Findings Of Fact Respondent is the state agency charged with regulating the practice of dentistry, pursuant to Sections 20.165, 20.42, and Chapters 455 and 466, Florida Statutes and was not a nominal party to the proceedings. Petitioner, John Allison Rowe, D.D.S., (hereinafter referred to as Petitioner Rowe), is a Florida licensed dentist having been issued license number DN-0009364. Petitioner Rowe, at all times material hereto, practiced through a professional service corporation with principal office in the State of Florida. Petitioner, Ralph E. Toombs, D.D.S., (hereinafter referred to as Petitioner Toombs), is a Florida licensed dentist having been issued license number DN-0007026. Petitioner Toombs, at all times material hereto, practiced through a professional service corporation, with principal office in the State of Florida. Petitioner Rowe and Petitioner Toombs each employed less than twenty- five (25) employees at the time this action was initiated. Petitioner Rowe and Petitioner Toombs each had a net worth, including both personal and business investments, of less than two million dollars. In or around 1988, and in or around 1989, Respondent received several complaints from insurance companies concerning Petitioner Rowe's treatment, services, and fees charged to patients through the Central Florida Dental Association and/or other entities. Each insurance company had obtained a review of the services, treatment, and fees charged to the patients and had included that information in their complaint to Respondent. As a result, Respondent began a series of investigations into the allegations against Petitioner Rowe, whose name had appeared as the treating or certifying dentist on all health insurance claim forms submitted on behalf of the patients. The insurance companies alleged that Petitioner Rowe's fees were excessive relative to the customary and usual fees charged for the services, that certain diagnostic tests had been provided to the patients although of questionable medical necessity and acceptance in the dental community, and that certain procedures had been performed in excess of the justified needs of the patient. During the course of the investigation, it became necessary for the Respondent to consult with the Probable Cause Panel on the Board of Dentistry on or about July 12, 1989, and on or about October 13, 1989, to obtain certain patient records without patient authorization. The Probable Cause Panel of July 12, 1989, was composed of members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer. Each of the panel members at the July 12, 1989, meeting indicated that they had received and reviewed the Department's investigative materials. The July 12, 1989, panel found-reasonable cause to believe that there was a question of the medical necessity for the treatment provided such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek the patient's records by subpoena. On or about October 13, 1989, the Respondent again consulted with panel members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer to determine if reasonable cause existed to obtain certain patient records as part of its investigation of Petitioner Rowe. Each of the panel members indicated at the October 13, 1989, meeting that he had received and reviewed the investigative materials presented by the Respondent. The October 13, 1989, panel found reasonable cause to believe that there was a question of medical necessity for the treatment provided to the patient such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek patients' records by subpoena. Following completion of its investigation, on or about April 10, 1991, Respondent initiated an action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the April 10, 1991, Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.W. DBPR Case No. 01-11379 Count II patient E.M. DBPR Case No. 89-02166 Count III patient J.T. DBPR Case No. 89-13187 Count IV patient M.Z. DBPR Case No. 89-02167 Count V patient M.R.V. DBPR Case No. 89-02372 Respondent alleged in the April 10, 1991 Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.W. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; and Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Patient E.M. (Count II) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient J.T. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.Z. (Count IV) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.R.V. (Count V) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. (Ex-A pgs. 1-18). The April 10, 1991 Administrative Complaint was filed at the direction of the November 2, 1990 Probable Cause Panel of the Board of Dentistry. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990 panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the meeting. After brief discussion and receipt of the advice of counsel, the Panel separately took up each investigative report but recommended that the Department consider consolidation of the charges into a single filed administrative complaint The Panel members felt very strongly about the charges as revealed by the investigative reports and consultant's opinions, and in accordance with Section 466.028(7), Florida Statutes, the panel recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek and expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about July 18, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, September 11, 1990, September 17, 1990, and September 18, 1990, Dr. Lilly issued individual detailed reports from review of the investigative materials noting several areas of concern with each patient's treatment and the billing associated with that treatment. As had the June 4, 1990, Probable Cause Panel, Dr. Lilly noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. The November 2, 1990, panel, composed of the same membership as the June 4, 1990, meeting, expressed similar concerns regarding Petitioner Rowe and an apparent lack of concern for treatment effectiveness. Panel member Robert Ferris, D.D.S. expressed praise for Dr. Lilly's reports noting that they were "excellent." The panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinion. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly found that in some cases diagnostic services had been billed twice on the same day although it was customary in the profession to perform the services in one session, that services had been billed which had not been provided to the patients, records were inadequate to justify those services provided, that treatment was provided without appropriate use of diagnostic information, orthotic devices were mischaracterized as surgical devices, fees greatly exceeded the usual and customary charges for certain services, questionable use of arthrogram studies was employed by Petitioner Rowe, certain other diagnostic studies conducted on the patients were of questionable medical necessity, and Petitioner Rowe had misdiagnosed a patient's condition. On or about July 24, 1991, Respondent initiated a second action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the July 24, 2991 Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.D. DBPR Case No. 01-11377 Count II patient R.M. DBPR Case No. 01-11378 Count III patient S.R. DBPR Case No. 01-12140 Respondent alleged in the July 24, 1991, Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.D. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; and Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Patient R.M. (Count II) Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry of dental hygiene. Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient S.R. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. The July 24, 1991, Administrative Complaint was filed at the direction of the April 10, 1991, Probable Cause Panel of the Board of Dentistry. The panel was composed of members Donald Cadle, D.M.D., William Robinson, D.D.S., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the April 10, 1991, panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the April 10, 1991, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the three investigative reports together and recommended that the Department file charges as a single filed administrative complaint. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the April 27, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about April 27, 1990, the department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about December 13, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about February 21, 1991, February 27, 1991, and February 28, 1991, Dr. Lilly issued individual detailed reports from review of the investigative materials again noting several areas of concern with each patient's treatment and the billing associated with that treatment. Dr. Lilly again noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. Dr. Lilly noted that, despite the verification of completeness of records executed by the records custodian and obtained during the investigation of the allegations against Petitioner Rowe, certain patient records and billing information were clearly missing from some patient files. Despite lack of detailed discussion about the Department's recommendations, the April 10, 1991, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly's findings from review of DBPR Case Numbers 01-11377, 01- 11378 and 01-12140 were not dissimilar from those found in reviewing other investigative reports concerning Petitioner. Respondent's investigation of the allegations against Petitioner Rowe was extensive and included information gathering and interviews with the patients, Petitioner Rowe, Frank Murray, D.D.S., and others. On or about December 20, 1990, Respondent initiated an action against Petitioner Toombs, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. The December 20, 1990, Administrative Complaint filed against Petitioner Toombs concerned allegations filed by patient J.T., who had also filed a similar complaint against Petitioner Rowe. Both Petitioner Rowe and Petitioner Toombs disclaimed any knowledge about the care and treatment J.T. had received from them. Petitioner Toombs claimed that Petitioner Rowe and Dr. Frank Murray were responsible for setting the fees charged for services. Petitioner Toombs claimed that he was aware excessive charges had been incurred by some patients who had seen Petitioner Rowe and that the dental practice was aware of the problem and had ignored the problem. Respondent's investigation of Petitioner Toombs was coordinated with its investigation of Petitioner Rowe. In the Administrative Complaint filed December 20, 1990, Respondent alleged that Petitioner Toombs committed the following violations: Patient J.T. Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient. The December 20, 1990, Administrative Complaint was filed at the direction of the November 2, 1990, Probable Cause Panel of the Board of Dentistry, which had also considered the investigative materials for Petitioner Rowe. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990, panel meeting, with the Department's recommendation that an administrative complaint be filed against Petitioner Toombs. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the November 2, 1990, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the investigative report and recommended that the Department file and administrative complaint against Petitioner Toombs. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek a suspension, probation, and fine in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative report to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The June 4, 1990, Probable Cause Panel expressed specific concerns about the billing practices and on the care provided to the patient, i.e., the immediate seeking of oral surgery prior to excluding the use of less invasive techniques. The Panel found that expert review as necessary. On or about July 18, 1990, Respondent forwarded the investigative report for Petitioner Toombs, as well as the reports for Petitioner Rowe, to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, Dr. Lilly issued his report from review of the investigative materials noting several areas of concern with patient J.T.'s treatment and the billing associated with treatment. Dr. Lilly noted that Petitioner Toombs seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and service. Despite lack of detailed discussion about the Department's recommendation for Petitioner Toombs, the November 2, 1990, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from the patient J.T., interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. Respondent's investigation of the allegations against Petitioner Toombs was extensive and included information gathering and interviews with the patient, Petitioner Rowe, Petitioner Toombs, subsequent providers, Frank Murray, D.D.S., and others. On or about July 24, 1991, Respondent amended the Administrative Complaint filed against Petitioner Toombs without substantially altering the alleged violations committed by Petitioner Toombs. In each case, Respondent was required by Section 455.225(4), Florida Statutes, to file the administrative complaints at the direction of the Probable Cause Panel for the Board of Dentistry and prosecute the administrative complaints against the Petitioners according to Chapter 120, Florida Statutes. Both Petitioner Rowe and Petitioner Toombs disputed the allegations of the administrative complaints and the cases were referred to the Division of Administrative Hearings for formal hearing. Petitioner Rowe, without objection from Respondent, sought consolidation of DOAH Case Number 91-03213, representing the charges of the April 10, 1991, Administrative Complaint against him, with DOAH Case Number 91- 6022, representing the charges of the July 24, 1991, Administrative Complaint against him. Petitioner Rowe's cases were consolidated into a single proceeding on or about October 2, 1991. On or about October 18, 1991, this Hearing Officer entered an Order to Show Cause why Petitioner Toombs' case should not be heard concurrently with Petitioner Rowe's consolidated cases. Respondent did not object to hearing the cases concurrently and an Order was issued on November 4, 1991, setting Petitioner Toombs case for hearing concurrently with Petitioner Rowe's consolidated cases. On or about November 4, 1991, Respondent with the full agreement and consent of Petitioners Rowe and Toombs, requested consolidation of the then existing two proceedings. On or about November 18, 1991, the proceedings against Petitioners Rowe and Toombs were consolidated into a single action by Order of this Hearing Officer. During discovery, Petitioner Rowe obtained the original patient records for the eight patients at issue in the consolidated proceeding from Dr. Murray and/or the Central Florida Dental Association. Counsel for Petitioner Rowe provided the Respondent with copies of the records he had obtained in discovery. Counsel for Petitioner Rowe found that approximately 426 pages of records were then contained in the files of Dr. Murray and/or the Central Florida Dental Association, which had not been previously provided to the Respondent despite certification that the records provided to Respondent were complete. The majority of the records obtained by Petitioner Rowe, subsequent to the original finding of probable causes, were records of billing information not previously contained in the patient records. Based on the additional records, Petitioner Rowe and the Respondent moved this Hearing Officer to permit Respondent to amend the administrative complaints against Petitioner Rowe, which request was granted by this Hearing Officer. On or about April 9, 1992, Respondent conferred with the Probable Cause Panel of the Board of Dentistry for the purpose of amending the administrative complaints against Petitioner Rowe. The April 9, 1992, Probable Cause Panel was composed of members William Robinson, D.D.S., Faustino Garcia, D.M.D., and Robert Hudson. Prior to presentation of the proposed amended administrative complaint to the April 9, 1992, Probable Cause Panel, Respondent obtained the assistance of Reda A. Abdel-Fattah, D.D.S. in evaluating the patient records and in the drafting of the amended complaint. Prior to the Panel's consideration of the investigative materials, the Respondent obtained from Petitioner Rowe approximately 426 additional pages from the patient records of the Central Florida Dental Association and/or Dr. Murray and received additional records and information through supplemental investigation. Before directing that an amended administrative complaint be filed against Petitioner Rowe, the panel members at the April 9, 1992, meeting indicated that he had received the investigative materials and reviewed the materials along with the Department's recommendation to amend the complaint. Following receipt of the material and after having the opportunity to inquire of counsel, the April 9, 1992, Probable Cause Panel directed that the proposed Amended Administrative Complaint be filed against Petitioner Rowe. The Amended Administrative Complaint was filed against Petitioner Rowe, at the direction of the April 9, 1992, Probable Cause Panel, on or about April 22, 1992, and alleged the following violations: Count I Section 466.028(1)(b), Florida Statutes by having had a license to practice dentistry acted against by the licensing authority of another state; and/or Section 466.028(1)(jj), Florida Statutes by having failed to report to the Board, in writing, within 30 days if action has been taken against one's license to practice dentistry in another state. Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1978) by making deceptive, untrue or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonable calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VIII patient S.R. DBPR No. 01-12140, DOAH 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count IX patient J.T. DBPR No. 89-13187, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count I of the Amended Administrative Complaint was based on records obtained from the Tennessee Board of Dentistry and had not been previously charged as a violation in this proceeding. Panel Member Donald Cadle, D.M.D., had originally requested in the meeting of April 27, 1990, that the Department included findings as to the Tennessee Board of Dentistry's discipline of Petitioner Rowe in its expert review as possible violation of Section 466.0268(1)(jj), Florida Statutes. Dr. Cadle withdrew his request, after discussion with Panel Member Robert Ferris, D.D.S., finding that the previous disciplinary action was too remote in time for the statute to be applicable in Petitioner Rowe's case. The Probable Cause Panel of April 9, 1992, revisited the issue of the Tennessee Board of Dentistry's discipline of Petitioner Rowe and found that it should be included in the current disciplinary proceeding as part of the amended complaint. The panel failed to recognize the effective date of Section 466.028(1)(jj), Florida Statutes. After considering the additional records provided by Petitioner Rowe and the records obtained in supplemental investigation, the Amended Administrative Complaint dropped the previous allegations that Petitioner Rowe had violated Section 466.028(1)(m), Florida Statutes by failing to keep adequate written records for each patient. The remaining allegations of the original administrative complaints filed against Petitioner Rowe were included in the Amended Administrative Complaint and the following additional allegations were made for each patient: Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry. Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Count VIII patient S.R. DBPR No. 01-12140, DOAH No. 91-6022 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Count IX patient J.T. DBPR No. 13187, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(jj), Florida Statutes was added as a disciplinary provision for the Board of Dentistry effective July 6, 1990, pursuant to Section 3, Chapter 90-341, Laws of Florida (1990). Section 466.028(1)(n), Florida Statutes was repealed effective April 8, 1992, pursuant to Section 6, Chapter 92-178 Laws of Florida (1992). A formal hearing was held on the charges of the Amended Administrative Complaints beginning on or about November 9, 1992, and ending on or about November 13, 1992. As sanction for his non-compliance with prehearing discovery, Petitioner Toombs was limited at the formal hearing to the cross-examination of witnesses and the ability to object to evidence but was not permitted to call witnesses or enter evidence on his behalf. At the formal hearing, the patient records were found to be inherently unreliable and untrustworthy as evidence, due to the inconsistencies found to then exist in the patient records. At the formal hearing, it was established that Frank Murray, D.D.S. had custody and control of the patient records and that he had full control over patient billing and the fees charged for the treatment or services rendered through the Central Florida Dental Association. At the time Petitioner Rowe provided treatment or services to the patients who were the subject of the administrative complaints and amended administrative complaints, Petitioner Rowe was an employee and a shareholder of the Central Florida Dental Association. At the time that Petitioner Rowe provided treatment or services to the patients at issue in the underlying disciplinary proceeding, Frank Murray, D.D.S. made all operational decisions affecting the clinic and its patients. Petitioner Toombs was an associate dentist working for the Central Florida Dental Association and was not a shareholder of the clinic. At the time these cases were investigated, Respondent permitted individuals from whom patient records were sought to copy those records and provide the records to Respondent with an executed verification of completeness of records. For each patient who was the subject of the Respondent's investigation, an employee of the Central Florida Dental Association copied the patient records and submitted the records to the Respondent's investigator with a verification of completeness of records. There was no reason for the investigator to question the accuracy of the executed verification of completeness of records and the patient records appeared generally consistent across patient files. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action finding that Petitioner Rowe had violated Section 466.028(1)(b), Florida Statutes. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action dismissing all charges against Petitioner Toombs and the remaining charges against Petitioner Rowe. At the time services were provided to the patients by Petitioners Rowe and Toombs, Section 466.018, Florida Statutes, required that there be a dentist of record identified in the patient record. Section 466.018, Florida Statutes (1987) provided that the dentist of record was presumed responsible for the patient's care and treatment unless otherwise noted in the record. The records maintained for each of the patients at issue in the underlying disciplinary proceeding revealed that either no dentist of record had been charted or that Petitioner Rowe was the treating dentist of record as indicated by the patient medical history form and the health insurance claim forms submitted on behalf of the patient. Absent the identification of the dentist of record in the chart, Section 466.018(2), Florida Statutes (1987) provided that the owner of the dental practice was the dentist of record for the patient, in this case, Frank Murray, D.D.S., Petitioner Rowe, and the other shareholders of the dental practice. Section 466.018(4), Florida Statutes provided that a dentist of record could be relieved of his/her responsibility to maintain dental records by transferring records to the owner dentist and maintaining a list of all records transferred. There was no evidence presented during the investigation of the underlying disciplinary proceeding or offered at formal hearing to demonstrate that either Petitioner Rowe or Petitioner Toombs had complied with Section 466.018(4), Florida Statutes in transferring patient records to Frank Murray, D.D.S. or the Central Florida Dental Association, i.e., a written statement signed by dentist of record, the owner of the practice, and two witnesses, that listed the date and the records transferred to either Frank Murray, D.D.S. or Central Florida Dental Association.
Recommendation Based on the foregoing, it is hereby, ORDERED: That Petitioners' requests for award of attorney's fees and costs are DENIED. DONE AND ORDERED this 23rd day of November, 1994, in Tallahassee, Leon County, Florida. MARK CLARK 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 23rd day of November, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by Petitioners, pursuant to Section 120.59(2), F.S. Adopted in Paragraph 1. & 3. Rejected as unnecessary. Adopted in part in Paragraph 64. The charges with regard to influence for financial gain were included in the amended complaint. & 6. Rejected as immaterial. The panel explained in an earlier meeting that its real concern was with the exercise of influence for financial gain. Rejected as contrary to the weight of evidence. Adopted in Paragraph 54. Rejected as argument that is not supported by the record or immaterial. Adopted in conclusions of law, as to section 57.111, but rejected-as immaterial as to section 120.59(6)(a), F.S. since the agency is not a "nonprevailing party". Adopted in conclusions of law. This finding is, however, disputed by Respondent. Adopted in Paragraphs 2 and 3. Adopted in Paragraph 4 14.-16. Rejected as contrary to the weight of evidence. 17.-19. Rejected as unnecessary, given the conclusion that the complaints were "substantially justified" at the time they were filed. COPIES FURNISHED: Mr. William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0765 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 George Stuart, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Brooten, Jr., Esquire 660 West Fairbanks Avenue Winter Park, Florida 32789 Jon M. Pellett, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues are whether Petitioner is entitled to repayment of Medicaid reimbursements paid to Respondent, pursuant to section 409.913(11), Florida Statutes; and, if so, the amount of the overpayment to be repaid; the amount of any fine to be imposed against Respondent, pursuant to section 409.913(15)- (17), Florida Statutes; and the amount of any investigative, legal, and expert witness costs to be assessed against Respondent, pursuant to section 409.913(23)(a), Florida Statutes.
Findings Of Fact Introduction Respondent operates a large group medical practice with a focus upon psychiatric services. Although Respondent serves patients in varied locations, including its offices and patients' nursing homes, all of the recipients in this case were in hospitals when Respondent's physicians rendered the services for which Respondent obtained reimbursement. The audit in question examined all of the claims paid on account of 30 randomly selected recipients to whom Respondent provided services from March 1, 2008, through February 28, 2010. Petitioner duly issued a preliminary audit report and received feedback from Respondent. On July 31, 2012, Petitioner issued the FAR. As distinguished from its challenge to the statistical estimation process, Respondent has not challenged the procedures followed in the preparation and issuance of the FAR, so the Administrative Law Judge infers that it is in compliance with all applicable law. The overpayments that Petitioner found in the 30-recipient sample arise from three sources. Petitioner denied 83 reimbursement claims for a lack of medical necessity and two reimbursement claims for double billing.3/ Petitioner "adjusted" (i.e., reduced) 16 reimbursement claims for upcoding the services provided to recipients. Petitioner's expert witnesses are Dr. Rahul Mehra, who is Board certified in psychiatry, and Dr. Nanette Hoffman, who is Board certified in internal medicine and geriatrics. Respondent's expert witnesses are Dr. Scott Segal, who is the founder of Respondent and Board-certified in psychiatry, and Dr. Tanver Sobhan, who is employed by Respondent and Board- certified in psychiatry. CPT Codes Pursuant to the Florida Medicaid Physician Services, Coverage, and Limitations Handbook in effect during the audit period (Physician Handbook), the coding of claims for Medicaid reimbursement is governed by the Current Procedural Terminology® (CPT). Physician Handbook at 3-1. References to the CPT will be to the 2009 edition.4/ Hospital and office visits are covered in the CPT's "Evaluation and Management Service Guidelines." The CPT identifies seven components of Evaluation and Management (E/M) services: 1) history, 2) examination, 3) medical decisionmaking, 4) counseling, 5) coordination of care, 6) nature of presenting problem, and 7) time. CPT at 3. The first three components are the "key" factors in selecting the correct level of service for an E/M service. The next three components are "contributory" factors. Id.5/ The "extent of the history is dependent upon clinical judgment and on the nature of the presenting problem(s)." Id. at 7. The extent of history may be characterized by any of four levels of service: Problem focused: Chief complaint; brief history of present illness or problem. Expanded problem focused: Chief complaint; brief history of present illness; problem pertinent system review. Detailed: Chief complaint; extended history of present illness, problem pertinent system review extended to include a review of a limited number of additional systems; pertinent past, family, and/or social history directly related to the patient's problems. Comprehensive: Chief complaint; extended history of present illness; review of systems that is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems; complete past, family, and social history. Id. The "extent of examination performed is dependent on clinical judgment and on the nature of the present problem(s)." Id. The extent of examination may be characterized by any of four levels of service: Problem focused: A limited examination of the affected body area or organ system. Expanded problem focused: A limited examination of the affected body area or organ system and other symptomatic or related organ system(s). Detailed: An extended examination of the affected body areas(s) and other symptomatic or related organ system(s). Comprehensive: A general multisystem examination or a complete examination of a single organ system. For the purpose of these CPT definitions, the following body areas are recognized: head, including the face; neck; chest, including breasts and axilla; abdomen; genitalia, groin, [and] buttocks; back; [and] each extremity. For purposes of these CPT definitions, the following organ systems are recognized: eyes; ears, nose, mouth, and throat; cardiovascular; respiratory; gastrointestinal; genitourinary; musculoskeletal; skin; neurologic; psychiatric; [and] hematologic/lymphatic/immunologic." Id. "Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by: The number of possible diagnoses and/or the number of management problems that must be considered. The amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed, and analyzed. The risk of significant complications, morbidity, and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), and/or the possible management options. Id. Four types of medical decision making are recognized: straightforward, low complexity, moderate complexity, and high complexity. To qualify for a given type of decision making, two of the three elements in Table 2 [see below] must be met or exceeded. Comorbidities/underlying diseases, in and of themselves, are not considered in selecting [an E/M level of service] unless their presence significantly increases the complexity of the medical decision making. Table 2 governs determinations of the complexity of medical decisionmaking and provides: Number of Amount and/or Risk of Compli- Type of Diagnoses Complexity of cations and/or Decision Or Manage- ment Options Data to be Reviewed Morbidity or Mortality Making minimal minimal or none minimal straight- forward limited limited low low complexity multiple moderate moderate moderate complexity extensive extensive high high complexity Id. at 8. As for time in a hospital setting, the CPT states: [U]nit/floor time . . . includes the time that the physician is present on the patient's hospital unit and at the bedside rendering services for that patient. This includes the time in which the physician establishes and/or reviews the patient's chart, examines the patient, writes notes, and communicates with other professionals and the patient's family. In the hospital, pre- and post-time includes time spent off the patient's floor performing such tasks as reviewing pathology and radiology findings in another part of the hospital. This pre- and post-visit time is not included in the time component described in these codes. However, the pre- and post- work performed during the time spent off the floor or unit was included in calculating the total work of typical services in physician surveys. Thus, the unit/floor time associated with the services described by any code is a valid proxy for the total work done before, during, and after the visit. Id. at 5. CPT ##99231, 99232, and 99233 cover "subsequent hospital care," which includes "reviewing the medical record and reviewing the results of diagnostic studies and changes in the patient's status (i.e., changes in history, physical condition and response to management) since the last assessment by the physician." CPT #99231 is for subsequent hospital care, per day, of a patient who requires at least two of three of the following components: a problem focused interval history, a problem focused examination, and medical decisionmaking that is straightforward or of low complexity. The patient is usually "stable, recovering or improving," and the physician typically spends 15 minutes at the bedside and on the hospital floor or unit. A psychiatric example of CPT #99231 is: Subsequent hospital visit for a 14-year-old female in middle phase of inpatient treatment, who is now behaviorally stable and making satisfactory progress in treatment. Id. at 503. CPT #99232 is for subsequent hospital care, per day, of a patient who requires at least two of three of the following components: an expanded problem focused interval history, an expanded problem focused examination, and medical decisionmaking of moderate complexity. The patient is usually "responding inadequately to therapy or has developed a minor complication," and the physician typically spends 25 minutes at the bedside and on the hospital floor or unit. CPT #99233 is for subsequent hospital care, per day, of a patient who requires at least two of three of the following components: a detailed interval history, a detailed examination, and medical decisionmaking of high complexity. The patient is usually "unstable or has developed a significant complication or a significant new problem," and the physician typically spends 35 minutes at the bedside and on the hospital floor or unit. Psychiatric examples of CPT #99233 are: Follow-up hospital visit for a teenage female who continues to experience severely disruptive, violent and life-threatening symptoms in a complicated multi-system illness. Family/social circumstances also a contributing factor. Subsequent hospital visit for an adolescent patient who is violent, unsafe, and noncompliant, with multiple expectations for participation in treatment plan and behavior on the treatment unit. Subsequent hospital visit for an 18-year-old male being treated for presumed PCP psychosis. Patient is still moderately symptomatic with auditory hallucinations and is insisting on signing out against medical advice. Id. at 505. CPT ##99221, 99222, and 99222 apply to ascending levels of initial hospital care, meaning that the initial day of inpatient care is billed under one of these codes and subsequent days of inpatient care are billed under CPT ##99231-99233. CPT #99221 requires a detailed or comprehensive history, a detailed or comprehensive examination, and medical decisionmaking of low complexity or that is straightforward. CPT #99222 requires a comprehensive history, a comprehensive examination, and medical decisionmaking of moderate complexity. CPT #99223 requires a comprehensive history, a comprehensive examination, and medical decisionmaking of high complexity. CPT ##99238 and 99239 apply to hospital discharge services. CPT #99238 applies if, on the day of hospital discharge, the physician spends 30 minutes or less with the patient, performing such tasks as a final examination, issuance of discharge instructions, and preparation of discharge records, prescriptions and referral forms. If the physician spends more than 30 minutes on these tasks, CPT #99239 applies. Medical Necessity of Psychiatric Services In this case, all of the denials for a lack of medical necessity pertain to psychiatric services, and all of the reductions for upcoding pertain to medical services that are not psychiatric in nature. (Although psychiatry is a branch of medicine, this recommended order generally6/ will refer to "medical" services to mean nonpsychiatric medical services.) Not raising difficult issues of fact or law, the upcoding issues are straightforward or, at most, of low complexity; Petitioner has prevailed on all but one upcoding claim, and it conceded this claim at the hearing. By contrast, many of the medical necessity issues, which are relatively consequential in estimating the total overpayment,7/ are highly complex, raising difficult issues of fact and law. Respondent has prevailed on most of these claims, in several instances, due to recurring shortcomings in Petitioner's evidence. In general, the expert witnesses offering psychiatric testimony were all highly qualified. Respondent's experts are interested in the outcome of the case. On the other hand, Dr. Mehra's experience over the past three years in treating psychiatric patients has not included inpatient care. By contrast, Dr. Sobhan and Dr. Segal have considerable experience in providing inpatient psychiatric services. Moreover, Respondent's experts, particularly Dr. Segal, have considerable knowledge and experience as to the entire range of local, regional, and state settings for the psychiatric treatment of patients, particularly those sharing the demographic characteristics of the recipients involved in this case. Dr. Mehra's experience does not appear to approach the experience of Drs. Segal and Sobhan in this important respect. Of course, the knowledge and experience of Drs. Segal and Sobhan extend to assessing the suitability of particular patients for particular settings. In addressing medical necessity, all of the psychiatric experts understood that, as noted in the Conclusions of Law, a billed service must be a generally accepted preventative, curative, or palliative service in the diagnosis or treatment of a recipient. All of the psychiatric experts understood that, to meet the definition of medical necessity, a billed service must be needed, not in excess of the recipient's needs, and the least costly, effective service among services that are available statewide. This Recommended Order will refer to services that are provided when no services are needed as Inappropriate Services and services that are provided in excess of the services that are needed as Excessive Services. However, Inappropriate Services and Excessive Services play a minor role in this case. As noted in the Conclusions of Law, the special provision of the rule applying only to inpatient services provides that billed inpatient services are not medically necessary if they could have been appropriately and effectively furnished less expensively on an outpatient basis or in an inpatient facility of a different type. This Recommended Order will refer to services that could have been furnished less expensively in another setting as Costlier-Setting Services. Almost all of the medical-necessity determinations in this case turn on whether certain psychiatric services are Costlier- Setting Services. Unfortunately, the expert psychiatric testimony focused on whether certain psychiatric services could have been appropriately and effectively furnished in a lower level of care--to the exclusion of any consideration of the cost of these services in another setting. As discussed in the Conclusions of Law, the burden of going forward with the evidence as to this aspect of medical necessity is on Petitioner, so that the shortcomings of Dr. Mehra's testimony were more consequential than the shortcomings of Drs. Segal and Sobhan's testimony. Exacerbating the shortcomings of the psychiatric testimony as to relative costs, much of the psychiatric level- of-care testimony was vague. Dr. Mehra identified the descending "levels of care" in psychiatric medicine: in order, starting with the highest level of care, these settings are inpatient, residential, partial hospitalization, and outpatient. Dr. Mehra identified specific circumstances that warranted the highest level of care, meaning inpatient psychiatric services.8/ But Dr. Mehra never specified for any recipient what lesser level of care would have been safe at any particular time. Ms. Eddleman identified a number of local behavioral programs--all available in South Florida--with a level of care less than hospitalization or partial hospitalization, but greater than treatment in an office or private residence. Persons at risk of hospitalization may obtain behavioral health day treatment services, which are more intensive than regular outpatient services and bundle psychosocial rehabilitation services to help build skills with individual and family therapy sessions. Persons may obtain mental health targeted case management services, automatically for 30 days after hospital discharge, and, without regard to hospitalization, if the person suffers from a severe and persistent mental disorder. The case manager helps the person obtain services, such as housing and the community behavior services described immediately above, to help stabilize psychiatric symptoms. Separate medication administration programs are also available to try to help persons with mental disorders obtain and take their medications. Ms. Eddleman provided very useful level-of-care testimony. But its utility in this case is limited by its timing. Petitioner obtained the testimony after Dr. Mehra had testified. If the testimony had been available earlier, Dr. Mehra might have been able to add much-needed detail to his level-of-care testimony. Regardless of the timing of Ms. Eddleman's testimony, no evidence links a particular date of inpatient services to a particular community-based behavioral service, so as to support a determination that a lower level of care was suitable on that date. Of course, as a layperson, Ms. Eddleman could not have provided this link. But, again, the larger problem was that the level-of- care testimony provided by Dr. Mehra and Ms. Eddleman was not supplemented by any testimony about relative costs. While requiring that the psychiatric services be appropriate so as to ensure patient safety, the subject audit is a cost audit, not a quality-of-care audit. The only explanation for why the three psychiatrists concerned themselves exclusively with level-of- care issues in addressing Costlier-Setting Services is that they assumed lower levels of care would mean lower costs. As shown below, though, the reimbursement rates do not bear a direct relationship to the level of care of the setting in which the services are provided.9/ A quick look at the CPT's treatment of E/M services reveals an obvious flaw in Dr. Mehra's failure to account for actual costs in his level-of-care testimony: the first and third levels of care in Dr. Mehra's list are combined into a single CPT code for E/M services, as noted above. CPT at 12. So, even if a recipient could have been treated safely on a partial-hospitalization basis, this would not deprive the inpatient services of medical necessity, as Costlier-Setting Services, because the same reimbursement rate applies to services in both of these settings. The larger problem is that the provision of a service in a hospital setting does not command the highest reimbursement rate. In fact, an inpatient service is invariably cheaper than the same level of service provided in the patient's boarding home or private home and is often cheaper than the same level of service provided in a patient's skilled nursing facility or a physician's office. Petitioner Exhibit #17, which contains the reimbursement rates for various CPT codes, reveals the relative costs. In the following table, which is for 2009,10/ "PF" means problem focused, "Ex" means expanded problem focused, "Det" means detailed, "Comp" means comprehensive, "Straight" means straightforward, and "Mod" means moderate. The first reference to any of these descriptors is to the history or interval history, the second reference is to the examination, and the third reference is to the complexity of the decisionmaking. The first numerical reference is to the CPT and the second is to the 2009 reimbursement rate. For each CPT listed below, only two of three criteria must be met. SUBSEQUENT HOSPITAL CARE PF/PF/Straight or Low 99231 $20.36 Ex/Ex/Mod 99232 $36.60 Det/Det/High 99233 $52.45 OFFICE OR OTHER OUTPATIENT CARE: ESTABLISHED PATIENT PF/PF/Straight 99212 $21.84 Ex/Ex/Low 99213 $26.61 Det/Det/Mod 99214 $41.46 Comp/Comp/High 99215 $60.27 NURSING FACILITY SERVICES: SUBSEQUENT NURSING FACILITY CARE PF/PF/Straight 99307 $21.72 Ex/Ex/Low 99308 $32.89 Det/Det/Mod 99309 $43.64 Comp/Comp/High 99310 $64.98 BOARDING HOME: ESTABLISHED PATIENT PF/PF/Straight 99334 $30.33 Ex/Ex/Low 99335 $46.77 Det/Det/Mod 99336 $65.58 Comp/Comp/High 99337 $93.75 HOME SERVICES: ESTABLISHED PATIENT PF/PF/Straight 99347 $28.77 Ex/Ex/Low 99348 $42.86 Det/Det/Mod 99349 $62.25 Comp/Comp/High 99350 $86.33 It is more difficult to compare the cost of inpatient services to the cost of services in an office or skilled nursing facility. But, in the context of this case, as found below, many of the psychiatric inpatient services represented a problem focused history, extended problem focused or detailed examination, and decisionmaking that is straightforward or of low complexity. These components earn a CPT #99231 and a reimbursement of $20.36 in a hospital, a CPT #99308 and a reimbursement of $32.89 in a skilled nursing facility, and a CPT #99213 and a reimbursement of $26.61 in an office or other outpatient setting. Thus, for this very common aggregation of components, the services provided to a recipient in a hospital setting were cheaper than the same services provided to a recipient in a skilled nursing facility, office, or other outpatient setting.11/ Petitioner's proof of Costlier-Setting Services encountered other problems, besides vagueness as to alternative suitable settings and an absence of relative cost data. Neither Petitioner nor Dr. Mehra ever dealt with the issues that, especially given the absence of direct admits in this case, Respondent's physicians had to treat these patients where they found them--in a hospital--and Petitioner has not sought to recover the reimbursements that it paid to the hospitals for the stays at issue in this case. Recipient 1 illustrates these problems. Recipient 1 primarily required detoxification with some psychiatric support during the process. To the extent that detoxification was a medical process, Recipient 1's medical needs required hospitalization. If, somehow, his psychiatric needs could be analyzed in isolation from his medical needs, they perhaps could have been addressed in another setting, and perhaps the reimbursement rate in the other setting might have been lower. But these services could not be isolated from the medical, detoxification process through which nonpsychiatric physicians were guiding him. By contrast, Recipient 2 also required detoxification, but her psychiatric issues were more prominent than Recipient 1's. Recipient 2's abuse of drugs injured herself and her fetus, so her psychiatric needs were necessarily more urgent and her case perhaps more complicated psychiatrically. Compared to Recipient 1, then, the high level of care provided by the hospital setting was clearly appropriate, even considering Recipient 2's psychiatric needs in isolation from her medical needs. Rather than repeat the foregoing findings of Costlier- Setting Services in the following discussions of each recipient, they are incorporated by reference and highlighted or differentiated, as needed, in discussions of specific recipients. Recipients Introduction 39. At issue are Recipients 1, 2, 11, 12, 23, 26, 27, 29, and 30. Based on Attachment C, the parties are litigating five denied claims as to Recipient 1; 16 denied claims as to Recipient 2, one denied claim and seven reduced claims as to Recipient 11; five denied claims and one reduced claim as to Recipient 12; 19 denied claims and seven reduced claims as to Recipient 23; six denied claims as to Recipient 26; five denied claims as to Recipient 27; four denied claims as to Recipient 29; and 24 denied claims and one reduced claim as to Recipient The two denied claims for double billing pertain to Recipient 12. Concessions of the parties first offered during the hearing will be noted in the discussion of the appropriate recipient. Recipient 1 For Recipient 1, a 34-year-old male diagnosed with depressive disorder, only one hospitalization is at issue. From December 2-7, 2009, Recipient 1 was hospitalized at Memorial Regional Hospital for detoxification to treat an opiate dependency. Recipient used heroin on the day prior to the admission, averaged three intravenous injections daily, and worried that he would continue to take heroin if he were not hospitalized. At issue are the following billed CPT codes: December 2: #99223 December 3: #99232 December 4: #99232 December 5: #99232 December 7: #99232 Petitioner denied these psychiatric claims for a lack of medical necessity. Misreading the chart, Dr. Segal testified that Recipient 1 had threatened to kill himself. As pointed out by Dr. Mehra, the medical records clearly disclose that Recipient 1 denied any thoughts of suicide--or, for that matter, homicide. Dr. Segal misunderstood a reported statement of Recipient 1 that he was going to kill himself--more or less inadvertently--through the continued use of drugs. Recipient 1 had been using heroin since he was 26 years old. He had previously completed treatment programs and enjoyed three years' sobriety. On admission, Recipient 1 was already suffering from muscle aches, hot and cold sweats, back pain, diarrhea, and nausea. The medical records state that, on admission, Recipient 1 "was experiencing an exacerbation of psychiatric symptoms," although these symptoms are not detailed in the records. The medical records do not describe in much detail the role of psychiatric services during this detoxification process. At one point during Recipient 1's six-day hospitalization, the medical records state: "The patient reported a reduction of psychiatric symptoms on the current medication regime " But the records do not identify the symptoms or the inpatient psychiatric services--apart from a mention of individual therapy--nor do the records explain how the medications or services may have contributed to a reduction in psychiatric symptoms. In general, the psychiatric notes are vague and provide little, if any, insight into any psychiatric symptoms, diagnoses, or treatments. Dr. Mehra testified that Recipient 1 underwent what was essentially an uncomplicated detoxification process. In hindsight, Recipient 1's detoxification was uncomplicated, but, of course, no one knew in advance that it would be. The possibility of difficulties during detoxification is suggested by the prescription for an anti-seizure medication, should the need have arisen. Dr. Mehra's implication that the hospital setting for this detoxification was an excessive level of care fails to address the medical needs of the recipient during this relatively brief detoxification process. Dr. Mehra contended for a lower level of care based on the absence of any threat of harm to self or others and the absence of any indication of a recent history of treatment failure. Failing to address the issue mentioned in the preceding paragraph, Dr. Mehra never discussed why, under the circumstances, the absence of these threats militates in favor of nonhospitalization, rather than a relatively brief hospitalization, especially as a brief hospitalization appears to have been necessitated by Recipient 1's medical needs in association with his detoxification. Dr. Mehra also failed to identify a lower level-of- care facility at which Recipient 1 could have been safely treated. Recipient 1's past failure to maintain sobriety after three years without heroin use and his well-founded fear that he would resume heroin use if treated on an outpatient basis precluded treatment in a lower level-of-care setting. Dr. Mehra never suggested that the billed psychiatric services were Inappropriate Services or Excessive Services, and Respondent has proved that they were not, notwithstanding the shortcomings in the medical records. Dr. Mehra suggested that the psychiatric services were Costlier-Setting Services, but Petitioner has failed to prove that they were. Petitioner therefore improperly denied these five psychiatric claims for a lack of medical necessity. Recipient 2 For Recipient 2, a 32-year-old female diagnosed as 21 weeks gravid and with depressive disorder, only one hospitalization is at issue. From December 1-18, 2008, Recipient 2 was hospitalized at Plantation General Hospital for detoxification from alcohol abuse, including binge drinking. Actually admitted on November 29, 2008, to the Broward Addiction Recovery Center within the hospital, Respondent's physician initially diagnosed Recipient 2 with Antepartum Polysubstance Dependence.12/ At issue are the following billed CPT codes: December 2: #99232 December 3: #99232 December 4: #99232 December 5: #99232 December 6: #99231 December 7: #99231 December 8: #99232 December 9: #99232 December 10: #99232 December 11: #99232 December 12: #99232 December 13: #99231 December 14: #99231 December 15: #99232 December 16: #99232 December 17: #99232 Petitioner denied these billed psychiatric claims for a lack of medical necessity. Recipient 2 was homeless. She had been working as a prostitute and, at one point during her hospitalization, reported that she had become pregnant while having sex with a customer. Recipient 2 had been treated briefly in 2006, but had relapsed immediately and had enjoyed only one, six-month period of sobriety since the inception of her alcohol addiction in 2001. Recipient 2 had no family support. Her father had been an alcoholic, and her mother had been a crack addict, so her grandmother had raised her from the age of six months. Recipient 2 claimed to have support from her boyfriend, but there is doubt that the boyfriend, with whom Recipient 2 appears to have had no contract during her hospitalization, was much more than Recipient 2's pimp. Dr. Sobhan treated Recipient 2 at the hospital and prepared for her a detailed treatment plan. Dr. Sobhan found that Recipient 2 had "very weak ego strength" and was in a "very fragile mental state." She maintained unrealistic expectations of others and used the defenses of displacement and drugs to deal with her feelings. She had minimal insight and often used inappropriate laughter as a defense. Dr. Sobhan found that Recipient 2's life "has been totally destroyed by her drug addiction," and she "has lost all volitional capacity to abstain from drugs or deal effectively with life on life's terms." Her drug use "has persisted and steadily worsened despite negative consequences in her life." At admission, Dr. Sobhan determined: "A lower level of care at this time would place the patient at risk for relapse, harm to herself and harm to the fetus." Recipient 2 required "stabilization of her mental health," and "[i]npatient services will be needed to prevent regression and restore patient to a state of competence where she can move on to a lower level of care in 21 days but still remain in a residential setting." Dr. Sobhan's treatment plan was for Recipient 2 to work on her substance abuse problems by attending individual and group therapy, meet with a psychiatrist, increase coping skills to prevent relapse and identify triggers to relapse, and begin a 12-step program to rid herself of her addiction. Intra-hospitalization progress notes document the therapeutic work involved in preparing Recipient 2 for a lower level of care. Such work included helping Recipient 2 forgive herself for past failings, find appropriate leisure and recreational activities, develop relaxation techniques (such as meditation and guided imagery), and prepare for the delivery of her baby. Recipient 2 was referred to the hospital by personnel at Gratitude House, which is a residential and day facility for treating women with drug or alcohol addictions. It is not clear whether she was in the residential or day program at Gratitude House immediately prior to her hospitalization, but Recipient 2 was transferred to the residential program at Gratitude House upon discharge from the hospital. The pregnancy addiction program that served Recipient 2 at Plantation General Hospital was once located at Adventura Hospital--under Dr. Segal's administration. At that time, the program called for 45 days of inpatient treatment of the pregnant addict, and Medicaid reimbursed this inpatient treatment. Medicaid reduced its reimbursements to 28 days of inpatient treatment in such a program a few years ago, at which time the program relocated to Plantation General. At all times, Medicaid-required reimbursement conditions provided that a physician must see the recipient daily in the hospital. Dr. Segal testified that the 21-day program to which Recipient 2 was admitted at Plantation General was the only program available for treating pregnant patients with active alcohol or drug addictions. The twin purposes of the program are to provide the pregnant inpatient with medications to assist with detoxification and the psychiatric therapy required to help her conquer her addiction. Dr. Mehra countered, though, that Recipient 2 had not used cocaine since September 2008 and marijuana since October 2008. The medical records also disclose that Recipient 2 reported that she last used Xanax in September 2008. Nothing in the record suggests Inappropriate Services or Excessive Services. Petitioner's theory of a lack of medical necessity rests on Costlier-Setting Services, which is rejected for the above-discussed reasons. From a level-of-care perspective, Recipient 2's hospitalization was bookended by treatment at Gratitude House, and it may be inferred that Gratitude House staff had agreed with the need for an interim hospitalization. Certainly, Respondent's psychiatrists had made this determination. In contrast, Dr. Mehra appears to have had no idea as to what alternative settings would have been appropriate for Recipient 2 and her fetus--let alone the costs of psychiatric services provided in such settings. Petitioner therefore improperly denied these 16 psychiatric claims for a lack of medical necessity. Recipient 11 For Recipient 11, a 26-year-old male diagnosed with paranoid schizophrenia, only one hospitalization is at issue. From February 17-28, 2010, Recipient 11 was hospitalized at Broward General Medical Center to treat a recent exacerbation of his psychiatric illness. Recipient 11 was brought to the hospital emergency room by someone from his assisted living facility, where he had been residing for only one day and was refusing to take his psychotropic medication. Recipient 11 presented at the hospital with delusional thoughts and anxiety, claiming that his brain was in convulsion, and displaying a bizarre, though cooperative, demeanor. Due to disordered thought, Recipient 11 was unable to give an accurate history on admission. Recipient 11 received a second diagnosis on the second day of his hospitalization: acute hepatitis C. Recipient 11 had undergone a half dozen previous psychiatric admissions. The medical records for the subject hospitalization record Recipient 11's past medical history as follows: "According to the records, positive for human immunodeficiency virus and hepatitis C, but the recent tests in 2005 was [sic] not confirmatory." The axis II diagnosis on February 17 was thus: "History of questionable human immunodeficiency virus and hepatitis C. We will repeat laboratories in the morning." On February 18, a physician's report notes that Recipient 11's "laboratory data is normal." From February 18 through discharge, then, Recipient 11 did not bear a diagnosis of either HIV or hepatitis C. At issue are the following billed CPT codes: February 18: #99232 February 21: #99232 February 22: #99232 February 23: #99232 February 24: #99232 February 25: #99232 February 26: #99232 February 28: #99232 Petitioner denied the February 18 psychiatric claim for a lack of medical necessity and downcoded the remainder of the claims, which involve medical services, from CPT #99232 to #99231. At the hearing, Dr. Mehra conceded the medical necessity of the psychiatric services covered by the February 18 billing. (Tr. 284) Petitioner therefore improperly denied this psychiatric claim for a lack of medical necessity. Dr. Hoffman addressed the downcodings. By not later than February 22, any questions about HIV and hepatitis C had been answered in the negative. Dr. Segal testified that Recipient 11's remaining diagnoses were weakness, obesity, and headache. Dr. Segal admitted that the headache resolved during the course of the hospitalization. The February 20 progress note adds that the weakness, too, had at least become stable by that date. The February 21 progress note states that Recipient 11 "feels better physically" and lists as diagnoses only mild obesity and improving weakness. Respondent's upcoding of these medical claims is obvious. As Dr. Hoffman testified, from February 22 through February 28, the medical decisionmaking was straightforward, and the histories were problem focused with no more than a mention of a chief complaint. Dr. Hoffman admitted that the examinations were more intense than problem focused, but she correctly noted that the CPT #99231 requires only that two criteria be met. Here, the history and medical decisionmaking satisfied CPT #99231, not a higher code. Petitioner therefore properly downcoded from CPT #99232 to #99231 the medical claims on February 21-26 and 28. Recipient 12 For Recipient 12, a 19-year-old male diagnosed with bipolar disorder, only one hospitalization is at issue. From May 23-28, 2009, Recipient 12 was hospitalized at Florida Medical Center for treatment of an exacerbation of bipolar symptoms, including manic behaviors, disorganized thinking, loose association, and poor judgment. Respondent had recently moved to South Florida from Tennessee and had not taken his psychotropic medications for one month. At issue are the following billed CPT codes: May 23: #99222 May 24: #99232 May 24: #99232 May 24: #99232 May 26: #99232 May 28: #99232 Petitioner denied the May 23 claim, one of the May 24 claims, and the May 26 claim for a lack of medical necessity; all of these were for psychiatric services. Petitioner denied two of the May 24 claims for double billing. Petitioner downcoded the May 28 medical claim from CPT #99232 to #99231. At the hearing, the parties conceded as to all dates of service except for the double billings on May 24. Respondent's counsel conceded the downcoding of the May 28 claim. (Tr. 488) Dr. Mehra conceded that the psychiatric services on May 23 were medically necessary. (Tr. 232) After hearing a detailed explanation of the psychiatric services, Dr. Mehra conceded that the services on all three dates--May 23, 24, and 26--were medically necessary. (Tr. 240) Petitioner thus improperly denied these psychiatric claims. These concessions leave the only issue for disposition as to Respondent 12 the so-called double billings on May 24. Dr. Segal conceded that Respondent received these double reimbursements. It is equally evident that Respondent did not repay these over-reimbursements to Petitioner prior to their discovery during the audit. These are the crucial facts. Dr. Segal's argument against the extension of these double reimbursements on the ground that Respondent did not double bill them is unpersuasive. Regardless of whether these duplicated items represent double billings and reimbursements or merely double reimbursements, the point is that, prior to their discovery during the audit, Respondent failed voluntarily to repay these unearned sums. There is thus no reason not to include these sampled overpayments in the estimation process by which Petitioner determines the total overpayment. Recipient 23 For Recipient 23, a 57-year-old male diagnosed with depression, six hospitalizations are at issue. From September 8-14, December 12-18, and December 21-24, 2009, and January 10-12, February 6-8, and February 22-23, 2010, Recipient 23 was hospitalized at several facilities to treat his psychiatric illness. Recipient 23 has a history of use of cocaine and marijuana and abuse of alcohol. Not long before the first hospitalization, Recipient 23 had been released from an eight- year term in prison for robbery. At issue are the following billed CPT codes: September 9: #99232 September 10: #99232 September 11: #99232 September 12: #99232 September 13: #99232 September 14: #99238 December 12: #99222 December 12: #99254 December 13: #99232 December 14: #99232 December 14: #99232 December 15: #99232 December 15: #99232 December 16: #99232 December 16: #99222 December 17: #99232 December 17: #99232 December 18: #99238 December 18: #99232 December 23: #99232 December 23: #99232 December 24: #99238 December 24: #99232 January 12: #99238 February 6: #99223 February 7: #99223 February 8: #99233 Petitioner denied all of the claims for a lack of medical necessity except for the downcodings from CPT #99232 to #99231 on December 14-18 and 23-24. The psychiatric denials will be addressed before the medical downcodings. On September 8, Recipient 23 was transported to the hospital from jail by law enforcement officers. He had been exhibiting suicidal and homicidal tendencies while in jail. He presented with hyperverbal speech, bizarre appearance, withdrawn and uncooperative behavior, irritable mood, persecutory and paranoid delusions, auditory hallucinations, and poor judgment. Recipient 23 required 24-hour supervision. His history included the suicide of his mother when he was a young child. Dr. Mehra testified that the progress notes for this hospitalization were vague--failing, for instance, to specify the nature of the delusions. Dr. Mehra faulted the medical records for failing to detail how Recipient 23's psychiatric symptoms were impacting him. For instance, did Recipient 23 require restraints or as-needed administration of antipsychotics? In terms of Recipient 23's suicidal tendencies, Dr. Mehra noted a lack of a plan for suicide. Dr. Mehra also raised the question of whether the patient merely wanted to escape a nonpreferred setting--jail--by admittance to the hospital. Dr. Segal testified that Recipient 23 had been Baker Acted recently on one or two other occasions preceding the September 8 hospitalization. His treatment plan included, among other things, increasing the dosage of Risperdal that he had been taking. During this brief hospitalization of no more than six days, the psychiatrist also increased the patient's Seroquel to control psychiatric symptoms. As soon as Recipient 23 did not seem suicidal, Respondent had him discharged to Second Chance Recovery, a halfway house representing a lower level of care, where he would be followed by another of Respondent's psychiatrists. Dr. Sobhan admitted that, with this kind of psychiatric patient, it is necessary to discharge him as soon as he says that he is doing better and no longer represents a risk of suicide or homicide. Just as Respondent's psychiatrists are concerned about a patient's acting out on suicidal or homicidal ideation, they are also concerned that unnecessarily long hospitalizations will make the patient dependent on the hospital. It is difficult to characterize Dr. Mehra's medical- necessity concerns. They seem equally applicable to Inappropriate Services, Excessive Services, and Costlier-Setting Services. However, Respondent has proved that the psychiatric services during this relatively brief hospitalization were appropriate and not excessive. Presumably aware that inmates would prefer a hospital to a jail and might fake psychiatric symptoms, correctional officers nonetheless felt it necessary to transport Recipient 23 to the hospital due to his suicide threats. Upon arrival at the hospital, Recipient 23 exhibited symptoms consistent with a serious mental disorder. Respondent's psychiatrists treated Recipient 23 until, in fairly short order, he stabilized and was discharged without delay. Nor has Petitioner proved that the psychiatric services were Costlier-Setting Services for the reasons already discussed. The inpatient psychiatric services provided on September 9-14 were thus medically necessary. The next hospitalization took place from December 12-18. At the hearing, Dr. Mehra conceded the medical necessity of the CPT #99222 on December 12. (Tr. 259) But he testified that medical necessity was lacking for the psychiatric services provided from December 13-18. Again, Recipient 23 presented to the hospital with suicidal ideations. His plan was to cut his wrists, as, he claimed, to have done previously. Multiple stressors in his life included homelessness, unemployment, cocaine use, and alcohol abuse. His global assessment of functioning, on a scale of 0-100, was 30, which is, as Dr. Mehra graciously conceded, "on the low side." (Tr. 257) Respondent's psychiatrist gradually increased Recipient 23's Seroquel, but also placed him on Prozac during this hospitalization. Reflecting the seriousness with which hospital staff took Recipient 23's suicidal ideation, they put him on visual observation, followed by a check every 15 minutes. The psychiatric records reveal that, on December 13, Recipient 23 still suffered auditory hallucinations and suicidal ideation. He was still receiving 24-hour supervision. The Seroquel was increased the following day, as well as on December 16, after the patient's symptoms had not improved. After increasing the Seroquel again on December 17, Respondent's psychiatrist discharged Recipient 23 to Second Chance Recovery, although, instead of reporting to this halfway house, Recipient 23 returned to his halfway house in Pompano Beach. It is puzzling why Petitioner denied the December 13- 18 claims for a lack of medical necessity. If anything, Recipient 23 required a longer hospitalization: three days after discharge, he slashed his arm with a razor blade, leaving a 30 cm-long gash. The circumstances of the December 13-18 hospitalization plus the suicide attempt three days after discharge establish the medical necessity of the December 13-18 hospitalization. After slashing his arm, Recipient 23 was involuntarily Baker Acted on December 21 to a receiving facility, where Respondent's psychiatrist treated him. On admission, Recipient 23 revealed a plan to kill himself by running into traffic. Petitioner challenged the medical necessity of only the third and final days of this hospitalization--December 23 and 24. As Dr. Sobhan testified, ten years ago, Recipient 23 would have qualified for long-term commitment to a state hospital under the Baker Act. This was not necessarily the better approach to Recipient 23's mental illness. Because Recipient 23 eats and takes his medicine in the local hospital, he achieves sufficient short-term stabilization that short-term hospitalization followed by outpatient treatment produce a better prognosis than long-term hospitalization. However, as Dr. Segal concluded, Recipient 23's multiple hospitalizations over a relatively short period of time demonstrate the inadequacy of community resources, like halfway houses, whose levels of care are not sufficient for the treatment of Recipient 23's psychiatric symptoms during periods of exacerbation. Somewhat surprisingly, given his testimony that inpatient psychiatric services at local hospitals were not medically necessary, Dr. Mehra did not argue for lower-level-of- care settings, but for an equal or higher level-of-care setting--a state hospital. (Tr. 266) Addressing the patient's "best interest," if not medical necessity, Dr. Mehra opined that past failures of coordination of care in settings with lower levels of care than local hospitals militate against the providing of services in local hospitals. It is unnecessary to resolve the disagreement between Dr. Sobhan and Dr. Mehra about the efficacy of treating Recipient 23 in a state hospital. Petitioner did not prove that the state hospital is a lower level of care or that psychiatric services in this setting are reimbursed at a different rate than those provided in the local hospital. More importantly, both experts implicitly agreed that a lower level-of-care would not have been appropriate for Recipient 23 at the time. In a wider-ranging discussion triggered by the December 23 and 24 claims, but obviously not limited to Recipient 23, Dr. Mehra testified: "my concern has been not even whether the patients need to be in the hospital, but it's just kind of the documentation to kind of communicate that urgency or that need for things. So obviously, that's why on some of these cases where maybe I have overlooked it, I am very much willing to concede those dates that maybe I've missed." (Tr. 270) It seems that Dr. Mehra was approaching a concession as to the psychiatric services on December 23 and 24--and perhaps other dates of service regarding Recipient 23 and even other recipients. With or without his concession, the inpatient psychiatric services on December 23-24 were medically necessary. Recipient 23's next hospitalization took place less than three weeks after discharge on December 24. For the January 10-12, 2010, hospitalization, Petitioner denied, as noted above, the CPT #99238 on January 12. This hospitalization was necessitated by Recipient 23's calling 911 and stating that he was holding a blade wanting to kill himself. Sheriff's deputies disarmed him and transported him to the hospital where he was admitted under the Baker Act, although Recipient 23 later agreed to hospitalization. As before, while hospitalized, Recipient 23 ate, took his medicine, and improved. Dr. Sobhan noted in the medical records a concern that the patient was manipulative, but testified that denying admission to patients such as Recipient 23 is impossible when they appear in emergency rooms threatening to kill themselves and emergency room physicians admit them under the Baker Act. Dr. Mehra sensibly seized on the possibility that Recipient 23 was manipulating the system in order to be hospitalized. Dr. Mehra asked whether physicians were really helping this patient by repeatedly admitting him. With equal logic, though, Dr. Sobhan responded that it is hard to deny admission or discharge a patient who tells everyone that he is suicidal, so that it is well-documented in the records. Dr. Segal stated that, if a patient has a good support system, he does not believe that he must hospitalize such a patient, even if she has voiced suicidal ideas. But Recipient 23 was unstable, lacked outside support, and had recently cut himself badly in a suicide attempt. This is a closer call, but the final day of inpatient hospital services was medically necessary. As Dr. Segal testified, the day of discharge is time-consuming for the treating physicians to try to ensure that the patient will receive continuity of care post-hospitalization and perhaps avoid the need of rehospitalization. This is exactly what the subject CPT code covers. The importance of such efforts is underscored in a case such as Recipient 23, as he was in and out of the hospital repeatedly in a brief period of time. Lastly, as to psychiatric services and their medical necessity, Recipient 23 was hospitalized February 6-8. Petitioner denied each CPT #99223 on February 6 and 7, as well as the CPT #99232 on February 8. Although these dates of service appear on Attachment C, the expert witnesses neglected to discuss these dates of service. Of the 476 pages of medical records for Recipient 23 included in the present record, only pages 2290-91 address this hospitalization. Page 2290 is irrelevant to this case. Dated February 6, page 2291 covers psychiatric services, mentions a treatment plan, and refers to Recipient 23's presenting on that day at the hospital with suicidal ideation, depression, and substance dependence. Given the richly developed record concerning Recipient 23 and the proximity of the February 6 date of service to earlier and later hospitalizations, the spare comments on page 2291 support a finding of medical necessity for February 6, but not February 7 and 8, for which no evidence whatsoever exists. Additionally, even though a different psychiatrist saw Recipient 23 on February 7 than who saw him on the prior day, the February 7 date of service did not qualify for another CPT #99253.13/ Respondent's failure to prove that the February 7 and 8 psychiatric services were not Inappropriate Services or Excessive Services means that Petitioner's denial for a lack of medical necessity is sustained. As noted above, the downcodings involve the medical services provided on December 14-18 and 23-24. At the time of admission on December 12, 2009, Respondent presented medically with hyperlipidemia, hypertension, ademia, localized osteoarthrosis, seborrheic dermatitis, and gastroesophageal reflux disease (GERD). On December 14, the progress notes record only dermatitis, a toothache, and a third condition, which is illegible. Dr. Hoffman testified that this was a problem focused interval history, detailed examination, and straightforward medical decisionmaking. She is correct. The skin condition and toothache appear minor, and the patient was "stable, recovering or improving." There was no complexity to the decisionmaking, and the history was no more than problem focused. On December 15, the progress notes record GERD, hypertension, seborrheic dermatitis, and a fourth condition that is illegible. The patient's vital signs were within normal limits. Dr. Hoffman testified that the medical decisionmaking was of low complexity and implied that the history was problem focused. She is correct. On December 16, the progress notes record dental pain over night, hypertension, and seborrheic dermatitis. Dr. Hoffman testified that the medical decisionmaking was still of low complexity, and the history was problem focused. Again, Dr. Hoffman is correct.14/ On December 17, the progress notes record GERD, seborrheic dermatitis, and tooth pain. The tooth pain had decreased, and the dermatitis remained a minor issue, although the hypertension had turned to hypotension. Dr. Hoffman testified that the medical decisionmaking remained of low complexity, and the history problem focused. On December 18, the progress notes record GERD, tooth pain, seborrheic dermatitis, and hypertension. The tooth pain had improved. As Dr. Hoffman testified, the medical decisionmaking remained of low complexity, and the history problem focused. Dr. Hoffman's testimony was correct as to these dates of service. Dr. Segal's rebuttal for the medical claims for this hospitalization occasionally blended the psychiatric services into the medical services. He stressed a more complicated past history, but failed to explain how these potentially complicating components were relevant to the subject hospitalization. Dr. Segal helpfully pointed out the potential complexity of medical decisionmaking in terms of the management of the many medications that Recipient 23 was taking. But ultimately Dr. Segal failed to overcome Dr. Hoffman's testimony about the complexity of the medical decisionmaking. The multiple medications were a complicating factor, but were more than offset by the limited number of possible diagnoses and management options, the lack of complexity of medical records and diagnostic tests, and the absence of risk of significant complications, morbidity, or mortality associated with the relatively minor presenting problems. Obviously, the December 21-24 hospitalization was driven by the patient's psychiatric deterioration, which, as noted above, resulted in a serious wound to the arm during an apparent suicide attempt. As Dr. Hoffman testified, for December 23, the progress notes reveal that the chief complaint was the wound to the arm; without more, this was a problem focused history. Although the examination was detailed, the medical decisionmaking was of low complexity. For December 24, the progress notes state that the wound was healing, and mild hypotension and dehydration were concerns. As Dr. Hoffman testified, this was a problem focused history with medical decisionmaking of low complexity. The downcodings are all correct. Petitioner therefore improperly denied all of the psychiatric claims except for those of February 7 and 8 and properly downcoded all of the medical claims. Recipient 26 For Recipient 26, a 13-year-old male diagnosed with bipolar or depressive disorder, only one hospitalization is at issue. From April 29-May 5, 2009, Recipient 26 was hospitalized at Memorial Healthcare System for treatment of a recurrence of aggressive behavior, including threatening to kill his mother with a butter knife. At issue are the following billed CPT codes: April 30: #99232 May 1: #99232 May 2: #99232 May 3: #99232 May 4: #99232 May 5: #99232 Petitioner denied these claims involving psychiatric services for a lack of medical necessity. At hearing, after a discussion between Dr. Segal and Dr. Mehra as to the care of Recipient 26, Dr. Mehra conceded the medical necessity of April 30 and May 1. The remaining dates still in dispute are thus May 2-5. As Dr. Segal testified, Respondent's psychiatrists are "very careful" about putting children on medications, but, to control Recipient 26's symptoms, it was necessary to put him on four powerful medications: Prozac, Abilify, Trazodone, and Buspar. From April 29 to May 2, Recipient 26 was also on Ativan. Early in the hospitalization, Recipient 26 displayed depression and poor eye contact, and he was nonverbal. He was on elopement precautions during his hospitalization. On May 1, Recipient 26 was also responding to internal stimuli. The lack of improvement in symptoms caused the psychiatrist to establish a rule-out diagnosis of pervasive development disorder. Because Recipient 26 was no longer displaying aggressive behavior that posed a risk to his mother, Respondent's psychiatrist decided to discharge him on May 5. Dr. Mehra's testimony predicated a lack of medical necessity for the final four days of this seven-day hospitalization on the lack of need to continue to observe and stabilize the child. Dr. Segal responded that they were treating a "very sick child" and could not have dealt with the situation, including the introduction of new medications, any faster in the inpatient setting. Recipient 26 had undergone another psychiatric admission on February 18-24, 2009, during which time he was placed on suicide and elopement precautions. For this earlier hospitalization, Recipient 26 had been Baker Acted for assaulting his younger sister. For the entire hospitalization, Recipient 26 had refused to respond to questions during psychotherapeutic sessions, responding instead with gestures. The child's mother had advised, at one time, that he only spoke at home. This hospitalization had concluded with a reference to the Henderson Community Mental Health Center and instructions for the child to attend an aftercare program. The subject hospitalization took place only two months later. Following the subject hospitalization, Recipient 26 was next hospitalized, according to the medical records, in December 2009. Dr. Mehra is right about this case. Neither the documentary record nor Dr. Segal's testimony establishes the medical necessity for psychiatric services after May 1. Notwithstanding the apparent illness of the child, the evidentiary record fails to establish if it was necessary to provide services to monitor the introduction of new drugs or existing drugs in higher doses, to provide services to continue to stabilize the child, or to provide services toward a diagnosis concerning pervasive development disorder. For these reasons, Respondent has failed to prove that the services provided after May 1 were not Inappropriate Services. Petitioner therefore improperly denied the psychiatric claims of April 30 and May 1, but properly denied the remaining psychiatric claims. Recipient 27 For Recipient 27, a 52-year-old male diagnosed with bipolar disorder, depression, and alcohol and cocaine dependence, only one hospitalization is at issue. From August 26-September 1, 2009, Recipient 27 was hospitalized at Broward Health for treatment of an exacerbation of the symptoms of his bipolar disorder and depression. At issue are the following billed CPT codes: August 27: #99232 August 28: #99232 August 29: #99232 August 30: #99231 August 31: #99232 Petitioner denied these claims involving psychiatric services for a lack of medical necessity. Recipient 27 was homeless. He had no support from family or friends. The evidentiary record documents repeated hospitalizations during the audit period. All of the hospitalizations follow a pattern. Recipient 27 fails to take his medications, ingests cocaine and/or large volumes of alcohol, feels hopeless and sometimes suicidal, and is hospitalized for a brief period so that his habitual use of intoxicants can be abated, medications can be reestablished, and psychiatric condition can be stabilized. During these hospitalizations, Recipient 27 receives medical treatment for a variety of conditions, mostly associated with his largely untreated diabetes. According to the medical records, Respondent's psychiatrist ordered an increase in Recipient 27's antipsychotic medication, Seroquel, on August 27. On that day, Recipient 27 continued to demonstrate childlike behavior, poor contact with reality, disorganized thought, and persecutory delusions. Recipient 27's condition was unchanged until August 31, when he exhibited some improvement. Dr. Mehra's main criticisms involved the medical records. For instance, the form prompts the psychiatrist to describe the persecutory delusions, if present, and Respondent's psychiatrist did not do so. Likewise, the form prompts the psychiatrist to supply a chief complaint, but Respondent's psychiatrist did not do so. And the medical records reveal little of what is going on with the patient. Dr. Mehra made a good case for downcoding the CPT #99232 to #99231 for August 27-29 and August 31, but Petitioner has staked its challenge on a lack of medical necessity, not upcoding. In a closer case, the omitted information on the forms might have proved material, but, on these facts, Respondent has proved that the psychiatric services in question were not Inappropriate Services or Excessive Services. Petitioner has failed to prove that they were Costlier-Setting Services. Recipient 27 is a good example of the effects of transportation, motivation, and substance-abuse problems combining with a lack of insight to preclude successful treatment in lower levels of care. Dr. Mehra did not suggest a lower-level-of-care setting, but seemed to focus on what he viewed as the inadequacy of the medical records. Petitioner therefore improperly denied the psychiatric claims of August 27-31. Recipient 29 For Recipient 29, a 33-year-old male diagnosed with schizophrenia, only one hospitalization is at issue. From April 21-30, 2009, Recipient 29 was hospitalized at Broward General Medical Center for treatment of an exacerbation of the symptoms of his schizophrenia. At issue are the following billed CPT codes: April 27: #99232 April 28: #99232 April 29: #99232 April 30: #99238 Petitioner denied these claims involving psychiatric services for a lack of medical necessity. After listening to Dr. Segal's testimony, Dr. Mehra conceded the medical necessity of the inpatient services on April 27-28. (Tr. 300) Dr. Mehra testified, though, that the patient was ready for discharge by April 29. Dr. Mehra did not address the fact that Recipient 29 was readmitted to the hospital on May 9--just 10 days after when Dr. Mehra opined that he had been ready for discharge and eight days after he had been actually discharged. Dr. Mehra did not address that, on readmission, Recipient 29 presented with suicidal and homicidal ideations--both with plans--and command delusions, among other symptoms. At the time of the subject admission, Recipient 29 was hearing voices telling him to hurt himself and others. Reportedly, Recipient 29 had access to a gun. On April 24, Recipient 29 stated that a voice was telling him to kill people. His insight and judgment remained limited. Until April 26, the reason cited in the medical records for continued hospitalization was a need to continue to plan. On April 27, the reason was changed to monitor changes in medications. On April 28, Recipient 29 reported hallucinations of ghosts and asked for an increase in his antipsychotic medication, Trilafon--an unusual request from a psychiatric patient. At that time, lab work indicated that blood levels of Depakote were low, so Respondent's psychiatrist had to increase the Depakote and Trilafon. Although the patient was still childlike, bizarre, irritable, and disorganized of thought, the psychiatrist determined that he could be safely discharged on his newly adjusted medications. The unsettled condition of Recipient 29 on April 28 precluded his discharge the next day. The mental illness and psychiatric symptoms that necessitated this hospitalization amply justified the last two dates of service at issue, as further evidenced by another psychiatric hospitalization eight days after discharge. Recipient 30 For Recipient 30, a 52-year-old female diagnosed with schizoaffective disorder and bipolar disorder, four hospitalizations are at issue. From August 5-10, October 8-20, October 28-November 3, and December 11-22, 2009, and February 12-17, 2010, Recipient 29 was hospitalized at Broward General Medical Center for treatment of exacerbations of the symptoms of her schizophrenia. At issue are the following billed CPT codes: August 6: #99232 August 7: #99232 August 8: #99232 August 10: #99238 October 17: #99232 October 18: #99232 October 19: #99232 October 20: #99232 October 29: #99232 October 30: #99232 October 31: #99232 November 1: #99232 November 2: #99232 December 17: #99232 December 18: #99232 December 19: #99232 December 19: #99232 December 20: #99232 December 21: #99232 February 12: #99223 February 13: #99233 February 14: #99231 February 15: #99233 February 16: #99233 February 17: #99239 Petitioner denied these claims for a lack of medical necessity, except that it downcoded one of the CPT #99232 claims for services on December 19 to CPT #99231. All of the claims at issue were for psychiatric services, except the downcoded claim was for medical services. At the hearing, after learning that illegible notes pertained to chest pain, Dr. Hoffman conceded that the December 19 medical service was properly billed at CPT #99232. (Tr. 516) The remaining services at issue are psychiatric. At the hearing, Dr. Mehra conceded the medical necessity of the psychiatric services for August 6-7 (Tr. 306-07) and February 12-14. (Tr. 324) The four hospitalizations in this case all took place within seven months; the first three of these hospitalizations took place within five months. The first hospitalization was the result of a Baker Act. Recipient 30 presented at the emergency room with depression, homicidal and suicidal ideation, psychosis, auditory hallucinations, and a history of polysubstance abuse, including cocaine, marijuana, and alcohol. Lab work subsequently revealed the presence of alcohol, cocaine, and marijuana. She was violent, hitting and biting at hospital personnel, who had to restrain her at the wrists and ankles. On August 6, Recipient 30 continued to be depressed and displayed, among other things, symptoms of alcohol withdrawal, psychotic behaviors, rocking, and flight of ideas. The next day, Recipient 30 continued to display depression, disorganized thinking, and hallucinations. Dr. Segal described the psychiatric services from August 5-7, but he skipped to August 10 in his testimony, explaining the discharge on that date by noting that the patient was on her medications and, with much greater insight, recognized that she was doing better. (Tr. 305) Dr. Mehra likewise skipped the last two days in question from this hospitalization. (Tr. 306-07) The physician's progress note for August 8 states that Recipient 30 was more depressed, but no longer had suicidal or homicidal ideation. Her thought process had improved from a flight of ideas to disorganized thought. Her cognition was grossly intact. There does not appear to be any note for August 9. Respondent has proved that the psychiatric services on August 8 were not Inappropriate Services or Excessive Services, and Petitioner has failed to prove that they were Costlier-Setting Services. However, Respondent has failed to prove that the psychiatric services on August 10 were not Inappropriate Services. The next dates at issue are October 17-20. The start of this hospitalization was October 7, again involuntarily under the Baker Act. Through October 17, Recipient 30 displayed rocking, auditory hallucinations, depression, disorganized thought, and paranoia, according to Dr. Segal and the records. The next day was the first that the patient was not rocking, although she still suffered from paranoia and auditory hallucinations. The rocking returned on October 19, and she exhibited increased suicidal ideation--clear signs of regression, as testified to by Dr. Segal. She exhibited marked improvement on the following day, at which time she was discharged. Dr. Mehra questioned whether the auditory hallucinations were of the command variety, and he dismissed the rocking as justification for continued hospitalization. Dr. Segal responded that Recipient 30 was rehospitalized about one week after this discharge. Through October 20, Dr. Segal reasoned that Recipient 30 was still psychotic, manic, and unsafe for a lower level-of-care setting, such as the assisted living facility at which she resided. Dr. Segal observed that, shortly after discharge on October 20, Recipient 30 was cycling between mania and depression. Dr. Segal noted that Recipient 30 was Baker Acted again on October 28. She was suffering from suicidal ideation and again intoxicated with alcohol, drinking massive quantities of beer daily and consuming cocaine and marijuana. The next day, Recipient 30's mood was less stable, her thinking more disorganized, and her irritability more pronounced. These symptoms continued unchanged through October 30. On October 31, Recipient 30 continued to suffer from hallucinations and delusions, disorganized thought, depression, and poor judgment, but she was no longer entertaining ideas of suicide. On November 1, Recipient 30 was no longer entertaining thoughts of suicide, but she continued to have unspecified delusions and hallucinations. On November 2, Recipient 30 was free of delusions and hallucinations, and she was discharged. Dr. Mehra rightly complained about the documentation for the second October hospitalization. (Tr. 314) Despite the close proximity of these hospitalizations--although the next one was nearly six weeks thereafter--the medical necessity of psychiatric services on October 31-November 2 is absent; Respondent has failed to prove that these services were not Inappropriate Services. Psychiatric services were necessary through October 30, which was the last day of reported suicidal ideation, but not thereafter. By contrast, Respondent has proved that the psychiatric services provided from October 17-20 were not Inappropriate Services or Excessive Services, and Petitioner has failed to prove that they were Costlier-Setting Services. On these days, Recipient 30 continued to display varying levels of symptoms, including suicidal ideation. Worrisome regression had taken place in this brief period. If anything, her discharge on October 20 was premature, as suggested by her readmission eight days later. The next hospitalization started December 11, as Recipient 30 was again Baker Acted with suicidal and homicidal ideations. Her blood alcohol level at admission was .355. She had been living on the streets prostituting herself. She had been participating in the community mental-health services provided by the Henderson Mental Health Center, but Henderson personnel had encouraged her to enter the hospital at this time, evidently due to a recent exacerbation in symptoms. As pointed out by Dr. Segal, the Henderson wraparound services, including mental health targeted case management, were insufficient for Recipient 30. On December 17, Recipient 30 was still in withdrawal from alcohol. Her thinking was disorganized with a flight of ideas. She was depressed. She no longer suffered from suicidal or homicidal ideations. The next day, though, Recipient's suicidal ideation returned. There was a question whether she was suffering from hallucinations and delusions. For the next two days, December 19-21, Recipient 30 continued to exhibit depression with compromised insight and judgment, and she felt hopeless and was unable to agree not to hurt herself, if discharged. Dr. Mehra objected again to the documentation. (Tr. 318) Noting that Recipient 30's symptoms "seem to be pretty consistent, irrespective of whether she says [in the hospital] for three days, five days or ten days," Dr. Mehra agreed that "there's some type of psychiatric condition here that needs some type of treatment. The question beckons, at what level of care . . .?" (Tr. 319) As Dr. Mehra noted, Recipient 30 presented with one or more psychiatric conditions that required treatment during this and all hospitalizations at issue. Dr. Mehra did not contend that the psychiatric services in the December hospitalization were Inappropriate Services and appears not to contend that they were Excessive Services. In either event, Respondent has discharged its burden of going forward as to these issues. The underlying objection of Dr. Mehra seems to be that the psychiatric services from December 17-21 are Costlier- Setting Services. Perhaps exhibiting frustration with the apparent lack of progress with Recipient 30, Dr. Mehra implies that the appropriate setting is at a lower level of care. These claims fail for the reasons discussed above. As to level of care, Dr. Mehra's criticism ignores that, immediately preceding this hospitalization, Recipient 30 was receiving fairly intensive community services, and clearly these services were insufficient. Dr. Mehra's level-of-care testimony also fails to account for the repeated failures of hospital-based psychiatric services. The psychiatric services during the December 17-21 hospitalization were medically necessary. Recipient 30's final hospitalization at issue took place from February 12-17, of which only the last three dates require consideration after Dr. Mehra's above-described concession at hearing. This hospitalization was due to suicidal and homicidal ideation and depression. Recipient 30 had been living in Second Chance Recovery, but had regressed into violent behavior, severe depression, severe anxiety, manic behavior, and auditory and visual hallucinations. After having enjoyed 60 days of sobriety, Recipient relapsed from alcohol abstention. On February 15, Recipient 30 continued to display the features of her manic episode: agitation, loud and pressured speech, and hostility. On February 16, she continued to demonstrate irritability, loose associations, and loud and pressured speech. Respondent's psychiatrist was still waiting for lab work on her Depakote level. On February 17, Recipient 30 was improved. In fact, the progress notes for February 17 as to psychiatry reflect a lined-out entry: "Pt interviewed. Chart reviewed and [discussed with] staff." In the place of this somewhat formulaic note is: "Pt doing better. Improved. No need for further stay." There are some illegible notations, but one note reports the Depakote level at 70.9. (Petitioner Exhibit 30, p. 4591) Dr. Mehra rightly questioned how the patient progressed from February 16 when she suffered from a flight of ideas and loose associations to discharge-ready the following day. (Tr. 324-25) Although he admitted that such an improvement is possible, Dr. Mehra implied that it is likelier that no such sudden improvement ever took place. The consequences that follow this implication require careful consideration. If the sudden-improvement scenario were disregarded, then Dr. Mehra had two options: discredit the notes of the preceding days and credit the cheery note on the day of discharge or credit the notes of the preceding days and discredit the cheery note on the day of discharge. By choosing the former option, Dr. Mehra was able to deny a couple of days of services for a lack of medical necessity. But recent experience with Recipient 30 does not support Dr. Mehra's choice. Recipient 30 had been hospitalized repeatedly for serious psychiatric symptoms. She had had an unusually long 11-day hospitalization in December. In October, she had required rehospitalization eight days after discharge, suggesting, if anything, a premature discharge. On February 17, Respondent's psychiatrist obtained the Depakote level, which apparently was satisfactory. If one had to choose between the manufacturing of symptoms on the February 15-16 records and an optimistic, but selective, effort to justify discharge on the February 17 records, the evidence would favor the latter, as the psychiatrist, perhaps daunted by the prospect of another lengthy hospitalization, may have been tempted to downplay any remaining symptoms to facilitate an early discharge. More relevantly, among the three scenarios--the manufacturing of symptoms, an unduly sunny rendering of symptoms, and a dramatic overnight recovery--the record permits only the finding that February 15-16 records are unlikely to have been inaccurate. This was a sick patient with recurrent, persistent symptoms. It is unnecessary to determine which of the remaining two scenarios explains the February 17 records. Respondent has proved that the February 15-17 psychiatric services were not Inappropriate Services or Excessive Services, and Petitioner has failed to prove that they were Costlier-Setting Services. Petitioner has therefore properly denied the psychiatric claims of August 10 and October 31-November 2 for a lack of medical necessity, but has improperly denied the remaining psychiatric claims. Conclusion As noted above, Attachment C itemizes 83 denials of reimbursements of psychiatric claims for a lack of medical necessity, two denials of reimbursements for double billing, and 16 "adjustments" (i.e., reductions) of reimbursements of medical claims for upcoding. Of the 83 denials, Petitioner has prevailed as to only 10. Of the two denials, Petitioner has prevailed as to both. Of the 16 reductions, Petitioner has prevailed on 15--failing to prevail only as to one reduction that Petitioner conceded at hearing. Statistical Estimation of Total Overpayment In addition to disputing Petitioner's overpayment determinations among the sampled recipients, Respondent has contested the means by which Petitioner has inferred the total overpayment for the population of 2765 recipients from the overpayment determined for the 30 recipients. Each party presented an expert witness to provide statistical evidence supporting or discrediting the process by which Petitioner inferred the total overpayment. Petitioner's expert was Dr. Fred Huffer, and Respondent's expert was Dr. Bruce Kardon. Both experts patiently explained important statistical concepts and applied them to this case. Their testimony has been most useful. Dr. Kardon defined the nomenclature to describe different processes by which one could proceed from the overpayment for the sample to the overpayment for the population. The most accurate method to determine the total overpayment is not inference at all; it is counting. Apart from the time and expense, nothing prevents Petitioner from auditing each of the 2765 recipients and each of the 27,681 claims associated with these recipients, just as Petitioner has done with each of the 30 recipients and each of the 387 claims associated with them. For obvious reasons, Dr. Kardon did not propose this approach. Between counting and its opposite--guessing--is what Dr. Kardon identifies as estimation, which is produced by any statistically valid process by which the determined overpayment from the sample is extended to a total overpayment among the population. Dr. Kardon testified that the estimation process used by Petitioner in this case is invalid. For the reasons set forth below, this testimony has been rejected. In summary, Petitioner's estimation process in this case commenced with the selection of a random sample of 30 recipients. Petitioner determined the sample overpayment after analyzing each of these claims for accuracy. Dividing the sample overpayment total by 387 claims, Petitioner obtained the average overpayment per claim. Multiplying the average overpayment per claim by 27,681 claims in the population yielded the point estimate of total overpayments for the population. Petitioner's estimation process did not stop with the point estimate, though. Petitioner next determined the standard error, which is a measure of how variable the point estimate is. In this case, the standard error was about $99,600. Obtaining the appropriate multiple from statistical tables to derive the 95% confidence interval identified below, Petitioner then calculated a multiple of the standard error, which it then subtracted from the point estimate to arrive at the lower limit of the 95% confidence level. The estimated total overpayment corresponding to this lower limit of the 95% confidence level is the amount of overpayment identified in the FAR. Petitioner's estimation process involved only a few steps. First, Petitioner selected a random sample of recipients from the population. Petitioner routinely selects 30 recipients for each of its samples. Dr. Kardon objected dutifully to the randomness of the sample. But his objection may have been due to the failure of Petitioner to have provided him timely with all of the supporting statistical documentation. In fact, there is no reasonable doubt as to the randomness of the sample. Dr. Huffer testified that Petitioner's database management program contains a suitable random number generator. Dr. Huffer admitted that, some years ago, random number generators sometimes were flawed, but these problems are no longer common. After identifying the recipients to be sampled, Petitioner identified the number of claims per recipient during the audit period. In all audits, Petitioner must determine if the number of claims per recipient is small enough to permit analysis of each claim. If it is, Petitioner proceeds to analyze each claim of each sampled recipient. If the number of claims is too large, Petitioner selects a random sample of claims for each recipient and analyzes these claims, rather than all of the claims of the randomly selected recipients. These two approaches represent the single-stage or two-stage cluster sampling process for estimation. The clusters are the recipients. In this case, the number of claims was small enough to permit analysis of each claim, so Petitioner performed a single-stage cluster sampling. If a sampling of claims had been required to produce a more manageable number of claims for audit, Petitioner would have performed a two-stage cluster sampling. Essentially, Dr. Kardon challenges Petitioner's estimation process on two related grounds: the sample size of 30 recipients is too small, and consequently the sample is unrepresentative of the population.15/ Additionally, Dr. Kardon argues for the use of the unbiased estimator--described below-- to extend the sample overpayment to the population overpayment. Essentially, Dr. Huffer defends these challenges on two grounds: Petitioner invariably uses the same methods for the same sampling conditions to avoid charges of unfairness, and simulations conducted by Dr. Huffer demonstrate the validity-- and fairness--of the methods used by Petitioner to estimate the total overpayment. In all cases involving a one-stage cluster sample, Petitioner uses a ratio estimator to generate the point estimate. This was reflected in the multiplication of the average overpayment per sampled claim by the total number of claims in the population, as discussed above. In all cases involving a two-stage cluster sample, Petitioner uses an unbiased estimator to generate the point estimate.16/ Dr. Kardon's preference for the unbiased estimator for the one-stage cluster sample--or at least Respondent's one- stage cluster sample--not only invites individualized decisionmaking by Petitioner to shape outcomes, but fails to address the suitability of the ratio estimator when applied to monotone relationships. Given the direct relationship between the number of claims and size of the overpayment, the ratio estimator typically provides more accuracy than the unbiased estimator. Dr. Huffer ran several million simulations using a 30-unit cluster sample--some with the ratio estimator and some with the unbiased estimator. For one set of simulations, in which Dr. Huffer scaled the 30-unit cluster to the 2765-unit population, Dr. Huffer demonstrated that the ratio-estimator approach was more "precise"--as in leading to a "much smaller standard deviation for the point estimate." (Id. at p. 22) Dr. Kardon's argument for invalidity based on the nonrepresentative nature of the cluster sample fails to account adequately for the fact that Petitioner's estimation process did not stop with the identification of the point estimate. As noted in the preceding paragraph, his argument for the unbiased estimator is wrong. For one-stage cluster estimations where the number of claims is in direct relationship to the size of the overpayment, Dr. Huffer demonstrated that the 95% confidence interval is narrower using the ratio estimator than for estimations using the unbiased estimator. Dr. Kardon's argument for a greater sample size is stronger. All other factors remaining equal, a larger sample size would produce a narrower 95% confidence interval. But the shortcomings of a smaller sample size are offset--at least with a 30-unit sample size--by a wider 95% confidence interval-- especially, where, as here, Petitioner selects the lower limit of the interval to establish the provider's overpayment liability, rather than the point estimate or some other point within the confidence interval. Obviously, Petitioner's selection of the lower limit of the 95% confidence interval is more favorable to a provider than the selection of any other value within the 95% confidence interval, including the point estimate. As Dr. Huffer testified (id. at p. 30), Dr. Kardon's criticisms seem, at times, to fail to give adequate weight to this point. Dr. Huffer's simulations quantify the extent to which Petitioner's selection of the lower limit of the 95% confidence interval favors providers. Based on his work, Dr. Huffer estimated the probabilities of a five percent overcharge at about 1.4% and a 10 percent overcharge at about 0.5%. On average, Petitioner's estimation method undercharges a provider by about 30% of the total, actual overpayment. Overall, Petitioner's estimation undercharges a provider 95% of the time. Based on an illustration provided by Dr. Huffer (id. at p. 29), these probabilities and the magnitude of the consequences of various contingencies can be seen by using an example of a mortgage debt of $100,000. The lender offers all of its borrowers a chance to discharge their debt by paying an amount to be determined randomly, but pursuant to a process that ensures that the randomly generated payoff amount will average only 70% of the outstanding indebtedness and will be less than the outstanding indebtedness 95% of the time; however, 1.4% of the time the randomly generated payoff amount will exceed the outstanding indebtedness by 5%. If a borrower's outstanding indebtedness is $100,000, her offer is that the average payoff will be only $70,000 and 95% of the time the payoff will be less than $100,000, but 1.4% of the time the payoff will be $105,000. Dr. Kardon's argument for a larger sample size requires close consideration. At some point, it would seem, the sample size becomes so small and, correspondingly, the 95% confidence interval becomes so wide as to call into question the utility, if not the validity, of the estimation process.17/ Dr. Huffer's simulations quantify the effect of doubling the sample from 30 to 60 units. Of course, doubling the sample size would produce gains in accuracy, but not much. In the simulations, if all other factors remained equal, doubling the sample size decreased the average underpayment from about 30% to about 20%. (Petitioner Exhibit #24, second volume, p. 104) So, a doubling of the sample size--with a doubling of the effort of the agency and provider in audit and litigation-- would produce only a 33% improvement in accuracy--an improvement in accuracy that almost invariably would come at the expense of the provider. Interestingly, noting the weak relationship between increases in the size of the sample and the size of the estimated overpayment, Dr. Huffer explained Petitioner's apparent largesse in undercharging providers 95% of the time and using a sample of merely 30 recipients: Petitioner can do more audits, using the same resources. (Id.) In other words, Petitioner could audit 60 recipients and, on average, increase the estimated overpayment by 33%--or it could audit only 30 recipients and, with the same resources, conduct a second audit of a different provider, which would go unaudited in the first example. Lastly, Dr. Kardon argued for stratification of the data to produce more accurate results. As noted above, under the estimation process used by Petitioner, more accurate results are not required for statistical validity or basic fairness. Stratifying the sampled data would likely be a case-specific exercise, leaving Petitioner open to challenges that it chose to stratify or chose specific stratification criteria in order to maximize overpayments. So, while properly selected stratification criteria would produce a narrower 95% confidence interval--and likely a higher lower limit--this would be an example of the medical adage that better is the enemy of good.18/
Recommendation It is RECOMMENDED that: Petitioner shall enter a final order determining the sampled overpayment as set forth in the Findings of Fact and directing a re-run of the statistical estimation process described in the FAR and this Recommended Order to determine the total overpayment; and If, after Petitioner determines the new total overpayment, the parties are unable to agree on costs and fines, Petitioner may remand the matter(s) to DOAH for further proceedings as to either or both of these issues, to which DOAH retains jurisdiction. DONE AND ENTERED this 23rd day of August, 2013 in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2013.
The Issue The issues in these consolidated cases are whether Respondent committed the violations charged in four Administrative Complaints and, if so, what is the appropriate discipline.
Findings Of Fact The Department has regulatory jurisdiction over licensed chiropractic physicians pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. In particular, the Department is authorized to file and prosecute an administrative complaint against a chiropractic physician after a probable cause panel (PCP) of the Board determines there is probable cause to suspect a licensee has committed a disciplinable offense, and provides direction to the Department on the filing of an administrative complaint. At all times material to the allegations in the Administrative Complaints, Dr. Aderholdt has been licensed to practice chiropractic medicine in Florida, having been issued license number CH 7814. He was first licensed on January 6, 2000. He practices in an office in Bradenton, Florida. Vax-D Therapy Three of the four Administrative Complaints involve patients of Dr. Aderholdt who received Vax-D therapy. The complaints are not directed to the provision of Vax-D therapy itself, or to any other treatments provided by Dr. Aderholdt. In all four cases, the patients generally spoke well of the chiropractic care they received from Dr. Aderholdt and the manner in which they were treated by him and his office staff. Vax-D therapy is a modality using the Vax-D model for decompression of the spinal discs and spinal structure. It is used to treat a range of issues associated with low back pain, including herniated, degenerated, and bulging discs. The Vax-D model is the originator of this technology; it was the first spinal decompression device. It is a large computerized moving table. It can be programmed to provide specific axial or distractive loading. The table moves in and out, pumping nutrients at the discs. Some research shows that it can actually pull discs away from where they are causing irritation on nerves and the spinal cord. The Vax-D model is FDA-cleared for use, and the literature supports its efficacy. The Vax-D model is an expensive piece of equipment. The price range for the initial purchase is between $100,000 and $150,000, with ongoing expense thereafter for maintenance and updates. Vax-D therapy is one of the most expensive forms of therapy, if not the most expensive, in the chiropractic profession. Other models coming out after Vax-D, as well as other tools, arguably can be used for similar purposes. However, as Petitioner’s expert readily acknowledged, Vax-D is the “Rolls Royce. It’s a really nice tool.” Vax-D spinal decompression is not covered by Medicare. In fact, when it comes to chiropractic care, Medicare has never covered anything besides spinal adjustments. Coverage for Vax-D treatment by private insurance companies is rare. In 2012, Dr. Salvatore LaRusso presented a study on spinal decompression to the profession, before the Federation of Chiropractic Licensing Boards, to inform state regulators of issues associated with Vax-D therapy. The one regulatory concern he reported was that some physicians were improperly billing Vax-D as a surgical decompression procedure, when it is plainly not surgery; it is an alternative to surgery, properly billed as a non-surgical decompressive tool or traction device. Dr. LaRusso’s study also made findings on the common methods of packaging and selling the service, and the range of charges observed. He found that most practitioners providing Vax-D therapy were selling the service as a cash item in their practice, with payment up front often required. The common model was to sell a package with a certain number of visits, with or without additional services included. Dr. LaRusso found that the per-visit charges ranged from $150 to $450, depending on the ancillary services added to the decompression. Dr. Shreeve does not have any issue with the use of or charges for Vax-D therapy. Dr. Aderholdt offers Vax-D therapy pursuant to a Vax-D Therapy Payment Plan agreement (Vax-D Agreement), which is comparable to the multi-visit packages that Dr. LaRusso’s study found to be common. After initial consultation, with intake forms, patient history, x-rays, evaluation, and examination, if a patient is determined to be appropriate for Vax-D therapy, Dr. Aderholdt will give his treatment recommendations and then turn the patient over to his office staff to address the financial aspects. If the patient wants to proceed with Vax-D therapy, the Vax-D Agreement will be reviewed and signed. Patients A.M., R.O., and P.D. each received Vax-D therapy, pursuant to signed Vax-D Agreements. The terms of the Vax-D Agreements for the three patients were the same. Patient B.O. wanted Vax-D therapy, but she was determined to not be an appropriate candidate for it. The Vax-D Agreements in evidence for Patients A.M., R.O., and P.D. provided that the named patient committed to 25 to 28 Vax-D therapy sessions, for $250.00 per session. The total amount that the named patient agreed to pay Dr. Aderholdt for 25 to 28 sessions was $5,500.00, which computes to an actual per-session cost of between $196.43 (for 28 sessions) and $220.00 (for 25 sessions). For the agreed price for 25 to 28 sessions, the Vax-D Agreement provided the following treatment package: at each session, the patient would receive 30 minutes of Vax-D therapy, 30 minutes of full range interferential electrical muscle stimulation (EMS), 15 minutes of hydro-massage therapy, and manipulation (adjustments) by the doctor if needed. The first set of x-rays was also included. Dr. Aderholdt requires an up-front payment for the Vax-D therapy package. For patients who want Vax-D therapy but need help coming up with the funds, Respondent’s office staff has put the patients in touch with Care Credit, which is a medical credit program. If a patient applies and is accepted, Care Credit will finance the cost without charging interest to the patient if the loan is repaid within one year. Care Credit apparently charges a fee to Respondent when credit is extended, similar to the fees charged to merchants by credit card companies for credit card purchases. No evidence was presented regarding Care Credit’s approval criteria or how widely this method is used. All that is known about Care Credit from the record evidence is that two patients who received Vax-D therapy applied for Care Credit and were approved. The other Vax-D patient charged half of the agreed price on a Visa credit card the first day of treatment, and charged the other half after 15 treatment sessions. Patient A.M. From the end of July 2013 to early February 2014, Dr. Aderholdt treated Patient A.M., then a 66-year-old female, for lower back pain and hip pain. Patient A.M. had tried other treatments and had seen chiropractors before, but reported that her pain kept getting worse. As shown by A.M.’s medical records, A.M. was first seen by Respondent on July 29, 2013. That day, A.M.’s intake form, patient history, and x-rays were taken and evaluated, and A.M. was examined by Respondent. Respondent then formulated A.M.’s initial treatment plan. Respondent recommended Vax-D therapy, along with chiropractic adjustments, EMS, and hydrotherapy. The initial treatment plan specified a two- session per day protocol for the first two to three weeks. On July 30, 2013, A.M.’s husband, J.M., signed the Vax-D Agreement (in the space for Patient Signature). J.M. did not remember signing the Vax-D Agreement, but both he and A.M. identified his signature on the Vax-D Agreement. A.M. was named in the agreement as the patient who committed to 25 to 28 Vax-D therapy sessions and agreed to pay $5,500.00 for those sessions. Respondent did not require full payment of the agreed price prior to treatment. Instead, he accepted payment of one- half ($2,750.00) of the Vax-D therapy package price, which was charged on A.M.’s or J.M.’s Visa credit card on July 30, 2013. In accordance with the initial treatment plan, Patient A.M. received two treatment sessions per day beginning July 30, 2013, in the morning and afternoon, for nearly three weeks. After 15 treatment sessions--more than half of the 25 to 28 sessions covered for $5,500.00--the balance of $2,750.00 was charged on A.M.’s or J.M’s Visa credit card. Between July 30, 2013, and February 3, 2014, Patient A.M. had more than 60 Vax-D therapy sessions--approximately 64 total sessions. A.M. initially testified with a fair degree of confidence that she thought she had about 30 treatment sessions, until she reviewed her prior statement made to Petitioner. A.M. testified that at every session, she received Vax-D decompression therapy, hydrotherapy, adjustments “up and down” her spine, and ice packs. She left every session feeling better, with relief from her pain. The relief was temporary, however; she said the pain would come back after a few hours. After 29 sessions, having received all of the treatment sessions covered by the Vax-D Agreement, A.M. started paying additional amounts for more Vax-D therapy and the other ancillary services that she continued to receive. For approximately 35 additional treatment sessions beyond those covered by the Vax-D Agreement, A.M. made seven additional payments in the total amount of $2,226.00. In all, A.M. paid $7,726.00 for approximately 64 Vax-D therapy sessions. Rounding down to an even 60 sessions, she paid an average of $128.77 per session. A.M. was covered by Medicare at the time of her treatment. She did not have any private “Medicare supplement” health insurance. At some point, the subject of Medicare coverage came up. The details of what was said, when, and to whom were not clearly established. The only fact clearly established was that Dr. Aderholdt did not bring up the subject. Patient A.M. testified that Dr. Aderholdt did not talk to her about payment when she first visited, but that she and J.M. asked him, “Does Medicare cover this,” and he said, “Yes.” J.M. said that Dr. Aderholdt did talk to them about payment, saying “we need to do so many treatments and we should pay so much money.” J.M. said that they asked, “Will Medicare take care of it?” Dr. Aderholdt answered, “Yes, we will bill Medicare.” J.M could not say whether he asked about billing Medicare before or after he signed the Vax-D Agreement, since J.M. did not remember signing the Vax-D Agreement. When Dr. Aderholdt was asked if he told A.M. her treatments would be covered by Medicare, he answered, “No, I don’t believe I did, no.” As an interesting contrast, Patient R.O. testified that Dr. Aderholdt told him Medicare would not cover treatment under the same Vax-D Agreement; Dr. Aderholdt does not believe he made that statement, either. In the middle of the spectrum, Patient P.D. testified that Respondent never said anything to her about insurance coverage or financial arrangements. He would only talk about treatment, turning P.D. over to the office manager or billing person to address the financial issues. This version is consistent with Respondent’s testimony that he does not address “the money thing” with patients. Instead, he said he assesses x-rays, takes patient histories, performs the evaluation and examination, and ultimately formulates the recommended treatment plans, whether Vax-D or something else. Then he turns the treatment plans over to his staff to address the financial issues with the patients. A.M. and J.M. did not demonstrate a clear and certain recollection of what they asked Dr. Aderholdt or exactly what he answered. Indeed, both J.M. and A.M. could not remember most every other detail about A.M.’s treatments, often confidently stating details that were shown to be wrong by more than a little, including how many treatment sessions, and how much was paid. For example, Patient A.M. initially reported that she had paid $13,179.00 to Dr. Aderholdt, when the total was $7,726.00. The undersigned cannot find--without hesitancy--that Dr. Aderholdt made any representation to J.M. and A.M. regarding Medicare coverage before J.M. signed the Vax-D Agreement by which A.M. committed to the Vax-D therapy package. Dr. Shreeve made the point well that it is difficult to resolve this kind of he said-she said conflict, although he made the point while confusing Patient A.M. (who claimed Respondent said there would be Medicare coverage) with Patient R.O. (who claimed Respondent said there would not be Medicare coverage), in the following exchange: Q: With Patient RO, what’s your understanding of what Dr. Aderholdt told him regarding Medicare reimbursements? A: Counselor, I’m going to tell you that the investigative record shows that the patient stated that Aderholdt told him that they would be paid, is what my recollection is. And, yet, that’s not something that weighs heavily on my mind because I wasn’t there. This becomes a “he said, she said.” He said he didn’t; he said he did. I can’t get into that fight. That’s not an issue for me. (Jt. Ex. 12 at 35). (emphasis added). Respondent (or his staff) may have told A.M. and J.M., when they asked about Medicare, that the office would complete and submit the Medicare claim forms. Respondent (or his staff) may have told A.M. and J.M., when they asked, that Medicare proceeds paid on the Vax-D therapy package would be refunded. But it would be unreasonable, on this record, to find that Respondent misrepresented that Medicare would provide full coverage, or that Respondent schemed to induce A.M. and J.M. to sign up for Vax-D by guaranteeing that Medicare would pay back everything, when Respondent did not even bring up the subject.8/ The Administrative Complaint alleges that on one or more occasions, Respondent did not submit Medicare claims for Patient A.M.’s treatment. Petitioner has apparently abandoned this allegation; its PRO has no proposed finding identifying any dates of service for which claims were not submitted. The Medicare claim forms for Patient A.M. were compiled by Petitioner’s counsel for use in taking Respondent’s deposition, and are attached as deposition exhibit 2. The evidence is difficult to cull through, as there are 84 separate pages of claims and they are not in chronological order; they start out in chronological order, but then jump forward two months, then continue jumping around on dates, back and forth and back again. As best can be determined, all service dates shown in Patient A.M.’s medical records appear to be accounted for by corresponding claim forms. It appears that one claim form may have a clerical mistake, identifying the date of service as August 3, 2013, when there was no treatment session that day; the actual service date may instead be September 4, 2013, which is the date the claim form was submitted. The Medicare claim forms in evidence demonstrate that claim forms for A.M.’s treatments were regularly submitted, either on or very shortly after the dates of service. The evidence is insufficient to prove that Respondent did not submit Medicare claims for Patient A.M.’s treatment.9/ The Administrative Complaint contains no allegations regarding the disposition of the Medicare claims, although it does allege that Patient A.M. received no reimbursement from Respondent for Medicare payments. Petitioner’s expert seemed to be under the impression that Respondent received Medicare payments, because he criticized Respondent for not providing reimbursement to Patient A.M. Respondent testified that he has received no payments from Medicare for A.M.’s treatments, and Petitioner acknowledges in its PRO that Medicare has not made payments to Respondent. Acknowledging that the Administrative Complaint allegation has not been established, Petitioner instead proposed a finding (not alleged in the Administrative Complaint) that all of A.M.’s Medicare claims submitted by Respondent were rejected and payment was denied. No evidence was offered to prove the actual disposition of the 84 pages of Medicare claims submitted for A.M.’s treatments. Instead, the only record evidence of Medicare adjudications on any claims for A.M. is a group of explanation of benefits forms (EOBs) attached to a March 6, 2014, letter from Patient A.M. to Petitioner’s investigator, which is a deposition exhibit. Patient A.M. identified the small handful of EOBs attached to the March 6, 2014, letter as EOBs she had at that time, reporting on the disposition of Medicare claims submitted by other providers during the same time period as her treatments with Respondent. The EOBs reported, as to each claim, whether the claim was covered in whole or in part; and, if covered, what amount was paid, or, if not, why not. There were no EOBs for claims submitted by Respondent’s office. Patient A.M. was not asked for, and did not offer, any additional EOBs at her deposition. If, in fact, all of the Medicare claims submitted by Respondent were rejected and payment denied, then there would be a stack of EOBs explaining why each claim was denied. On this record, the evidence is insufficient to make any finding as to the outcome of the Medicare claims submitted for Patient A.M.’s treatment. There is no evidence proving whether the claims were denied, approved, or simply never acted on by Medicare. A separate allegation in the Administrative Complaint is that Patient A.M. requested copies of the Medicare claim forms submitted by Respondent’s office for her treatment. Patient A.M. said that she made verbal requests to Respondent’s office staff for the Medicare claims on more than one occasion, and the parties stipulated that Patient A.M. made these requests. Respondent’s office should have responded by giving Patient A.M. copies of the Medicare claims. Dr. Aderholdt said that he was not aware that Patient A.M. had requested copies of her Medicare claim. But it is his responsibility to ensure that his staff promptly responds to requests by patients for insurance claim forms. In the course of Petitioner’s investigation, the Medicare claim forms for Patient A.M. were provided to Petitioner (according to the investigator’s report, on May 16, 2014). It is unknown whether a set of the claim forms was provided to A.M. at that time. She is entitled to a copy of the claim forms if she has not already been given a set. Respondent should have verified that Patient A.M. has received the claim forms she requested, or, if not, provided them to her. Finally, the Administrative Complaint alleges that on the Medicare claim forms for A.M.’s treatments on August 6, 2013, and December 11, 2013, Respondent utilized Current Procedural Terminology (CPT) code 98941, which is the code for adjustments to three or four regions of the spine. However, Respondent’s Subjective, Objective, Assessment and Plan notes (referred to as SOAP notes) for those dates identify spinal adjustments to L3, L4, and L5, which are in a single region--the lumbar region. Beyond the SOAP notes, however, Dr. Aderholdt’s notes for Patient A.M.’s morning session on August 6, 2013 (there were two sessions that day), show multiple adjustments, not only to the lumbar region, but also, to the sacrum and ilium. Dr. Aderholdt’s notes for December 11, 2013, show multiple adjustments to the thoracic, lumbar, and sacrum regions. At hearing, Dr. Shreeve identified the five spinal regions as follows: “a region would be considered cervical, thoracic, lumbar, sacrum, ilium.” (Tr. 106, lines 21-22). Based on his testimony, and considering all of Patient A.M.’s medical records, there were multiple adjustments to three spinal regions on both days identified in the Administrative Complaint.10/ The Administrative Complaint has no other factual allegations regarding CPT code issues in connection with Patient A.M.’s treatment. The complaint pointedly identified one specific CPT code that was used on two specific dates, but was allegedly not supported by SOAP notes for either date. At hearing, Dr. Shreeve attempted to expand the factual allegations regarding CPT coding issues by questioning other CPT codes shown on A.M.’s patient ledger. Dr. Shreeve’s criticism was improper, not only because he strayed beyond the allegations in the Administrative Complaint, but also, because the criticism was based on his misunderstanding of what Dr. Aderholdt’s patient ledgers portray. In particular, Dr. Shreeve was critical of CPT code 99212 entries (for focused patient examinations) on A.M.’s patient ledger, without use of modifier code -25. He said that these repeated entries of CPT code 99212 were inappropriate without use of modifier code –25, to indicate they should not be considered for payment, because they are redundant with other CPT treatment codes that include examination. Dr. Shreeve should have reviewed the actual Medicare claim forms to look for the modifier codes, because the CPT code 99212 entries do, in fact, add a modifier of -25. The modifier code conveys information to the third-party payor, as Dr. Shreeve acknowledged, regarding whether or how payment should be made. The modifier codes need to be used, when appropriate, on the Medicare claim forms, and they were used just as Dr. Shreeve said was appropriate. The modifier codes do not appear on Dr. Aderholdt’s patient ledgers because they are not claim forms sent to third- party payors, nor are they bills sent to patients. Instead, a patient ledger, as used in Respondent’s practice, is an internal practice management tool to account for and track everything associated with treating patients: how many examinations, how many adjustments, how many Vax-D treatments, how many ice packs, and so on. Dr. LaRusso explained that this is a perfectly reasonable use of patient ledgers, and is a common practice among physicians. The usage statistics are analyzed for practice management, for such purposes as making changes in the services or treatments and stocking supplies. Dr. Shreeve admitted that he assumed Respondent’s patient ledgers reflected the exact CPT coding used on insurance claims and bills sent to patients. The evidence refuted that assumption. Modifier codes were used on the Medicare claims. And Dr. Shreeve admitted he saw no evidence that Respondent’s patient ledger for A.M. was ever sent to her as a bill, or that any patient ledgers were ever sent to any patients as bills. Dr. Shreeve also admitted that there is no standard for patient ledgers, much less a regulation mandating the contents and use of patient ledgers. As he put it, he could go to 1,000 chiropractic offices and find 1,000 different variations in what is called a patient ledger. Dr. Shreeve would like to see a standard adopted for “patient ledgers,” but his aspiration simply underscores that there is no standard now; Respondent’s practices cannot be judged against or held to conform to a non-standard, non-regulation.11/ In somewhat stream-of-consciousness fashion, untethered from the Administrative Complaint, Dr. Shreeve interjected a number of other comments about Dr. Aderholdt’s practices related to Patient A.M., such as the adequacy and legibility of his medical records and the quality of x-rays. He raised questions about Dr. Aderholdt’s compliance with trust accounting requirements in connection with payments for A.M.’s Vax-D therapy, and Dr. Aderholdt’s compliance with obligations in connection with Petitioner’s investigation. None of these factual matters were alleged in the Administrative Complaint, and none of the corresponding statutory or rule provisions implicated by Dr. Shreeve’s open-ended commentary were charged in the Administrative Complaint. No findings can be made on matters not alleged, and violations not charged, in the Administrative Complaint. Moreover, there is no competent evidence fleshing out any of these matters, because they were not alleged, charged, or identified in the Joint Pre-hearing Stipulation as issues of fact or law to be litigated. Patient B.O. Between April and June 2013, Respondent treated B.O., then a 78-year-old female, for back and neck pain. B.O. is married to R.O. They both went to Respondent’s office on the same day for their initial consultation. B.O. completed intake forms, had x-rays and patient history taken, and was examined by Respondent, similar to R.O. Whereas R.O. was determined to be a candidate for Vax-D therapy, B.O. was not. Unlike for the Vax-D therapy plan, there was no protocol calling for a certain range of sessions needed and no set payment correlated to a planned number of sessions for B.O.’s recommended treatment plan that called for adjustments, hydrotherapy, and ice packs. At the time of her treatment, B.O. had Medicare coverage and a “Medicare supplement” insurance policy through Horizon Blue Cross and Blue Shield of New Jersey (Horizon). As was his practice, Respondent had B.O. address the financial aspects of the treatment he recommended with his office staff. Upon review of B.O.’s insurance coverage, B.O. was informed by Respondent’s staff that Horizon would probably cover the cost of her treatment that exceeded her copay. The staff determined that, although it was possible Horizon would apply its lower in-network copay of $15.00 per visit, there was no guarantee that Horizon would not consider Respondent out-of- network, with a copay of $25.00 per visit. Therefore, B.O. was charged $25.00 per visit. She paid that amount per visit, although sometimes she did not pay at all on one or more visits, and would catch up at a subsequent visit. B.O. received treatments on 23 occasions. B.O. experienced some relief from her pain as a result of those treatments.12/ For those 23 visits, B.O. paid a total of $575.00 in copays. After B.O. had stopped going to Dr. Aderholdt for treatment, Horizon determined that its lower in-network copay of $15.00 per visit applied. The total copay amount should have been $345.00 for 23 visits. The difference is $230.00. The Administrative Complaint alleges that Respondent “overcharged” B.O., misrepresenting that her copay was the out- of-network charge, to exploit her for financial gain. This allegation was not proven. Respondent made no representation. The representations of his staff, as described by B.O., were not shown to be the product of anything other than a good faith attempt to determine the undeterminable details of insurance coverage. There is no evidence to support the allegation that B.O. was intentionally charged more than she should have been charged, based on the information available at the time. On this point, the expert testimony was in lockstep: figuring out insurance coverage details is a “nightmare.” It is virtually impossible, according to both experts, to obtain sufficient information to make a correct determination for a new patient on such issues as in-network versus out-of-network, because, as they agreed, the insurance coverage details keep changing. “Now, you can be in network today and they can decide you’re out of network tomorrow. And then you can be out of network and then they decide you’re in network, and they don’t tell you.” That’s--that makes no sense.” (Dr. Shreeve, Tr. 131). In fact, when asked how he determines if a patient is out-of-network, Dr. Shreeve responded: “Counselor, I don’t. I leave that to the patient. I run a cash practice. I give them a bill. We’ll help them fill out a health insurance claim form, if they need it. But they pay us when they receive the service.” (Tr. 130). The Administrative Complaint also alleges that Respondent billed Horizon for medical visits by Patient B.O. that did not occur. There is no credible evidence of this allegation; the evidence is to the contrary. Petitioner contends in its PRO that Respondent billed B.O. for treatments received on June 3, 7, 11, and 14, 2013, when B.O.’s appointments were cancelled on those days. The record citations offered by Petitioner fail to support this proposed finding. Instead, B.O.’s bank records directly refute the proposed finding, and corroborate Dr. Aderholdt’s treatment notes and the SOAP notes that detail B.O.’s treatment on those four days.13/ In addition to B.O.’s bank records, B.O.’s patient records include the “merchant copy” receipt for a debit card payment on June 14, 2013. The receipt shows that a $50.00 payment was made at Dr. Aderholdt’s office on June 14, 2013, and it bears the clear signature of B.O. B.O.’s accusation that she did not go to Respondent’s office for treatment on these four days is belied by the documentation that she personally went there and paid the copay charges for her treatments on those four days ($50.00 check on June 7 for two copays; $50.00 debit card payment on June 14 for two copays). Petitioner’s own expert, Dr. Shreeve, conceded that this evidence refutes B.O.’s accusation that her insurer was billed for treatment on four days when she did not go to Respondent’s office for treatment. A separate problem proving this allegation (besides B.O.’s false accusation) is that there is no evidence to prove what was billed to Horizon for B.O.’s treatments. There is no evidence in the record of claims submitted by Respondent’s office to bill Horizon for B.O.’s treatment. In pre-hearing discovery proceedings, shortly before hearing, Petitioner sought to compel production of Medicare claim forms or Horizon claim forms submitted by Respondent’s office. However, Petitioner declined an Order compelling production that was offered along with additional time to pursue this evidence. Instead, Petitioner chose to go forward with the hearing on the basis that there were no such records (as Respondent represented). Another allegation in the Administrative Complaint is that B.O. was not given a copy of her medical records upon request. B.O. testified that she made several verbal requests to two staff persons at Respondent’s office, Lisa14/ and Amanda, for her medical records. She said she was given a copy of her patient ledger, but nothing more. B.O. and R.O. then mailed a letter addressed to Respondent that they jointly wrote on December 31, 2013, requesting their medical records and updated patient ledgers. Respondent said that he was never informed of any verbal requests for records, nor did he believe he ever saw the letter that was mailed to him. Indeed, B.O. handwrote on her file copy of the letter, provided to Petitioner’s investigator: “Letter to Dr. who probably didn’t see – no response to date.” The evidence is clear and convincing that Respondent has failed in his obligation to promptly respond to B.O.’s requests for medical records. However, there is no evidence that Respondent was aware of the requests before the investigation and intentionally refused to comply, or that he ever instructed his office staff to ignore such requests. But even though the evidence only establishes that Dr. Aderholdt’s staff failed to promptly respond to requests for medical records, the obligation to ensure these patient requests are promptly addressed remains Dr. Aderholt’s responsibility. It is clear that his office procedures require serious overhauling, as both Dr. Aderholdt and his expert acknowledged. It is unknown if B.O.’s medical records were provided to her when they were produced by Respondent’s counsel during the investigation.15/ In her deposition, when B.O. was asked if she had gotten the records from Respondent’s office yet, she said “not from them.” Among other remedial steps in the aftermath of this proceeding, if B.O. and R.O. do not already have copies of their medical records and updated patient ledgers as they requested long ago, Respondent must provide them. It is concerning that he did not come to this hearing with proof that he had provided B.O. and R.O. with the records they had requested or confirmed that they already had a copy. Lastly, the Administrative Complaint alleges that Respondent received payment from Horizon for B.O.’s treatment, but has not provided a refund. There is insufficient evidence to determine whether B.O. is entitled to a refund. The only information regarding the extent to which Horizon covered B.O.’s treatment is the information in the EOBs issued by Horizon after B.O.’s treatment ended, identifying amounts that would be covered and reporting payments to Respondent. For B.O.’s treatments, Horizon paid $1,770.00 to Respondent. What is unknown is whether B.O. owed more for her treatments than what Horizon paid. Dr. LaRusso reasonably opined that the receipt of an insurance payment would not generate an obligation for a patient refund if the payment is applied to a balance due by the patient. No evidence, methodology, or calculation was offered to prove that after Horizon’s payment was applied, a refund was owed to B.O. As noted previously, Respondent’s “patient ledger” is an internal practice management tool that does not function as an accounting of what a patient or insurance company owes. However, the patient ledger for B.O. reflects a total amount of $5,575.00 in services provided to B.O. Application of the Horizon payments of $1,770.00 and B.O.’s payments of $575.00 would reduce the patient ledger amount by less than half. Again, this is not to say that Patient B.O. owes the remaining patient ledger amount, but it is at least a point of reference suggesting the possibility that the Horizon payment did not cover all of B.O.’s treatment costs. Viewed another way, all B.O. paid for 23 treatment sessions was $25.00 per visit. B.O. was informed at the outset that she would not be charged for the full treatments she would be getting, because Horizon would “probably” cover her treatment except for the copay. Although she paid $230.00 more than the amount Horizon ultimately applied as copays, if B.O. owed $230.00 or more for treatment provided that was not covered by Horizon’s payment, then no refund would be due. Patient R.O. As noted previously, Patient R.O. is Patient B.O.’s husband. Like B.O., R.O. was treated by Respondent from April through June 2013. R.O., then a 64-year-old male, sought treatment for severe back pain. R.O. completed the intake form, had x-rays and patient history taken, provided detailed records of recent treatments and surgeries (including back surgery), and was evaluated and examined by Dr. Aderholdt. Dr. Aderholdt determined that R.O. was a candidate for Vax-D therapy. Respondent’s then-office manager, Lisa, took over to address the financial aspects of the recommended treatment. R.O. informed Respondent’s staff that he could not afford to pay $5,500.00 up front. R.O. was given contact information for Care Credit. He called Care Credit, then submitted an application. R.O.’s application was approved, and Care Credit agreed to finance the cost of Vax-D therapy without charging interest if the amount was paid off within one year. R.O. accepted the loan, and the result was that Care Credit paid Respondent $5,500.00 minus a fee absorbed by Respondent, similar to fees by credit card companies charged to merchants for sales using their credit cards. R.O. testified that he has paid off the Care Credit loan. R.O. signed the Vax-D Agreement, by which he committed to 25 to 28 Vax-D therapy sessions at $250.00 per session, for a total payment amount of $5,500.00. His Vax-D Agreement included the treatment package detailed in paragraph 13 above. R.O. testified that during the time of his treatment by Respondent, he had health insurance coverage with Medicare and Horizon (the private Medicare supplement insurance coverage that B.O. also had). He also had Tricare for Life, but said that that coverage would not have been applicable. R.O. recalled that Respondent told him that none of his insurance plans would cover the Vax-D therapy. As previously noted, Respondent does not believe he discussed insurance coverage with R.O., as that is not his standard practice. Regardless, R.O. had no expectation of insurance coverage. R.O. found the Vax-D therapy helpful in relieving his pain. He felt better after every treatment and wanted to continue. Rather than stopping after the 25 to 28 sessions included in the Vax-D Agreement, R.O. had a total of 40 treatment sessions. However, at some point, Respondent’s office manager informed R.O. that he needed to pay for additional sessions. R.O. said he could not afford to pay more, and discontinued treatment. After R.O. discontinued his treatments, he received an EOB from Horizon, stating that Horizon had paid a total of $5,465.84 in claims for both R.O. and B.O. According to the EOB summary, as noted above, $1,770.00 was paid to Respondent for treatments to B.O. The rest--$3,335.84--was paid to two providers for services to R.O. (A minor discrepancy is noted, in that Petitioner’s PRO stated that $3,335.00 was paid to Respondent for treatments to R.O.; however, the EOB reports that $10.84 was paid to a different provider (“Ga Emergency Phys”) for services provided to R.O. Thus, the actual total payment to Respondent for R.O.’s treatment was $3,325.00). The total amount paid to Dr. Aderholdt for R.O.’s 40 Vax-D therapy sessions, including Horizon’s payments, was $8,825.00, an average of $220.63 per session. R.O. believes the insurance payment should be paid to him as reimbursement for part of the $5,500.00 he paid. But that payment was for 25 to 28 sessions. The insurance payment was reasonably applied to the additional amounts due for R.O.’s sessions that were not covered by the $5,500.00 payment. No reason was offered as to why Dr. Aderholdt should not have applied the insurance payment to charges owed for the 12 sessions that were not covered by the Vax-D Agreement. Chiropractic physicians are not required to provide free care. Dr. Shreeve admitted that he does not provide chiropractic care to patients for free. As found above with respect to Patient B.O., R.O. joined B.O. in submitting a written request to Respondent for their medical records and updated patient ledgers by letter dated December 31, 2013, although Respondent said that he did not see the letter that was mailed to him. The findings above with respect to B.O., as one party to the joint written request, apply with equal force to R.O. as the other party to the joint written request. The Administrative Complaint also included an allegation that Respondent failed to practice chiropractic medicine at an acceptable level of skill, care, and treatment, charged as a violation under section 460.413(1)(r). This was the only charge in any of the Administrative Complaints that was based on the care provided by Dr. Aderholdt. The allegation was that adjustments indicated as having been performed on R.O. were physically impossible. However, at hearing, Petitioner’s expert retreated from the allegation, agreeing that the procedure in question was plausible. As a result of his concession, Petitioner’s PRO abandoned the charge, stating, “Petitioner is no longer pursuing discipline for the alleged violation of section 460.413(1)(r).” Pet. PRO at 4. Patient P.D. In March and April 2013, Respondent treated Patient P.D., then a 62-year-old female, for back pain. After completing intake forms and patient history, Patient P.D. was x-rayed, then examined and evaluated by Dr. Aderholdt, who determined that P.D. was a candidate for Vax-D therapy. Dr. Aderholdt turned P.D. over to his then-office manager, Lisa, to address the financial aspects of his recommended treatment plan. P.D. confirmed that Dr. Aderholdt never discussed financial issues or insurance with her. P.D. signed the Vax-D Agreement on March 8, 2013, the same day that she completed a Care Credit application that was approved for $5,500.00. P.D. paid off the Care Credit loan in 11 months, at $500.00 per month, so the loan was interest-free. At the time of the treatments, P.D. was not yet eligible for Medicare. She had insurance coverage through Blue Cross Blue Shield of Michigan (Blue Cross). P.D. said that Lisa, the office manager, told her that she would file claims with Blue Cross. Thereafter, P.D. had 33 Vax-D therapy sessions. P.D. was pleased with the Vax-D therapy. She found it effective in relieving her pain. P.D. learned at some point from Blue Cross that several months after her treatment ended, Blue Cross paid Respondent for a portion of P.D.’s treatment. No evidence was offered to prove the details of the Blue Cross coverage, such as EOBs explaining what was covered and what was not. P.D. said that she contacted Respondent’s office and spoke with staff multiple times before Respondent provided her reimbursement in the full amount of the Blue Cross payment. Respondent refunded $946.45 on April 8, 2015, and $1,046.45 on April 10, 2015, for a total of $1,992.90. P.D. acknowledged that she has been fully reimbursed and is owed nothing further. The Administrative Complaint includes an allegation that Respondent improperly utilized CPT “billing codes” 99204 and 99212 for P.D.’s first session on March 6, 2013. Dr. Aderholdt admitted that for March 6, 2013, P.D.’s patient ledger incorrectly lists both CPT code 99204 (for a comprehensive examination for a new patient), and CPT code 99212 (for a focused examination for an established patient). The first CPT code should have been the only one entered on this day. The second code was entered by mistake. Although Dr. Aderholdt admitted the error made in the patient ledger, there is no evidence that the erroneous CPT code was “utilized” for billing purposes. No evidence was presented that both CPT codes were submitted by Respondent in a claim for payment to Blue Cross (and Petitioner did not charge Respondent with having submitted a claim to P.D.’s insurer for a service or treatment not provided). No evidence was presented of the actual claims submitted to Blue Cross. No evidence was presented to show that P.D. was ever sent a bill utilizing the referenced CPT codes. The error recording an extra CPT code on P.D.’s patient ledger might throw off Respondent’s internal practice management statistics, but there is no evidence that the admitted CPT coding mistake on the patient ledger was repeated in any claim or bill submitted to anyone. Expert Opinions Considering All Four Cases Both Dr. Shreeve and Dr. LaRusso offered their overall opinions, taking the four cases as a whole. Dr. Shreeve’s Oinions Dr. Shreeve testified that, while he might be more understanding of issues he saw in each individual case, “I’ve got four cases that I reviewed together. I received them all at once. So my view on each individual case might be seen as a little more tolerant of something I saw. But when it becomes repeated, it becomes less understanding [sic].” (Tr. 109). In forming his opinions, Dr. Shreeve relied on allegations that have not been proven, his own extension of the Administrative Complaint allegations to add other concerns about use of CPT codes (which were also shown not to be valid concerns), and his observations about a litany of matters nowhere mentioned or charged in the Administrative Complaints. Dr. Shreeve made clear that he elevated his opinion from concerns about sloppy office practices to fraud, misrepresentation, and patient exploitation, because of matters that were either unproven, not alleged or charged, or both. For example, he injected the concern, shown to be based solely on patient ledgers, that CPT code 99212 appeared many times without the -25 modifier when used in conjunction with an adjustment CPT code. Starting with A.M.’s case, he complained of the repeated use of CPT code 99212 without a -25 modifier, when CPT code 98941 (adjustments) was used for the same office visit. He said, “If we were going to bill 99212, an E/M code with that, we would use a modifier of -25.” (Tr. 110). As previously found, however, Dr. Aderholdt did use the -25 modifier with every entry of CPT code 99212 in the Medicare claim forms. In explaining how his opinion was affected by his misimpression from the patient ledgers that CPT code 99212 was not used with the -25 modifier, he said: This is repeated over and over during the record. If it were one off, it occurred in one place in the ledger or on a form, you know, everybody is human. They can make a mistake. If it is the trend, that becomes not a mistake. That becomes, I’m doing the wrong thing. And if I’m doing it over and over again, and I’m then billing for one service two times, two different ways, and I’m – I hope to get paid for it. Then that’s where I start to see the trend of exploiting the patient for financial gain. (Tr. 111). Dr. Shreeve further elevated the significance of not seeing modifiers with the evaluation codes in the patient ledgers, when he spoke about R.O.’s case: If [Dr. Aderholdt] did both codes [for evaluation and adjustments] every visit, if he did, which is not normal, we would have to have a modifier, the -25, to tell us it’s a reduced service because it’s duplicative. A modifier was never present in any record I saw on this patient or any other patient of the records of Dr. Aderholdt. So misusing the codes. This is not standard of care that we expect, and this appears to me exercising influence on the patient to exploit them for financial gain. That’s what it looks like to me. By the time we’re through with the third case that’s what I see. (Tr. 148). Not only was this CPT coding issue not alleged in any of the four Administrative Complaints, but it is a false accusation. If Dr. Shreeve did not see a single use of CPT code 99212 with the -25 modifier in any record he saw, then he did not look at the records very carefully. As found above, the only evidence of actual claims submitted to any third-party payor--the Medicare claim forms for Patient A.M.--shows that CPT code 99212 was never used without the -25 modifier. But Dr. Shreeve only looked at the patient ledgers for modifiers. As also found above, the only two CPT coding issues that were alleged (improper use on two specified dates of CPT code 98941 for adjusting three or four spinal regions for Patient A.M.; and improper use on Patient P.D.’s first day of service of two patient examination CPT codes for billing purposes) were not proven. Dr. Shreeve also relied on the allegation that Patient B.O.’s insurance carrier was billed for treatment that was not provided. He pointed to “notes” written (by B.O.) on the patient ledger stating that the patient cancelled, but CPT codes were entered for treatments that day. He concluded: That’s blatant. I don’t have a way to explain that away. To me that absolutely says, I billed for something that I didn’t do. That’s fraud. Because that’s with intent. That’s not an accident. (Tr. 137). When Dr. Shreeve was shown the $50.00 debit card receipt signed by Patient B.O. on June 14, 2014, he quickly retreated: “That would indicate that they were there, even though they said they were not. So my apologies for that. It’s good to clear that up.” (Tr. 183). Later, he added that the June 14, 2013, payment of $50.00 was for that visit and the prior visit on June 11, 2013. He explained that this was consistent with Respondent’s daily notes, which identified treatments for each visit and also logged the copay charges by visit and B.O.’s periodic payments. Dr. Shreeve did not explain how he would alter his overall opinion after conceding that what he characterized as blatant fraud by Dr. Aderholdt was actually a false accusation by the patient. In formulating his overall opinion that what otherwise might be viewed as mistakes or sloppy office practice were elevated in his mind to fraud and exploitation, Dr. Shreeve also relied heavily on matters that were neither alleged nor charged in the Administrative Complaints, and, as a result, were not fleshed out with competent evidence in the record. Dr. Shreeve repeatedly alluded to issues regarding trust accounting requirements in statute and rule. The four Administrative Complaints that were issued as directed by the PCP on June 19, 2018 (as noted on the Administrative Complaints), contain no allegations related to trust accounting practices. The PCP-authorized Administrative Complaints do not charge Dr. Aderholdt under the trust accounting statute, section 460.413(1)(y), or the trust accounting rule, Board rule 64B2- 14.001. To the extent Dr. Shreeve’s perception of trust accounting issues contributed to his opinion that these four cases rise to the level of fraud and patient exploitation, that was error, and his opinion must be discounted accordingly. Likewise, Dr. Shreeve gratuitously offered critiques of Dr. Aderholdt’s medical records, including complaints about the handwriting, complaints about x-ray quality, questions about the adequacy of justifications for the course of treatment, and suggestions regarding how he would rewrite SOAP notes. Again, the Administrative Complaints are devoid of allegations directed to the quality or adequacy of Respondent’s medical records, and they are devoid of charges under the medical records provision in section 460.413(1)(m) and the corresponding medical records rule, Board rule 64B2-17.0065. To the extent these critiques contributed to Dr. Shreeve’s opinion that these four cases rise to the level of fraud and patient exploitation, that, too, was error, and his opinion must be discounted accordingly. Dr. Shreeve also relied on what he characterized as Respondent’s failure to respond, or failure to respond quickly enough, to investigative subpoenas. He made it clear that his opinion was greatly influenced by his perception that Respondent intentionally failed to meet his obligations in responding to the investigations: I think this is absolute fraud. The doctor is not wanting to do the right thing, has flagrant disregard for the law, and the statutes and the rules for the profession, for the Department of Health by not responding. (Tr. 153). Despite Dr. Shreeve’s view that he thinks it is “very clear” that Dr. Aderholdt did not respond timely during the investigation, the timeline and details of the investigation were not established by competent evidence; there is only hearsay evidence addressing bits and pieces of that history, with huge gaps and many questions about the reasons for those gaps (if the reasons why investigations were so protracted was relevant). But the details of the investigations are not laid out in the evidentiary record because the Administrative Complaints do not contain factual allegations related to Dr. Aderholdt’s actions or inactions during the investigation process, nor are there any charges predicated on what was or was not done during the investigation process. Either these matters were not presented to the PCP in June 2018 for inclusion in the Administrative Complaints, or they were presented and not included. Either way, Dr. Shreeve’s perception regarding whether Dr. Aderholdt met his legal obligations in responding to the investigations cannot be injected now. It was improper for Dr. Shreeve to consider, and give great weight to, circumstances that were neither alleged nor charged in the PCP-authorized Administrative Complaints. As found above, the proven allegations are that Respondent failed to provide Patient A.M. copies of the claims submitted to Medicare for her treatment (although she may have them now); and Respondent failed to provide copies of the medical records of Patients R.O. and B.O. upon their joint written request (although they may have them now). Only by considering allegations that were not proven and by injecting matters not alleged or charged was Dr. Shreeve able to characterize these four cases as involving the same problems again and again. In terms of the proven allegations, however, the only duplicative finding is with respect to the husband and wife team, in that Respondent did not meet his obligation to promptly respond to their joint request for medical records and updated patient ledgers. The matters considered by Dr. Shreeve beyond the allegations and charges in the Administrative Complaints were also improperly used by Dr. Shreeve to buttress his view that two disciplinary actions against Dr. Aderholdt based on facts arising in 2005 and 2006, raised “the same or similar” issues. Dr. Shreeve’s attempt to draw parallels between the prior actions and these four cases was unpersuasive. Dr. LaRusso disagreed with the characterization of the two prior actions as similar to the issues presented here. Dr. LaRusso’s opinion is credited. A comparison of the allegations, ultimately resolved by stipulated agreement in two 2008 Final Orders, confirms Dr. LaRusso’s view in this regard. The first disciplinary action was based on Respondent’s treatment of one patient in February 2005. An administrative complaint alleged that Respondent failed to complete intake forms, take the patient’s history, and conduct a sufficient examination to support the diagnosis. Respondent was charged with violating section 460.413(1)(m) by not having adequate medical records. The same facts gave rise to a second count of violating section 460.413(1)(ff) (violating any provision of chapters 456 or 460, or any rules adopted pursuant to those chapters), through a violation of rule 64B2-17.0065, which elaborates on the requirements for adequate medical records. There is no repetition of these statutory and rule violations charged in any of the four Administrative Complaints at issue here. The prior administrative complaint also alleged that Respondent billed the patient he saw in 2005 for neuromuscular reeducation and therapeutic exercises, when neither Respondent’s notes nor the SOAP notes reflected those services. In these cases, the only allegation regarding discrepancies between billing records and physician/SOAP notes is the allegation as to Patient A.M. that on two dates, Respondent used the CPT code for adjustments to three or four spinal regions, whereas the SOAP notes reflected adjustments to only one region. The prior disciplinary action supports the findings above that Respondent’s notes must also be considered, in addition to the SOAP notes, to determine what services A.M. received on those two days. A different kind of billing discrepancy allegation in Case No. 18-4485 is the claim that Respondent billed B.O.’s insurer for treatment on days on which services were allegedly never provided. This allegation was not proven, as found above. B.O.’s accusation that Respondent falsely charged for treatment on several days when no treatment was provided was itself proven to be a false charge. Perhaps Dr. Shreeve was thinking of this allegation, based on B.O.’s false charge, when he characterized the 2005 incident as involving the same or similar problems that he saw here. The allegation in the prior complaint was that the patient was actually billed for services not provided, and a refunded was ordered. At first, Dr. Shreeve believed the same was true in B.O.’s case. However, he later retreated and acknowledged that B.O. had not been truthful in her accusation. The only other allegation of a billing discrepancy in any of the four cases at issue was not a billing discrepancy at all, but rather, a CPT coding error on P.D.’s patient ledger that was not billed to anyone. As Dr. Shreeve noted, in the prior disciplinary action, Respondent agreed to be put on probation with a requirement that he practice with a monitor. Dr. Shreeve explained that the monitor would have worked with Respondent “to help this doctor not do the same behaviors that got them into trouble.” In his view, these four cases show that Dr. Aderholdt did not learn his lesson from the monitor “not to do the same problems again.” As he put it, “That really flips me rather quickly to think there’s a question of fraud.” (Tr. 152-153). To the contrary, whereas Respondent was faulted for not having intake records, patient histories, and appropriate examinations to support his diagnosis and recommended treatment plan in February 2005, no such issues were raised in these Administrative Complaints. Dr. Aderholdt did learn his lesson. The medical records for the four patients at issue include patient intake forms, patient histories, evaluations, and examinations that were not alleged to be inadequate. Nor was there any repetition of the problem with billing a patient for treatment or services that were not documented in the medical records taken as a whole, including Dr. Aderholt’s notes. The other disciplinary action resolved by settlement in a 2008 Final Order involved an advertising issue. The Department alleged that Respondent improperly advertised as a specialist in Vax-D disc therapy when the Board does not recognize any such specialty. The Department also found fault in the failure of the advertising to disclose the usual fee. The Department also critiqued an advertisement for identifying a different practice location than Respondent’s practice address of record. The charges were under section 460.413(1)(d), (cc), and (ff); rule 64B2-15.001(2)(e) and (i); and rule 64B2-10.0055. Quite plainly, this prior action bears no similarity to the four Administrative Complaints at issue here. No such allegations or charges were raised here. Dr. Shreeve did not contend that this prior action bears any similarity to the four cases here. Dr. Shreeve was never asked for his opinion as to the type or level of discipline he believes is warranted in these cases. However, his “flip” to “fraud,” due to the perceived repetitive nature of the issues in the four cases (whether charged or not)--which he characterized as the “same problems” in 2005 that resulted in discipline--was the basis for Petitioner proposing the most severe penalty available: license revocation, plus substantial fines and assessments of fees and costs. Dr. LaRusso’s Opinions Dr. LaRusso served as a Board member for multiple terms, and is a past-chair. After leaving the Board, he continued to serve on probable cause panels as recently as 2017. Having reviewed and been involved in thousands of disciplinary matters, he was of the strong opinion that nothing in the four Administrative Complaints warrant discipline at the level being sought here. Imposing a severe penalty in these four cases would be out of line with the Board’s prior practice in disciplinary matters. Dr. LaRusso’s studied review of all of the depositions and records in this case led him to opine that there is no evidence that Dr. Aderholdt deceived his patients, committed fraud, or engaged in double-billing or overbilling. Instead, Dr. LaRusso saw evidence of sloppy office practices, which he attributed to Dr. Aderholdt’s poor management skills. He has seen many doctors like Dr. Aderholdt over the years who just want to deal with taking care of patients. They do not want to have anything to do with administrative and clerical responsibilities. Instead, they leave everything besides patient care to their office manager and staff. In Dr. LaRusso’s view, Dr. Aderholdt’s office protocols and procedures require serious fine-tuning. He believes that Dr. Aderholdt would benefit from re-education in billing and collection practices, as well as laws and rules. He needs to ensure that procedures are in place, and followed, for prompt responses to patient requests for medical records or for claims sent to third-party payors. At the same time, however, Dr. LaRusso reasonably characterized the four cases as involving billing, clerical, communication, and correspondence issues. It bears emphasis that Dr. Aderholdt’s patient care is not in question. There are no issues of endangering the public, where a doctor is doing things that will hurt people, doing something dangerous or sexually inappropriate. Those are the cases where it is appropriate to go after someone’s livelihood, when the person does not belong in the profession. Dr. LaRusso observed that, rather than endangering the public, Dr. Aderholdt was helping his patients by relieving their pain, according to their own testimony. Dr. LaRusso agreed to become involved in this case because he found it so incongruous that the Department would be pursuing this action apparently to try to take Dr. Aderholdt’s license. Dr. LaRusso noted that the four investigations against Dr. Aderholdt were originally being spearheaded by a prior prosecutor for the Department (to whom Respondent’s counsel mailed CDs of patient records in 2014), and that the cases were assigned to Dr. Willis, who was a favored expert witness for the Department. Dr. LaRusso alluded to “inappropriate issues” with the prosecutor and expert that led to the Board having to pay a large award of attorneys’ fees and costs for pursuing discipline against Dr. Christian. According to Dr. LaRusso, those issues ultimately led to the prosecutor and expert being discharged from these cases. There is no evidence as to when or why Dr. Willis was replaced with Dr. Shreeve. Dr. Willis apparently was involved long enough to prepare an expert report. But then, according to Dr. LaRusso, the cases went dormant for a long period of time. The bits and pieces of hearsay evidence in the file comport with this understanding: there were four investigations that began upon complaints in 2014 by the four patients about billing and records issues; documents were collected from Respondent and from the patients; and Investigative Reports were issued, all before 2014 was over. It is unknown when Dr. Willis was involved, when he prepared his expert report, or when he was discharged from the cases. It is unknown when Dr. Shreeve was retained, but there was plainly some duplication of work, in that Dr. Shreeve prepared his own expert report. Neither expert report is in evidence. There is no evidence of any additional investigation or follow-up documentation from the patients or otherwise. There is no evidence of what was presented to the PCP--just that the panel met on June 19, 2018, and authorized the four Administrative Complaints issued on June 20, 2018. While this background is a bit of a curiosity, without impermissible speculation, the most that can be said about this history is that the protracted period of time from investigation to the PCP submission that resulted in issuance of the Administrative Complaints is apparently due, at least in large part, to the turnover in the prosecution-expert witness team assignments. Dr. LaRusso did not persuasively demonstrate grounds to cast nefarious aspersions on the Department for continuing forward with its investigation. One might reasonably question whether the Department dropped the ball, so to speak, in not updating its investigation, given the extended period of dormancy. For example, the Administrative Complaint in Case No. 18-4487 incorrectly alleged that P.D. was not reimbursed, when any cursory check with P.D. would have revealed the “news” that she had been repaid in April 2015, more than three years before the Administrative Complaint was authorized by the PCP. Dr. LaRusso may reasonably debate, as he did, whether the charges lodged against Respondent are inappropriate. And Dr. LaRusso may certainly question, as he did in convincing fashion, whether the discipline apparently being sought is unduly harsh, uncalled for, and way out of line with Board practice. But there is no basis in this record for attributing bad motives to the Department for prosecuting the Administrative Complaints. Dr. LaRusso’s opinions regarding the nature of the violations proven and the appropriate discipline in scale with those violations were more persuasive that Dr. Shreeve’s opinions. Dr. LaRusso’s opinions are credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Chiropractic Medicine: In Case No. 18-4484PL: Dismissing Counts I, II, and IV; and Finding that Respondent violated section 460.413(1)(aa), as charged in Count III; In Case No. 18-4485PL: Dismissing Counts I, III, and IV; and Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II; In Case No. 18-4486PL: Dismissing Counts II, III, and IV; and Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II; In Case No. 18-4487PL, dismissing Counts I and II; Placing Respondent on probation for a period of three years, with conditions deemed appropriate by the Board; Imposing a fine of $3,000.00; Requiring continuing education deemed appropriate by the Board; and Requiring payment of the costs of investigation and prosecution of the charges on which violations were found. DONE AND ENTERED this 15th day of February, 2018, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2018.
The Issue The issues to be determined are whether Respondent is unable to practice medicine with reasonable skill and safety by reason of illness, or physical or mental condition, in violation of Section 458.331(1)(s), Florida Statutes (2008, 2009)1/, and if so, what penalty or restriction should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the practice of medicine pursuant to Section 20.43, and Chapters 456 and 458, Florida Statutes. At all times material to these proceedings, Respondent has been a licensed medical doctor within the State of Florida, having been issued license number ME 33042. She is board certified in internal medicine and has never been the subject of a disciplinary proceeding against her Florida license. Dr. Sharpe's mailing address of record during the time relevant to these proceedings was 6603 San Juan Avenue, #1, Jacksonville, Florida 32210, and she practiced medicine at this address. On November 8, 2008, Detective Elaina Gonzales of the Jacksonville Sheriff's Office Narcotics Division was investigating a complaint that a patient, E.R., might be "doctor shopping." As part of that investigation, Detective Gonzales contacted Dr. Sharpe to see if E.R. was a patient of hers. When Dr. Sharpe confirmed that E.R. had been a patient for a couple of months, Detective Gonzales asked her to locate the chart so that they could verify what medications E.R. had received and the dates they had been prescribed. Dr. Sharpe related that she could not locate the chart at that time, because she was at the office alone, was in a wheelchair, and was very ill with "African fever." Detective Gonzales asked her whether she required her patients to sign pain contracts, and Dr. Sharpe indicated that she did not believe in them. The conversation, which was by telephone, left Detective Gonzales "uneasy," and she found Dr. Sharpe's responses to be strange, in that she appeared to be confused and would answer questions in a tangential manner that was hard to follow. On January 19, 2009, two and a half months later, Detective Gonzales arrested two suspects who attempted to fill fraudulent prescriptions at Panama Pharmacy. During the arrest, there was a search of the suspects' vehicle, and a blank prescription pad bearing Dr. Sharpe's name was seized, along with a prescription for 60 pills of Oxycontin 80 mg dated January 20, 2009, taken from suspect G.L.'s wallet. Four other prescriptions G.L. attempted to fill were recovered from pharmacies. All four were on printed prescription forms bearing Dr. Sharpe's name. The handwriting on the four prescriptions recovered from various pharmacies, while on Dr. Sharpe's prescription pad, is not consistent with the handwriting from prescriptions that Dr. Sharpe identified as ones she wrote. Detective Gonzales attempted to contact Dr. Sharpe to verify whether she wrote the prescriptions on January 19, 2009, but was unable to contact her. The next day, she called Dr. Sharpe and asked whether G.L. was a patient, which Dr. Sharpe confirmed. Detective Gonzales asked Respondent if she post-dated prescriptions, which she denied. Gonzales asked Dr. Sharpe to locate the chart so that she could verify when prescriptions were written for G.L. Dr. Sharpe indicated that she could not find the file, that she did not have an office staff and that she was ill and by herself. Detective Gonzales tried to impress on Dr. Sharpe the importance of verifying the prescriptions, because she had two suspects sitting in jail, and indicated that she would be coming to the office to have Dr. Sharpe look at the prescriptions. Dr. Sharp became upset and at first stated she would not open the door because she was sick. Eventually, she relented and gave instructions for the detective to let the phone ring three times in order for her to gain entrance to the office. Upon Detective Gonzales' arrival at the office at approximately 2:00 p.m. on January 20, 2009, she found Respondent in a wheelchair, wearing a nightgown and socks with no shoes. Dr. Sharpe asked Detective Gonzales to wear gloves so she would not get sick. At the time Detective Gonzales arrived, there was a woman in the reception area who Dr. Sharpe described as helping her. Detective Gonzales observed a patient waiting area and reception area that was cluttered and disorganized. The area appeared to include both household and office furniture, and the reception area contained what appeared to be piles of medical charts. Detective Gonzales showed Dr. Sharpe the prescriptions retrieved from G.L. and from the pharmacies. Dr. Sharpe denied writing the prescriptions presented to the pharmacies and described in paragraph 7. She identified the prescription to G.L. dated January 20, 2009, taken from G.L.'s wallet, as being a prescription she wrote. (See Petitioner's Exhibit 3). When Detective Gonzales asked Dr. Sharpe why she post- dated the prescription, Dr. Sharpe became upset with her, and started telling a story that did not answer the question. Gonzales asked to see the patient's file, and Dr. Sharpe could not find it. Detective called DEA Drug Diversion Investigator Lutz while she was at the office, because she wanted to have someone else observe what she had observed. While she waited for Investigator Lutz to arrive, she sat with Dr. Sharpe and talked, and the woman helping Dr. Sharpe continued to look for G.L.'s file. The file was never located during this visit. During this time, a couple arrived with soup for Dr. Sharpe. Once Investigator Lutz arrived, Detective Gonzales left the reception area to search for a restroom. While in the back part of the building, she observed a room with a bed and a TV on, along with a dresser and clothes. It appeared to Detective Gonzales that Dr. Sharpe was living out of her office. Detective Gonzales asked Dr. Sharpe if she was living in her office, and Respondent said she would stay at the office for a couple of days, because she could not get up and down the stairs at her home. Investigator Lutz has since married, and is now known as Investigator Walters. She and another DEA agent arrived at the office while Detective Gonzales was still present. She also confirmed that Dr. Sharpe was in a wheelchair, wearing a nightgown and robe, and that she did not appear to be feeling well. She also confirmed that the office was disorganized. Dr. Sharpe also asked her and her partner to wear gloves because she was concerned she might be contagious. Investigator Walters was concerned that Dr. Sharpe was not in any condition to be seeing patients. She asked Dr. Sharpe if she was in fact seeing patients, and Dr. Sharpe indicated she was not feeling well, and had been sick for a while, but was seeing patients when she was able. Given her age and the comments regarding her health, Investigator Walters asked Dr. Sharpe if she had thought about retiring. Dr. Sharpe was upset by the question and said she had not thought about doing so. Investigator Walters also indicated that Dr. Sharpe rarely answered a question directly. She would start to, then go off on a tangent about something in her past, and indicated that she thought she had some type of African Fever. Investigator Walters felt the interview was not productive, and Dr. Sharpe kept stressing how poorly she felt, so Investigator Walters asked Dr. Sharpe to contact her in the next couple of weeks. Dr. Sharpe left Investigator Walters one voice message. When Investigator Walters tried to return the call, sometime in February, she reached the answering service and was informed that Dr. Sharpe was still sick. Detective Gonzales also attempted to contact Dr. Sharpe after the January 20 visit. Each time, Dr. Sharpe's answering service indicated that she was ill. A prescription bearing Dr. Sharpe's signature was written for patient D.T. on March 3, 2009. The prescription was for 480 pills of Oxycontin 15mg. (See Petitioner's Exhibit 6). Two other prescriptions written for D.T. on Dr. Sharpe's prescription pad were subsequently recovered from Walgreen's pharmacy and are included in the record as Petitioner's Exhibit One, dated March 5, 2009, was for 360 pills of Oxycontin 40mg. The second, dated April 2, 2009, was also for 360 pills of Oxycontin 40mg. While no testimony was presented indicating that Dr. Sharpe ever confirmed that she had written the two prescriptions described above and contained in Petitioner's Exhibit 9, the handwriting appears to be the same as that on the prescription in Petitioner's Exhibit 6, which Dr. Sharpe confirmed was her handwriting. On March 25, 2009, Investigator Wendy Foy of DOH notified Dr. Sharpe by letter that she was under investigation. Dr. Sharpe was advised that she had 45 days to submit a written response and to contact the office to schedule an interview, if she chose. The letter also requested that she provide a copy of her curriculum vitae. The 45-day period for filing a response would have required that any response be filed by May 9, 2009. Dr. Sharpe called in response to the letter. She appeared to be aggravated that the Department was investigating her, and referred to Detective Gonzales as "a loud mouth detective" who barged in her office, demanding to see information. She told Ms. Foy that she would be providing a written response to the complaint, but said she had been sick for weeks. Ms. Foy called Respondent again because she had not received a response, although the timing of the phone call is not clear. Dr. Sharpe stated that she had been sick and was in the process of writing her response and sending it to her typist. Dr. Sharpe's response was received by the Department on April 28, 2009. The response are as follows:2/ The delay in response is not dismissive. I needed to gather facts and explain myself while considering the facts you need. One thing I find interesting is "confidential" at the top of your letter. The detective -- whose name I don't recall -- I referred to her as "the mouth" acted as a bully here and told me by phone that I pass out medication "like candy" (news to my patients) before I ever met her. She has told pharmacists around the Westside that I am under investigation. They've told my patients. My patients have told me. I have explained to the patients that it is appropriate, if there is a question, to have an investigation. That is the right and the job of the State to protect them. However, she was unprofessional and demonstrated inability or unwillingness; definitely unworthiness to keep a confidence. There is another narcotics detective in the JSO that I work with very well. I have, on occasion, had a questionable prescription. When this happened I reported to her and fired the patient. . . . If indeed the patient IS a patient. You may be interested in the fact that I fly in the dark as I've talked to some of my colleagues. We don't get notified of people that are using narcotics or selling things or anything. If I were a gun salesman or a pawn broker I would have a hot list. I'm supposed to know to spot criminals when what I see are patients that are sick. This whole system is remarkable. It's "gotcha", but that's for another letter. On the day that the questionable detective demanded entry, I had already placed myself in isolation. That is the only thing a good citizen would do with a severe virus to keep it from spreading. Two volunteer friends were sorting out the mail and "shuffling papers". They were friends NOT regular employees or "trained medical assistants." She had them terrified standing over them. She claimed to be waiting for a partner. She was waiting for the DEA. They insisted on entry as well. Before the detective came I had told my helpers I was exhausted and needed a nap. I never got dressed that day. I wore a nightgown and a thermal blanket which is better than a housecoat as I am in a wheelchair. . . . yet they pressed on. Why she lied leaves me mystified, where was I going? I met them all at the door with a box of rubber gloves because, again, I tried to protect anyone else from this terrible virus which kept me out of work for weeks. The DEA asked questions like "what do you give to a new patient?" Well teaching for four years in the United States Peace Corps and before that in Watts before the riots, I believed that there was no such thing as a dumb question but that sure is one. In my diminished state I waited for the rest of the question. An example would be, maybe, presentation of a case. When that did not come I told them all to leave. They were "kicking me when I was down". You've asked about the chart they demanded. My terrified helpers were separated from me and looked everywhere. I didn't know what the problem was as they were in the business office and I was in the waiting room. I NEVER SAW THE PATIENT SHE REQUESTED AS THERE WAS NO CHART. He was due several days later. (Please see the page from my calendar) There were two charts requested, G.L. was going to be seen on February 3, 2009 as a new patient. I never saw him. The other chart they requested was R.G. That chart was taken. I want it back. I have no receipt. I don't know what this woman thinks she knows but she is destructive and inefficient in her gang buster method. We're not used to this. The JSO is better than she is. I recently had the pleasure to write some lovely letters to Sheriff Rutherford regarding some of his staff when I suffered a felony. I never planned to write about this individual or her demeanor. "If you can't say something nice . . .". She is, however, a disgrace and I guess I need to defend myself and let you know the details so that you can come to your own conclusion. The detective demanded two charts. R.G., she took the chart and did not give it back. I've not seen him again, anyway. G.L. They came in on January 15th or 16th -- I'm unsure as I said and he was due to come in for a new patient evaluation (2 hours) on February 3, 2009 at 2:00 pm. If this signifies giving out medicine like candy then I guess it is. As a double check I asked my transcriptionist for a history and physical from her computer memory and there was no such patient as G.L. I've never seen him. I hope this explains your legitimate concerns and her attempt to build a case from thin air. I don't know what she thinks she knows. I do request all of the reports if I can get them as you said is my right. Further, I have such an extensive Curriculum Vitae. I cleaned it up as I don't put everything in it. I don't even know if I have one right now. I have to reconstruct it as nobody asks for them. I will ask my transcriptionist if she has one in memory. As a blind copy I'm going to send you the letters that I've sent the Sheriff because it has a couple of things from my background anyway and my awe of the police force and the JSO here. I don't have an attitude toward them, just her. She is an outlier certainly. Thank you for opportunity to respond to your concerns. Sincerely yours, (signed) Isabella K. Sharpe, M.D. Isabella K. Sharpe, M.S.M.D.,F.A.C.P. Dr. Sharpe's written response differs from Detective Gonzales' and Investigator Walters' accounts of the events in several respects. For example, she identifies the date of their visit to be January 15 or 16, as opposed to January 20. She claims that Detective Gonzales retrieved a chart for a patient R.G. when there has been no testimony about such a patient. She claims that she never saw patient G.L. when Detective Gonzales testified that Respondent confirmed G.L. was her patient and identified the signature on his January 20, 2009, prescription as her signature. She claimed to be "separated" from her volunteers and unable to know what they were looking for, when all testimony indicates that the rooms involved are adjacent, with an opening between them. Detective Gonzalez' and Investigator Walters' testimony is credited. On June 23, 2009, DOH Investigator Foy as well as Investigative Manager Charles Coates went to Respondent's office to serve a subpoena for patient records. The Investigators had arranged previously for an appointment with Respondent for 12 o'clock sharp. When they arrived for the appointment, there were approximately seven or eight people in the waiting area, but appeared to be no one working in the reception area. Within 15 minutes of the investigators' arrival, all but two or three of the people in the waiting room left the office without seeing Respondent. Despite having a noon appointment with Respondent, the investigators waited for approximately an hour to see her. During that entire time, no one appeared to be attending the reception area. It was not only unattended, but it appeared to the investigators that the area was in disarray. There were files stacked that appeared to be medical records in different areas on the counters, in no apparent order. The files were readily accessible to anyone seeking to look at them. Respondent finally appeared after the investigators had waited an hour. Once again, she appeared in a wheelchair with socks and no shoes. She attempted to conduct her interview with the DOH investigators in the patient waiting area in front of the remaining people waiting there. Mr. Coates advised her that the interview should be conducted in private, so the investigators and Respondent moved to the back of the building. During the interview, Dr. Sharpe confirmed that E.R., T.D. and S.D.T. (also referred to as D.T.) were her patients. Mr. Coates presented her with a prescription dated March 3, 2009, for 480 pills of Oxycontin 15mg, referenced in finding of fact Dr. Sharpe confirmed that D.T. was her patient, and that the prescription bore her signature, but that she "must have been out of it" when she wrote the prescription. She volunteered that she had been sick for weeks at a time. Subsequent to the June 23, 2009, interview, Investigator Foy contacted Dr. Sharpe about the records that were the subject of the subpoena. Dr. Sharpe indicated that she did not have time to get them and she wanted to get a volunteer to get the copies to DOH. She also told the investigator that one of her prescription pads was missing prescriptions from the middle of the pad. Dr. Sharpe apparently believed the prescriptions were taken by a volunteer, whom she "fired" by not treating the volunteer any longer. No evidence was presented to indicate that any of the subpoenaed records were ever supplied to the Department. On September 18, 2009, Dr. Sharpe was evaluated by George M. Joseph, M.D., a board certified psychiatrist. Dr. Joseph has been licensed in Florida since 1970, and has performed evaluations for the Professionals Resource Network (PRN) since the mid '80's. In addition to interviewing Dr. Sharpe for 90 minutes, Dr. Joseph administered the MMPI and reviewed investigative materials supplied by the Department and chronicled in the collateral history section of Dr. Joseph's report to the Department (See Petitioner's Exhibit 10). Dr. Sharpe related to Dr. Joseph that her general health was affected when 17 years ago she received vancomycin, a very powerful antibiotic, for an infection. The medicine caused renal failure and neurotoxicity, which in turn caused severe vertigo from which she still suffers. As a result, she is confined to a wheelchair. Dr. Sharpe also indicated to Dr. Joseph that she self-prescribes medicine for a pituitary tumor, and for hypothyroidism. During his interview with Dr. Sharpe, they talked about several topics, including her reaction to Detective Gonzales and the DOH investigation; her prescribing practices; and her office management style. With respect to her prescribing practices, Dr. Sharpe acknowledged treating a number of patients who suffer from severe pain, and indicated that "I have to believe my patient," regarding their reporting of pain. She also stated her belief that other physicians were not giving patients the medication they needed, and that she did, enabling patients to have a better quality of life. She acknowledged that she is not a pain management specialist. Dr. Joseph also noted that in the interview, Dr. Sharpe's thought process was circumstantial and digressive, with reference to previous life experiences as opposed to analyzing a question and discussing it directly. Dr. Joseph opined that Dr. Sharpe has an Axis II, personality disorder not otherwise specified (NOS), with marked characteristics of hyperthymia. A personality disorder, NOS, is recognized in the Diagnostic and Statistical Manual IV (DSM-IV) under diagnostic number 301.9. Hyperthymia is a personality temperament that would be characterized by a prominently upbeat mood, and a person who admits to very few, if any problems. A person who is hyperthymic is overly enthusiastic and upbeat, exuberant, grandiose and talkative. Such a person minimizes the effect of any negative situations and always try to portray herself in a positive light, believing she can "trump" the applicable rules with rules they fashion themselves. A personality temperament becomes indicative of a personality disorder where, as here, it has some affect on a person's functioning occupationally or socially, or both. Dr. Joseph opined that Dr Sharpe is unable to practice with reasonable skill and safety. He reached this ultimate opinion because, in his view, her personality disorder creates a tendency on her part to form judgments about prescribing to pain patients that can be idiosyncratic and excessive, and impairs her clinical judgment. The impairment of her clinical judgment impairs her ability to discern legitimate patients from patients who are manipulating physicians for medications. This represents a danger to patients by the prescription of excessive amounts of medication with possible misuse by those receiving them. Dr. Joseph also opined that Dr. Sharpe's personality disorder impairs her ability to maintain adequate medical records for her patients, and to maintain an orderly practice. He based this opinion on her failure to maintain boundaries with her patients, as illustrated by her using patients as "volunteers" in her office, and her inability to retrieve records when requested. These failures present, in his view, a danger to patients because of the failure to maintain adequate records for providing a history of medications prescribed, any side effects to those medications, and the patient's ongoing treatment. With pain management patients, the need for accurate and available medical records is especially important. In other words, Respondent displayed a cavalier attitude with respect to both prescribing pain medication and recordkeeping, in areas that the medical profession generally regards as very serious, controlled and organized. The Respondent did not present any expert testimony to rebut Dr. Joseph's view. Dr. Joseph's opinion that Respondent cannot practice with reasonable skill and safety at this time is accepted.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Florida Board of Medicine enter a final order finding that Respondent is unable to practice with reasonable skill and safety by virtue of a mental condition, as proscribed in Section 458.331(1)(s), Florida Statutes. It is further recommended that Respondent's license to practice medicine be suspended, until such time as she demonstrates that she can practice with reasonable skill and safety. DONE AND ENTERED this 1st day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2009.
Findings Of Fact At all times relevant hereto, respondent, Mark L. Klugman, was licensed as an optometrist having been issued license number OP 1758 by petitioner, Department of Professional Regulation, Board of Optometry (Board). He currently resides at 16021 Villa Drive, Hudson, Florida. On or about August 15, 1987 respondent had an occasion to examine Sandra J. Dinkins for the purpose of diagnosing her eyes and to prescribe and furnish contact lenses. She had never previously warn contact lenses. Dinkins selected respondent at random from the telephone directory because his office was nearby and open on Saturdays. At that time, respondent had an office in Tampa, Florida. After being given contact lenses, and making a total of six office visits, Dinkins was unhappy with the lenses and eventually went to another optometrist. A complaint was later filed with the Board, and this culminated in the issuance of an administrative complaint charging respondent with incompetence, gross or repeated malpractice and violating a Board rule. Respondent requested a hearing to contest these charges. According to Dinkins, the contact lenses prescribed by Dr. Klugman caused "total blurriness" and "hurt her eyes." After Dinkins complained about this condition, respondent told her to "wear them for a week and come back." Because she could not see with the lenses, Dinkins was forced to take them out after the first day. On her next appointment, respondent ordered a new left lens. When this did not correct the problem, Dinkins complained again. Respondent told her to keep wearing them and return in a week. This process continued for several weeks until she gave up and went to another optometrist. By this time, Dr. Klugman had ordered another set of lens, but these were never dispensed since the patient did not return. Doctor Klugman suspected that Dinkins' problems were due to the type of lenses he had prescribed rather than the prescription. He acknowledged at hearing, however, that although his suspicion was "logical," it was not correct. He now agrees the patient needed a corrected prescription for astigmatism to resolve her problem. After Dinkins' complaint was filed with the Board, she was examined by a DPR consultant, Dr. John R. Walesby, who has been in the practice of optometry for over thirty years. Doctor Walesby found that respondent's prescription for Dinkins' left eye was in error by 1.00 diopter of cylinder. After obtaining a corrected prescription and new contact lenses, Dinkins' vision measurably improved although she acknowledged she still has a few problems with her left eye. By failing to properly diagnose her acuity, Dr. Walesby concluded that, while respondent exerted a considerable amount of time and effort in trying to fit the patient, he had failed to conform with the minimum standards of optometry in the community. By rule 21Q-3.007 the Board has mandated that, at a minimum, certain procedures be performed by an optometrist while conducting a visual analysis of a patient, and that evidence of the performance of these procedures be recorded on the patient's records. A copy of Dinkins' patient records has been received in evidence as petitioner's exhibit 1. While the Board's complaint charged that respondent violated the foregoing rule in seven respects, at hearing its expert conceded that he had overlooked or misinterpreted certain entries. While the record is less than a model of clarity as to which procedures were performed and recorded on the records, it is found that procedures regarding the family medical history, family ocular history, and visual field testing were not performed or recorded on the records and therefore such deficiencies constitute a violation of the rule. Respondent pointed out that Dinkins could only visit his office on Saturdays and this made reexaminations difficult. However, his principal defense is that the customer wanted a refund and he did not give one, and this prompted the complaint. According to Dr. Klugman, he would not give a refund because the final set of lenses ordered for Dinkins was nonexchangeable and he could not return them to the manufacturer. In addition, he offered various financial records to show that he is heavily burdened with college loans and credit card bills and did not have the financial ability to make a refund. Even so, this does not excuse respondent from complying with Board rules and statutory requirements.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 463.016(1)(g) and (h), Florida Statutes (1987), that he be fined $1000, and that his license be placed on probation for twelve months under such conditions as the Board may deem appropriate. The remaining charge should be dismissed. DONE and ORDERED this 23rd day of March, 1989 in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989. APPENDIX Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 6. Covered in finding of fact 4. Covered in finding of fact 3. Covered in finding of fact 5. 7-8. Covered in finding of fact 8 to the extent they are consistent with the evidence. Covered in finding of fact 9. Rejected as unnecessary. COPIES FURNISHED: Laura P. Gaffney, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark L. Klugman, O.D. 3611-49th Street North St. Petersburg, Florida 33710 Pat Guilford Executive Director Board of Optometry 130 North Monroe Street Tallahassee, Florida 32399-0750 Kenneth E. Easley, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
