center in accordance with the requirements of Florida’s Workers’ Compensation law and applicable rules.
Findings Of Fact Florida Hospital is a full-service, not-for-profit hospital system located in Orlando, Florida, that operates a smaller satellite hospital in Winter Park, Florida. Florida Hospital is a “health care provider” within the meaning of Section 440.13(1)(h), Florida Statutes. Macy’s and Amerisure are “carriers” within the meaning of Sections 440.02(4) and 440.02(38), Florida Statutes. The Department has exclusive jurisdiction to resolve disputes between carriers and health care providers regarding payments for services rendered to injured workers, pursuant to Sections 440.13(7) and 440.13(11)(c), Florida Statutes. Qmedtrix is a medical bill review company.3/ Case No. 09-6871 R. P., an employee of Macy’s, slipped and fell at work on May 20, 2009, and presented to Florida Hospital Winter Park for evaluation and treatment where medical personnel documented vomiting, brain attack, and brain trauma. After evaluation and treatment, patient R. P. was diagnosed with a bruise to the head and released the same day. On September 16, 2009, Florida Hospital submitted its bill for services provided to R. P. totaling $5,547.20 to Macy’s for payment, utilizing Form DFS-F5-DWC-90, also known as UB-04 CMS-1450, identifying the charges billed for each line item by revenue code and HCPS or CPT codes. Macy’s forwarded the bill to its workers’ compensation medical bill review agent, Qmedtrix. Qmedtrix reviewed the bill by comparing the procedure codes and diagnosis codes reported by Florida Hospital with examples in the CPT book for billing of emergency department services. Florida Hospital reported ICD diagnosis code 920, which reads “contusion of face, scalp, or neck.” Use of this code means R. P. presented with a bruise or hematoma, but not a concussion. Florida Hospital also reported ICD diagnosis code 959.01 (“head injury, unspecified”) which also means that R. P. did not present with a concussion, loss of consciousness, or intracranial injuries. Florida Hospital’s bill included a charge of $2,417 with CPT code 99285 for emergency department services. The bill also included separate charges for a head CT, and various lab tests, drugs, and IV solutions. According to Mr. von Sydow, the bill was sent through Qmedtrix’s computer program for review, and was flagged for review by a physician. Mr. von Sydow further testified that one of Qmedtrix’s medical director’s suggested that the CPT code of 99285 be reduced. The medical director, who Mr. von Sydow said reviewed the bill, however, did not testify and no documentation of his recommendation was submitted at the final hearing. Qmedtrix determined that Florida Hospital should have used CPT code 99284 when billing for the emergency services rendered instead of CPT code 99285. Qmedtrix found that, while the hospital billed $2,417 with CPT code 99285, its usual charge for an emergency department visit billed with CPT code 99284 is $1,354. Macy’s paid Florida Hospital a total of $2,683.55, which amount included $1,010.24 for the emergency department visit based on [approximately] 75 percent of Florida Hospital’s usual charge for CPT code 99284. The payment was accompanied by an EOBR. The EOBR Macy’s (or its designated entity)4/ issued to Florida Hospital for services rendered to R. P. identifies the amount billed by Florida Hospital as to each line item in a column designated “Billed,” and has columns designated as “BR Red,” “PPO Red,” “Other Red,” and “Allowance,” each containing an amount for each line item in the “Billed” column. There is also a column entitled “Reason Code” which sets forth codes, as required by Florida Administrative Code Rule 69L-7.602(5)(o)3., that are supposed to explain the reason for adjustment of any line item.5/ The “reason code” set forth adjacent to the $2,417.00 billed by Florida Hospital for emergency department services is “82,” which means “Payment adjusted: payment modified pursuant to carrier charge analysis.” There is also another code, “P506” listed in the “Reason Code” column adjacent to the same line item, which, according to the key provided on the EOBR, means “[a]ny questions regarding this Qmedtrix review, please call (800)-833-1993.” “P506,” however, is not a “reason code” listed in Florida Administrative Code Rule 68L- 7.602(5)(o)3. The EOBR does not advise that the bill was adjusted because of a determination that Florida Hospital should have used CPT code 99284 when billing for the emergency services rendered instead of CPT code 99285 as originally billed. Upon receipt of the payment and the EOBR, Florida Hospital timely filed a Petition for Resolution of Reimbursement Dispute with the Department pursuant to Section 440.13(7)(a), Florida Statutes, and Florida Administrative Rule 69L-31, contending that payment should be at 75 percent of its total charges, and citing the Florida Workers’ Compensation Reimbursement Manual for Hospitals, 2006 Edition (Hospital Manual). Qmedtrix timely filed a response to Florida Hospital’s petition on behalf of Macy’s pursuant to Section 440.13(7)(b), Florida Statutes, and Florida Administrative Code Rule 69L-31, asserting that correct payment should be determined based on, first, whether the hospital in fact billed its usual charge for the services and, second, whether the hospital’s charges are in line with the charges of other hospitals in the same community, citing One Beacon Insurance v. Agency for Health Care Administration, 958 So. 2d 1127 (Fla. 1st DCA 2007) for the proposition that “SB-50 amended section 440.13 . . . [revealing] legislative intent to eliminate calculation of a “usual and customary charge” based on the fees of any one provider in favor of a calculation based on average fees of all providers in a given geographic area.” Qmedtrix’s response on behalf of Macy’s also contended that “upcoding” and “unbundling” were additional grounds for adjustment or disallowance that were not identified on the EOBR. The response explained that “upcoding” refers to billing with a procedure code that exaggerates the complexity of the service actually provided; that CPT codes 99281 through 99285 describe emergency department services; that the CPT book includes examples of proper billing with these codes; that the hospital billed $2,417 with CPT code 99285; and that the CPT book describes an “emergency department visit for a healthy, young adult patient who sustained a blunt head injury with local swelling and bruising without subsequent confusion, loss of consciousness or memory deficit” as an example of proper billing with CPT code 99283. The response requested a determination by the Department that Macy’s payment equaled or exceeded the amount usual and customary for CPT code 99283. On November 13, 2009, the Department, through its Office of Medical Services (OMS) issued a determination (Determination in 09-6871) which found, in pertinent part: The petitioner asserts that services provided by Florida Hospital Medical Center to the above-referenced injured employee on May 20, 2009, were incorrectly reimbursed. Florida Hospital Medical Center billed $5,547.20 and the carrier reimbursed $2,683.55. The petition does not address a contract and does not reflect a contract discount in the calculation of requested reimbursement. The Carrier Response to Petition for Resolution of Reimbursement Dispute disputes the reasonableness of the hospital’s “usual and customary charges”, maintains the petitioners’ charges should be based on the average fee of other hospitals in the same geographic area, references a manual not incorporated by rule, and provides CPT codes that the respondent alleges are correct. There are no rules or regulations within Florida’s Workers’ Compensation program prohibiting a provider from separately billing for individual revenue codes. The carrier did not dispute that the charges listed on the Form DFS-F5-DWC-90 (UB-92) or the charges listed on the itemized statement did not conform to the hospital’s Charge Master. Nor did the carrier submit the hospital’s Charge Master in the response or assert that the carrier performed an audit of the Charge Master to verify the accuracy of the billed charges. Therefore, since no evidence was presented to dispute the accuracy of the Form DFS-F5-DWC-90 or the itemized statement as not being representative of the Charge Master, the OMS finds that the charges billed by the hospital are the hospital’s usual and customary charges. Rule 69L-7.602, F.A.C., stipulates the appropriate EOBR codes that must be utilized when explaining to the provider the carrier’s reasons for disallowance or adjustment. The EOBR submitted with the petition conforms to the EOBR code requirements of Rule 69L-7.602(5)(q), F.A.C. Only through an EOBR is the carrier to communicate to the health care provider the carrier’s reasons for disallowance or adjustment of the provider’s bill. Pursuant to s. 440.13(12), F.S., a three member panel was established to determine statewide reimbursement allowances for treatment and care of injured workers. Rule 69L-7.501, F.A.C., incorporates, by reference, the applicable reimbursement schedule created by the panel. Section 440.13(7)(c), F.S., requires the OMS to utilize this schedule in rendering its determination for this reimbursement dispute. No established authority exists to permit alternative schedules or other methodologies to be utilized for hospital reimbursement other than those adopted by Rule 69L-7.501, F.A.C., unless the provider and the carrier have entered into a mutually agreeable contract. Rule 69L-7.501, F.A.C., incorporates, by reference, the Florida Workers’ Compensation Reimbursement Manual for Hospitals, 2006 Edition (Hospital Manual). Since the carrier failed to indicate any of the services are not medically necessary, the OMS determined proper reimbursement applying the above referenced reimbursement guidelines. Therefore, the OMS has determined that the carrier improperly adjusted reimbursement to Florida Medical Center for services rendered to the above- referenced injured employee on May 20, 2009. Based on the above analysis, the OMS has determined that correct reimbursement equals $4,160.40 ($5,547.20 x 75% [Hospital Manual]=$4,160.40). The carrier shall reimburse Florida Hospital Medical Center $4,160.40 for services rendered to the above-referenced employee; and submit proof of reimbursement of the amount determined by the OMS within thirty days of the date the Determination is received. . . . The difference between what Petitioner Macy’s paid Florida Hospital for services rendered to R. P., and the amount the Department determined that Petitioner Macy’s is required to pay for such services, equals $1,476.85. The Determination in 09-6871 did not directly address Macy’s allegation of the alleged billing error of “upcoding.” The Determination in 09-6871 provided a 21-day notice for request of an administrative hearing and, as noted in the Preliminary Statement above, Macy’s timely requested a hearing. Case No. 09-6872 J. L., an employee of Major League Aluminum, was injured in a work-related accident on the evening of May 3, 2009, and visited the emergency department of Florida Hospital Orlando. After evaluation and treatment, J. L. was diagnosed with a bruise to the knee and released the next morning. On September 23, 2009, Florida Hospital submitted its bill for services provided to J. L. totaling $2,851 to Amerisure, Major League Aluminum’s workers’ compensation insurer, for payment, utilizing Form DFS-F5-DWC-90, also known as UB-04 CMS-1450, identifying the charges billed for each line item by revenue code and HCPS or CPT codes. Amerisure forwarded the hospital bill to its medical bill review agent, Qmedtrix for review. Qmedtrix’s medical bill review in this case, as in the companion case, entailed comparing the procedure codes and diagnosis codes reported by the hospital with examples in the CPT book. The hospital reported ICD diagnosis code 924.11, which reads “contusion of . . . knee.” The hospital also reported ICD diagnosis codes 724.2 (“lumbago”), E888.1 (“fall on or from ladders or scaffolding”) and 959.7 (“injury, other and unspecified . . . knee, leg, ankle, and foot.”). Florida Hospital billed $1,354 with CPT code 9924 for emergency department services and also billed for X-rays and various drugs and IV solutions. Comparing procedure codes and diagnosis codes reported by the hospital with examples in the CPT book, Qmedtrix concluded that billing with CPT code 99284 was not appropriate, but that billing with CPT code 99282 was. Qmedtrix also found that, while the hospital billed $1,354 with CPT code 99284, the average charge in the community for a visit to the emergency department billed with CPT code 99282 is $721. Qmedtrix determined the “usual and customary charge” in the community from its own database compiled by entering all of particular hospital bills into Qmedtrix’s database, along with data from the American Hospital Directory. Qmedtrix derives the average charge in the community based upon zip codes of the hospitals. Amerisure paid Florida Hospital a total of $1,257.15, which amount included $524.70 for the emergency department visit codes based on 75 percent of what Qmedtrix determined to be the average charge in the community for CPT code 99282. The payment was accompanied by an EOBR. The EOBR Petitioner Amerisure (or its designated entity)6/ issued to Florida Hospital for services rendered to J. L. identifies the amount billed by Florida Hospital as to each line item in a column designated “Billed Charges,” and has columns designated as “FS/UCR Reductions,” “Audit Reductions,” “Network Reductions,” and “Allowance,” each containing an amount for each line item in the “Billed Charges” column. There is also a column entitled “Qualify Code” which sets forth reason codes that are supposed to explain the reason for adjustment of any line item.7/ The code set forth adjacent to the $1,354.00 billed by Florida Hospital for emergency department services is “82,” which means “Payment adjusted: payment modified pursuant to carrier charge analysis.” The EOBR does not advise that the bill was adjusted because of a determination that Florida Hospital should have used CPT code 99282 when billing for the emergency services rendered instead of CPT code 99284 as originally billed. Upon receipt of the payment and the EOBR, Florida Hospital timely filed a Petition for Resolution of Reimbursement Dispute with the Department pursuant to Section 440.13(7)(a), Florida Statutes, and Florida Administrative Code Rule 69L-31, contending that payment should be at 75 percent of its total charges, and citing the Hospital Manual. Qmedtrix timely filed a response to Florida Hospital’s petition on behalf of Amerisure pursuant to Section 440.13(7)(b), Florida Statutes, and Florida Administrative Code Rule 69L-31, asserting that correct payment should be determined based on, first, whether the hospital, in fact, billed its usual charge for the services and, second, whether the hospital’s charges are in line with the charges of other hospitals in the same community, citing One Beacon, supra. Qmedtrix’s response on behalf of Amerisure contended “upcoding” as an additional ground for adjustment or disallowance that was not identified on the EOBR. As in the companion case, the response explained “upcoding,” that CPT codes 99281 through 99285 describe emergency department services, and that the CPT book includes examples of proper billing with these codes. The response further stated that the hospital billed $1,354 with CPT code 99284, and that the CPT book describes an “emergency department visit for a patient with a minor traumatic injury of an extremity with localized pain, swelling, and bruising” as an example of proper billing with CPT code 99282. The response requested a determination by the Department that Amerisure’s payment equaled or exceeded the usual and customary charge for CPT code 99282. On October 20, 2009, the Department’s OMS issued a determination (Determination in 09-6872) which found, in pertinent part: The petitioner asserts that services provided by Florida Hospital Medical Center to the above-referenced injured employee on May 3, 2009, and May 4, 2009, were incorrectly reimbursed. Florida Hospital Medical Center billed $2,851.00 and the carrier reimbursed $1,257.15. The petition does not address a contract and does not reflect a contract discount in the calculation of requested reimbursement. The Carrier Response to Petition for Resolution of Reimbursement Dispute disputes the reasonableness of the hospital’s “usual and customary charges”, maintains the petitioners’ charges should be based on the average fee of other hospitals in the same geographic area, and references a manual not incorporated by rule. There are no rules or regulations within Florida’s Workers’ Compensation program prohibiting a provider from separately billing for individual revenue codes. Therefore, the charges, as billed by the hospital, did not constitute billing errors. The carrier did not dispute that the charges listed on the Form DFS-F5- DWC-90 (UB-92) or the charges listed on the itemized statement did not conform to the hospital’s Charge Master. Nor did the carrier submit the hospital’s Charge Master in the response or assert that the carrier performed an audit of the Charge Master to verify the accuracy of the billed charges. Therefore, since no evidence was presented to dispute the accuracy of the Form DFS-F5- DWC-90 or the itemized statement as not being representative of the Charge Master, the OMS finds that the charges billed by the hospital are the hospital’s usual and customary charges. Rule 69L-7.602, F.A.C., stipulates the appropriate EOBR codes that must be utilized when explaining to the provider the carrier’s reasons for disallowance or adjustment. The EOBR submitted with the petition conforms to the EOBR code requirements of Rule 69L-7.602(5)(q), F.A.C. Only through an EOBR is the carrier to communicate to the health care provider the carrier’s reasons for disallowance or adjustment of the provider’s bill. Pursuant to s. 440.13(12), F.S., a three member panel was established to determine statewide reimbursement allowances for treatment and care of injured workers. Rule 69L-7.501, F.A.C., incorporates, by reference, the applicable reimbursement schedule created by the panel. Section 440.13(7)(c), F.S., requires the OMS to utilize this schedule in rendering its determination for this reimbursement dispute. No established authority exists to permit alternative schedules or other methodologies to be utilized for hospital reimbursement other than those adopted by Rule 69L-7.501, F.A.C., unless the provider and the carrier have entered into a mutually agreeable contract. Rule 69L-7.501, F.A.C., incorporates, by reference, the Florida Workers’ Compensation Reimbursement Manual for Hospitals, 2006 Edition (Hospital Manual). Since the carrier failed to indicate any of the services are not medically necessary, the OMS determined proper reimbursement applying the above referenced reimbursement guidelines. Therefore, the OMS has determined that the carrier improperly adjusted reimbursement to Florida Medical Center for services rendered to the above- referenced injured employee on May 3, 2009, and May 4, 2009. Based on the above analysis, the OMS has determined that correct reimbursement equals $2,138.25 ($2,851.00 x 75% [Hospital Manual]=$2,138.25). The carrier shall reimburse Florida Hospital Medical Center $2,138.25 for services rendered to the above-referenced employee; and submit proof of reimbursement of the amount determined by the OMS within thirty days of the date the Determination is received. . . . The difference between what Petitioner Amerisure paid Florida Hospital for services rendered to J. L. and the amount the Department determined that Petitioner Amerisure is required to pay for such services equals $881.10. The Determination in 09-6872 did not directly address Amerisure’s allegation of the alleged billing error of “upcoding.” The Determination in 09-6872 provided a 21-day notice for request of an administrative hearing and, as noted in the Preliminary Statement above, Amerisure timely requested a hearing. Alleged “Upcoding” for Emergency Department Services The Petitioners’ responses in both cases allege that Florida Hospital “upcoded” its bill for emergency department evaluation and management services. Neither EOBR submitted to Florida Hospital, however, reported alleged “upcoding” as an explanation for the Petitioners’ adjustment or disallowance of reimbursement. While the Dispute Determinations by the Department do not directly address the carrier’s allegation of the alleged billing error of “upcoding” raised in the Petitioners’ responses, they found that “Rule 69L-7.602, F.A.C., stipulates the appropriate EOBR codes that must be utilized when explaining to the provider the carrier’s reasons for disallowance or adjustment[, and that] [o]nly through an EOBR is the carrier to communicate to the health care provider the carrier’s reasons for disallowance or adjustment of the provider’s bill.” According to Mr. von Sydow, who was offered by Petitioners as an expert in billing, coding, reimbursement, and payment issues,8/ the “reason codes” that workers’ compensation carriers are to use pursuant to Florida Administrative Code Rule 69L-7.602, do not mention “upcoding,” and therefore an EOBR could not be generated with a reason code explaining reduction or disallowance based on “upcoding.” The following reason codes, however, are included in Florida Administrative Code Rule 69L-7.602: 23 – Payment disallowed: medical necessity: diagnosis does not support the services rendered. – Payment disallowed: insufficient documentation: documentation does not substantiate the service billed was rendered. – Payment disallowed: insufficient documentation: level of evaluation and management service not supported by documentation. Neither EOBR submitted to Florida Hospital includes reason code 23, 40, or 41. And neither EOBR explains or otherwise suggests that that Florida Hospital’s level of billing was not supported by medical necessity, services rendered, or sufficient documentation. In fact, Petitioners did not disallow reimbursement and do not contend that reimbursement should be denied for any services rendered by Florida Hospital to R. P. and J. L. on the grounds that the billed services were not medically necessary for the injured employees’ compensable injuries. In addition, Petitioners did not adjust or disallow payment for any of the billed procedures on the grounds that the procedures were not provided. In sum, the EOBR’s did not give Florida Hospital notice that alleged “upcoding” was an issue. Even if Petitioner’s EOBR’s gave Florida Hospital notice that it was asserting “upcoding” as a reason to reduce or adjust the hospital’s bill, the evidence does not support a finding that Florida Hospital utilized the wrong code in its billing for emergency department evaluation and management services. The CPT® 2009 Current Procedural Terminology Professional Edition, (Copyright 2008), (CPT book), is adopted by reference in Florida Administrative Code Rule 69L-7.602(3)(d) and Florida Administrative Code Rule 60L-7.020(2). The CPT book sets forth the procedure codes for billing and reporting by hospitals and physicians. The CPT book sets forth CPT codes ranging from 99281 through 99285 used to report evaluation and management services provided in a hospital’s emergency department, described as follows: 99281: Emergency department visit for the evaluation and management of a patient, which requires these 3 key components: A problem focused history; A problem focused examination; and Straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies and 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. 99282: Emergency department visit for the evaluation and management of a patient, which requires these 3 key components: An expanded problem focused history; An expanded problem focused examination; and Medical decision making of low complexity. Counseling and/or coordination of care with other providers or agencies and 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. 99283: Emergency department visit for the evaluation and management of a patient, which requires these 3 key components: An expanded problem focused history; An expanded problem focused examination; and Medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies and 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. 99284: Emergency department visit for the evaluation and management of a patient, which requires these 3 key components: A detailed history; A detailed examination; and Medical decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies and 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, and require urgent evaluation by the physician but do not pose an immediate significant threat to life or physiologic function. 99285: Emergency department visit for the evaluation and management of a patient, which requires these 3 key components: A comprehensive history; A comprehensive examination; and Medical decision making of high complexity. Counseling and/or coordination of care with other providers or agencies and 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 and pose an immediate significant threat to life or physiologic function. Mr. von Sydow testified that a Qmedtrix “medical director,” reviewed Florida Hospital’s bill for services rendered to R. P., but not the medical records, and recommended that the hospital’s charge for emergency department services under CPT 99285 be “re-priced” to Qmedtrix’s determination of the “usual and customary charge” for CPT 99284. Mr. von Sydow acknowledged the need for physician review for some cases (as opposed to review by non-physician coders) by testifying, “The more complicated the medicine, the more likely it is that he [a medical director at Qmedtrix] wants to see it.” Despite Qmedtrix’s original determination to “reprice” the bill from CPT code 99285 to CPT code 99284 (reflected in the reduced payment but not explained in the EOBR), Mr. von Sydow opined that the correct CPT code for emergency department services provided to patient R. P. was 99283, as opposed to 99285 billed by the hospital. Mr. von Sydow testified that his opinion was based upon his own review of the medical records, without the assistance of a medical director or medical expert, and review of examples for the CPT codes for emergency department services from the CPT book, and various provisions of ICD-9 and CPT book coding resources. Aside from the fact that Mr. von Sydow’s opinion differed from the purported recommendation of a Qmedtrix “medical director,” Mr. von Sydow is not a physician. Moreover, Qmedtrix failed to provide the testimony of the medical director, or anyone else with medical expertise to evaluate the medical records and services provided or to validate either the opinion of Mr. von Sydow or the original recommendation to “re- price” Florida Hospital’s use of CPT Code 99285 in its bill for emergency department services rendered to patient R. P. Mr. von Sydow offered similar testimony and examples to explain Qmedtrix’s “re-pricing” of Florida Hospital’s bill from CPT code 99284 to CPT code 99282 for emergency services rendered to patient J. L. on behalf of Amerisure. According to Mr. von Sydow, an internal Qmedtrix coder (not a medical director) reviewed the bill for emergency services rendered to J. L. and determined it should be re-priced to the usual and customary charge, as determined by Qmedtrix, using that CPT code 99282. While knowledgeable of the various codes and their uses, given the manner in which preliminary diagnostics under emergency circumstances drives Florida Hospital’s determination of the appropriate CPT code for billing emergency department services, without the testimony of a medical expert familiar with the medical records generated in these cases in light of the facts and circumstances surrounding the emergency care rendered to patients R. P. and J. L., Mr. von Sydow’s testimony was unpersuasive. Ross Edmundson, M.D., an employee, vice-president, and medical manager for Florida Hospital, explained that, unlike other settings, hospitals generally do not have the medical histories of patients presenting for emergency hospital services. When a patient comes to Florida Hospital for emergency services, they are triaged by a nurse to determine the level of urgency, then a doctor sees the patient, conducts a differential diagnosis to rule out possible causes, obtains the patient’s history, and then performs a physical examination. While emergency room physicians at Florida Hospital do not decide which CPT code is utilized for the evaluation and management services provided by its emergency department, the various tests and procedures they undertake to evaluate and treat emergency department patients do. James English, the director of revenue management for Florida Hospital explained the process through his deposition testimony. Florida Hospital, like over 400 other hospitals, uses the “Lynx System” – a proprietary system for creating and maintaining medical records electronically. The program captures each medical service, supply, and physician order that is inputted into the electronic medical record. The hospital’s emergency evaluation and management CPT code is generated from the electronic record. A “point collection system” in the Lynx System translates physician-ordered services, supplies it to a point system, and then assigns the CPT code that is billed based upon the total number of “points” that are in the system at the time the patient is discharged from the emergency department. The level of the evaluation and management CPT code (99281 to 99285) that is reported on Florida Hospital’s bill is a direct reflection of the number and types of medical services that a patient receives from his or her arrival through discharge. In light of evidence showing the manner in which emergency services are provided and the importance of medical records in generating the appropriate billing code for emergency evaluation and management services, it is found that Petitioners failed to provide an adequate analysis of the medical records of either R. P. or J. L. to show that the appropriate CPT codes were not utilized by Florida Hospital in billing for those services. On the other hand, both Petitions for Resolution of Reimbursement Dispute filed by Florida Hospital with the Department attached appropriately itemized bills utilizing Form DFS-F5-DWC-90, also known as UB-04 CMS-1450, identifying the charges billed for each line item by revenue code and HCPS or CPT codes. In addition, medical records for the evaluation and treatment provided by Florida Hospital for both patients R. B. and J. L. supporting the itemized bills were submitted to the Department. These documents were also received into evidence at the final hearing. Florida Hospital’s bills at issue correctly identified the hospital’s usual charges for each individual and separately chargeable item, service or supply, with the corresponding code assigned to such billable items as maintained in Florida Hospital’s “charge master.” In addition, Petitioners concede the compensability of both patients’ work-related injuries and do not dispute whether any service or supply rendered and billed by Florida Hospital for these two cases were “medically necessary.”9/ Unbundling As noted above, in Case No. 09-6871, Qmedtrix’s response to Florida Hospital’s petition for resolution of reimbursement dispute contended “unbundling” as a ground for adjustment or disallowance of reimbursement. At the final hearing, Arlene Cotton, the nurse who issued the Dispute Determinations, explained that reason code 63 regarding “unbundling” is inapplicable to hospital billing, as there is no rule that requires hospitals to bundle bill for its services. Mr. von Sydow agreed that reason code 63 was inapplicable. In addition, footnote 2 of Petitioners’ Proposed Recommended Order states, “they did not pursue the allegations of unbundling.” Therefore, it is found that Petitioners did not prove and otherwise abandoned their claim of “unbundling” as a ground to adjust or disallow reimbursement to Florida Hospital. Usual and Customary Charges The Dispute Determinations issued by the Department found that correct payment in both cases equaled 75% of billed charges, citing “Rule 69L-7.501, F.A.C., [which] incorporates, by reference, the Florida Workers’ Compensation Reimbursement Manual for Hospitals, 2006 Edition (Hospital Manual). Both Section 440.13(12)(a), Florida Statutes, and the Hospital Manual provide that hospital services provided to patients under the workers’ compensation law “shall be reimbursed at 75 percent of usual and customary charges.” The Department interprets the term “usual and customary charges” as set forth in the Hospital Manual and Section 440.13(12)(a), Florida Statutes, quoted above, to mean a hospital’s usual charges of the hospital, whereas Petitioners contend that “usual and customary charges” means the average fee of all providers in a given geographical area. While apparently not contending that Petitioners failed to raise the issue of “usual and customary” charges in their EOBR’s,10/ at the final hearing, the Department argued that “nowhere in [either Macy’s or Amerisure’s] response is the issue of customary charges raised.” A review of the responses filed by Qmedtrix to Florida Hospital’s reimbursement dispute petitions filed with the Department reveal that both raise the issue of “usual and customary charges.” Paragraphs 3 and 4 of Mr. von Sydow’s letter attached to both responses state: As you may know, the proposed adoption of Medicare’s Outpatient Prospective Payment System as a methodology for reimbursing hospitals 60% and 75% of “usual and customary charges” follows from the decision of the First District Court of Appeals in One Beacon Insurance v. Agency for Health Care Administration, No. 1D05-5459 (Fla. 1st DCA 2007) (SB-50 amended section 440.13 to remove all reference to the charges of any individual service provider; this amendment reveals the legislative intent to eliminate calculation of a “usual and customary charge” based on the fees of any one provider in favor of a calculation based on average fees of all providers in a given geographical area). This court decision requires DFS to define payment rates for out patient service that are uniformly applicable to all hospitals in a given geographic area. In addition, at the final hearing, the Department argued that the petitions for administrative hearing did “not raise as a disputed issue of fact or law whether or not usual and customary charges should apply in this case.” Indeed, a review of the request for relief set forth in the petitions for administrative hearings filed by Petitioners do not mention the issue of “usual and customary charges.” Rather, the relief requested by both petitions for administrative review of the Dispute Determinations, as summarized in the Joint Prehearing Stipulation, is: Petitioner[s] seeks reversal of OMS’ Determination(s) and the matters remanded for the Department to: direct payment based upon the actual treatment required/provided and pursuant to the correct CPT code; find that the hospital upcoded and that Petitioner properly reimbursed (or exceeded amount due); and determine that the hospital has the burden of proof to substantiate its billing and the use of the chosen CPT code. Contrary to the Department’s argument, however, both petitions for administrative hearing raise the issue of “usual and customary charges.” Page 9 of Macy’s petition, in pertinent part states: Petitioner submits that in issuing the above findings OMS failed to consider the holding in One Beacon Insurance v. Agency for Health Care Administration (wherein the Court determined that reimbursement should not be based solely upon a mathematical equation [as found within the Reimbursement Manual] and applying it to the fee charged by a particular provider; and that by eliminating the reference to any one facility’s charges, the legislature intended that the charges be based on average fees of all providers in a geographical area as opposed to the fees of the particular provider in question). Likewise, review of Amerisure’s petition for administrative hearing reveals that the issue of “usual and customary charges” was raised. Pages 7 and 8 of Amerisure’s petition state, in pertinent part: Further, if the Hospital is permitted to utilize incorrect revenue codes it would be impossible to determine whether the charges are consistent with the Hospital’s own [usual and customary] charges for the service, procedure or supplies in question and, further, whether such charges are consistent with charges by other like facilities (in the same geographical area) for the same services, procedures, or supplies. See One Beacon Insurance, supra. In addition, Amerisure’s petition on page 12 states with regard to the Department’s determination: Such finding was issued without consideration of . . . the amounts charged for the same services in the Orlando area where this hospital is located. Petitioners further preserved the issue of “usual and customary charges” in the first paragraph of their statement of position on page 3 of the Joint Prehearing Statement, as follows: Petitioners, Macy’s and Amerisure, take the position that the Determinations must be reversed as the Department has the duty to scrutinize the bills in question in order to determine, first, whether the hospital, in fact, charged its usual charge for the services provided, and second, whether the billed charges are in line with the customary charges of other facilities in the same community (for the same or similar services) and that the Department failed to do so. As such, Petitioners contend that payment for services provided by Florida Hospital should have been based upon 75% of usual and customary charges, not 75% of billed charges. Therefore, it is found that Petitioners have preserved the issue of “usual and customary charges” for consideration in this administrative proceeding. Although preserved, Petitioners failed to demonstrate that their interpretation of “usual and customary charges” should prevail. The Department has consistently interpreted the term “usual and customary charges” as used in the Hospital Manual, Section 440.13(12)(a), Florida Statutes, and rules related to hospital reimbursement under the workers’ compensation law as the “usual and customary charges” of the hospital reflected on the hospital’s “charge master.” The Hospital Manual requires each hospital to maintain a charge master and to produce it “when requested for the purpose of verifying its usual charges. . . .” (Emphasis added). Petitioners did not conduct or request to conduct an audit to verify whether the charges billed by Florida Hospital corresponded with the Florida Hospital’s charge master. In fact, Mr. von Sydow conceded at the final hearing that Florida Hospital’s bills at issue were charged in accordance with Florida Hospital’s charge master. Nor did Petitioners institute rule challenge proceedings against the Department regarding the Hospital Manual, incorporated by reference into Florida Administrative Code Rule 38F-7.501. Instead, Petitioners assert that they should be able to reduce Florida Hospital bills based upon a different interpretation of the phrase “usual and customary charges” to mean the average charge in the community as determined by Qmedtrix. Qmedtrix is not registered with the Florida Department of State, Division of Corporations, and does not employ any Florida-licensed insurance adjuster, physician, or registered nurse. Qmedtrix earns 12 to 15 percent of “savings” realized by carriers utilizing their bill review services. For example, if a bill is reduced by $100, Qmedtrix is paid $12.11/ Qmedtrix uses a proprietary bill review system called “BillChek.” According to Qmedtrix’s website: BillChek reviews out-of-network medical charges for all bill types in all lines of coverage, including group health, auto, medical, and workers’ compensation. BillChek is a unique specialty cost- containment service that determines an accurate and reasonable reimbursement amount for non-network facility and ancillary medical charges. BillChek incorporates historical data to help determine reasonable payment recommendations across all sectors of the health care industry. All BillCheck recommendations are backed by extensive medical and legal expertise, and supported by Qmedtrix’s experienced Provider Relations and Dispute Resolution teams. According to the testimony of Mr. von Sydow, Qmedtrix collects and maintains data from various sources, including Florida’s Agency for Health Care Administration (AHCA), the American Hospital Directory (AHD.com), and HCFA 2552’s (data reported to the Centers of Medicare and Medicaid Services on HCFA 2522) in order to construct a database of health care providers’ usual charges. Mr. von Sydow advised that AHD.com data was a principle source for constructing the database. He also advised that AHCA data was included in the database even though Qmedtrix found the AHCA data defective. Examples of data downloaded from AHD.com for Florida Hospital showing a profile of the facility was received into evidence as P-5. The data did not, however, show usual charges for the CPT codes for emergency department services at issue in this case. Petitioners also introduced into evidence Exhibits P-6 and P-7, which contained AHD.com data showing average charges for Florida Regional Medical Center and Florida Hospital, respectively, for Level 1 through Level 5 emergency room visits (corresponding to CPT codes 99281 through 99285). Mr. von Sydow explained that the data was part of the information Qmedtrix used to construct the average charge in the community. Petitioners failed to provide similar AHD.com data for other hospitals in the area Qmedtrix determined to be the “community.” In addition, Petitioners introduced AHCA’s Florida Health Finder Web-site, as Exhibit P-8, which ostensibly included average charges for all hospitals in Florida for the subject emergency department CPT codes (99281 through 99285). Mr. von Sydow explained, however, “[w]e find that [the AHCA data] is not refreshed very often, unfortunately, and some other defects in the scrubbing of the data by the agency, which they know, I will say. But this is incorporated in our database to a large extent.” The exhibit was received into evidence for the purpose of helping to explain how Qmedtrix constructed its database, with the recognition that it was largely composed of hearsay. In sum, while Petitioners showed their methodology of constructing the database, other than the AHD.com data for Orlando Regional Medical Center and Florida Hospital, Petitioners failed to introduce reliable evidence sufficient to show the “usual and customary charge” of all providers in a given geographical area as determined by Qmedtrix. In addition, the AHCA data, though characterized by Mr. von Sydow as unreliable, indicates that there is a wide range of differences in emergency room charges between hospitals in Florida. Petitioners’ interpretation of “usual and customary charge” to mean the average fee of all providers in a given geographical area does not take into account an individual hospital’s indigent care, cost of labor, overhead, number of beds, size, age, or various other differences between facilities that could affect amounts each hospital charges for emergency department and other services; the Department’s interpretation does.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a Final Order consistent with this Recommended Order that: Directs Macy’s Claims Services to reimburse Florida Hospital Medical Center $4,160.40 for services rendered to patient R. P., and to submit proof of reimbursement of that amount within 30 days from the date the Final Order is received; Directs Amerisure Mutual Insurance Company to reimburse Florida Hospital Medical Center $2,138.25 for services rendered to patient J. L., and submit proof of reimbursement of that amount to the Department within 30 days from the date the Final Order is received. DONE AND ENTERED this 17th day of June, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2010.
The Issue Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief was not timely filed pursuant to Section 760.11(7), Florida Statutes.
Recommendation Based on the foregoing facts and conclusions of law, it is RECOMMENDED that a final order be entered dismissing with prejudice the Petition of Michelle C. Phillips in DOAH Case No. 00-1794; FCHR Case No. 98-0713. DONE AND ENTERED this 10th of July, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th of July, 2000. COPIES FURNISHED: Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Edward R. Gay, Esquire Law Firm of Edward R. Gay, P.A. 1516 East Concord Street Orlando, Florida 32803 Richard A. Durose, Esquire Joseph W. Beatty, Esquire Foley & Lardner Post Office Box 2193 Orlando, Florida 32801-2386
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, a black female, was hired by Respondent on May 2, 1978. Petitioner was employed as a psychiatric aide until June 12, 1981. From June 13, 1981 until Petitioner's dismissal by Respondent on October 17, 1985, her primary duties consisted of working with severely mentally ill patients as a Human Services Worker II at Northeast Florida State Hospital in Macclenny, Florida. At all times material to this proceeding, Petitioner was a permanent employee of Respondent. Petitioner's immediate supervisor at the time of the incident was Dan Gibbs, a black male. On September 2, 1985, Petitioner volunteered to work a consecutive eight (8) hour shift from 11:00 p.m. on September 2, 1985 until 7:00 a.m. on September 3, 1925. Petitioner's primary duty was to observe A. G., a suicidal patient, on a one-on-one procedure throughout the entire shift. The one-on-one procedure requires the observer to remain within arms reach of the assigned patient at all times without interruption. At approximately 2:30 a.m. on September 3, 1985, Emma Jordan, a white female registered nurse and Geri Knowles, a white female security officer, found the Petitioner asleep in the T.V. Room of Ward Nine (9) with her feet propped up on a chair, a pillow behind her back and a cover over her. Petitioner's co- worker, Freddy Jones, a probationary employee, was also found sleeping and was subsequently terminated by Respondent for sleeping on the job. Two patients, including A. G., were also asleep. A. G., the patient assigned to Petitioner for a one-on-one procedure, was no less than ten (10) feet from Petitioner. Ten (10) feet is more than arms length. There was sufficient light from the nurses' station and the television for Jordan and Knowles to determine that Petitioner was asleep. Jordan and Knowles observed Petitioner sleeping for about two (2) minutes before she was awakened by Jordan. After Petitioner was awakened, Jordan, whose duties included caring for patients on Ward Nine (9), questioned Petitioner about who was responsible for carrying out the one-on- one procedure and was informed by Petitioner that both she and Freddy Jones took turns. When Jordan attempted to explain the safety violation, Petitioner responded with "you ain't my supervisor, mother fucker." From this point, the exchange between Petitioner and Jordan escalated with Petitioner using more obscenities and making actual physical contact with Jordan. Additionally, Petitioner encouraged Jordan to "Fight like a woman, mother fucker." Both Dan Gibbs and Freddy Jones had to intercede and physically restrain Petitioner on two (2) occasions. Petitioner had previously been suspended for three (3) days in August, 1982 for sleeping while on duty. Prior to this incident, Petitioner was aware of Respondent's personnel policy concerning disciplinary action for sleeping on the job. Respondent's disciplinary rule provides for a "written reprimand or up to thirty days suspension or dismissal" for sleeping on the job. With each subsequent occurrence of the same violation, the rule imposes a more severe discipline. A predetermination hearing was held by Respondent on September 26, 1985 and Petitioner was subsequently discharged by Respondent on October 17, 1985 for sleeping on the job and malicious use of profane language. The evidence in the record does not reflect a similar instance where an employee (black or white) had been accused and disciplined for sleeping on the job while observing a patient on a one-on-one basis and exhibiting conduct such as the Petitioner exhibited in this instance. Respondent's hospital had, prior to September 3, 1985, suspended both black and white employees for sleeping on duty and subsequent to this incident dismissed a white male employee for sleeping on duty while assigned to a one-on- one supervision of a patient. There was no evidence to support Petitioner's contention that her termination was "retaliation" by Respondent because she had successfully challenged an earlier termination by Respondent for abandonment of position. The evidence clearly established that Respondent reinstated Petitioner after receiving additional information from Petitioner without the matter going to hearing. The evidence clearly establishes that Petitioner was discharged because she was found sleeping on the job while assigned to a suicidal patient on a one-on-one basis and for use of malicious profane language. The evidence clearly establishes that Respondent's actions were not inconsistent with previous disciplinary actions taken against other employees, both black and white, with similar offenses. There was insufficient evidence to show that Respondent's actions taken in discharging Petitioner were motivated by impermissible racial consideration.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Joann Postell has failed to establish that she was discharged due to her race in violation of Section 760.10, Florida Statutes (1985), and that the Petition for Relief be dismissed. Respectfully submitted and entered this 12th day of August, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2391 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1.(a)(b) That Petitioner was employed by Respondent and terminated for sleeping on the job is adopted in Findings of Fact 1 and 13. The balance of the introductory sentence is rejected as not being a finding of fact but that Petitioner's argument that her dismissal was discriminatory. Rejected as not stating a fact but only why Petitioner denied being asleep. Adopted in substance in Finding of Fact 15. 2. Rejected as being argument rather than a finding of fact. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 10. Adopted in Finding of Fact 3. 5. Adopted in Finding of Facts 4 and 6. 6. Adopted in Finding of Fact 6. 7. Adopted in Finding of Fact 9. 8. Adopted in Finding of Fact 3. 9. Adopted in Finding of Fact 14. 10. Adopted in Finding of Fact 15. 11. Adopted in Finding of Fact 16. 12. Adopted in Finding of Fact 17. 13. Adopted in Finding of Fact 1a. COPIES FURNISHED: Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 David A. West, Esquire Legal Counsel Northeast Florida State Hospital Macclenny, Florida 32063 Carl G. Swanson, Esquire 335 East Bay Street Jacksonville, Florida 32202 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact On July 30, 1981, Petitioner filed an application with the Health Systems Agency of Northeast Florida, Area III, Inc. for a Certificate of Need to construct an enclosure on the fifth floor of the south wing of Petitioner's hospital. The purpose of that enclosure was in contemplation of future available bed space at a time when need for those beds had been documented and approved by the local health system's agency. (Petitioner's Composite Exhibit No. 2) In response to a request for further information which was made by the Executive Director of the local health system's agency, Rudolph Nudo, Director of Engineering for the Petitioner, answered that inquiry in writing by correspondence dated September 24, 1981. (Petitioner's Exhibit No. 3) Through the course of that correspondence Nudo indicated that the temporary use of the fifth floor would be for storage, and the fifth floor would be used in a permanent way for storage and expansion of the hospital's wellness and physical fitness programs should a determination be made in the future that additional beds are not needed in the review area of the local HSA. On November 23, 1981 the local HSA wrote to advise Herbert E. Straughn, Medical Facilities Consultant, Community Medical Facilities for Respondent, that the Northeast Florida Area III Health Systems Agency was recommending the denial of the proposed Certificate of Need. That correspondence had as an attachment the legal notices publicizing the public hearing related to the project, staff briefing memoranda and papers involved in the review process. (Respondent's Exhibits 4 through 4d) On January 27, 1982, Thomas J. Conrad, Administrator, Community Medical Facilities of the Office of Health Planning and Development, Department of Health and Rehabilitative Services, wrote to Charles Vadakin, President-General Manager of Petitioner, to advise Petitioner that the request for a Certificate of Need was being denied. (Petitioner's Exhibit 4) This indication of denial had as an attachment the State agency action report. (Petitioner's Exhibit No. 5) On February 5, 1982, in keeping with Subsection 120.57(1), Florida Statutes, Petitioner requested a formal hearing to consider its entitlement to be granted a Certificate of Need to "shell-in" the fifth floor at its facility. On February 17, 1982, the Division of Administrative Hearings received Respondent's request that the Division conduct the formal hearing. That hearing de novo was held on April 8 and 9, 1982. The evidence presented in the course of the hearing addressed the question of whether the proposal for construction by the applicant meets the criteria established in Section 381.494(6)(c), Florida Statutes and Rule 10- 5.11, Florida Administrative Code, in particular Rule 10-5.11(1),(3),(4),(6) and (12), Florida Administrative Code. (Those other criteria set forth in Rule 10- 5.11, Florida Administrative Code, have satisfactorily been addressed by the application process or are inapplicable in terms of the subject matter of the given criteria.) Evidence presented also dealt with the subject of whether this Certificate of Need could be granted due to extenuating and mitigating circumstances which exist, notwithstanding the applicant's failure to successfully meet the criteria discussed above. Memorial Hospital of Jacksonville is an acute general care hospital with a 309 bed capacity. The hospital is located in Jacksonville, Duval County, Florida. Petitioner has been granted Certificates of Need allowing the construction of an educational floor, perinatal center on a second floor and the third and fourth floors above those. The third and fourth floors would house an additional thirty-four beds, bringing the total bed count in the hospital to 343 beds. The construction is referred to as the south wing and is depicted at a certain point in the construction through Petitioner's Exhibit 1, a photograph of the area of construction. Memorial's present request for a Certificate of Need would allow the construction of an additional floor, or fifth floor, above the, four floors that have been granted. Memorial Hospital provides critical care, to include trauma cases treated in its emergency room and open heart surgery. In addition, there is a cardiac catheterization laboratory and other general cardiac care, an intensive care unit, a perinatal (birthing) center and other hospital services. The fifth floor, if constructed, would not immediately contain additional beds and would be left with interior partition walls and would be used for storage space in the interim period prior to the grant of any further beds to the Petitioner. The construction on the south wing which had been approved has its origins in Certificates of Need which were the topic of separate applications filed in 1979 and 1980. Specifically, in November, 1979, Memorial filed separate applications for its educational floor, first floor, in the amount of $2,991,000.00 and at the same time, an application for a perinatal unit, second floor, in the amount of $4,352,000.00. The applications were granted in 1980 in the amounts requested. At a later date in 1980, Petitioner filed a separate application for three additional stories; floors three, four and five, and for 106 additional beds, all in the cost amount of $10,656,000.00. This request came about at approximately the same time as a request by St. Luke's Hospital in Jacksonville, Florida, to move its hospital operations to an area in the vicinity of Memorial Hospital. Memorial and St. Luke's, together with the local HSA, resolved the problem of the competing certificate requests by entering into a stipulation and agreement in 1981. By the terms of that agreement, Memorial limited its expansion to two floors instead of three, leaving floors three and four intact. It reduced its bed request from 106 to 34 additional new beds to be installed on one of the two additional floors, with the second additional floor receiving 34 beds from another part of the hospital which was not subject to the Certificate of Need. The second set of beds would be gained by the process of converting existing semi-private rooms to private rooms. Petitioner also agreed not to apply for additional beds until at least six months after the perinatal unit and 34 new medical/surgical beds had been opened. St. Luke's reduced its number of obstetric beds by 20 and it agreed that it would not "shell-in" space for additional beds in its proposed facility. The results of the agreement caused the abandonment by Memorial of its fifth floor request and the reduction of bed requests by 72 beds. The new terms are set out in Certificate of Need No. 1488 pertaining to floors three and four. The project costs were left as originally requested, and that monetary amount was granted. The agreement reached between the local HSA, Petitioner and St. Luke's was premised upon extenuating and mitigating circumstances, especially the possibility of the cost of protracted litigation had the parties not come to an agreement. Following the stipulation and agreement with the local HSA and St. Luke's Hospital, the Petitioner filed the present request for Certificate. The general purpose of that project has been discussed before. The rationalization on the subject of consistency of the project with the local Health Systems' plan and the local annual implementation plan was as follows: The proposed enclosure project is consistent with Health Systems' plan and annual implementation plan for 1980, in that it provides a mechanism for assuring available health care resources at the lowest possible cost consistent with quality service delivery. The proposal guarantees no additional beds will be added until approved by the Health Systems Agency and yet safeguards the most effective option of maximizing current capital investment dollars. This project will allow Memorial Hospital to continue to meet the area's acute health care needs for the next ten years. The project contemplates the expenditure of $1,200,000.00 for cost of construction of "shell-in" space. Need for the subject project was discussed in terms of a reference to "Certificate of Need #1488" which is that Certificate relating to floors three and four of the south wing. The Certificate of Need No. 1488 was based upon an application which included a study concluded in August, 1980, which set forth primary and secondary service areas, census tracts and preliminary 1980 Federal census figures for Duval County gathered by the "Research Department, Florida Publishing Company" and a document to the effect that Memorial had a firm market position, and that health care consumerism was emerging and that there was a strong consumer loyalty-to Memorial. The present application was reviewed by the local Health Agency and the Health Needs and Priorities Committee voted to recommend denial of the proposed project; its Executive Committee also recommended denial of the project. During this review cycle, concerns were expressed about the application in view of the 1981 agreement with St. Luke's and the local HSA in which Memorial agreed not to apply for additional beds for at least six months after the 34 beds which had been approved were in operation. While the present application does not violate the terms of that agreement, it does allow for a large portion of the capital expenditure, i.e., that part devoted to the construction of the "shell-in" of the floor to be achieved and thereby allows for a portion of the capital expenditure related to future beds to be approved. With St. Luke's relocation to south Jacksonville, some time in late 1984 or early 1985, and with the addition of Memorial's construction program that has been approved, 323 beds will be added to the south side area of Duval County in the next few years. In the local HSA staff's opinion, which opinion is accurate, from a community planning basis, there will not be a demonstrated community need for additional beds in the south side any sooner than 1985 and it is more likely that there would be no further bed need before 1990. The local HSA is also concerned that the project would set a precedent for future "shell-in" applications. This concern is borne out by interviews conducted through staff members of that HSA which revealed that seven hospital administrators planned major construction projects in the HSA area, and six administrators indicated that they would ask for "shell-in" space if they thought it would be approved. In specific terms, the local HSA recommended disapproval of the project and did so by written findings alluded to before. In summary, those findings indicated: The Health System's Plan did not address expansion projects which do not directly result in an increase in licensed beds or service but the primary purpose of the fifth floor would be for bed spaces. The Health System's Plan called for a regional rate of 4.3 beds per 1,000 population. Excluding Nemour's Children and St. Johns River Hospital, there were approximately 4.1 beds on the south side and beaches area of Jacksonville. When St. Luke's Hospital (289 beds) relocates to the south side and Memorial opens its 34 new beds, the rate will be approximately 5.2 beds per 1,000 population in 1985. In 1990 the estimated rate would be 5.0 beds per 1,000 population. It was HSA's staff's opinion that there will not be a need on a community planning basis to approve more beds for the south side until the 1990s. The local HSA also indicated that Memorial could be more effective in its specialization. Its recommendation in that regard was that after the current construction of four stories had been completed, Memorial could still have the capability to add additional licensed beds within its presently approved structures, even though it would mean reducing the ratio of private beds to semi-private beds. Specifically, it was recommended by the HSA that: Petitioner reconvert the 34 rooms previously used for semi-private back to semi-private --34 beds Modify the 34 private rooms on the third floor of the new building to semi-private, and --34 beds Modify the 34 private rooms on the fourth floor of the new building to semi-private. --34 beds TOTAL 102 beds These observations and findings are correct, except as they relate to modification of rooms on the third and fourth floors of the new construction. The above-stated suggestion by the local HSA related to the modification to semi-private rooms on the third and fourth floors of the south wing would not comport with the design specifications of those beds as now contemplated by Memorial, in that the private rooms contemplated on those floors did not provide sufficient space to be modified into semi-private rooms. Analysis by HRS adopted and confirmed the majority of the analysis by the local Health Planning Agency. HRS also pointed out in its analysis, and the HRS analysis is accurate, that in view of the fact of excess bed capacity in the planning area through 1985, the adding of potential beds would give Petitioner an undue advantage over facilities should the fifth floor be constructed as "shell-in" space. Furthermore, according to Respondent, construction economies to be realized by Memorial Hospital can only be recognized as legitimate, if there is a community need for the project. Based upon the analysis conducted by Respondent, the project from a community-wide standpoint, under the terms of Section 381.493, Florida Statutes, there is an excess of 238 hospital beds in Duval County through 1985, and possibly into early 1990. Respondent having in mind the bed need situation, concluded that the proposed project was not consistent with bed need standards at the time of review or in the planning future and that the community need to add "shell-in" bed space did not exist absent a recognized bed need, which would not occur before 1985. All of these comments by HRS are correct accounts. It was also concluded by Respondent that there were alternatives for converting private bedrooms to semi-private rooms, increasing capacity without major construction. This is a true understanding of the circumstances except as it relates to the third and fourth floors in the new construction. Based upon the overall analysis, the project application was denied. The conditions at Memorial Hospital are such that it would benefit from an expansion to add a fifth floor at the south wing. Those benefits pertain to the availability of storage and administrative space. The occupancy rate for patients in the hospital during the last year have averaged approximately 90 percent (Petitioner's Exhibit 16), causing both emergency and planned health care services to be delayed due to overcrowding. Federal, State and HSA guidelines call for 80 percent occupancy of nonfederal, short-term care beds, such as provided by Petitioner. There is a need for administrative office space. At the present time some administrative offices are placed in lobbies and hallways and the files for those offices are located in hallways. Intravenous solutions are stored in hallways at present. Testimony by the hospital engineer established a need of 15,000 square feet of space to accommodate storage problems more comfortably. The application seeks 17,500 square feet of space. The alternatives to the construction of the fifth floor related to future bed need and short and long-term storage space would be to forego the expansion, construct the project at a future date, or construct a new building. Construction at a later date could cost as much as an additional $7,000,000.00, constituted of approximately $813,000.00 in construction cost and $6,000,000.00 in loss of gross revenue. These costs are related to completion of the "shell-in" structure after the initial four floors had been completed and assumes loss of revenue related to beds in the third and fourth floors of the hospital, which floors would have to be closed during the construction of the fifth floor at a subsequent time. Construction costs at the present, as set forth in Petitioner's Exhibit No. 3, at the last sentence of the first page, is estimated to be $.31 per-patient day. There is precedent for granting the "shell-in" space as may be found in Petitioner's Exhibits Nos. 8, 9, and 10, related to projects in the Florida Gulf Health Systems Agency, Inc. area of responsibility. Respectively, those projects refer to Women's Hospital in Tampa, Florida; St. Joseph's Hospital in Tampa, Florida; and L. W. Blake Memorial Hospital in Bradenton, Florida. In the situation of Women's Hospital, Respondent allowed the construction by installation of necessary structural equipment and fixtures needed to establish 34 single occupancy rooms as double occupancy rooms as a hedge against construction costs for any additional beds approved at a future date. St. Joseph's Hospital was allowed to construct two floors in which 45 beds had been requested, but only 36 beds were granted per floor, leaving additional "shell-in" space which would accommodate nine additional beds per floor, for a total of 18 beds. In the situation at Blake Memorial Hospital in Bradenton, Florida, that hospital was allowed to "shell-in" a fifth floor on condition that the structural framework would be completed and that the floor would be left in an unfinished state, that is to say, that the improvements necessary for the utilization of that fifth floor for patient rooms were not allowed to be added. In each instance in which some form of "shell-in" space was granted, the HSA area was overbeded at the time of the grant of certificate. The project is not consistent with the local health systems plan, annual implementation plan, and Florida State Health Systems Plan. (Petitioner's Exhibits 11 through 14 respectively)
The Issue The issues in this case are whether Respondent violated Subsection 458.331(1)(t), Florida Statutes (2001),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the regulation of the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. At all times material to the allegations in the Second Amended Administrative Complaint, Dr. Rivera was a licensed physician in the State of Florida, having been issued license number ME 0054619. Dr. Rivera is an anesthesiologist. On May 11, 2002, Patient A.V., an 82-year-old male, presented to the emergency room of Gulf Coast Hospital (Gulf Coast) with complaints of shortness of breath. A.V. had a history of chronic obstructive pulmonary disease. A.V. was admitted to the hospital by Michele Candelore, D.O. Gulf Coast is a small community hospital with approximately 150 beds. Southwest Florida Regional Medical Center (Southwest), a larger tertiary care hospital, is located three to five miles away from Gulf Coast. On May 16, 2002, Dr. Rivera provided anesthesia services to A.V. in association with a bronchoscopy. As a result of providing services to A.V., Dr. Rivera was familiar with A.V.’s medical conditions and risk factors for anesthesia. On May 18, 2002, Tracy Vo, D.O., was the physician on call at Gulf Coast. She was providing coverage for A.V.’s physician, and, around noon on that date, she discharged A.V. Dr. Vo left Gulf Coast and received a call between 5:00 and 5:15 p.m. that A.V. was complaining of abdominal pain and nausea. Dr. Vo ordered tests for A.V., including an abdominal ultrasound. Dr. Vo arrived at Gulf Coast between 5:15 and 5:30 p.m. She found A.V. to be hypotensive with rapidly decreasing systolic blood pressure. The results of the ultrasound showed that A.V. had a 5.3 centimeter abdominal aortic aneurysm (AAA) with a surrounding collection of fluid. An AAA is a life- threatening condition. Dr. Vo transferred A.V. to the intensive care unit (ICU), where she began infusions of fluids and dopamine in an attempt to elevate A.C.’s blood pressure and to resuscitate him. Dr. Vo requested a surgical consult. Dr. Harry Black, the on-call surgeon was not available, and the consult was referred to Dr. DeMoya, a general surgeon who was covering for Dr. Black. Dr. DeMoya was in surgery at another hospital and could not come to Gulf Coast. He was advised that A.C. had an AAA. Dr. DeMoya recommended that A.C. be transferred to Southwest, which was better equipped to handle an AAA. Dr. Vo felt that A.C. was too unstable to transfer at that time. In order to rapidly pump fluids into A.C., Dr. Vo asked the supervising nurse to contact the on-call anesthesiologist for a consult for placing a central line. A central line is a catheter that is passed through a vein, ending up in the thoracic portion of the vena cava or in the right atrium of the heart. Dr. Rivera was an employee of Dr. John Patrick, who was the chief of Anesthesiology at Gulf Coast. Dr. Patrick was out of town on May 18, 2002, and Dr. Rivera was the on-call anesthesiologist. Being on call means that the physician gets called when anesthesia services are needed. Dr. Rivera was contacted concerning the placement of a central line for A.V. Dr. Rivera got to Gulf Coast between 6:00 and 6:30 p.m. He went to the bedside of A.V. and recognized A.V. from having provided anesthesia services to A.V. earlier in A.V.'s admission. Dr. Rivera told Dr. Vo that he did not feel comfortable placing a central line and refused to do so. Although he had been taught as a resident to place a central line, he had not placed a central line since his residency in 1983. Dr. Vo asked the supervising nurse, Ellen Haviland, to continue her efforts to locate a vascular surgeon. Nurse Haviland contacted Dr. Brian Kurland, a vascular surgeon. Dr. Kurland agreed to come to Gulf Coast. Nurse Haviland told Dr. Rivera that Dr. Kurland was on his way to the hospital, and Dr. Rivera said that if Dr. Kurland was on his way that Dr. Kurland could place the central line. Dr. Kurland told the nurse to make sure that the patient and his family wanted the patient to undergo the surgery because of the severity of the operation and the risk of not having a successful outcome. He also ordered that the operating team be mobilized. After speaking with Dr. Kurland, Nurse Haviland went to the surgical supply room to make sure that the grafts needed for the operation were available. Dr. Vo told Dr. Rivera that Dr. Kurland was coming and that she was going to transfer A.V. to the operating room. General anesthesia is necessary for an AAA repair. Dr. Rivera recommended that A.C. be transferred to another hospital and refused to provide anesthesia to A.C. because he felt that the risk of giving anesthesia at Gulf Coast was unacceptable. Dr. Rivera noted his recommendation in the progress notes for A.V. at 7:00 p.m. Dr. Rivera then left the hospital and went home. He did not attempt to contact Dr. Kurland directly to advise Dr. Kurland of his concerns and that he was not going to provide anesthesia services. Dr. Kurland arrived at the hospital and went directly to the operating room, where he expected to find the patient and the operating team. However, no one was in the operating room. Dr. Kurland went to the ICU, where A.C. was. Dr. Kurland was advised that A.V. was not in the operating room because Dr. Rivera had refused to do the anesthesia. Dr. Kurland telephoned Dr. Rivera and told Dr. Rivera that although A.V. was a high-risk patient and would probably die, the best chance for saving A.V.’s life was to perform the surgery at Gulf Coast rather than transferring A.V. to another hospital. Dr. Rivera refused to come to the hospital to provide the anesthesia services. Dr. Kurland told the nursing staff to try to get another anesthesiologist and the chief of surgery. Dr. Kurland spoke with Dr. Patrick and told him that A.V. needed to have emergency surgery. Dr. Kurland placed a central line in A.V. to facilitate the giving of medications and fluids. Dr. Kurland told A.V.’s family that because they could not get an anesthesiologist that they had two options, either not to operate and let A.V. pass away or transfer him to another hospital for surgery. It was decided to transfer A.V. to Southwest. The Emergency Medical Services (EMS) personnel were called to transfer the patient. When the EMS staff arrived, A.V. was intubated. Shortly thereafter, A.V. went into cardiac arrest and unsuccessful efforts were made to resuscitate A.V. A.V. was pronounced dead at 8:16 p.m. After talking with Dr. Kurland, Dr. Patrick called Dr. Rivera and told him to go to the hospital and provide the anesthesia because Dr. Kurland had declared an emergency and was going to perform surgery. Dr. Rivera obeyed Dr. Patrick because Dr. Patrick “was paying his paycheck” and left his home to go to the hospital. Shortly after his conversation with Dr. Rivera, Dr. Patrick was advised that A.V. had died. Dr. Patrick called Dr. Rivera and told him not to go to the hospital because A.V. had died. John Downs, M.D., testified as an expert witness for Dr. Rivera. He is a professor at the University of South Florida. Dr. Downs is a nationally recognized expert in anesthesiology, but the last time that he was an on-call anesthesiologist in a small community hospital similar to Gulf Coast was in 1985. It was Dr. Down’s opinion that Dr Rivera did not violate the standard of care by leaving the hospital, by refusing to perform anesthesia services, and by not telling Dr. Kurland that he was not going to do the anesthesia prior to Dr. Kurland’s telephone call to him. It was Dr. Down’s opinion that Dr. Rivera was not required to give the anesthesia because the patient would die. Dr. Down’s opinion misses the mark. A.V. was in a life or death situation. Without surgery, A.V. was going to die. A.V. was not stable enough to transfer to another hospital; thus, emergent surgery was necessary if there was going to be any chance for survival. Dr. Down’s opinion that Dr. Rivera was not required to perform the anesthesia services is not credited. Minnea B. Kalra, M.D., testified as the Department’s expert. Dr. Kalra has practiced for approximately 30 years and has practiced as an on-call anesthesiologist in small community hospitals similar to Gulf Coast. In 2002, she was practicing as an on-call anesthesiologist in a 150-bed community hospital comparable to Gulf Coast. She has been the on-call anesthesiologist called to treat emergency AAA’s in small facilities such as Gulf Coast. It was Dr. Kalra’s opinion that Dr. Rivera should have tried to get someone else to place the central line if he was unable to do so. Dr. Kalra opined that Dr. Rivera violated the standard of care by not staying at the hospital when he knew that Dr. Kurland, a vascular surgeon, was on his way to the hospital. An AAA calls for surgery, and it was Dr. Rivera’s duty to stay with the patient and provide the necessary anesthesia. Dr. Kalra testified that Dr. Rivera’s last chance to do his duty and agree to provide anesthesia was when Dr. Kurland advised Dr. Rivera by telephone that he was taking A.V. to surgery. Dr. Rivera failed to perform his duty when he told Dr. Kurland that he was not going to do the anesthesia. Dr. Kalra opined that Dr. Rivera had a duty to remain at the hospital until Dr. Kurland arrived so that he could discuss his concerns and the risks of providing anesthesia to A.V. directly with Dr. Kurland. Dr. Rivera failed to perform his duty. Dr. Kalra opined that Dr. Rivera had a duty to help find someone to provide anesthesia services such as placing the central line when Dr. Rivera could not place the central line because of lack of competence and would not provide surgical anesthesia services. Dr. Rivera was the on-call anesthesiologist, and it was his responsibility to provide the services or assist in finding an anesthesiologist who could provide the services. Dr. Rivera failed to do his duty. Dr. Kalra’s opinions that Dr. Rivera did not provide care to A.V. at a level a reasonably prudent physician under similar conditions and circumstances is expected to meet are credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Rivera violated Subsection 458.331(1)(t), Florida Statutes; suspending his license for one year followed by a two- year probation on whatever terms the Board of Medicine sees fit; imposing a fine of $10,000; requiring that Dr. Rivera complete three hours of continuing medical education in medical ethics and five hours in risk management; and requiring that Dr. Rivera complete 100 hours of community service. DONE AND ENTERED this 13th day of March, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 2008.
