Findings Of Fact Respondent, Herbert R. Slavin, M.D. (Dr. Slavin), is and has been at all times material hereto, a licensed physician, having been issued license number ME 0036889 by Petitioner, Agency for Health Care Administration, Board of Medicine, (Board). Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 458 and 455, Florida Statutes. Dilaudid is defined as a legend drug by Section 465.003(7), Florida Statutes, and contains hydromorphone a Schedule II controlled substance listed in Chapter 893, Florida Statutes. A substance in Schedule II has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Schedule II is the second most potent category and the first category for which there is any viable medical purpose. The purpose of Dilaudid is to provide pain relief in the appropriate medical situation. The Physician's Desk Reference recommends that the usual oral dosage for Dilaudid is two milligrams every four to six hours as necessary. For more severe pain the recommendation is four milligrams or more every four to six hours. According to the Physician's Desk Reference the dosage should be individually adjusted according to severity of pain, patient response and patient size. PATIENT #1 On September 26, 1990, Patient #1, a 27 year old female, sustained injuries to her back in a motor vehicle accident. On October 22, 1990, Patient #1 underwent a MRI scan of her cervical spine which indicated moderate disc herniation extending slightly asymmetrically to the left side at the C6-7 level and which also indicated a moderate diffuse disc herniation at the C5-6 level with associated osteophytes off the adjacent vertebral end plates. On March 12, 1991, Patient #1 saw Dr. Slavin for the first time. She was complaining of low back pain secondary to the motor vehicle accident. She advised Dr. Slavin that she was taking physical therapy three times per week. Dr. Slavin performed a limited physical examination, noted that the patient's old records should be obtained, and prescribed four milligrams of Dilaudid to be taken orally every four hours. The prescription was for 180 units. On March 26, 1991, Patient #1 returned to see Dr. Slavin, stating that she had chest congestion, a cough, and some numbness in the back of the right leg. She indicated that her prescription for Dilaudid had been stolen along with her purse on March 13, 1991. Dr. Slavin diagnosed bronchitis, gave her a prescription for an antibiotic, and gave her a prescription for Dilaudid to replace the one that was stolen. On April 11, 1991, Patient #1 visited Dr. Slavin for the purpose of getting the prescription for Dilaudid refilled. Dr. Slavin did not prescribe a refill because it was too soon since he had given the prescription. Patient #1 signed an acknowledgment dated April 11, 1991 that she was not a Dilaudid addict, that she was taking Dilaudid to control pain caused by a herniated disc, which was originally diagnosed in September, 1990, that she had tried other medications and found Dilaudid to control the pain with the least side effects, that she understood that Dilaudid was an addictive substance, and that she understood that it was unlawful for the drug to be transferred to or be used by anyone other than the person named on the prescription. On April 25, 1991, Patient #1 again came to Dr. Slavin for a refill on the prescription for Dilaudid. Dr. Slavin prescribed a refill for the same dosage. He noted in the progress notes that he was planning to obtain the patient's old records. Based on the patient's file, Dr. Slavin did receive a report from Dr. Lichstrahl, an orthopedic specialist who had seen Patient #1 in October, 1990 and who had diagnosed the herniated disc. Patient #1's file also contained a report dated March 25, 1991, from Dr. Paul Ginsberg, a specialist in neurology. On May 20, 1991, Patient #1 came back to see Dr. Slavin for a prescription to refill the Dilaudid. Dr. Slavin did prescribe a refill at the same dosage. On June 24, 1991, Patient #1 returned to Dr. Slavin for a refill of the Dilaudid. In his progress notes, Dr. Slavin noted that there was a decreased range of motion in all directions for her neck. He prescribed a refill at the same dosage for the Dilaudid and also prescribed Feldene. Dr. Slavin's office received information from an anonymous source that Patient #1 was receiving Dilaudid from other doctors. This information was verified. Dr. Slavin's office notified Patient #1 that he would no longer prescribe narcotic medication to her. PATIENT #2 On April 10, 1991, Patient #2, a 47 year old male, came to Dr. Slavin with a history of laminectomy and two herniated discs from accidents that occurred several years prior to the visit. Patient #2 indicated that he had been taking Dilaudid for the last six months, which allowed him to work with the pain. Patient #2 was waiting to have surgery until his health insurance became effective. Medical records furnished by the patient indicated that in 1988 Dr. Kernish had diagnosed a peripheral iliac bulge at L5-S1 and L-4-5 with a probable left posterolateral herniation at L5-S1 causing marked foraminal encroachment. Dr. Slavin noted in the progress notes that on the patient's initial visit, the patient was in distress secondary to back pain. Dr. Slavin prescribed four milligrams of Dilaudid to be taken orally every four hours, the same dosage which the patient had been taking. The prescription was for 180 units. Patient #2 signed an acknowledgment dated April 10, 1991, that he was not a Dilaudid addict, that he was currently taking Dilaudid for the control of pain related to herniated discs which were diagnosed in 1988, that he had tried other medications but found that Dilaudid controlled his pain with the least side effects, that he knew Dilaudid was an addictive substance, and that he knew that it was unlawful for Dilaudid to be transferred to or be used by anyone other than the person named on the prescription. On May 20, 1991, Patient #2 came to Dr. Slavin for a prescription to refill the Dilaudid. The progress notes indicated that the patient was scheduled for surgery in July. Again Dr. Slavin noted that Patient #2 was in distress secondary to back pain. Dr. Slavin prescribed a refill of Dilaudid at the same dosage. On June 25, 1991, Patient #2 again came to Dr. Slavin for a refill of Dilaudid. Again Dr. Slavin noted that the patient was contemplating surgery when his insurance became effective and that the patient was in distress secondary to back pain. Dr. Slavin prescribed 40 units of four milligrams of Dilaudid to be taken orally every four hours. The medication sheet in the patient's file indicates that Dr. Slavin prescribed 40 units at the same dosage on July 3 and 10, 1991. By memorandum dated July 3, 1991, Dr. Rosenberg advised Dr. Slavin that the radiographic views of Patient #2's spine indicated discogenic disease L4-L5, L5-S1. PATIENT #3 On April 24, 1991, Patient #3, a 64 year old female visited Dr. Slavin, complaining of shortness of breath, lower back pain, chest pain, and headaches. Her medical history indicated peripheral vascular disease, anemia, arthritis, liver dysfuntion, and left ventricular hypertrophy. In 1990, another doctor had prescribed four milligrams of Dilaudid as needed as well as other medications. Dr. Slavin scheduled the patient for blood tests , x-rays, and other tests. Dr. Slavin prescribed, among other medications, 120 units of four milligrams of Dilaudid. On April 24, 1991, Patient #3 signed an acknowledgment that she was not an Dilaudid addict, was currently taking Dilaudid for control of back pain secondary to a fall in 1982, had tried other medications and found Dilaudid to be the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred or used by anyone other than the person named on the prescription. Patient #3 was recalled to Dr. Slavin's office on May 1, 1991 for further testing because of anemia. No prescriptions were given and the patient was scheduled for an office visit in one week. Patient #3 was seen again on May 9, 1991. No prescriptions were given. A bone survey was planned and the patient was to return after the tests. On May 22, 1991, Patient #3 returned for a refill of medications and to get the results of the bone survey. The bone survey had not been returned so an office visit was scheduled for a week later to review the bone survey. Dr. Slavin prescribed 120 units of four milligrams of Dilaudid. Patient #3 returned on June 4, 1991 for the follow up on the bone survey. Dr. Slavin planned to refer her to Dr. Kalman, an oncologist. No medications were prescribed. On June 24, 1991, Patient #3 returned for a refill of medication. The progress notes do not reflect whether Dr. Slavin prescribed any refills. The patient had not made an appointment with Dr. Kalman and she was reminded that it was important to do so. Dr. Slavin noted on the progress notes that the x-rays showed a disc narrowing at L4-5. The impression of the radiologist was degenerative disc disease at L4-L5. Dr. Slavin ordered a CT scan of the lumbar spine. By letter dated July 1, 1991, Dr. Robbins advised the CT scan indicated that Patient #3 had a slight narrowing at the L4-L5 intervertebral disc space, but there was no definite evidence of herniated disc or spinal stenosis. On July 19, 1991, Patient #3 returned to Dr. Slavin for a follow up visit. She was to see Dr. Kalman and return to Dr. Slavin in one month. The progress notes do not indicate whether any medications were prescribed. By letter dated July 31, 1991, Dr. Kalman advised Dr. Slavin that he had examined Patient #3. He indicated that results of some of the tests were still pending. By letter dated August 6, 1991, Dr. Kalman advised Dr. Slavin of the test results. Dr. Kalman suspected that Patient #3 had anemia of chronic disease secondary to rheumatoid arthritis. He further stated: "The markedly elevated rheumatoid factor titer as well as the markedly elevated sedimentation rate suggest extremely active disease and likely accounts for the patient's back pains." Dr. Kalman indicated the patient had not returned for a follow up visit. By letter dated August 16, 1991, Dr. Kalman advised Dr. Slavin that the patient had cancelled a number of follow up visits. Dr. Kalman had advised her by telephone that she may have an active case of rheumatoid arthritis and that she should return to Dr. Slavin. On August 20, 1991, Patient #3 made an office visit for follow up of medical problems and a refill of the pain medication. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid and some vitamins. The patient was to return in one month. On September 24, 1991, Patient #3 returned for a follow up visit, refill of her pain medication, and due to pain in her left eye. Dr. Slavin prescribed Dilaudid at the same dosage and some drops for her eyes. She was to return in one month. On October 25, 1991, Patient #3 returned for a follow up visit. Dr. Slavin prescribed the same dosage of Dilaudid as on the previous visit. She was to return in one month. On November 25, 1991, Patient #3 came to Dr. Slavin for a follow up visit. He prescribed the same dosage of Dilaudid. She was scheduled for a visit in one month. On December 12, 1991, Patient #3 visited Dr. Slavin to get a refill of Dilaudid, stating that she had dropped the last thirty pills down the sink. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid and 100 units of 40 milligrams of Lasix. PATIENT #4 On March 4, 1991, Patient #4, a 44 year old male, saw Dr. Slavin and complained of chest congestion, sores on the scalp, and pain in the left hand in the area where he had previously suffered severe burn and traumatic amputation of the left fifth finger. Dr. Slavin noted that the lungs were clear to auscultation with good breath sounds bilaterally. Dr. Slavin diagnosed bronchitis, impetigo, and phantom pain. He prescribed augmentin. On March 26, 1991, Patient #4 returned for a refill of pain medication and because he was still experiencing chest congestion. Dr. Slavin diagnosed chronic pain syndrome and bronchitis. He prescribed 180 units of four milligrams of Dilaudid and erthromycin, an antibiotic. On April 24, 1991, Patient #4 returned to Dr. Slavin for a refill on the pain medication and because he had sores on his scalp associated with broken hair shafts. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid and Lotrisone cream. On April 24, 1991, Patient #4 signed an acknowledgment that he was not a Dilaudid addict, was currently taking Dilaudid for control of pain in his left hand caused by an injury in 1976, had tried other medications but found that Dilaudid was the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. On May 30, 1991, Patient #4 returned to Dr. Slavin for a refill on the pain medication. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. On July 2, 1991, Dr. Slavin saw Patient #4 for a refill of the pain medication. Dr. Slavin diagnosed chronic pain syndrome, ulnar neuropathy and hypertension. He prescribed 90 units of Dilaudid and Hytrin. The patient was to return in two weeks to have his blood pressure rechecked. On July 30, 1991, Patient #4 returned for a refill of his pain medication. His blood pressure was lower than the previous visit. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. On September 3, 1991, Patient #4 returned for a refill of Dilaudid. Dr. Slavin prescribed 180 units of 4 milligrams and noted that the patient was trying to diminish his dosage frequency. On November 26, 1991, Patient #4 returned for a refill of Dilaudid and complained of an infected wound on his left elbow. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid, Lotrisone Cream, and Duricef. On December 24, 1991, Patient #4 returned for a refill of Dilaudid. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. PATIENT #5 On April 5, 1991, Patient #5, a 28 year old male saw Dr. Slavin for pain in his lower to middle back which recently had been exacerbated by a fall off a curb while he was in his wheelchair. Patient #5 has been a paraplegic since 1989 as a result of a gunshot wound. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid and Cipro. Dr. Slavin noted on the problem list that Patient # 5 had chronic urinary infections. It could not be determined from the records whether Patient #5 had an urinary infection when he initially presented himself to Dr. Slavin. Cipro and Bactrim are drugs which are used to treat urinary infections. Patient #5 returned to see Dr. Slavin on April 23, 1991. He was complaining of having dark red blood from his rectum on one occasion, pain in the lower part of his abdomen, and not having a bowel movement in the last two days. Dr. Slavin advised the patient to have an enema and to take a laxative. The doctor also prescribed 180 units of 4 milligrams of Dilaudid, Cipro, Bactrim, and Valium. Under normal circumstances a physician would at least examine the rectal area and check the patient's stool. Dr. Slavin did neither. Patient #5 signed an acknowledgment dated April 23, 1991, stating that he was not a Dilaudid addict, that he was currently taking Dilaudid for back pain, that he had tried other medications and found that Dilaudid controlled the pain with the least side effects, that he knew Dilaudid was an addictive substance, and that he knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. On May 14, 1991, Patient #5 again saw Dr. Slavin. The patient indicated that he would be out of town for six weeks and needed to have the pain medication refilled. Dr. Slavin prescribed 180 units of 4 milligrams of Dilaudid. The medical records contain no mention of the previous blood in the rectum. The matter, thus, remained medically unresolved as to what the issues were, whether they were addressed, and what the follow-up was, if any. PATIENT #6 On May 1, 1991, Patient #6, a 40 year old male, saw Dr. Slavin and complained of back pain secondary to an injury in 1981 which caused spinal stenosis with neurogenic claudication pain. The patient had presented to Dr. Slavin a letter dated November 16, 1987 from the Department of Labor and Employment Security, advising Patient #6 that he had been adjudicated as permanently and totally disabled; a neurologic report dated July 28, 1982; and a radiology consultation report dated August 5, 1987. Dr. Slavin noted on the patient's progress notes that myelogram indicated a defect at the L3-4 disc level. He also noted that the patient had a surgical scar over the LS spine. Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid, and Robaxin. On May 1, 1991, Patient #6 signed an acknowledgment that he was not a Dilaudid addict, was currently taking Dilaudid for control of back pain caused by spinal stenosis sustained in a work related injury in 1981 when he fell 18 feet in a sitting position, had tried other medications and found Dilaudid to be the most effective with the least side effects, knew that Dilaudid was addictive, and knew that it was unlawful for Dilaudid to be transferred to or used by anyone other than the person named on the prescription. Dr. Slavin again saw Patient #6 on June 3, 1991, and prescribed 120 units of 4 milligrams of Dilaudid for chronic low back pain. The doctor noted that he planned to repeat the MRI of the LS spine. On July 3, 1991, Patient #6 returned for a refill of his medication. Dr. Slavin prescribed 60 units of 4 milligrams of Dilaudid and Robaxin. On July 22, 1991, Dr. Slavin again saw Patient #6 for a refill of the pain medication. Dr. Slavin prescribed 60 units of 4 milligrams of Dilaudid. Dr. Slavin saw Patient #6 on August 20, 1991 for a refill of the pain medication. The doctor noted in the progress notes that the patient had extensive hypertrophic and degenerative bone and disc disease at virtually all levels of the LS spine. He prescribed 120 units of 4 milligrams of Dilaudid. On September 19, October 23, November 22, and December 20, 1991, Patient #6 visited Dr. Slavin for a refill of his pain medication. On each occasion, Dr. Slavin prescribed 120 units of 4 milligrams of Dilaudid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Counts 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 19, 20, 21, 22, 23, and 24 of the Administrative Complaint, finding that Herbert R. Slavin, M.D. violated Section 458.331(1)(m), Florida Statutes, by failing to keep written medical records to justify the course of treatment for Patient #1 and Patient #5, finding that Herbert R. Slavin, M.D. violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill, and treatment which is recognized as being acceptable under similar conditions and circumstances in the treatment of Patient #5, imposing an Administrative fine of $1,000 for each violation (total of $3,000), placing Herbert R. Slavin, M.D. on probation for one year during which time the records of Dr. Slavin shall be monitored by a monitoring physician approved by the Board of Medicine, and requiring that Herbert R. Slavin, M.D. be required to attend Category I continuing education course in Risk Management and Medical Records. DONE AND ENTERED this 1st day of March, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3931 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-4: Accepted in substance. Paragraphs 5-6: Rejected as unnecessary. Paragraph 7: Accepted in substance. Paragraphs 8-11: Rejected as unnecessary. Paragraphs 12-14: Accepted in substance. Paragraph 15: Rejected that there was no orthopedic examination; the medical records do not indicate whether there was one or not. Rejected that the neurological examination was questionable. The remainder of the paragraph is accepted in substance. Paragraphs 16-17: Rejected as unnecessary. Paragraph 18: Accepted in substance. Paragraphs 19-20: Rejected as not supported by clear and convincing evidence. Paragraphs 21-23: Accepted in substance. Paragraph 24: The second sentence is rejected as unnecessary. The remainder of the paragraph is accepted in substance. Paragraph 25: Accepted in substance. Paragraph 26: Accepted that Slavin continued to prescribe Dilaudid. Rejected as unnecessary the remainder of the paragraph. The radiographic views of the patient's spine indicated discogenic disc disease. Paragraphs 27-30: Rejected as not established by clear and convincing evidence. Paragraph 31: Accepted in substance. Paragraph 32: Rejected as not supported by the record that he performed a sparse medical history. The remainder of the paragraph is accepted in substance. Paragraphs 33-34: Accepted in substance. Paragraphs 35-38: Rejected as not established by clear and convincing evidence. Paragraph 40: Accepted in substance. Paragraph 41: The last sentence is accepted in substance. The first sentence is rejected as subordinate to the facts actually found. Paragraph 42: The first sentence is accepted in substance. The last sentence is rejected as subordinate to the facts actually found. Paragraph 43: Accepted in substance. Paragraphs 44-45: Rejected as subordinate to the facts actually found. Paragraph 46: Accepted in substance. Paragraphs 47-50: Rejected as not supported by clear and convincing evidence. Paragraphs 51-52: Accepted in substance. Paragraph 53: Rejected as not supported by the medical records except as to the orthopedic examination for which there is no mention in the medical records. Paragraph 54: Accepted to the extent that the medical records do not clearly establish that the patient was suffering from an urinary infection, although it was listed on the problem list. Cipro can be used to treat an urinary infection. Paragraph 55: Accepted in substance. Paragraph 56: See response to paragraph 54. Paragraphs 57-59: Accepted in substance. Paragraphs 60-61: Rejected as not supported by clear and convincing evidence. Paragraphs 62-63: Accepted in substance except as to the date 1882, which should be 1982. Paragraph 64: The first sentence is accepted except as to height which is subordinate to the facts actually found. The second sentence reference to temperature is accepted. The remainder of the second sentence is rejected as not supported by the record, the record indicates that Dr. Slavin also considered a more recent myleogram which confirmed the problems at L3-L4 disc levels. The last sentence is rejected as subordinate to the facts actually found. Paragraph 65-69: Rejected as not supported by clear and convincing evidence. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted in substance. Paragraphs 2-10: These paragraphs relate to the motion to stay, which is ruled on in a separate order. Paragraph 11: Accepted that Dr. Gillett was tendered and excepted as an expert in the field of internal medicine. Rejected that the doctor was provisionally accepted. Paragraph 12: Rejected as subordinate to the facts actually found. Paragraphs 13-17: Accepted in substance. Paragraph 18: The first sentence is accepted in substance. The second sentence is accepted to the extent that some physicians limit their practice to chronic pain management but rejected to the extent that it is subordinate to the facts found since there was not competent evidence presented that Dr. Slavin holds himself out to be a specialist in chronic pain management. Dr. Gillet assumed that to be so but had no evidence as to that fact. Dr. Brady thought that Dr. Slavin was a family practice physician. Paragraph 19: The first sentence is accepted in substance. The second sentence is rejected as subordinate to the facts actually found. Paragraph 20: Accepted in substance. Paragraph 21: Accepted in substance as it relates to all but Patient #s 1 and 5. Rejected as to Patient #s 1 and 5 as not supported by the evidence. Paragraph 22: The first and last parts of the first sentence are accepted in substance. The middle part of the first sentence is rejected as not supported by the record. Paragraphs 23-24: Rejected as subordinate to the facts actually found. Paragraph 25: Accepted in substance as it relates to all patients except #s 1 and 5. Rejected as not supported by the evidence as it relates to Patient #s 1 and 5. Paragraphs 26 and 27: Rejected as subordinate to the facts actually found. COPIES FURNISHED: Albert Peacock, Esquire Agency For Health Care Administration 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Charles L. Curtis 1177 Southeast Third Avenue Fort Lauderdale, Florida 33316 Andrea L. Wolfson, Esquire Suite 314 4491 South State Road 7 David, Florida 33314 Arthur C. Wallberg Assistant Attorney General Office of the Attorney General PL-01 The Capitol Tallahassee, Florida 32399-1050 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact At all times material hereto, Respondent has been a licensed psychologist in the State of Florida, having been issued license number P4- 0002471 on March 5, 1982. Respondent has been in practice for approximately 16 years, and engages in educational and counseling psychology, rather than clinical or industrial psychology. He is also licensed by the Department of Education as a school psychologist. From October, 1984 until November 21, 1986, E. J. A. was one of Respondent's patients. She began counseling with him for marital problems she was having, and continued counseling with Respondent after her marriage ended in divorce. E. J. A. was a very conscientious patient who always kept her appointments, maintained complete written records of her dreams which she gave to Respondent at each appointment, and expressed no concerns or dissatisfaction about her two years of counseling with Respondent, except for the incident which she testified occurred during her last appointment on November 21, 1986. Up until the last appointment, she testified Respondent made no sexual overtures or improper suggestions. During her counseling, E. J. A. had come to trust Respondent, and had developed an informal, friendly patient-psychologist relationship. E. J. A. had an appointment with Respondent on October 16, 1986, which was without incident. By the middle of November, when he had not heard from her to set up another appointment, Respondent telephoned her at work and requested that she set up another appointment. She agreed and the appointment on November 21, 1986 was scheduled. The November 21 session consisted of a general discussion and review about her two years of counseling. E. J. A. was feeling at the time that she might be ready to end her counseling, although Respondent felt additional sessions, at longer intervals, would be advisable. Counseling sessions were 50 minutes in length, and the November 21 session was routine and without incident until the very end of the session when Respondent and E. J. A. were saying good- bye. As was their usual practice at the end of a session, they both stood up and hugged. According to E. J. A., Respondent then said he wanted her to meet, go out with and have sex with one of his male patients who was having premature ejaculation problems. She testified that Respondent described the male patient as a very good looking Latin man from a wealthy family of Brazilian or Venezuelan origin, who was at home from Purdue law school for the Thanksgiving holiday. E. J. A. testified she asked Respondent why he was asking her to do this, and her testimony was that he said she was a sensitive, caring person who could help this young man. At first she was flattered, and she told Respondent she would think about it and get back with him. She was not initially offended. However, she did not contact Respondent to pursue the matter, and after discussing this with her brother two weeks later, she testified she realized it was unprofessional and immoral, and therefore filed a complaint with Petitioner. Respondent's patient record for E. J. A., after two years of counseling, consists of one sheet of paper with pencil notes on the front and back, as well as statements of Account, some of which have been destroyed or are missing, containing simply the date of her visit, the charge and the same diagnosis on all statements of adult situational disorder with anxiety features. E. J. A.'s dream records which she kept and brought with her throughout counseling were thrown out by Respondent. He testified the dream records were of no value after they had been discussed during a session, and he routinely destroys such notes after discussing them with his patients. His explanation for his own failure to keep detailed patient records was that he had a very good memory and could recall all important matters without written notes. Further, he stated that at one time he had kept voluminous patient notations and found them to be useless. Respondent was interviewed by Petitioner's investigator on or about January 26, 1986 and cooperated fully. After having heard Respondent's testimony at hearing about that interview and his use of the phrase, "I don't recollect," in answer to several questions posed by Petitioner's investigator about his November 21, 1986 session with E. J. A., it is specifically found that Respondent did not admit asking her to have sex with a Latin male patient. Nothing in the record, including testimony about a subsequent meeting between E. J. A. and Respondent on February 1, 1987, constitutes an admission against interest by Respondent concerning this allegation. There is no evidence that Respondent had a Latin male patient, of Venezuelan or Brazilian origin, in November, 1986, nor that he had a Purdue law student as a patient at the time. Respondent denies having a patient that fits the description given by E. J. A.; nor was he counseling a patient with premature ejaculation problems at that time. Nothing in the record rebuts Respondent's apparently sincere denials. The only evidence of unprofessional conduct is E. J. A.'s testimony about the November 21 session, which Respondent has convincingly denied. Respondent has an outstanding reputation as a counseling psychologist in the community. He has counseled hundreds of patients referred to him by three practicing family law attorneys who testified at hearing, and none of those patients has ever expressed any complaints to their attorneys about Respondent. To the contrary, there has been an overwhelming expression of gratitude and satisfaction from these patients to the attorneys who referred them to Respondent. The same three practicing attorneys also testified to seeing Respondent on a professional basis for counseling, and stated their complete satisfaction with, and admiration for, Respondent. During counseling, they testified Respondent took few notes, but he had a complete and astonishing memory. Three medical doctors who have practiced with Respondent, as well as the Chairman of the Department of Rehabilitative Counseling at the University of South Florida, testified that Respondent is an excellent therapist who is conscientious, thorough, caring and highly professional. The deposition of a counseling psychologist who has known Respondent professionally for 16 years was introduced, and supports his reputation for competence and meeting community standards for the profession. After considering all of the evidence, as well as the demeanor of the witnesses and Respondent's excellent reputation in the community, it is found that he did not request E. J. A. to have sex with a male patient and report back to him. He did not commit any act upon his patient, E. J. A., which would constitute sexual misconduct or on consenting experimentation on a human subject. Petitioner presented the American Psychological Association's "Specialty Guidelines for the Delivery of Services by Clinical Psychologists" to establish that the patient records maintained by Respondent concerning E. J. A. were inadequate and failed to meet minimum standards of performance. However, the "Guidelines" specifically state that they "are meant to apply only to those psychologists who voluntarily wish to be designated as clinical psychologists. They do not apply to other psychologists." American Psychologist, Vol. 36, No. 6, p. 640. Since the "Guidelines" specifically guide the specialty practice of clinical psychology only, they are irrelevant to a counseling psychologist such as Respondent, particularly since Respondent has never held himself out as a clinical psychologist in any way. Therefore, Guideline 2.3.4., which requires clinical psychologists to retain patient records for from 3 to 15 years after completion of planned services or last contact, as well as other guidelines concerning patient records, are not relevant to Respondent's practice as a counseling psychologist. According to Dr. Sydney Merin, who was accepted as an expert in psychology, record keeping is always important. Patient records should contain an adequate representation of what went on in each session. Dr. Merin testified that all psychologists are expected to keep adequate patient records, and that Respondent's record on one sheet of paper for counseling with E. J. A. for two years, as well as incomplete Statements of Account, failed to meet minimum standards of performance because they were inadequate. E. J. A.'s dream notebooks had been destroyed, and there is no way to tell from E. J. A.'s records what was discussed, explored, revealed or found in two years of counseling. If Respondent were to die, leave the area, or discontinue his practice, E. J. A. would have no meaningful record of her extensive counseling with him. The testimony of Dr. Fred Dickman, introduced by Respondent by deposition, confirms the testimony of Dr. Merin concerning the importance of keeping adequate patient records. Further, Dr. Dickman testified that at a minimum he keeps a record of each date when he sees a patient, and at least a sentence about each session. Respondent failed to make any notes about what went on in his sessions with E.J.A., other than the date, the charge and diagnosis for insurance billing purposes. He failed to meet the community standard to keep notes of on- going therapy. Although Respondent produced the testimony of three psychiatrists, who were also qualified as experts in the supervision of psychologists, to state that his records for E. J. A. were adequate, this testimony is specifically outweighed by the testimony of Drs. Merin and Dickman since they are both psychologists and, therefore, their testimony is more relevant and persuasive concerning minimum standards of psychology than the testimony of psychiatrists. While these professions may be related, they are separate and distinct, and while adequate patient records of each session may not be required in the profession of psychiatry, they are required in the profession of psychology. Similarly, the testimony of Dr. Calvin Pinkard that the need for notekeeping is debatable is discounted as irrelevant because, although he is an expert in psychology, he was testifying about, and in the context of, teaching students studying to become mental health counselors, not psychologists.
Recommendation Based upon the forgoing, it is recommended that the Board of Psychological Examiners enter a Final Order publicly reprimanding Respondent for the violation of Sections 490.009(2)(q) and (s), Florida Statutes. DONE AND ENTERED this 20th day of July, 1988, in Tallahassee, Florida. DONALD D. CONN 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 20th day of July, 1988. APPENDIX (DOAH Case No. 87-5562) Rulings on Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 10. 3-4. Adopted in Finding of Fact 2, but otherwise Rejected as irrelevant. Adopted in Finding of Fact 3. Adopted in Finding of Fact 7. 7-8. Rejected in Findings of Fact 14, 15, 16. Adopted in Finding of Fact 11. Adopted in Finding of Fact 13. Adopted in part in Finding of Fact 13, but Rejected in Findings of Fact 14-16. Adopted in Finding of Fact 13. Rejected since this is a conclusion of law rather than a proposed finding of fact. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Paul B. Johnson, Esquire P. O. Box 3416 Tampa, Florida 33601 Linda Biedermann Executive Director Board of Psychology Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Testimony was received from the claimant and Dr. Lever, his psychiatrist. The deposition of his orthopedic surgeon, Dr. Terheyden, was received together with the records of his various hospitalizations. The deposition of Donald Jones, Personnel Director, was also received. Generally, the evidence showed that prior to 1967, the claimant had injured his back. The claimant testified that this injury occurred in 1963 on the job. Dr. Lever testified that he first began to treat the claimant in 1967 for a condition he later diagnosed as schizophrenia paranoid type reaction and that he had treated him off and on since 1967 for this condition. Dr. Lever testified and his records state that the claimant's mental condition was caused by the childhood deprivation of affection but that the pain from the 1963 back injury had interfered with the claimant's personal relationships with co-workers and his sexual relations with his wife causing the schizophrenic reaction to manifest itself. The claimant was hospitalized for nine days in 1967 and eighteen days in 1970 for psychiatric treatment. The claimant was able to return to work between hospitalizations under drug therapy prescribed by the doctor. This enabled the claimant to function although with occasional episodes of psychotic reactions caused by personal crises which had resulted in his hospitalizations as indicated. Dr. Lever testified that he had last seen the claimant several days before the hearing. Dr. Terheyden's deposition and records of his hospitalization indicated that the claimant first was treated in 1964 for back problems. This treatment continued until 1967 when surgery was performed on the claimant's back. There was no indication from Dr. Terheyden's records or deposition what caused the initial injury. Dr. Terheyden also treated the claimant for injuries to his back in 1970 and 1971, performing a second operation in 1972 on his back. Dr. Terheyden's deposition indicated that the claimant could not physically perform the duties he had performed for the school board after his last operation. The claimant testified that he had first injured his back in 1963 but that it was not reported to his employer although he had told the tile setter for whom he worked directly. Several days after the initial injury, he went to the doctor and had remained under his treatment until his 1967 operation. The claimant indicated that no report of injury had been filed with the employer because the tile setter for whom he worked had discouraged reporting the injury. However, upon examination on this point, he could not offer any satisfactory reason why the report was not filed or why the tile setter would have discouraged filing the report. The records and deposition of Donald Jones, together with Exhibit 3, which lists the reports of on-the-job injuries indicate that the claimant filed reports of on-the-job injuries in 1961, 1964, 1968, 1969, 1970, and 1971. These records and testimony do not indicate any report filed in 1963. These records indicate that the claimant missed substantial periods of work after the 1970 injury not related to the psychiatric treatment listed above. Based upon the foregoing, the Hearing Officer makes the following findings of fact: The claimant had a back injury prior to 1967 which required surgery in June of 1967. Said injury caused a schizophrenia paranoid type reaction to manifest itself but did not cause the claimant's mental disease. Although the claimant testified that said injury occurred on the job in 1963 but was not reported, this testimony was inconsistent with the reports of injuries on the job in 1961, 1962, and 1964 contained in Exhibit 3. The claimant's failure to report the 1963 injury was not adequately explained by the claimant. Considering the interest of the claimant in the outcome of the case, the lack of any separate evidence to support his testimony, the reports of injury for the years preceding and following, and the inability of the claimant to explain this apparent discrepancy, there is insufficient believable evidence to support a finding that the 1963 injury was job related. Subsequent to the 1967 operation and the treatment for schizophrenia, the claimant returned to work and worked until 1972 rendering useful and efficient service and receiving incremental raises during these years. During the period of 1967 to 1972, the claimant injured his back in January 1970, July 1970, and January 1971, all of which occurred or arose out of the performance of regularly- assigned duties on the job. These injuries necessitated a 1972 operation to claimant's back. Although the claimant had pre-existing physical and mental ailments, it was the 1970 and 1971 injuries and 1972 operation to the claimant which prevented him from performing the duties which he had performed for the school board.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the claimant, Donald M. Hines, receive in- line-of-duty benefits. DONE and ENTERED this 18th day of December, 1975, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1975. COPIES FURNISHED: L. Keith Pafford, Esquire Division Attorney Division of Retirement 530 Carlton Building Tallahassee, FL 32304 Donald Feldman, Esquire FELDMAN & ABRAMSON, P.A. 402 Ainsley Building Miami, FL 33132
The Issue The issue is whether Petitioner overpaid Respondent for medical services for 20 patients under the Medicaid Program from February 22, 1997, through February 22, 1999, and, if so, by how much.
Findings Of Fact At all material times, Respondent, who is a licensed physician, was authorized to provide medical services to Medicaid recipients, provided medical services to Medicaid recipients, billed Petitioner for these services, and received payment for these services. The Medicaid program provides for periodic audits of each Medicaid provider, after which Petitioner may seek repayment of amounts revealed by audit to have been overpaid to the provider. After conducting such an audit of Respondent for services rendered from February 22, 1997, through February 22, 1998, and exchanging post-audit information, Petitioner informed Respondent, by letter dated March 1, 2002, that it had overpaid him $238,069.09 for claims that were, in whole or in part, not covered by Medicaid, and demanded repayment of this amount. The letter states that the overpayment was extrapolated from the overpayment amount determined from auditing the records of a random sample of 21 patients for whom Respondent had submitted 423 claims. The actual overpayment amount, before extrapolation is $11,248.14. Petitioner later removed one of the patients from the sample due to a billing error. Among the 21 patients covered by the audit, the deleted patient is identified as Patient 20. The age of each patient set forth below is his or her age at the time of the first office visit during the audit period. Where a series of payments are set forth below, they are listed in the order of the procedures discussed immediately above the payments. Patient 1, who was 17 years old first saw Respondent on March 27, 1998. Petitioner allowed payments for Patient 1's first two visits. On March 27, 1998, Respondent performed an abdominal echogram and other services for abdominal pain of three or four months' duration, and, on April 14, 1998, Respondent performed a doppler echocardiograph and other services for chest pain of three or four days' duration. On April 27, 1998, Patient 1 presented at Respondent's office with fever and chills since the previous day. Patient 1 complained of nausea, frequent and painful urination, and pain in the abdomen and lower back. Without first performing a urinalysis or urine culture, Respondent performed a renal echogram April 27, based on his diagnosis of urosepsis and to rule out a urinary tract infection. Renal echography was not medically necessary to rule out a urinary tract infection, at least until Respondent had first performed a urinalysis and urine culture and considered the results from this laboratory work. Respondent's diagnosis of urosepsis lacks any basis in his records. If Patient 1 had suffered from urosepsis, which is a life-threatening condition that requires urgent treatment--not echography--Respondent should have treated the matter as a medical emergency. Petitioner proved that it overpaid $61.57 for this service. Petitioner allowed a payment for medical services, which did not include any echography, on May 4, 1998. On June 1, 1998, Patient 1 presented at Respondent's office complaining of acute abdominal pain for three or four days. Respondent performed a physical examination and detected an enlarged spleen. He then performed an echogram of the spleen and found a normal spleen without inflammation or cyst. Respondent proceeded with the echography without first performing routine blood work, such as a white blood cell count, to detect infection. The echogram of the spleen was not medically necessary, at least until Respondent had performed routine blood work to confirm or rule out infection. However, as noted in the Preliminary Statement, Dr. Hicks has withdrawn his objection to this payment, so Petitioner did not overpay for this service. Petitioner allowed a payment for a medical service on June 5, 1998. On June 19, 1998, Patient 1 presented at Respondent's office complaining of weakness, fainting, dizziness, fatigue, palpitations, shortness of breath, heartburn, rectal discomfort, and skin rash. After performing a physical examination, Respondent suspected hypothyroidism and performed a thyroid echogram, which revealed a normal thyroid. Again, thyroid echography is not medically necessary without first performing routine laboratory tests of thyroid function. Petitioner proved that it overpaid $45.24 for this service. On August 3, 1998, Patient 1 presented at Respondent's office complaining of weakness in his arms and hands of three to four weeks' duration. A physical examination revealed that Patient 1's grip was weak and his wrists painful upon pressure. Suspecting carpal compression, Respondent conducted three types of nerve conduction velocity tests (NCV), including an H-Reflex test, all of which test nerve function. Patient 1 had a psychiatric diagnosis, as Respondent was aware at the time of this office visit. Before conducting the NCV, Respondent contacted Patient 1's psychiatrist and obtained her approval of the test. Also, before conducting the NCVs, Respondent obtained blood work, so as to determine the blood levels of the psychotropic medications that Patient 1 was taking. Petitioner failed to prove that it overpaid for these services. Patient 1 visited Respondent's office on August 7, August 25, September 16, and October 30, 1998, but Petitioner is not disallowing any of these payments. On November 23, 1998, Patient 1 presented at Respondent's office complaining of pain in his right ankle after tripping and falling the previous day. Respondent conducted a physical examination and found mild swelling, applied an elastic bandage, prescribed Motrin and physical therapy for three weeks, and ordered an X ray. Petitioner claims that Respondent misbilled the procedure. Respondent billed a 73000, which is a procedure under the Current Procedure Terminology manual (CPT), and Petitioner claims that the correct CPT code is 73600, which would generate an overpayment of 59¢. However, as noted in the Preliminary Statement, the evidence fails to support this claim by Petitioner, so Petitioner failed to prove that it overpaid for this service. Patient 2, who was a 57 years old, had seen Respondent for three years. Patient 2 visits the office "constantly," according to Respondent. Petitioner has disallowed payments for services rendered on March 2, March 31, April 28, June 1, August 17, August 28, September 24, October 2, November 3, November 9, December 1, and December 21, 1998, and January 8, 1999. However, as noted in the Preliminary Statement, Dr. Hicks has withdrawn his objection to the aerosol treatment on August 17 and the level of service of the office visit on August 28. On March 2, 1998, Patient 2 presented at Respondent's office with acute onset the previous day of left flank pain, now radiating to the left lumbar and genital areas. Patient 2 denied passing any stones in his urine, although he complained of frequency and pain of urination. Respondent found Patient 2's abdomen distended and liver enlarged. He performed a renal echogram to rule out kidney stones or urinary retention. The results were normal. Respondent's testimony failed to establish the medical necessity of this renal echography. The symptoms are too nonspecific to justify this diagnostic procedure at this time, so Petitioner proved that it overpaid $61.57 for this service. On March 31, 1998, Patient 2 presented at Respondent's office with complaints of leg pain and cramps at night, which arose after walking a block and alleviated with rest. Diagnosing this obese patient with peripheral vascular disease, Respondent performed doppler procedures of the lower extremity veins and arteries. The results revealed mild atheromatous changes in the lower extremities. Petitioner failed to prove that the two procedures billed by Respondent for the March 31 office visit were medically unnecessary, so Petitioner failed to prove that it overpaid for these services. On April 28, 1998, Patient 2 presented at Respondent's office with nausea of three or four days' duration, vomiting associated with indigestion, fatty food intolerance, flatulence, and bitter taste. Patient 2, whom Respondent presumed was alcoholic, had an enlarged liver, as Respondent had noted in previous examinations of Patient 2. Respondent performed a liver echogram, after ordering a laboratory report on January 29, 1998. The results confirmed the presence of liver echogenicity or fatty liver. 26. Petitioner failed to prove that this echography was not medically necessary, so Petitioner failed to prove that it overpaid for this service. On June 1, 1998, Patient 2 presented at Respondent's office with complaints of pain on urination, increased frequency of urination, the need to urinate at night, and chills. Respondent performed an echogram of the prostate to rule out cancer; however, Respondent's records did not disclose any laboratory test, which is more appropriate for detecting prostate cancer. Respondent's testimony establishes that this echogram was not medically necessary, so Petitioner proved that it overpaid $51.34 for this service. On September 24, 1998, Patient 2 presented at Respondent's office with a complaint of low back pain after slipping and falling down three days earlier. Respondent performed three NCVs, including an H-Reflex test. Respondent's notes state an intention to do X rays, although the records fail to reveal whether X rays were ever done. Petitioner failed to prove that the three NCV tests were not medically necessary. Petitioner also downcoded the office visit on this date, but, as noted in the Preliminary Statement, due to the failure to produce a CPT manual, Petitioner failed to prove that it overpaid $10.74 for this service. On October 2, 1998, Patient 2 presented at Respondent's office with a complaint of shortness of breath. Respondent administered an aerosol with Ventolin, which is a drug used to combat asthma. This is the same aerosol that Dr. Hicks decided to allow on August 17 upon further review, and the medical necessity for this aerosol is the same as the earlier aerosol, so Petitioner failed to prove that it overpaid $10.62 for this service. On November 3, 1998, Patient 2 presented at Respondent's office with complaints of malaise, fatigue, weakness, and weight gain. Respondent performed a thyroid echogram in connection with a diagnosis of hypothyroidism, and the test results were normal. Patient 2, who suffered from chronic obstructive pulmonary disease (COPD), had not actually gained weight over 1998. Without the results of other tests of thyroid function, a test to measure the size of the thyroid was not medically necessary, so Petitioner proved that it overpaid $45.24 for this service. On November 9, 1998, Patient 2 presented at Respondent's office with complaints of continuing chest pain and palpitations. Respondent had seen Patient 2 three days earlier for the same complaints and performed an electrocardiogram, whose results were abnormal, although not acute. Based on this test, Respondent had referred Patient 2 to a cardiologist. Given the proper referral of Patient 2 to a cardiologist, the ensuing doppler echocardiogram was not medically necessary. The record is devoid of any evidence that Respondent could adequately care for the cardiac condition suffered by Patient 2, so this diagnostic service performed no useful function. Petitioner proved that it overpaid $117.23 and $51.34 for these services. On December 1, 1998, Patient 2 presented at Respondent's office with chest congestion and cough, with some shortness of breath, of three days' duration. Respondent administered an aerosol with medications to treat Patient 2's bronchial asthma and COPD by functioning as a bronchodilator. This treatment was preceded by a spirometry, which tests respiratory function. Petitioner failed to prove that either the diagnostic or therapeutic service provided by Respondent on December 1 was not medically necessary. On December 21, 1998, Patient 2 presented at Respondent's office with the same complaints from his visit nearly three weeks earlier. Respondent performed two duplex scans of the lower extremities to check his circulatory state, These scans were not medically necessary. Although Patient 2 was also complaining of a slow progression of leg pain and cramps, Respondent had performed a diagnostic procedure for these identical symptoms nine months earlier. The absence of any recorded treatment plan in the interim strongly suggests that diagnostic echography is displacing actual treatment. Respondent also performed another spirometry, less than three weeks after the prior spirometry. There was no medical necessity for this second procedure because Patient 2's symptoms and complaints had remained unchanged. Petitioner proved that it overpaid $97.96, $72.39, and $15.70 for these services. On January 8, 1999, Patient 2 presented at Respondent's office, again with respiratory complaints. Respondent claims to have administered a maximum breathing test, but he submitted no documentation of such a test to Petitioner, so Petitioner has proved that it overpaid $9.82 for this service. Patient 3, who was 13 years old, saw Respondent only one time--April 28, 1998. On this date, she presented at Respondent's office with menstrual complaints, abdominal pain, anxiety, and urinary disorders in terms of frequency and urgency. After performing a physical examination (limited as to the pelvic area due to the demands and cultural expectations of the patient and her family) and ordering blood work, Respondent performed pelvic and renal echograms, choosing not to subject the patient to X rays due to her young age. When Respondent later received the blood work, he found evidence supporting a diagnosis of a urinary tract infection. Although the menstrual history should have been developed in the records, the pelvic echogram could have uncovered an ovarian cyst, and legitimate reason existed to avoid an X ray and an extensive pelvic examination. However, the renal echogram was not medically necessary. The proper means of diagnosing a urinary tract infection is the blood work that Respondent ordered. The records mention the possibility of kidney stones, but this condition did not require ruling out based on the complaints of the patient, findings of the physical examination, and unlikelihood of this condition in so young a patient. Petitioner proved that it overpaid $61.57 for the renal echogram, but failed to prove that it overpaid for the pelvic echogram. Patient 4, who was eight years old, first saw Respondent on November 11, 1998. Patient 4 presented with a fever of two days' duration, moderate cough, and runny nose. His grandmother suffered from asthma, but nothing suggests that Patient 4 had been diagnosed with asthma. After conducting a physical examination and taking a history, Respondent diagnosed Patient 4 as suffering from acute tonsillitis, allergic rhinitis, bronchitis, and a cough. Apparently, Respondent misbilled Petitioner for an aerosol treatment because Respondent testified, and his records disclose, that no aerosol was administered, so Petitioner proved that it overpaid $10.62 for this service. Respondent administered a spirometry, which he justified on the basis of the grandmother's asthma. Although the results of the spirometry indicated pulmonary impairment, the test was not medically necessary, given the history and results of the physical examination, so Petitioner proved that it overpaid $32.06 for this service. On February 15, 1999, Patient 4 presented at Respondent's office with a fever of two days' duration, moderate cough, and clear nasal discharge. Again, Respondent administered a spirometry, which again revealed pulmonary impairment, and, again, the test was not medically necessary. Again, Respondent displayed a fondness for diagnostic procedures that yielded no plan of treatment. Petitioner proved that it overpaid $16.94 for this service. Patient 5, who was 61 years old, presented at Respondent's office with a history of weekly visits, as well as osteoarthritis and high blood pressure. On March 26, 1998, Patient 5 presented at Respondent's office with a complaint of left hip pain of three days' duration, but not associated with any trauma. She also reported dizziness and occasional loss of consciousness after faintness. Patient 5 noted that her neck swelled three or four months ago. Respondent billed for two views of the hip, but nothing in his records indicates more than a single view, so Petitioner proved that it overpaid Respondent $6.68 for this aspect of the X-ray service. Respondent also performed a duplex scan of the carotid artery. The scan, which was justified due to Patient 5's dizziness, faintness, and loss of consciousness, revealed atherosclerotic changes of the carotid arteries, so Petitioner failed to prove that it overpaid for this service. On April 9, 1998, Patient 5 presented at Respondent's office with complaints of left flank pain, nasal stuffiness, headaches, and urinary incontinence on exertion. Interestingly, the report from the thyroid echogram, which was performed on the March 26 office visit and allowed by Petitioner, revealed an enlargement and solid mass at the right lobe, but Respondent's records contain no conclusions, diagnosis, or treatment plan for this condition, focusing instead on cold and other minor symptoms described above. Respondent performed kidney and bladder echograms, to rule out stones, cysts, or masses, and a sinus X ray. However, he did not first perform a urinalysis--instead ordering it simultaneously--to gain a better focus on Patient 5's condition, but his records contain no indication of the results of this important test. Petitioner proved that it overpaid $61.57 and $39.73 for the renal and bladder echograms, both of which were normal, although the left kidney revealed some fatty tissue. Although the results were normal, the sinus X ray was medically necessary, so Petitioner failed to prove that it overpaid for this service. On May 13, 1998, Patient 5 presented at Respondent's office with a complaint of chest congestion, "chronic" cough (despite no prior indication of a cough in Respondent's records), and shortness of breath of two or three days' duration. Respondent administered a spirometry. Respondent justified this test, in part, on Patient 5's "acute exacerbation of COPD," but Respondent's records reveal no other symptoms consistent with a diagnosis of COPD. Administering spirometry when confronted with common cold symptoms is not medically necessary, so Petitioner proved that it overpaid $30.06 for this service. On June 29, 1998, Patient 5, who was diabetic, presented at Respondent's office with complaints of gradual onset of leg pain on exertion, alleviated by resting, and cramping at night. A physical examination revealed no right posterior pedal pulse, grade 2 edema and dermatitis, and bilateral varicose veins. Previous blood work had revealed high cholesterol, triglycerides, and low-density lipoprotein cholesterol. Respondent performed a doppler study of the arteries of the lower extremities, which Petitioner allowed. He also performed a doppler study of the veins of the lower extremities and a duplex scan of the veins of the lower extremities, both of which Petitioner disallowed. Petitioner also downcoded the office visit. Given Patient 5's diabetes and the laboratory work, the disallowed study and scan were justified. Petitioner failed to prove that the services were medically unnecessary or, as noted in the Preliminary Statement, due to the absence of the CPT manual, that the office visit should be downcoded, so Petitioner failed to prove that it overpaid for these services. On July 20, 1998, Patient 5 presented at Respondent's office with complaints of diffuse abdominal pain and nausea without vomiting. Respondent found that her liver was enlarged and tender and performed a liver echogram. Petitioner's disallowance of this service suggests an unfamiliarity with the subsequent report dated August 28, 1998, that states that a CT scan of the abdomen revealed possible metastatic disease of the liver and suggested correlation with liver echography. The liver echogram was medically necessary, so Petitioner failed to prove that it overpaid for this service. On August 13, 1998, Patient 5 presented at Respondent's office with complaints of low back pain of months' duration and related symptoms. Respondent performed three NCVs, including an H-Reflex. The NCVs suggested light peripheral neuropathy. Petitioner failed to prove that these tests were not medically necessary. On August 18 and 28, 1998, Patient 5 visited Respondent's office and received injections of vitamin B12 and iron. However, the medical necessity for these injections is absent from Respondent's records. Respondent testified that the iron was needed to combat anemia, but this diagnosis does not appear in the August 18 records. The August 28 records mention anemia, but provide no clinical basis for this diagnosis. Neither set of records documents the injections. Petitioner proved that it overpaid $94.25 and $37.70 for these services. On October 21, 1998, Patient 5 presented at Respondent's office with complaints of chest congestion, cough, and moderate shortness of breath of one day's onset, although she had visited Respondent one week earlier with the same symptoms. Petitioner allowed an aerosol treatment, but disallowed a maximum breathing procedure. Respondent testified that the service was the administration of oxygen, which is documented in the records and medically necessary. Petitioner's worksheets, which are Petitioner Exhibit 19, contain a handwritten note, "no doc[umentation]," but the shortcomings in Petitioner's evidence, as noted in the Preliminary Statement, prevent Petitioner from proving that it overpaid for this service. On November 11, 1998, Patient 5 presented at Respondent's office with complaints of weakness and fatigue of five or six months' duration. Respondent has previously diagnosed Patient 5 with hypothyroidism, and Respondent believed that she was not responding to her medication for this condition. Without ordering blood work to determine thyroid function, Respondent performed a thyroid echogram. However, this echography was not medically necessary, so Petitioner proved that it overpaid $45.24 for this service. On December 4, 1998, Patient 5 presented at Respondent's office with complaints of left chest and ribs pain and recent faintness. Respondent ordered an X ray of the ribs and conducted a physical examination, which revealed a regular heart rhythm. The following day, Respondent performed an echocardiogram and related doppler study. He had performed these tests seven months earlier, but the results were sufficiently different, especially as to new mitral and aortic valve regurgitation, so as to justify re-testing. Given Patient 5's poor health, these tests were medically necessary, so Petitioner failed to prove that it overpaid for these services. On December 17, 1998, Patient 5 presented at Respondent's office with complaints of cervical pain of three or four days' duration and radiating pain into the arms and hands. Noting a decreased grip on both sides and relevant aspects of Patient 5's history, Respondent performed two NCVs, including an H-Reflex, and ordered a cervical X ray. One NCV revealed abnormalities, but the H-Reflex did not. These tests were medically necessary, so Petitioner failed to prove that it overpaid for these services. On January 12, 1999, Patient 5 presented at Respondent's office with complaints of blurred vision, loss of memory, dizziness, and fainting over several months' duration. Respondent performed a carotid echogram, as he had on March 26, 1998. The results of the new carotid echogram were the same as the one performed nine months earlier. The problem is that, again, Respondent betrays his fondness for diagnosis without treatment, as he never addressed the abnormalities detected in the earlier echogram, except to reconfirm their existence nine months later. Petitioner proved that the second carotid echogram was not medically necessary, so it overpaid $99.14 for this service. On February 1, 1999, Patient 5 presented at Respondent's office with continuing complaints of leg pain and cramps. Respondent responded by repeating the doppler study of the veins of the lower extremities and a duplex scan of the veins of the lower extremities that he had performed only seven months earlier and another duplex scan. The main difference in results is that Respondent had suspected from the earlier tests that Patient 5 suffered from "deep venous insufficiency," but he found in the later tests that "mild vein insufficiency is present." Again, though, the tests performed on February 1 lack medical necessity, partly as evidenced by the failure of Respondent to design a treatment plan for Patient 5 after either set of test results. Petitioner proved that it overpaid $99.14, $37.92, and $110.50 for these services. On December 4, 1998, Patient 6 presented at Respondent's office complaining of leg pain, mild shortness of breath, and a cough. Except for the leg pain, the symptoms were of two days' duration. Patient 6 was 35 years old and had a history of schizophrenia and obesity. Respondent performed a physical examination and found decreased breathing with scattered wheezing in both lungs and decreased peripheral pulses, presumably of the lower extremities, although the location is not noted in the medical records. Respondent also found varices on both sides with inflammatory changes and swelling of the ankles. Respondent ordered duplex studies of the vascular system of the lower extremities and a doppler scan of the lower extremities. The results revealed diffuse atheromatous changes in the left lower extremity. Petitioner failed to prove that these services were not medically necessary. On the same date, Respondent performed a spirometry, which was "probably normal." Petitioner proved that this procedure was not medically necessary because of the mildness of the respiratory symptoms and their short duration. Petitioner overpaid $32.06 for this service. Respondent saw Patient 6 on December 9, 12, and 15, 1998, for abdominal pain, but Petitioner has not disallowed any of these services. On December 28, 1998, Patient 6 presented at Respondent's office with complaints of neck pain with gradual onset, now radiating to the upper and middle back, shoulders, and arms, together with tingling and numbness in the hands. Respondent performed three NCVs, including an H-Reflex, even though the physical examination had revealed active deep reflexes and no sensory deficits or focal signs. The results revealed mild abnormalities, which Respondent never discussed in his notes or addressed in a treatment plan. Petitioner proved that these services were not medically necessary, so Petitioner overpaid $195.12, $73.96, and $21.64 for these services. On February 2, 1999, Patient 6 presented at Respondent's office complaining of three days of chills without fever, left flank pain, and urinary frequency. Without first performing a urinalysis, Respondent performed a kidney echogram to rule out kidney stones. The echogram revealed no abnormalities. Petitioner proved that the renal echogram was not medically necessary, so it overpaid $62.37 for this service. On August 25, 1998, Patient 7, who was 58 years old, presented to Respondent's office with complaints of leg pains and cramps of five or six months' duration and some unsteadiness, as well as progressive numbness in her legs and feet. Patient 7 also complained of moderate shortness of breath, anxiety, and depression. The physical examination revealed decreased expansion of the lungs and decreased breath sounds, limited motion of the legs and back, decreased peripheral pulses (presumably of the legs), edema (again, presumably of the lower extremities), varices, and sensorial deficit on the external aspect of the legs. Blood work performed on August 25 was normal for all items, including thyroid function, except that cholesterol was elevated. Respondent ordered a chest X ray and electrocardiogram, which Petitioner allowed, but also ordered doppler studies of the veins and arteries of the lower extremities, an associated duplex scan, a spirometry, three NCVs (including an H-Reflex), and a somatosensory evoked potential test (SSEP), all of which Petitioner denied. Like the NCV, the SSEP is also an electrodiagnostic test that measures nerve function. The NCVs suggested mild peripheral neuropathy, which required clinical correlation, but the SSEP revealed no abnormalities. The doppler studies produced findings that "may represent some early arterial insufficiency" and "may represent some mild venous insufficiency," but were otherwise normal. The spirometry revealed "mild airway obstruction." The results of the tests do not support their medical necessity, nor do the complaints and findings preceding the tests. Petitioner proved that both doppler studies, the duplex scan, all three NCVs, the SSEP, and the spirometry were not medically necessary. Petitioner overpaid $66.48, $38.75, $108.58, $195.12, $73.96, $21.64, $42.68, and $17.70 for these services. Two days later, on August 27, 1998, Patient 7 presented at Respondent's office with swelling of her anterior neck and pain for two weeks. She complained that her eyes were protruding and large and that she had suffered mild shortness of breath for two days. Respondent ordered an echogram of the goiter, which Petitioner denied. Respondent's records contain no acknowledgement of the fact that, two days earlier, blood work revealed normal thyroid function. Even if the laboratory results were not available within two days of the draw, Respondent had to await the results before proceeding to ultrasound. Petitioner proved that the goiter echogram was not medically necessary, so it overpaid $43.24 for this service. On September 21, 1998, Patient 7 presented at Respondent's office with complaints of chest pain, palpitations, and shortness of breath. The physical examination revealed no abnormalities. Respondent performed an echocardiogram and related doppler study, largely, as he testified, to rule out thyrotoxicosis. However, as noted above, the blood work one month earlier revealed no thyroid dysfunction, and the medical records fail to account for this blood work in proceeding with a thyroid rule-out diagnosis. Petitioner proved that these services were not medically necessary, so it overpaid $117.23 and $51.34 for these services. On October 6, 1998, Patient 7 presented at Respondent's office with complaints of gradual loss of memory, fainting, and blurred vision. Respondent performed a carotid ultrasound, which revealed mild to moderate atheromatous change, but no occlusion. Petitioner failed to prove that this test was not medically necessary. Petitioner also downcoded the office visit, but, for reasons set forth above, its proof fails to establish that the billed visit should be reduced. On the next day, October 7, Patient 7 presented at Respondent's office in acute distress from pain of three days' duration in the legs, swelling, heaviness, redness, and fever. The physical examination revealed swelling of the legs and decreased peripheral pulses. Concerned with thrombophlebitis, Respondent ordered a chest X ray to rule out an embolism and a duplex scan of the lower extremities, neither of which revealed any significant abnormalities. Petitioner failed to prove that these tests were not medically necessary. On November 12, 1998, Patient 7 presented at Respondent's office with complaints of abdominal pain and vaginal discharge. One note states that the pain is in the left upper quadrant, and another note states that the pain is in the lower abdomen. The physical examination was unremarkable, but Respondent ordered echograms of the pelvis and spleen, which were essentially normal. Petitioner proved that the echograms were not medically necessary, so it overpaid $46.03 and $51.34 for these services. On November 30, 1998, Patient 7 presented at Respondent's office with complaints with worsening neck pain radiating to the shoulders and arms and decreased muscle strength on both sides. The physical examination uncovered decreased grip, normal pulses, and no focal findings. Respondent ordered three upper-extremity NCVs, including an H-Reflex, and an SSEP. The tests did not produce significantly abnormal results, such as to require any treatment beyond the anti-inflammatory medications typically used to treat the osteoarthritis from which Patient 7 suffered. Petitioner proved that the tests were not medically necessary, so it overpaid $193.12, $73.96, $21.64, and $42.68 for these services. One month later, on December 28, Patient 7 presented at Respondent's office with continuing complaints of neck pain and decreased muscle strength. Although the same three NCVs had revealed nothing significant only one month earlier, Respondent performed the same three tests. Petitioner proved that these tests were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On January 8, 1999, Patient 7 presented at Respondent's office with complaints of right upper quadrant abdominal pain of three days' duration with vomiting and urinary disorders. The physical examination suggested tenderness in the right upper quadrant of the abdomen. Respondent performed liver and renal echograms, which were normal. Petitioner allowed the liver echogram, but not the renal echogram. Petitioner proved that the renal echograms were not medically necessary, so it overpaid $62.37 for this service. On April 7, 1998, Patient 8, who was 48 years old and suffered from diabetes, presented at Respondent's office with an ulcer on her right foot with tingling, numbness, and muscle weakness in both legs. Relevant history included the amputation of the right toe. The physical examination revealed an ulcer on the right foot, but no tingling or numbness. Respondent ordered an electrocardiogram and a doppler study of the arteries of the lower extremities, both of which Petitioner allowed. However, Petitioner denied a doppler study of the veins of the lower extremities and a duplex scan of the veins of the lower extremities and three NCVs of the lower extremities, including an H-Reflex. The venous doppler study disclosed a mild degree of venous insufficiency and suggested a mild to moderate peripheral vascula disease without occlusion. The NCVs showed abnormal sensory functions compatible with neuropathy. In place of a report on the H-Reflex test, a report on an SSEP indicated some abnormalities. At the end of the visit, Respondent sent Patient 8 to the hospital for treatment of the infected foot ulcer. Petitioner failed to prove that the NCVs, including the H-Reflex or SSEP, and the venous doppler study were not medically necessary. For reasons already discussed, Petitioner also failed to prove that the office visit should be downcoded. On August 18, 1998, Patient 8 presented at Respondent's office with complaints of neck pain of two or three weeks' duration, dizziness, blurred vision, and black outs. Respondent ordered a carotid ultrasound, which revealed no abnormalities. Given the compromised health of the patient, Petitioner failed to prove that this service lacked medical necessity. On August 26, 1998, Patient 8 presented at Respondent's office with gastric complaints of three days' duration radiating to the upper right quadrant and accompanied by vomiting and occasional diarrhea. Patient 8 continued to complain of neck pain. Since yesterday, Patient 8 reported that she had had a frequent cough and shortness of breath. Her history includes fatty food intolerance, nocturnal regurgitations, and heartburn. The physical examination revealed a soft, nontender abdomen and normal bowel sounds. With "diagnoses" of epigastric pain, abdominal pain, and shortness of breath, Respondent performed, among other things, a spirometry. Given the short duration of Patient 8's respiratory complaints, Petitioner proved that the spirometry was not medically necessary, so Petitioner overpaid $17.70 for this service. On September 29, 1998, Patient 8 presented at Respondent's office with complaints of low back pain, malaise, chills, fever, and urinary disorders, all of three days' duration. The physical examination was unremarkable, but for unrelated findings in the lower extremities. Respondent performed an echogram of the kidneys, which revealed no significant problems. Petitioner proved that this ultrasound procedure was not medically necessary, so it overpaid $61.57 for this service. Respondent also billed for a diabetes test, but the test results are omitted from the medical records. Petitioner proved a lack of documentation for the diabetes, so it overpaid $11.50 for this service. On December 11, 1998, Patient 8 presented at Respondent's office with complaints of moderate neck pain, numbness and weakness of the shoulders and arms, and tingling of the hands, all of three or four months' duration. Diagnosing Patient 8 with cervical disc disease, cervical radiculitis, and diabetic peripheral neuropathy, Respondent ordered three NCVs, including an H-Reflex. The NCVs revealed some abnormalities, but evidently not enough on which Respondent could make a diagnosis and form a treatment plan. Although this Recommended Order finds an earlier set of NCVs of the lower extremities medically necessary, even though Respondent did not act on them, these NCVs are different for a couple of reasons. First, at the time of the lower- extremity NCVs, Respondent was preparing to send Patient 8 to the hospital, where follow-up of any abnormalities could be anticipated. Second, the lower-extremity NCVs were of the part of the body that had suffered most from diabetes, as Patient 8 had lost her toe. The NCVs performed on December 11 were basically in response to persistent or recurrent complaints about neck pain with an inception, for the purpose of this case, in mid-August. The record reveals that Respondent exerted some effort to diagnose the cause of the pain, but apparently never found anything on which he could base a treatment plan, because he never treated the pain, except symptomatically. From this point forward, Respondent could no longer justify, as medically necessary, diagnostic services for Patient 8's recurrent neck pain, but instead should have referred her to someone who could diagnose any actual disease or condition and provide appropriate treatment to relieve or eliminate the symptoms. Petitioner proved that the three NCVs were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On January 12, 1999, Patient 8 presented at Respondent's office with complaints of leg pain and heaviness of "years'" duration. She "also" complained of lower abdominal pain, more to the left side, of mild intensity, "but persistent and recurrent," as well as a burning sensation in the vagina. The physical examination is notable because Patient 8 reportedly refused a vaginal examination. Failing to order a urinalysis, Respondent proceeded to perform a pelvic echogram, as well as a doppler study of the veins of the lower extremities and two duplex scans of the arteries and veins of the lower extremities. The omission of a urinalysis and a vaginal examination--or at least a compelling reason to forego a vaginal examination--renders the pelvic ultrasound, whose results were normal, premature and not medically necessary. Except for the duplex scan of the arteries, Respondent had performed these lower-extremity procedures nine months earlier, just prior to Patient 8's hospitalization. Absent a discussion in the notes of why it was necessary to repeat these tests when no treatment plan had ensued earlier in 1998, these procedures were not medically necessary, so Petitioner overpaid $51.78, $99.14, $37.92, and $110.50 for these services. On January 29, 1998, Patient 9, who was 62 years old, presented at Respondent's office with complaints of weakness and numbness in his legs and fear of falling. A physical examination revealed limited range of motion of both knees. The deep reflexes were normal. Respondent performed three NCVs, including an H-Reflex, and an SSEP, all of the lower extremities. The SSEP was normal, but the NCVs produced results compatible with bilateral neuropathy. Petitioner failed to prove that these services were not medically necessary. On January 31, 1998, Patient 9 presented at Respondent's office with complaints of chest congestion and coughs of three days' duration, accompanied by shortness of breath. This record adds COPD to his history. The physical examination revealed normal full expansion of the lungs, but rhonchis and wheezing on expiration. Respondent ordered a spirometry, which revealed a mild chest restriction. Given the chronic pulmonary disease, Petitioner failed to prove that this service was not medically necessary. On April 14, 1998, Patient 9 presented at Respondent's office with complaints of abdominal pain of three days' duration with vomiting and diarrhea. His history included intolerance to fatty foods. The physical examination found the abdomen to be soft, with some tenderness in the right and left upper quadrants, but no masses, and the bowel sounds were normal. Respondent performed a liver echogram, which was normal. Petitioner proved that the liver echogram was not medically necessary, so it overpaid $44.03 for this service. On May 8, 1998, Patient 9 presented at Respondent's office with complaints of chest pain of moderate intensity behind the sternum, together with palpitations that increased on exertion and eliminated on rest. The physical examination revealed regular heartbeats, a pulse of 84, and blood pressure of 150/90. Respondent performed an electrocardiogram, echocardiogram, and doppler echocardiogram. The electrocardiogram revealed a cardiac abnormality that justified the other procedures, so Petitioner failed to prove that these services were not medically necessary. On June 4, 1998, Patient 9 presented at Respondent's office with complaints of malaise and fatigue, which had worsened over the past couple of weeks. The physical examination showed the lungs to be clear and the heartbeat regular. Patient 9's pulse was 76 and blood pressure was 130/80. Respondent performed a chest X ray and another electrocardiogram, both of which were normal. Petitioner proved that these services were not medically necessary, as the chest X ray was unjustified by the symptoms and physical examination, and an electrocardiogram had just been performed one month earlier, so Petitioner overpaid $18.88 and $15.74 for these services. On July 1, 1998, Patient 9 presented at Respondent's office with complaints of ongoing knee pain. Patient 9 had been re-scheduled for knee surgery and required another clearance. Respondent performed another electrocardiogram, even though he had performed one only three weeks ago, and the results had been normal, as were the results from the July 1 procedure. Petitioner proved that this service was not medically necessary, and it overpaid $15.74 for this service. On August 14, 1998, Patient 9 presented at Respondent's office with complaints of pain in his hands and wrists of three or four months' duration, accompanied by tingling in the fingers and a loss of strength in the hands. Respondent performed two NCVs, which revealed findings compatible with neuropathy, but the records reveal no action by Respondent in forming a treatment plan or referring the patient to a specialist. Petitioner proved that these services were not medically necessary, so it overpaid $195.12 and $73.96 for these services. On March 9, 1998, Patient 10, who was three years old, presented at Respondent's office with a sore throat with fever and malaise. His history included asthma, and he had suffered from mild shortness of breath and a dry cough of three days' duration. The physical examination was unremarkable, except for congested tonsils and scattered rhonchis, but no wheezes. Respondent administered an aerosol, which was appropriate, given the young age of the patient and his asthmatic condition. Petitioner failed to prove that this service was not medically necessary. On the next day, Patient 10 again presented at Respondent's office in "acute distress." Although his temperature was normal, his pulse was 110. The findings of the physical examination were the same as the prior day, except that the lungs were now clear. Respondent billed for another aerosol treatment, but the medical records omit any reference to such a treatment. Petitioner proved that Respondent failed to maintain documentation for this treatment, so Petitioner overpaid $10.03 for this service. On May 21, 1998, Patient 10 presented at Respondent's office with a cough, chest congestion, and mild shortness of breath, but no fever. A physical examination revealed scattered rhonchis, but no wheezes, and the boy's chest expression was full. Diagnosing the patient with acute bronchitis, Respondent administered a spirometry and an aerosol. Again, due to the age of the patient and his asthma, Petitioner failed to prove that the spirometry or aerosol was not medically necessary. On August 18, 1998, Patient 10 presented at Respondent's office with chest congestion, cough, and moderate shortness of breath, all of three days' duration. The physical examination showed that the lungs were free of wheezes. Respondent administered an aerosol and a chest X ray. The aerosol was appropriate given the age of the patient and his asthma. However, the chest X ray was inappropriate given the clear condition of the lungs. Petitioner proved that the chest X ray was not medically necessary, so it overpaid $18.88 for this service. On August 6, 1998, Patient 11, who was three years old, presented at Respondent's office with a fever and sore throat, both since the prior day, as well as abdominal pain of two or three weeks' duration. The physical examination disclosed that the abdomen was normal, as were the bowel sounds. Respondent performed a kidney echogram, which was normal. Given the age of the patient, his overall health, and the lack of confirming findings, Petitioner proved that the echogram was not medically necessary, so it overpaid $61.57 for this service. On October 1, 1998, Patient 12 presented at Respondent's office. Respondent billed an office visit, which Petitioner allowed. This is the only item billed for Patient 12 during the audit period, so there is no dispute as to Patient 12. On March 9, 1998, Patient 13, who was 30 years old, presented at Respondent's office with complaints of back pain, chills, burning urination, and general malaise, all of three days' duration. She also complained of lower abdominal pain, vaginal discharge, and pain during intercourse, but denied abnormal genital bleeding. The physical examination disclosed pain in the cervix on motion, but a normal temperature. Respondent performed echograms of the kidneys and pelvis to address his diagnoses of an infection of the kidneys and pelvic inflammatory disease. However, he ordered no blood work. The ultrasounds of the kidneys and the pelvis were normal. The symptoms and findings justified a pelvic echogram, but not a kidney echogram. Petitioner proved that the kidney echogram was not medically necessary, so that it overpaid $61.57 for this service. Petitioner failed to prove that the pelvic echogram was not medically necessary. On March 17, 1998, Patient 13 presented at Respondent's office with complaints of moderate chest pain behind the sternum with palpitations and anxiety. Diagnosing chest pain, mitral valve prolapse, and anxiety, Respondent ordered an electrocardiogram, which Petitioner allowed, and an echocardiogram and doppler echocardiogram, which Petitioner denied. The results from the latter procedures were normal. Petitioner failed to prove that these two procedures were not medically necessary. On June 12, 1998, Patient 13 presented at Respondent's office with complaints of leg pain of two to three months' duration with heaviness and discomfort, especially at night. Patient 13 also complained of mild shortness of breath and moderate cough. The history included bronchial asthma. The physical examination found normal full expansion of the lungs, but scattered expiratory wheezes in both lungs, as well as a possible enlarged and tender liver. The ankles displayed moderate inflammatory changes. Respondent diagnosed Patient 13 with varicose veins with inflammation and bronchial asthma. Respondent performed a doppler study of the veins of the lower extremities, a duplex scan of these veins, and a spirometry, which Petitioner denied, and an aerosol, which Petitioner allowed. The doppler study suggested a mild degree of venous insufficiency with bilateral varicose veins and edema. The spirometry revealed a moderate chest restriction and mild airway obstruction. Petitioner failed to prove that any of these services were not medically necessary. On March 10, November 16, and December 18, 1998, Patient 14 presented at Respondent's office. On each occasion, Respondent billed an office visit, which Petitioner allowed. These are the only items billed for Patient 14 during the audit period, so there is no dispute as to Patient 14. On March 18, 1998, Patient 15 presented at Respondent's office. Respondent billed an office visit, which Petitioner allowed. This is the only item billed for Patient 15 during the audit period, so there is no dispute as to Patient 15. On March 16 and 19 and April 8,1998, Patient 16 presented at Respondent's office. On each occasion, Respondent billed an office visit, which Petitioner allowed. These are the only items billed for Patient 16 during the audit period, so there is no dispute as to Patient 16. On September 4, 1998, Patient 17, who was 52 years old, presented at Respondent's office with complaints of leg pain after exertion and cold feet, as well as low back pain of several years' duration that had worsened over the past two to three weeks. Patient 17 also complained of low back pain that had persisted for several years, but had worsened over the past two to three weeks. The history included an heart bypass. The only abnormalities on the physical examination were decreased expansion of the chest, edema of the ankles, decreased peripheral pulses, and cold feet. Respondent performed a duplex scan of the arteries of the lower extremities, a spine X ray, and an injection to relieve back pain, all of which Petitioner allowed. Respondent also performed an electrocardiogram, which Petitioner denied. Even though the electrocardiogram revealed several abnormalities, nothing in the symptoms, history, or examination suggests any medical necessity for this procedure. Petitioner proved that the electrocardiogram was not medically necessary, so Petitioner overpaid $15.74 for this service. Four days later, on September 8, Patient 17 presented at Respondent's office with complaints of continuing low back pain, now radiating to the legs. The history and findings from the physical examination were identical to those of the office visit four days earlier. Respondent performed three NCVs, including an H-Reflex, which revealed a mild neuropathy. However, the symptoms and history did not justify these diagnostic procedures focused on the legs when the back was the longstanding problem area, nor did Respondent have any treatment plan for the back problem. Eventually, according to Respondent's testimony, a month or two later, he sent this patient to the hospital, where he could receive treatment for this painful condition. Petitioner proved that the three NCVs were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On October 2, 1998, Patient 17 presented at Respondent's office with complaints of chest pain on exertion of three days' duration. The physical examination disclosed decreased breath sounds in the lungs, but a regular rhythm of the heart. Respondent performed an echocardiogram, doppler echocardiogram, and duplex scan of the extracranial arteries. Given the patient's history of coronary artery disease and heart bypass, Petitioner failed to prove that these services were not medically necessary. On December 10, 1998, Patient 17 presented at Respondent's office with complaints of left flank pain and bilateral back pain of three days' acute duration, as well as urinary disorder and nausea. The physical examination was unremarkable. Respondent performed a kidney echogram, which was negative, to address his working diagnoses of urinary tract infection and kidney stones. However, Respondent performed no urinalysis, and the complaints did not justify elaborate diagnostics to rule out the improbable condition of stones. Petitioner proved that the kidney echogram was not medically necessary, so it overpaid $59.57 for this service. On October 9, 1998, Patient 18, who was 35 years old, presented at Respondent's office with complaints of chest pain and palpitations of gradual onset over nearly one year, unrelated to exertion and accompanied occasionally by moderate shortness of breath. Patient 18 reported that she had smoked heavily for several years and suffered from intermittent smoker's cough and phlegms. Relevant history included asthma and bronchitis. The physical examination revealed that the lungs were clear and the chest expanded fully. Petitioner allowed several cardiac diagnostic procedures, but denied a spirometry and aerosol, the former as medically unnecessary and the latter as lacking documentation. The spirometry revealed severe chest restriction. Given the results of the spirometry and the history of Patient 18 as a heavy smoker, Petitioner failed to prove that the spirometry was not medically necessary, but, given the mild symptoms at the time of the treatment, without regard to whether Respondent provided documentation, Petitioner proved that the aerosol was not medically necessary, so it overpaid $10.62 for this service. On October 16, 1998, Patient 18 presented at Respondent's office with complaints of persistent neck pain, radiating to the arms and hands. The physical examination disclosed a substantial limitation in range of motion of the neck, but no focal signs. Respondent performed three NCVs, including an H-Reflex, and an SSEP of the upper extremities, which revealed some abnormalities. Notwithstanding the positive findings, the absence of any treatment plan undermines the medical necessity of these diagnostic procedures. In response to these findings, Respondent merely changed Patient 18's anti- inflammatory medication, which he obviously could have done with negative NCVs and an SSEP. Petitioner has proved that the three NCVs and SSEP were not medically necessary, so it overpaid $195.12, $73.96, $21.64, and $42.68 for these services. On October 17, 1998, Patient 18 presented at Respondent's office with complaints of pelvic pain and vaginal discharge with left flank pain and urinary disorders. She also complained of leg pain and fatigue after standing. A previously performed urinalysis had revealed blood in the urine. The physical examination found vaginal discharge and pain in cervix motion to the right and left sides. It also found normal peripheral pulses and normal movement in all limbs, although some varicosities and inflammatory changes were present. Respondent performed echograms of the kidneys and pelvis and a doppler study and duplex scan of the veins of the lower extremities. Although both echograms were normal, these procedures were justified due to the symptoms and findings. The procedures performed on the lower extremities, which revealed a mild degree of venous insufficiency, were not justified by the complaints or findings. Petitioner failed to prove that the echograms were not medically necessary, but proved that the doppler and duplex procedures were not medically necessary, so it overpaid $38.75 and $108.58 for these services. On November 18, 1998, Patient 18 presented at Respondent's office with complaints of weakness of two to three months' duration and eating disorders. The physical examination uncovered a palpable, enlarged thyroid, even though, one month earlier, the physical examination found the thyroid to be non- palpable. Although the medical records indicate that Respondent ordered laboratory tests of thyroid function, no such reports are in his medical records, and, more importantly, he performed a thyroid echogram, which was normal, prior to obtaining the results of any laboratory work concerning thyroid function. Petitioner proved that the echogram was not medically necessary, so it overpaid $45.24 for this service. On January 21, 1999, Patient 19, who was four months old, presented at Respondent's office with a cough. Eight days earlier, Patient 19 had presented at Respondent's office with the same condition, and Respondent had recommended that the patient's mother hospitalize him if the symptoms worsened. A physical examination revealed that the lungs were clear and the chest fully expanded. Respondent administered an aerosol. Petitioner proved that the aerosol was not medically necessary, so it overpaid $10.97 for this service. On February 2, 1998, Patient 21, who was 46 years old, presented at Respondent's office with complaints of generalized headache and chest discomfort. For the past two weeks, Patient 21 had also suffered from painful urination. The relevant history included non-insulin-dependent diabetes and paranoid schizophrenia. The physical examination indicated that Patient 21's heart beat in regular rhythm. Patient 21's blood pressure was 190/105, and his cholesterol and triglyceride were high. His femoral and popliteal pulses were decreased. Respondent performed an electrocardiogram, which Petitioner allowed, and, after learning that the results were borderline abnormal, an echocardiogram and doppler echocardiogram, which Petitioner denied. Given the symptoms, Respondent was justified in proceeding with additional diagnostic tests, especially given the difficulty of treating a schizophrenic patient. Petitioner failed to prove that the echocardiogram and doppler echocardiogram were not medically necessary. On March 2, 1998, Patient 21 presented at Respondent's office with complaints, of four months' duration, of leg pain when standing or walking a few blocks. The physical examination revealed decreased peripheral pulses. Respondent performed a doppler study and duplex scan of the veins of the lower extremities, which were both normal. Given the diabetes and schizophrenia, these diagnostic procedures were justified. Petitioner failed to prove that these services were not medically necessary. On April 2, 1998, Patient 21 presented at Respondent's office with complaints of worsening leg pain, now accompanied by numbness and tingling in the feet and sensorial deficit on the soles of the feet. The physical examination was substantially the same as the one conducted one month earlier, except that the deep reflexes were hypoactive. Respondent performed three NCVs, including an H-Reflex, on the lower extremities, and they revealed abnormal motor functions. However, the failure of Respondent to prepare a treatment plan or refer Patient 21 to a specialist precludes a finding of medical necessity. Petitioner has proved that these NCVs were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On April 30, 1998, Patient 21 presented at Respondent's office with complaints of difficulty urinating for the past three or four days. A physical examination revealed an enlarged, tender prostate. Forming a working diagnosis of prostatitis and chronic renal failure, Respondent performed prostate and kidney echograms, which were both normal, but no laboratory work on the urinary problems. Petitioner failed to prove that the prostate echogram was not medically necessary, but proved that the kidney echogram was not medically necessary, so it overpaid $61.57 for this service. On July 3, 1998, Patient 21 presented at Respondent's office with complaints of visual disorders, dizziness, blacking out, and fainting, all of several months' duration. Respondent performed a carotid echogram, which was normal. Petitioner failed to prove that this service was not medically necessary. On August 4, 1998, Patient 21 presented at Respondent's office with complaints of moderate neck pain of five or six months' duration, radiating to the shoulders and arms and accompanied by tingling and numbness of the hands. The physical examination disclosed decreased femoral and popliteal pulses, limited motion in the neck and shoulders, pain in the shoulders upon manual palpation, pain in the wrists upon passive movements, and decreased grip on both sides. Respondent performed two NCVs, including an H-Reflex, and an SSEP, all of the upper extremities. The NCVs suggested bilateral carpal tunnel syndrome, and the SSEP showed some abnormalities of nerve root function. Respondent responded to these data with a prescription for physical therapy three times weekly. Petitioner failed to proved that the two NCVs and SSEP were not medically necessary. On September 1, 1998, Patient 21 presented at Respondent's office with complaints of "chest oppression" and hypertension since the previous day. Patient 21 also complained of moderate neck pain and urinary discomfort of three days' duration. His blood pressure was 160/100, and his heart was in regular rhythm. Respondent performed an electrocardiogram, which Petitioner allowed, and a 24-hour electrocardiogram with a halter monitor, after learning that the results of the initial electrocardiogram were abnormal. Petitioner disallowed the latter procedure, but failed to prove that it was not medically necessary. On October 6, 1998, Patient 21 presented at Respondent's office with complaints of chest pain, dizziness, fainting, excessive hunger and weight gain, and weakness. His blood pressure was 170/100, and his pulse was 88. His heart beat in a regular rhythm, and his thyroid was enlarged, but smooth. Respondent performed an echogram of the thyroid, even though he had not ordered laboratory work of thyroid function. He performed an echocardiogram and a doppler echocardiogram. All echograms were normal, although Patient 21 suffered from some mild to moderate sclerosis of the aorta. Petitioner proved that these echograms were not medically necessary because the thyroid echogram was not preceded or even accompanied by laboratory work of thyroid function, and the other procedures of repeated diagnostic tests that Respondent had performed eight months earlier and were normal at that time. Petitioner thus overpaid $43.24, $61.96, and $29.31 for these services. On November 6, 1998, Patient 21 presented at Respondent's office. Petitioner downcoded the office visit, but, as discussed above, the failure of Petitioner to produce the CPT manual prevents a determination that Respondent overbilled the visit. On January 4, 1999, Patient 21 presented at Respondent's office with complaints of flank pain of four months' duration accompanied by several urinary disorders, chills, and occasional fever. The physical examination revealed a distended and soft abdomen and tenderness in the flanks and right upper quadrant. Respondent performed a kidney ultrasound, despite having performed one eight months earlier and obtained normal results, but learned this time that the left kidney had a cyst consistent with chronic renal failure. Petitioner failed to prove that this service was not medically necessary. On January 29, 1999, Patient 21 presented at Respondent's office with complaints of moderate back pain of two weeks' duration, radiating to the legs, and weakness in the legs. The physical examination revealed pain on bending backward or forward and muscle spasm. Respondent performed a lumbar X ray, which Petitioner allowed, and three lumbosacral NCVs, including an H-Reflex, which Petitioner denied. The NCVs revealed mild neuropathy, although an SSEP, evidently billed as an H-Reflex, was normal. Petitioner failed to prove that these services were not medically necessary. The total overpayments, before extrapolation, from Petitioner to Respondent are thus $5952.99.
Recommendation It is RECOMMENDED that the Agency of Health Care Administration enter a final order determining that, prior to extrapolation, Respondent owes $5952.99 for overpayments under the Medicaid program. DONE AND RECOMMENDED this 26th day of May, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2006. COPIES FURNISHED: Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Christa Calamas, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Jeffries H. Duvall Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Craig A. Brand Law Offices of Craig A. Brand, P.A. 5201 Blue Lagoon Drive, Suite 720 Miami, Florida 33126 Oscar Mendez-Turino 2298 Southwest 8th Street Miami, Florida 33135
