The Issue The issues in this case are: (1) whether Petitioner is entitled to repayment for alleged Medicaid overpayments to Respondent; and, if so, the amount of the overpayment to be repaid; (2) the amount of any fine to be imposed against Respondent; and (3) the amount of any investigative, legal, and expert witness costs to be assessed against Respondent.
Findings Of Fact The Parties Petitioner is the agency responsible for administering the Medicaid program in the state of Florida, including overseeing the integrity of that program. § 409.913, Fla. Stat.1/ Respondent is a board-certified family practice physician. During the Audit Period,2/ Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered medical services rendered to Medicaid recipients.3/ Respondent provides medical services in a rural area to an underserved population. A substantial proportion of his patients are poor and are Medicaid recipients. The Audit As part of Petitioner's duties in overseeing the integrity of the Medicaid program, it investigates and audits Medicaid providers for services rendered to Medicaid recipients. In what is commonly referred to as the "pay-and-chase system," Medicaid providers bill Petitioner for medical services rendered to Medicaid recipients and Petitioner pays these bills, which are referred to as "claims." Thereafter, Petitioner audits those claims. The audit is conducted to determine whether the medical services rendered were appropriate for the condition being treated, whether the amounts billed for services are correct based on documentation provided, and whether Medicaid covers the services provided. If Petitioner determines that the provider was paid for services that did not comply with the Medicaid program requirements, it seeks reimbursement from the provider of the payments made for noncompliant claims. Here, Petitioner audited Respondent's medical records to verify that claims paid by Medicaid during the period from January 1, 2012, through June 30, 2014 (the "Audit Period"), qualified for payment under the Medicaid program. During the Audit Period, Respondent submitted a total of 7,093 claims for billable services rendered to a total population of 854 Medicaid recipients, for which Medicaid paid a total of $448,314.06. Rather than examine the medical service provision records of all 854 recipients Respondent served during the Audit Period, using a computer program, Petitioner randomly selected a sample comprised of 35 recipients from the total population of recipients. Respondent submitted 245 claims for the 35 recipients in the sample population. Once these 35 recipients were identified, Petitioner requested that Respondent provide the Medicaid services records for the claims submitted for these recipients. Upon receiving the Medicaid services records from Respondent, Petitioner, through its nurse consultant, Karen Reynolds, and its peer reviewer, Dr. Lisa Jernigan,4/ reviewed the claims for these 35 recipients. Reynolds' review of Respondent's records consisted of identifying the claims for which Respondent provided insufficient or no documentation, as required by the 2008 and 2012 Florida Medicaid Provider General Handbooks ("Handbooks"), to support the claims. When she determined that insufficient documentation had been submitted to support a claim, Reynolds made notations on a worksheet created for that particular recipient, regarding the insufficiency of the documentation. Reynolds made her notations on the worksheets in light red ink. After Reynolds completed her review, the records were transmitted to Dr. Jernigan for a substantive review of each claim to determine whether the documentation submitted in support of a claim complied with the pertinent standards in the Handbooks for payment of the claim. Based on her substantive review, Dr. Jernigan determined, for each claim, whether the claim should be approved, adjusted, or denied.5/ Dr. Jernigan's notations regarding approval, denial, or modification of payment for each claim, as well as the basis of her determination for each claim, were made on the worksheets in green ink and in darker red ink. After Dr. Jernigan completed her review of the claims, Reynolds went back through the worksheets and made additional notations, such as "NMN" for "not medically necessary," summarizing Dr. Jernigan's substantive review, in light green ink. For each claim that Dr. Jernigan determined should be adjusted or denied, Reynolds wrote the disallowed amount in the "dis-amt" space on the worksheet for that claim.6/ Based on the competent, substantial, and persuasive evidence, the undersigned determines that the audit was properly conducted. Dr. Jernigan engaged in the peer review of Respondent's records, and Reynolds merely served as an assistant whose role was confined to the ministerial tasks of determining whether Respondent had submitted the documentation requested by Petitioner for purposes of determining compliance with the Handbooks, and, after Dr. Jernigan completed her substantive peer review of each claim, summarizing Jernigan's determinations, as appropriate, and calculating the disallowed amounts for claims that Dr. Jernigan had determined should be adjusted or denied.7/ On the basis of this review process, Petitioner determined that Respondent had been overpaid in the amount of $4,867.97 ($19.86832653 per claim) for the 245 claims in the 35- recipient sample population. Using the statistical formula for cluster sampling,8/ which extrapolates the overpayment determined from the sample population across the total population of 7,093 claims, Petitioner determined that Respondent had been overpaid the total amount of $104,951.05. Petitioner informed Respondent of this preliminary overpayment determination through its Preliminary Audit Report ("PAR")9/ issued on November 10, 2015, and gave him the option of submitting further documentation in support of the claims that had been preliminarily identified as ineligible for payment by the Medicaid program.10/ In response to the PAR, Respondent provided additional documentation, which was reviewed by Dr. Jernigan. Based on the review of the additional records Respondent provided, Petitioner issued a FAR, dated August 8, 2016. The FAR determined that Respondent had been paid an overpayment of $4,637.45 ($18.92836735 per claim) for the 245 claims in the 35-recipient sample population. As with the PAR, Petitioner employed the statistical formula for cluster sampling to determine the alleged probable overpayment for the total population of 7,903 claims paid during the Audit Period. This analysis yielded a probable overpayment of $97,121.42, with a 95-percent probability that the actual overpayment is equal to or greater than that amount. Petitioner also sought to impose a fine of $19,424.28 as a sanction for violating Florida Administrative Code Rule 59G- 9.070(7)(e), and to require Respondent to pay $1,708.08 in investigative, legal, and expert witness costs, as authorized by section 409.913(23), Florida Statutes. Subsequent to issuance of the FAR, Petitioner and Respondent conducted a peer-provider meeting. As a result of that meeting, as well as subsequent discussions between the parties, Respondent was afforded several opportunities to submit additional documentation to support his claims. As a result of the documentation Respondent provided, Petitioner has further reduced the alleged overpayment amount to $72,084.43, which is now the amount at issue in this proceeding. Petitioner also seeks to impose a fine consisting of 20 percent of this overpayment amount, or $14,416.89. Additionally, if Petitioner prevails in this proceeding, it seeks to recover its investigative, legal, and expert witness costs. Grounds Stated in FAR for Denial or Reduction of Claims The FAR states four grounds, or "Findings," for Petitioner's determination that Respondent was overpaid by Medicaid for certain medical services he provided, based on cited provisions in the 2008 Florida Medicaid Provider General Handbook ("2008 Handbook"), 2012 Florida Medicaid Provider General Handbook ("2012 Handbook"), 2010 Physician Services Coverage and Limitations Handbook ("2010 Handbook"), 2012 Practitioner Services Coverage and Limitations Handbook, and 2014 Practitioner Services and Limitations Handbook ("2014 Handbook").11/ The FAR does not allege that Respondent committed any Medicaid fraud or abuse in this proceeding. Finding No. 1 Finding No. 1 in the FAR alleges that Respondent provided incomplete records, as defined in the 2008 and 2012 Handbooks, for some claims for which he billed and was paid, such that any payments for which incomplete records were submitted constitutes an overpayment that Petitioner is entitled to recover. The 2008 and 2012 Handbooks, "Provider Responsibility" section, states, in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: Have actually been furnished to the recipient by the provider prior to submitting the claim; * * * Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state and local law; and Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record. The 2008 and 2012 Handbooks, "Requirements for Medical Records" section, states in pertinent part: Medical records must state the necessity for and the extent of services provided. The following requirements may vary according to the service rendered: Description of what was done during the visit; History; Physical assessment; Chief complaint on each visit; Diagnostic tests and results; Diagnosis; Treatment plan, including prescriptions; Medications, supplies, scheduling frequency for follow-up or other services; Progress reports, treatment rendered; The author of each (medical record) entry must be identified and must authenticate his entry by signature, written initials or computer entry; Dates of service; and Referrals to other services. The 2008 and 2012 Handbooks, "Record Keeping Requirement" section, states: Medicaid requires that the provider retain all business records as defined in 59G- 1.010(30) F.A.C., medical-related records as defined in 59G-1.010 (154) F.A.C., and medical records as defined in 59G-1.010 (160) F.A.C. on all services provided to a Medicaid recipient. Records can be kept on paper, magnetic material, film, or other media including electronic storage, except as otherwise required by law or Medicaid requirements. In order to qualify as a basis for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamped signatures must be initialed. The records must be accessible, legible and comprehensible. The 2008 Handbook, "Incomplete Records" section, states that "providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped." The 2012 Handbook, "Incomplete or Missing Records" section, similarly states: "Incomplete records are records that lack documentation that all requirements or conditions for service provision have been met. Medicaid shall recover payment for services or goods when the provider has incomplete records or does not provide the records." The following claims, which are in dispute in this proceeding, were denied on the ground stated in Finding No. 1: Recipient 2, claim nos. 2 and 21; Recipient 6, claim nos. 1, 2, 3, and 4; Recipient 8, claim no. 6; Recipient 9, claim no. 4; Recipient 10, claim no. 10; Recipient 13, claim no. 3; Recipient 16, claim nos. 2, 3, 4, 6, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 27, 30, 31, 32, 33, 34, 35, 37, 38, 41, 43, 54, and 57; Recipient 18, claim nos. 2, 3, 4, and 5; Recipient 24, claim no. 1; Recipient 33, claim no. 9; Recipient 34, claim nos. 4 and 7; Recipient 35, claim nos. 5 and 6.12/ A total of 47 claims are in dispute on the ground stated in Finding No. 1. Finding No. 2 Finding No. 2 in the FAR alleges that the medical necessity of some services for which Respondent billed and was paid were not supported by the documentation he provided. The 2008 and 2012 Handbooks, in the section titled "Provider Responsibility," state in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * Are Medicaid-covered goods or services that are medically necessary[.] Additionally, as noted above, the 2008 and 2012 Handbooks, "Provider Responsibility" section, state, in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record. The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 2: Recipient 2, claim nos. 11, 13, 19, and 21; Recipient 16, claim nos. 15, 17, 30, 31, 32, 34, 36, 39, 41, 43, 45, and 47; Recipient 24, claim no. 1; Recipient 34, claim nos. 4 and 7; and Recipient 35, claim no. 4. A total of 20 claims are disputed on the ground stated in Finding No. 2.13/ Finding No. 3 Finding No. 3 in the FAR states that some services that Respondent provided to established patients were billed and paid as having been rendered to new patients. The 2010, 2012, and 2014 Handbooks, "Established Patient Visit" section, defines an "established patient" as "one who has received professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years." These Handbooks define a "new patient" as "one who has not received any professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years." The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 3: Recipient 21, claim no. 1; Recipient 23, claim no. 1. A total of two claims are disputed on the ground stated in Finding No. 3. Finding No. 4 Finding No. 4 in the FAR states that the level of service for some claims for which Respondent billed and was paid was not supported by the documentation submitted to support the claim. The 2010 Handbook, "Medically Necessary" section, states in pertinent part: Medicaid reimburses for services that are determined medically necessary and do not duplicate another provider’s service. In addition, the services must meet the following criteria: * * * Be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient’s needs; * * * Reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide[.] The 2012 and 2014 Handbooks, "Medical Necessity" section, state in pertinent part: Medicaid reimburses services that are determined medically necessary and do not duplicate another provider’s service. Rule 59G-1.010 (166), F.A.C. defines "medically necessary" or "medical necessity" as follows: The medical or allied care, goods, or services furnished or ordered must: (a) Meet the following conditions: * * * 2. Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient’s needs. * * * 4. Reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide. The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 4: Recipient 8, claim no. 4; Recipient 9, claim no. 2; Recipient 10, claim no. 3; Recipient 13, claim no. 1; Recipient 16, claim nos. 29, and 52; Recipient 17, claim no. 1; Recipient 21, claim no. 2; Recipient 22, claim no. 2; Recipient 30, claim no. 3; Recipient 32, claim no. 2; Recipient 35, claim no. 1. A total of 12 claims are disputed on the ground stated in Finding No. 4. In sum, a total of 69 claims are disputed on the grounds set forth in Finding Nos. 1 through 4. Medical Record-Keeping Purpose and Requirements Medical records should consist of a simple, complete, organized record that documents the patient's medical condition, needs, and the medical services rendered, so that the physician preparing the record, as well as any other physician——whether or not familiar with the patient or the record-keeping system, including an electronic health record ("EHR" system) used——is able to follow the patient's course of health and treatment. Additionally, medical records must be sufficiently complete and clear for purposes of billing, and in the case of Medicaid, for payment. For claims for services provided to Medicaid recipients to be payable under the Medicaid program, the medical records must meet the requirements set forth in the pertinent Medicaid Handbooks. As discussed above, among these requirements are that the records be true and accurate; demonstrate the medical necessity of, and level of service for, the services provided; contain certain specified components, such as a description of what was done during the visit, the patient's medical history, physical assessment of the patient, the patient's chief complaint on a particular visit, diagnosis, and treatment plan; and be comprehensible, individualized, specific, and consistent with the symptoms or confirmed diagnosis of the illness or injury treated. Dr. Jernigan opined, persuasively, that in the medical context, the term "comprehensible" means that the medical records are sufficiently intelligible and understandable such that another physician or other medically-trained individual could read the record and have a solid picture of the patient's medical history and general condition, as well as the treating physician's specific physical findings and reasons why a particular treatment or service was provided to the patient. Dr. Jernigan testified, credibly and persuasively, that when a medical record contains conflicting or inconsistent information, it is incomprehensible. If the medical record is incomprehensible, it cannot be determined to support the billed service, in which case, the claim for that service must be adjusted or denied. The Intergy EHR System During the Audit Period, Respondent used the "Intergy" EHR system to prepare and keep his medical records for his patients, including the Medicaid recipients he treated and whose claims he billed under the Medicaid program. Dr. Jernigan does not use the Intergy EHR system in her own practice. However, the components of the Intergy EHR system are the same or similar to the components of other commonly-used EHR systems with which she is familiar.14/ Dr. Jernigan explained the purpose of each component of the Intergy EHR template used to compile the medical records for a patient. The purpose of the first component of the Intergy template, "Reason for Visit," is to document the reason why the patient is seeking medical services. The second component, "History of Present Illness," serves to provide a chronological description of the issues surrounding the patient's chief complaint and the reason for the visit. In essence, this portion of the medical record documents the commencement of the patient's medical complaint; the length of time the patient has experienced that condition; its progression; effective and ineffective treatments; the specific location of the condition on or in the patient's body, including whether it is on the left or right side of the body, or both; and other information regarding the temporal and physical aspects of the patient's medical condition. The purpose of the "Past Medical/Surgical History" component is to document the patient's past medical or surgical history relative to the patient's current condition at the time of the particular visit. The purpose of the "Social History" component is to document the patient's social history or habits as related to the patient's medical condition presented at the visit.15/ The "Family History" component is to enable the provider to document any family history that may be relevant to diagnosing and treating the patient's condition.16/ The purpose of the "Review of Systems" component is to document the patient's medical condition at the time of the visit. This component includes a review of body systems involved in the patient's complaint, to determine and document whether there may be other health issues that could present with the same symptoms. This component enables the provider to document relevant information regarding the involvement of other body systems that may affect the diagnosis or treatment for the primary complaint or reason for a particular visit. The "Physical Findings" component is the portion of the medical record in which the provider documents the information regarding his or her findings resulting from a physical examination of the patient. The "Assessment" component is where the provider documents his or her conclusion, or diagnosis, as to the nature, identity, or cause of the patient's condition. The "Therapy" component enables the provider to describe and document the chosen course of treatment for the patient. The "Counseling/Education" component enables the provider to describe and document the matters discussed with the patient, such as the nature of the patient's medical condition and prognosis, the provider's chosen course of treatment or therapy, recommendations regarding the patient's actions to assist in treating the condition, and instructions provided to the patient. The "Plan" component describes the course of treatment for the medical condition and the reasons for choosing this course of treatment. The "Practice Management" component is included to implement certain meaningful use regulatory requirements. The Intergy EHR system has time-saving features, such as a "carry-forward" feature, which allows patient information from previous visits to be "carried forward," or copied and pasted, into the records for subsequent visits. Dr. Jernigan opined, credibly, that although the "carry-forward" feature is convenient, improper use or overuse of this feature can result in the records for a patient's subsequent visits containing all of the information from previous visits, rather than only the information pertinent to the particular subsequent visit. This may render the medical records outdated and inaccurate with respect to the patient's medical condition in subsequent visits. Additionally, carrying forward information from previous visits can render the records for subsequent visits incomprehensible, in that the patient's reason for that particular visit, the symptoms exhibited at that visit, and the specific treatment provided in that visit cannot be determined from the mass of comprehensive information that was carried forward from previous visits and included in the record for that particular visit. Here, the competent, credible evidence shows that Respondent was not trained in, and experienced difficulty in using, the Intergy EHR system. The competent, credible evidence shows that Respondent frequently used Intergy's "carry-forward" feature in preparing his medical records, and this was the likely cause for many of the records for his Medicaid patients including extensive carried-forward information from visit to visit——to the point that in numerous cases, it was difficult to identify which, if any, additional medical conditions, physical findings, treatments, or other services were provided to patients in their subsequent visits. The competent, credible evidence also shows that the Intergy EHR system has numerous flaws that render it difficult to use and not optimally functional in producing electronic medical records that are sufficiently accurate or comprehensible to be used for Medicaid billing purposes. As a result of the Intergy EHR system's flaws, as well as Respondent's apparent overuse of the system's "carry-forward" feature, his medical records were, in many cases, redundant, outdated, contradictory, and inaccurate with regard to documenting a patient's medical condition, physical findings, treatment, basis for services provided, and other key information for a particular visit. This rendered those records untrue, inaccurate, and incomprehensible, and, therefore, not in compliance with the Handbooks' requirements regarding documentation of services sufficient to support billed claims. Overpayment Determinations Rather than presenting evidence on each of the 69 total claims denied or adjusted on the grounds stated in Finding Nos. 1 through 4, the parties presented testimony and related evidence on selected representative claims for each Finding. The parties stipulated, with respect to Finding Nos. 1, 2, and 4, that Dr. Jernigan's analysis of Respondent's medical records, and her opinions regarding whether those records complied with the pertinent standards in the Medicaid Handbooks for payment purposes, applied to all claims for which the grounds in a particular Finding were cited as the basis for denial or modification of payment of that claim. It is important to note that Petitioner did not stipulate to the correctness of Dr. Jernigan's analyses and opinions——only that her analyses and opinions applied to all of the disputed claims denied on the grounds set forth in Finding Nos. 1, 2, and 4 in the FAR. Due to the small number of claims (two) that were denied or adjusted on the grounds cited in Finding No. 3, the parties presented testimony on each of those claims. Finding No. 1 – Insufficient Documentation to Support Claim For Finding No. 1, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 6, claim nos. 1 through 4; Recipient 8, claim no. 6; Recipient 16, claim nos. 3, 6, 15, 18, and 21. Recipient 6 Claim No. 1 Based on Dr. Jernigan's review, Petitioner denied Recipient 6, claim no. 1, for services provided by Respondent on February 29, 2012, on the basis of insufficient documentation to support the claim. The Reason for Visit noted that the patient was visiting due to "increased pains," but the documentation did not describe the location or nature of the pain, so was incomplete. The History of Present Illness component for this claim consisted of a bullet-point list of complaints, rather than a discussion of the development of those complaints over time. Additionally, this component contained incomplete and contradictory information. Specifically, this component contained a notation stating that the patient was suffering from hand pain and a range of other joint pain, without specifying which hand and joints (i.e., on the right side, left side, or both sides of the body) were painful. Additionally, the notation stated "no musculoskeletal symptoms," which conflicts with the notations regarding the existence of hand and other joint pain. The Review of Systems component for this claim also contained conflicting or contradictory notations. For example, there were conflicting descriptions of the patient's state of malaise, and conflicting notations documenting both the presence and the absence of night sweats. The Physical Findings component for this claim also contained contradictions and insufficient information. For example, the notations state both "wheezing was heard" and "no wheezing was heard"; that vomiting was observed and that the patient is to call the provider if vomiting develops; and that muscle spasms and tenderness in the back, as well as numerous trigger points, were observed, but that there was an overall finding of "normal" for the musculoskeletal system. Further, the notes did not identify whether these findings applied to the left or right side of the body, or both. The Assessment component consisted of a wide-ranging list of conditions, likely due to the carry-forward of all or much of the information from previous visits. Many of the conditions listed in this component were not supported by the information recorded in the History of Present Illness, Review of Systems, or Physical Findings components. For example, the assessment states that the patient suffers from hyperlipidemia, testicular dysfunction, viral syndrome, and upper respiratory infection, none of which are sufficiently supported by the information documented in any other component in the patient's medical history. The Therapy component states that Respondent provided pain management counseling and pain management by medication; however, the medication prescribed for the patient was not identified or documented in the medical record. The Counseling/Education component lists numerous matters on which counseling ostensibly was provided, including use of tobacco, alcohol, and illicit drugs, none of which were supported by any findings or notations in the patient's medical record. The Plan component for this claim diagnoses the patient as suffering from impotence of organic origin and suggests referring the patient to a urologist. Dr. Jernigan credibly testified that this diagnosis is not supported by the information documented in the other components of the patient's medical record, thus highlighting the point that if this diagnosis is accurate, the medical records for this claim are incomplete because they do not sufficiently document the basis for this diagnosis and course of treatment. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 1 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete and incomprehensible. Dr. Jernigan credibly and persuasively opined that as a result of these deficiencies, the medical records submitted to support claim no. 1 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 1 for Recipient 6 should be denied. Claim No. 2 Claim no. 2 is a follow-up visit for the same patient that took place on August 3, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirms, that the documentation for this claim suffers from most of the same deficiencies as did the documentation for claim no. 1. Specifically, the Reason for Visit was incomplete because it failed to document and describe the location or nature of the "increased pains." The History of Present Illness component consisted of the carried-forward information recorded in that EHR component for the previous visit, and, as such, suffered from the same deficiencies. Specifically, it did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead contained the same series of descriptive bullet points. Further, as previously discussed, several of the conditions described in these bullet points were contradictory. The Review of Systems component also appeared to carry-forward the same information contained in the same component from the previous visit, so suffers from the same deficiencies. Additionally, this component is inaccurate because it did not accurately reflect the patient's current medical condition at the time of the follow-up visit. The Physical Findings component also contained mostly carried-forward information from the same component in the record of this patient's previous visit, so contained the same inconsistencies and contradictions as the records submitted in support of claim no. 1. The Assessment component also appeared to be a carry- forward of all or much of the information from the previous visit, so it also suffered from the same deficiencies as the Assessment for claim no. 1. As discussed in detail above, many conditions listed in this component were not supported by the information documented in the other components of the medical record. In the Plan component for this claim, the urological diagnosis was deleted; however, the Plan did not specifically address or prescribe any treatments specific to the medical conditions identified in other components of the medical record for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 2 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that as a result of these deficiencies, the medical records submitted to support claim no. 2 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 2 for Recipient 6 should be denied. Claim No. 3 Claim no. 3 is a follow-up visit for Recipient 6 that took place on August 15, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirms, that the documentation for this claim suffers from several of the same deficiencies as did the documentation for claim nos. 1 and 2. The Reason for Visit component for this claim was incomplete because although it referenced that one of the reasons for the visit was a "medication refill," the medical record for this visit did not contain any documentation regarding the medication prescription being refilled. Additionally, as before, this component did not document and describe the location or nature of the "increased pains" also listed as a reason for the visit. As before, the History of Present Illness component consisted of carried-forward information, so continued to suffer from some of the previously discussed deficiencies. This component did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead consisted of a series of descriptive bullet points, some of which contained contradictory information. The Review of Symptoms component also appeared to consist mostly of carried-forward information that contained the same contradictory information as with the previous claims. In addition, new contradictory provisions documented the presence of "no sore throat" and "[s]ore throat," "no cough" and "cough causing vomiting," and "[a]nxiety" and "[n]o anxiety." The Physical Findings component also contained carried-forward information from the same component in the record of this patient's previous visit, so some of the previous contradictions in the notations, such as "wheezing was heard" and "no wheezing was heard," continued to be included. Additionally, the record still did not identify the specific location——i.e., left or right side of the body——of the musculoskeletal and neurological conditions noted, so was incomplete. The Assessment component also appeared to be a carry- forward of all or much of the information from the previous visit, so suffered from the same deficiencies as the Assessment for claim nos. 1 and 2. As discussed above, many conditions listed in this component were not supported by the information documented in the other components of the medical record. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 3 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 3 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 3 for Recipient 6 should be denied. Claim No. 4 Claim no. 4 is a follow-up visit for Recipient 6 that took place on November 21, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirmed, that the documentation for this claim suffered from several of the same deficiencies as claim nos. 1, 2, and 3. The Reason for Visit component for this claim was incomplete because although it referenced that one of the reasons for the visit was a "medication refill," the medical record for this visit did not contain any documentation regarding the medication prescription being refilled. This component also failed to describe the location or nature of the "increased pains" that are listed as a reason for the visit. As before, the History of Present Illness component consisted of the carried-forward information, so continued to suffer from some of the previously discussed deficiencies. As before, this component did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead consisted of a series of descriptive bullet points. New information regarding the patient's self- monitoring of blood glucose was added, but the blood glucose levels observed at various times of the day were not listed, rendering this notation incomplete. Additionally, this component continued to be incomplete due to lack of information regarding precise location of musculoskeletal and neurologic conditions. The Current Medication component, added into the medical records for this patient on this follow-up visit, was incomplete because it did not list the medications the patient is taking. The Review of Symptoms component also appeared to consist mostly of carried-forward information that contained the same contradictory information as with the previous claims. In addition, new contradictory provisions documented the presence of "no sore throat" and "[s]ore throat," "no cough" and "cough causing vomiting," and "[a]nxiety" and "[n]o anxiety." The Past Medical/Surgical History component stated "Pediatric: Failure to thrive." Because this patient is a 73-year-old adult rather than a pediatric patient, this information is inaccurate. As before, the Review of Symptoms component contained carried-forward information from this patient's previous visits, so perpetuated contradictions previously noted, such as "night sweats" and "no night sweats," and "no wheezing" and "wheezing worse during upper respiratory infection." The Physical Findings component still did not identify the specific location—i.e., left or right side of the body——of the musculoskeletal and neurological conditions noted. Additionally, necessary information, such as vital signs and lab testing results, was not documented. The Assessment component again appeared to be a carry- forward of all or much of the information from the previous visit, so suffered from the same deficiencies as the Assessment for claim nos. 1, 2, and 3. As previously discussed, many conditions listed in this component, such as "adult failure to thrive," "vascular dementia," and "chronic fatigue syndrome," were not supported by the information documented in the other components of the medical records. The Therapy Component noted that the patient's pain was being managed by medication, but there was no notation regarding the type of medication prescribed. Additionally, the patient was directed to perform a "self-examination" with no detail regarding what part of the body was to be examined, and the "addiction counseling" notation was unsupported by any other mention of addiction in the medical record. The Counseling/Education component continued to contain extensive carried-forward information, and also contained an extensive list of newly-added counseling notations that were not supported by other components of the medical record. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 4 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 4 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Accordingly, it is determined that claim no. 4 for Recipient 6 should be denied. Recipient 8 Claim No. 6 Based on Dr. Jernigan's review, Petitioner denied Recipient 8, claim no. 6, for services provided by Respondent on February 29, 2012, on the basis of insufficient documentation. Dr. Jernigan noted that much of the medical record for this visit appeared to be an exact carry-forward from the previous visit, so did not specifically address or reflect the patient's current condition at the time of her follow-up visit. Additionally, several of the components for this visit contained contradictory or clearly inaccurate information. She noted that when inconsistencies are repeated in medical records, it is very difficult to determine the patient's condition or course of treatment for a particular visit. Here, the History of Illness was again a bullet-point list of symptoms or conditions, rather than a chronological narrative of the patient's medical condition presented for this visit. Additionally, although one of the stated reasons for this visit was "infected hands after burns," this component contained the contradictory statement "no skin symptoms." Further, in the Past Medical/Surgical component, it is noted "Pediatric: Failure to thrive." Because the patient is an adult, this was an inaccurate notation in the record. The Social History component stated in part: "Abuse and Neglect: Receiving insufficient liquids and abandonment which resulted in hunger or thirst." Dr. Jernigan opined that this statement was inconsistent with the fact that the patient is obese. The Functional component describes the patient as "unable to lift more than" and "unable to drive more than," but did not contain a complete description of these limitations from which the patient suffered. Additionally, the statements "able to walk" and "difficulty walking unassisted" appeared to be contradictory. The Review of Systems also contained several contradictory statements. Specifically, the Reason for Visit component stated that one of the reasons for this visit was "infected hands after burns," but the Review of Symptoms component stated that the patient exhibited "no skin lesions." Additionally, this component stated that the patient exhibited "no polydipsia" and "polydipsia," "vertigo" and "no vertigo," and "no sensory disturbance" and "tingling of the hands and feet, a burning sensation, and numbness of the hands and feet (distal)." The Physical Findings also contained contradictory and incomplete information. For example, the stance and gait were shown as being both "abnormal" and "normal." Further, the description of the burns on the patient's hands did not specify whether they were first-, second-, or third-degree burns, and although her hands were burned, the skin was described as "general appearance was normal" and having "no skin lesions." The Assessment consisted of an extensive list of conditions, many of which were unsupported by the Review of Systems and Physical Findings components. The Therapy component consisted of an extensive list of items, many of which were unsupported by information in the other components of the medical record. For example, addiction counseling for alcohol and opioids is noted, but there was no information documenting addiction to these substances in other parts of the medical record. Additionally, "psychoactive medication management" was listed as a therapeutic item, but the specific medication was not identified and the other components did not support this therapy. Similarly, "pain management by medication" was listed, but the specific medication was not identified. "Education and instructions" also was listed but there was no description of the specific subjects. The Counseling/Education component consisted of an extensive list of subjects about which the patient ostensibly was counseled or education on this visit, but most of them were unsupported by the information in the other components of the medical record for this visit. Dr. Jernigan noted that it appeared that the EHR system "dumped" a laundry list of unrelated items into the notes for this component, making it difficult to know precisely what type of counseling and education was actually provided for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 6 for Recipient 8 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 6 for Recipient 8 did not comply with the pertinent standards in the Handbooks. Accordingly, it is determined that claim no. 6 for Recipient 8 should be denied. Recipient 16 Recipient 16 was a young male patient. During the Audit Period, this patient had numerous visits to Respondent, resulting in a total of 59 claims. Of those, 33 are in dispute in this proceeding. Dr. Jernigan testified about claim nos. 3, 6, 15, 18, and 21 as representative of her analysis and opinions regarding claims denied or adjusted pursuant to the grounds stated in Finding No. 1. Claim No. 3 Dr. Jernigan again noted incomplete documentation and inconsistencies with respect to the notations in the various components of the medical record for this claim. Specifically, she noted that in the Social History, there is a notation of "Abuse and neglect: Receiving insufficient liquids and abandonment which resulted in hunger or thirst," but this notation was not consistent with or supported by the information in the other components of the medical record for this visit. In the Review of Symptoms component, there was an inconsistent notation of "earache" and "no earache." In the Physical Findings component, no vital signs were recorded, rendering the medical record incomplete. Additionally, there were several inconsistent observations documented, including a notation of "no distress," notwithstanding that "vomiting was observed." The Assessment component contained extensive carried- forward information from previous visits, rendering that information inaccurate with respect to this particular visit. Additionally, the medications of Phenergan and Bentyl IM apparently were administered, but no dosage was documented. The Counseling/Education component listed subjects about which the patient ostensibly was counseled, such as tobacco, alcohol, and illicit drug use, but these items were not supported by information in the Social History component or in other components in the medical record for this visit. Ultimately, Dr. Jernigan determined that this claim, which was for an injection to treat nausea with vomiting, should be denied because no dosage for the injected medication was provided, as required by the Handbooks for the claim to be payable. Accordingly, it is determined that claim no. 3 for Recipient 16 should be denied. Claim No. 6 Although the Reason for Visit component referred to test results, the types of tests and results thereof were not addressed or otherwise documented in the medical record for this visit. The History of Present Illness again was presented in a bullet-point list, rather than a chronological narrative of the patient's medical condition and its progression and treatment. There was no information regarding when or for how long the list of conditions existed, or whether they existed at the time of this specific visit. The notation in the Physical Findings that there was "no nasal discharge seen" and "no sinus tenderness" was inconsistent with the Review of Symptoms notations documenting the presence of sinus pain and nasal discharge, and the notation that the oropharynx was "abnormal" and "inflamed" was inconsistent with the notation that it also was "normal." The Counseling/Education component notations stated that the patient again was counseled about tobacco, alcohol, and illicit drug use, but as before, there was no information in the other components to support this counseling for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 6 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 6 for Recipient 8 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 6 for Recipient 16 should be denied. Claim No. 15 The Reason for Visit component for this claim did not address the reason for the patient's visit or identify the test results that would be reviewed during that visit. As with previous claims, the History of Illness component for this visit was a bullet-point list of symptoms rather than a chronological narrative of the patient's condition. Additionally, it contained contradictory information regarding the presence or absence of pulmonary symptoms. The Review of Systems component for this visit contained multiple contradictions similar to those noted in the previous claims for this patient. Specifically, there were contradictory notations regarding the presence of "neck pain" and "no neck pain," the presence of "neck stiffness" and "no neck stiffness," the presence of "sore throat" and "no sore throat," and the presence of "localized joint stiffness" and "no localized joint stiffness." The Physical Findings component lacked information regarding the patient's vital signs, and contained contradictory notations regarding normal and abnormal breath sounds and the presence and absence of wheezing. The Assessment component contained extensive information that was unsupported by information documented in the other components of the medical record for this visit. Moreover, this patient had been documented in a previous visit as weighing 168 pounds and suffering abuse and neglect resulting in hunger or thirst, so the notation that he was at risk for obesity hypoventilation syndrome appeared inaccurate and inconsistent with his previously documented condition. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 15 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 15 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 15 for Recipient 16 should be denied. Claim No. 18 As with the medical records for previous claims, the Reason for Visit component for this claim lacked key information, such as information regarding the reason for the visit and the test results to be reviewed. The History of Illness component once again consisted of a bullet list of observed conditions, rather than a chronological narrative of the history of the patient's condition, its progression, and its response or lack of response to treatments. The Review of Systems contained many of the previously noted inconsistencies regarding the presence and absence of neck pain and stiffness and presence and absence of sore throat. Additionally, this component contained the contradictory notations of "heartburn" and "no heartburn." The Physical Findings component of this visit also contained many of the same contradictions as noted for previous claims for this patient. Specifically, there was a notation of normal and abnormal pharynx, normal and abnormal lungs, the presence of wheezing and absence of wheezing, and the presence of both an abnormal and normal gait. The Assessment component again consisted of an extensive list of conditions, many of which were not supported by information documented in the other components for this medical record. The Plan component was non-specific and did not address any of the diagnoses listed in the Assessment component. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 18 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 18 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 18 for Recipient 16 should be denied. Claim No. 21 Claim no. 21 for Recipient 16 suffered from many of the same deficiencies as previously identified for other claims for this patient. The Reason for Visit component did not specifically identify the reason for this particular visit, and the laboratory test results to be reviewed were not identified. The History of Present Illness component consisted of a bullet-point list, rather than a chronological narrative, and it did not discuss the history and progression of the patient's condition and response or lack of response to treatment. Additionally, it contained the same or similar contradictory statements as were previously discussed with respect to this component for other claims for this patient. The Review of Symptoms component contained many of the same contradictions previously noted with respect to other claims for this recipient. Specifically, "no facial pain" and "facial pain and sinus pain," "neck pain" and "no neck pain," "no sore throat" and "sore throat," "heartburn" and "no heartburn," and "dizziness" and "no dizziness" were noted in this component. The Physical Findings component also contained contradictory information, such as abnormal and normal orolarynx, wheezing and no wheezing being heard, and abnormal and normal gait and stance. The Assessment component again appeared to be a carried-forward list of numerous conditions, such as acne, anemia, arthropathy, fatigue, thyroid issues, and obesity that were not supported by documentation in the other components of the medical record for this visit. The Plan was non-specific and did not address the diagnosed conditions listed in the Assessment component. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 21 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 21 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 21 for Recipient 16 should be denied. Summary of Grounds for Denial of Claims Under Finding No. 1 Dr. Jernigan's overall assessment of the claims denied on the basis of Finding No. 1 was that Respondent's documentation was not sufficiently clear and accurate to enable a reviewer to discern the reason for a particular patient visit; the symptoms presenting for a particular visit; the nature, history, and progression of the medical condition; the diagnosis or determination of the medical condition; the treatment; or the therapy and counseling provided to address the medical condition. In particular, the frequent lack of key details, such as the patient's vital signs, and the frequent and pervasive contradictions in many of the components of the records rendered them inaccurate, unreliable, and essentially useless in determining the nature of the patient's condition, treating the patient's condition, and documenting that treatment for payment purposes. Additionally, the diagnoses documented in the Assessments component were rarely well-supported by accurately documented information in the other components, and appeared to be more a "basketful of therapies" that were not specific to the patient and not supported by other information documented in the rest of the medical record. As Dr. Jernigan put it, "if I was looking at [the medical record for] that specific patient, I would have nothing that would be helpful to me." Dr. Jernigan testified, credibly and persuasively, that the frequent and pervasive inconsistencies in Respondent's records rendered them untrue, inaccurate, and incomprehensible. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the basis of no documentation or incomplete documentation to be credible, accurate, and supported by the documentary and other evidence in the record. Pursuant to the parties' stipulation noted above, the undersigned has applied this analysis in reviewing each of the other claims disputed on the basis of Finding No. 1. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 1. Finding No. 1: No Documentation or Incomplete Documentation Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 2 2 99212 Deny 48.56 2 21 99213 Deny 77.34 6 1 99214 Deny 39.46 6 2 99214 Deny 39.46 6 3 99214 Deny 39.46 6 4 99214 Deny 39.46 8 6 99213 Deny 79.34 9 4 99214 Deny 48.27 10 10 93000 Deny 9.67 13 3 99213 Deny 83.35 16 2 J2550 Deny 2.05 16 3 96372 Deny 12.42 16 4 93672 Deny 12.42 16 6 99214 Deny 48.27 16 15 99214 Deny 48.27 16 16 99372 Deny 12.42 16 17 99214 Deny 48.27 16 18 99214 Deny 48.27 16 19 96372 Deny 12.42 16 21 99214 Deny 48.27 16 22 96372 Deny 13.43 16 23 99214 Deny 48.27 16 24 96372 Deny 13.43 16 25 99214 Deny 48.27 16 27 99214 Deny 48.27 16 30 99213 Deny 83.35 16 31 99213 Deny 83.35 16 32 99211 Deny 23.06 16 33 96372 Deny 13.43 16 34 99212 Deny 50.56 16 35 96372 Deny 13.43 16 37 96372 Deny 13.43 16 38 99213 Deny 83.35 16 41 99212 Deny 50.56 16 43 99212 Deny 50.56 16 54 99212 Deny 50.56 16 57 96372 Deny 14.14 18 2 J0969 Deny 2.00 18 3 96372 Deny 12.42 18 4 J1100 Deny 0.15 18 5 96372 Deny 14.42 24 1 99213 Deny 79.34 33 9 99213 Deny 77.34 34 4 99214 Deny 39.46 34 7 88150 Deny 10.00 35 5 99214 Deny 39.46 35 6 99214 Deny 39.46 Total Recipients: 12 Total Claims: 47 Determined Total Overpayment Amount: $1,810.95 Finding No. 2 – Services Provided Not Medically Necessary For Finding No. 2, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 2, claim nos. 11, 13, and 19; Recipient 16, claim nos. 15, 17, and 30; and Recipient 34, claim no. 7. However, because claim nos. 15, 17, and 30 are being denied in this Recommended Order on the basis of Finding No. 1, they are not addressed in this discussion of claims denied on the basis of Finding No. 2, and they are not counted toward the amount of reimbursement determined in this Recommended Order to be owed. Additionally, because the following claims previously have been denied in this Recommended Order on the basis of Finding No. 1, they have not been counted toward determining the overpayment amount for claims denied on the basis of Finding No. 217/: Recipient 2, claim no. 21; Recipient 16, claim nos. 15, 17, 30, 31, 32, 34, 41, and 43; Recipient 24, claim no. 1; and Recipient 34, claim nos. 4 and 7. Accordingly, a total of eight claims in dispute on the basis of Finding No. 2 have been addressed in this Recommended Order. The CPT Codes The 2012, 2013, and 2014 versions of the Current Procedural Terminology manuals (collectively, "CPT Manuals") establish the CPT Codes that apply in billing services to Medicaid.18/ The following CPT Codes are pertinent to the claims denied on the basis set forth in Finding No. 2: 99211, 99212, 99213, and 99214. These CPT Codes indicate a progressive increase in the complexity of the medical visit, so require progressively greater levels of documentation to justify billing Medicaid for the service. Dr. Jernigan regularly bills Medicaid for services she provides using these CPT Codes. She is very familiar with their use and with the nature of the medical services that are appropriately billed under each code. CPT Code 99211 The CPT Manuals define CPT Code 99211 as: "Office or other outpatient visit for the evaluation and management of an established patient, that may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services." CPT Code 99212 The CPT Manuals define CPT Code 99212 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 components: A problem focused history; A problem focused examination; Straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self[-]limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. CPT Code 99213 The CPT Manuals define CPT Code 99213 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: An expanded problem focused history; An expanded problem focused examination; Medical decision making of low complexity. Counseling and coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. CPT Code 99214 The CPT Manuals define CPT Code 99214 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: A detailed history; A detailed examination; Medical decision making of moderate complexity. Counseling and/or coordination of care with other physicians, other qualified health care professionals, or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Typically, 25 minutes are spent face-to-face with the patient and/or family. In determining whether a service provided is medically necessary for purposes of Medicaid billing, the focus is on whether there is sufficient documentation to support the necessity of the service provided to the patient. The documentation submitted to support a claim is reviewed to determine whether there is sufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided, and to justify the need for the service provided. A. Recipient 2 Claim No. 11 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Specifically, while the patient presented with conditions that may indicate a urinary tract infection or pelvic inflammatory disease, those diagnoses were only two in a list of 32 assessments, so the record did not clearly indicate the specific diagnosis for her condition at this specific visit. Further, the treatment consisted of a topical medication used to treat arthritis and a medication used to treat painful menstruation, rather than a medication used to treat a urinary tract infection or pelvic inflammatory disease. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 11 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Claim No. 13 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Specifically, there were no physical examination findings that appeared to be specifically related either to the patient's condition at that visit, or to the treatment provided. For example, Dr. Jernigan specifically noted that while there was an assessment of vulvodynia and the patient was treated for a yeast infection, the medical record does not note an examination of the patient's genitalia having been performed to support that assessment and treatment. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 13 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Claim No. 19 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Here, the stated reason for the visit included fatigue, somnolence and weakness with problems sleeping, arthralgias with muscle pain and tenderness, headache and dizziness, and snoring with acid reflux. However, the assessment contained a list of 33 diagnoses, many, if not most, of which did not appear to be related to the stated reason for the visit. Additionally, the treatment did not appear appropriate for the conditions stated as the reason for this specific visit. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 19 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Summary of Grounds for Denial of Claims under Finding No. 2 In sum, Dr. Jernigan determined that the claims denied as not medically necessary did not contain sufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided, and to justify the need for the service provided. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the basis of no documentation or incomplete documentation to be credible, accurate, and supported by the documentary and other evidence in the record. Pursuant to the parties' stipulation noted above, the undersigned has applied Dr. Jernigan's analysis in reviewing each of the other claims disputed on the basis of Finding No. 2. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 2. Finding No. 2 – Not Medically Necessary Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 2 11 99213 Deny 81.35 2 13 99213 Deny 81.35 2 19 99213 Deny 77.34 16 36 99211 Deny 23.06 16 39 99212 Deny 50.56 16 45 99212 Deny 50.56 16 47 99211 Deny 23.06 35 4 99214 Deny 39.46 Total Total No. Determined Recipients: of Claims: Total 3 8 Overpayment Amount: $426.74 Finding No. 3 – Established Patients Billed as New Patients As discussed above, a new patient is one who has not received any professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years. The two claims in dispute that were denied on the basis set forth in Finding No. 3, that they were not new patients are Recipient 21, claim no. 1; and Recipient 23, claim no. 1. These claims were downcoded to reflect that the patient was an established patient, rather than a new patient. The CPT Codes pertinent to this Finding are 99203, 99204, 99213, and 99214. CPT Codes 99213 and 99214 previously have been defined in the findings pertaining to Finding No. 2, above. CPT Code 99203 The CPT Manuals define CPT Code 99203 as: Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A detailed history; A detailed examination; Medicaid decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. CPT Code 99204 The CPT Manuals define CPT Code 99204 as: Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A comprehensive history; A comprehensive examination; Medicaid decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. Recipient 21 Claim No. 1 Recipient 21, claim no. 1 was adjusted from CPT Code 99204 to CPT Code 99214. Dr. Jernigan determined that this claim should be denied because the notations for the Past Medical History, Social History, and Family History state that they are "unchanged." This notation would not be appropriate for a new patient, but would be appropriate for an established patient. Dr. Jernigan noted that had she determined this claim was for a new patient, it would have been denied, rather than adjusted downward, because the supporting documentation did not contain the patient's comprehensive history, which is one of the three components required in the documentation to support a claim billed under CPT Code 99204. Instead of denying this claim, Dr. Jernigan determined that under the documentation submitted, it should be billed under CPT Code 99214, as a claim for an established patient having a medical problem of moderate to high severity, and for which two of the three components are documented in the medical record. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to support billing the claim as one for a new patient, but would support billing the claim as one for an established patient, was credible, supported by the evidence, and persuasive. Accordingly, claim no. 1 for Recipient 21 should be billed under CPT Code 99214, rather than CPT Code 99204. Recipient 23 Claim No. 1 Dr. Jernigan determined that this claim should be denied because the notations for the Past Medical History, Social History, and Family History state that they are "unchanged." This notation would not be appropriate for a new patient, but would be appropriate for an established patient. Accordingly, she reviewed the claim as one for an established patient, and, based on the documentation in the medical record, determined that the presented problem was one of low to moderate severity and at least two of the required components were present in the record. For these reasons, Dr. Jernigan determined that this claim should be billed under CPT Code 99213, rather than under CPT Code 99203. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to support billing the claim as one for a new patient, but would support billing the claim as one for an established patient was credible, supported by the evidence, and persuasive. Accordingly, claim no. 1 for Recipient 23 should be billed under CPT Code 99213, rather than CPT Code 99203. Summary of Grounds for Downcoding Claims Under Finding No. 3 In sum, Dr. Jernigan's determined that the notations in the Past Medical History, Family History, and Social History components of the documentation submitted for these claims, as well as the lack of other components in the record, did not support billing these claims as new patient claims, but would support billing them as established patient claims. The undersigned finds Dr. Jernigan's analysis and opinion regarding the downcoding of these claims to bill them as established, rather than new, patient claims to be credible, accurate, and supported by evidence in the record. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 3. Finding No. 3 – Incorrectly Billed as New Patient Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 21 1 99204 Adjusted to 99214 25.38 23 1 99203 Adjusted to 99213 37.66 Total Recipients: 2 Total Claims: 2 Determined Total Overpayment Amount: $63.04 Finding No. 4 – Level of Service Not Supported Claims denied on the grounds set forth in Finding No. 4 of the FAR did not contain documentation sufficient to support the higher level of service billed, but did contain documentation sufficient to support a lower level of service than that billed. CPT Codes 99212, 99213, 99214, and 99204 are pertinent to this Finding, and have been previously defined in the findings pertaining to Findings No. 2 and 3, above. As previously noted, CPT Codes 99212, 99213, and 99214 indicate a progressive increase in the complexity of the medical visit, so require progressively greater levels of documentation to justify billing Medicaid for the service. For Finding No. 4, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 8, claim no. 4; Recipient 9, claim no. 2; Recipient 10, claim no. 3; Recipient 13, claim no. 1; and Recipient 16, claim nos. 29 and 52. Recipient 8 Claim No. 4 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. Despite the extensive description in the Reason for Visit component and the extensive list of conditions noted in the Assessment component, the visit ultimately was to address a urinary tract infection, which is a problem of low to moderate complexity and involved the components which would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 4 for Recipient 8 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 9 Claim No. 2 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. This visit was a follow-up without any significant changes in the findings documented in the components of previous visits. There was no documentation in any of the components for this visit which would indicate that it involved problems that were of moderate to high complexity, and that it entailed components that would justify billing the claim under CPT Code 99214. The documentation for this visit indicated a problem of low to moderate complexity and entailed the components that would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 2 for Recipient 9 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 10 Claim No. 3 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. This claim entailed extensive internal inconsistencies and contained numerous contradictory notations, which affect the reviewer's ability to determine the purpose of the visit and the appropriate type and level of treatment. Here, Dr. Jernigan opined that this visit ultimately was a follow-up for hypertension and diabetes, and that the patient's condition had not changed from the previous visit. The documentation did not indicate that this visit entailed problems that were of moderate to high complexity, nor did it document the components would justify billing the claim under CPT Code 99214. Rather, the documentation for this visit indicated a problem of low to moderate complexity and involved the components that would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 3 for Recipient 10 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 13 Claim No. 1 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99204 to CPT Code 99214. The documentation for this claim did not support billing the visit under CPT Code 99204, for a new patient, because it did not contain sufficient information that a comprehensive examination was performed, which is required by this CPT Code. Additionally, the documentation lacked any substantial discussion of the patient's Social History, Family History, or Past Medical History——information that, according to Dr. Jernigan, would be particularly important for a new patient——especially one who, per the documentation in the record, was sexually abused. Further, the Past Medical/Surgical History, Social History, and Family History components all listed this patient's condition as "unchanged," indicating that the patient must have been an established, rather than a new, patient. These deficiencies in the record for this claim did not justify billing the claim under CPT Code 99204, for a new patient. However, due to the severity of the patient's condition, the treatment documented in the record for this visit entailed the components under CPT Code 99214 for an established patient. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 1 for Recipient 13 is correctly adjusted from CPT Code 99204 to CPT Code 99214. Recipient 16 Claim No. 29 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. Dr. Jernigan found much of the information documented for this claim to be incredible. For example, the patient is a 19-year old male, but the notations in the record state such things as "parental concerns about baby's growth" and "assessment for menopause performed." Dr. Jernigan ultimately determined that this visit was a follow-up to address hypothyroidism and that thyroid medication was prescribed as a treatment for this condition. This visit concerned a problem of low to moderate complexity and involved the components that would justify billing the claim under CPT Code 99213, rather than a more complex problem that would justify the level of service under CPT Code 99214. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 29 for Recipient 16 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Claim No. 52 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99213 to CPT Code 99212. Here, the Reason for Visit stated that the visit was, among other things, to address a skin rash. Although the documentation for this claim contained numerous inconsistencies, Dr. Jernigan was able to discern that the patient had two dermatological conditions that would support the prescription of Doxycycline. According to Dr. Jernigan, skin issues are relatively easy to see and treat, which would justify billing this claim under CPT Code 99212, for a minor problem that would entail the components for that CPT Code, rather than a more complex problem that would justify the level of service under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible and persuasive. Accordingly, it is determined that claim no. 52 for Recipient 16 is correctly adjusted from CPT Code 99213 to CPT Code 99212. Summary of Grounds for Denial of Claims Under Finding No. 4 Dr. Jernigan's overall assessment of the claims denied on the basis of Finding No. 4 was that while a basis for billing Medicaid could be discerned from the medical records for the claim, the documentation in those records was not consistent with the symptoms or confirmed diagnosis, so did not reflect the level of service that could safely be furnished. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the grounds stated in Finding No. 4 to be credible, supported by the evidence, and persuasive. Pursuant to the parties' stipulation noted above, the undersigned has applied this analysis in reviewing each of the other claims disputed on the basis of Finding No. 4. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 4. Finding No. 4 – Incorrectly Billed at Higher Level of Service Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 8 4 99214 Adjusted to 99213 38.79 9 2 99214 Adjusted to 99213 15.71 10 3 99214 Adjusted to 99213 36.79 13 1 99204 Adjusted to 99214 122.14 16 29 99214 Adjusted to 99213 38.79 16 52 99213 Adjusted to 99212 32.79 17 1 99214 Adjusted to 99213 23.32 21 2 99214 Adjusted to 99213 14.85 22 2 99214 Adjusted to 99213 73.87 30 3 99214 Adjusted to 99213 12.85 32 2 99214 Adjusted to 99213 32.56 35 1 99204 Adjusted to 99202 36.77 Total Recipients: 11 Total Claims: 12 Determined Total Overpayment Amount: $479.23 Findings of Ultimate Fact Pursuant to the foregoing, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid by the Medicaid program for the disputed and undisputed claims in this proceeding. Respondent defends its position that many of the claims in dispute should be adjusted downward in this proceeding, rather than denied, by asserting that the inaccuracies and lack of comprehensibility in the documentation for the claims were due to the flaws and defects in the Intergy EHR system, rather than any deficiency on his part in diagnosing or treating his patients or in properly documenting their visits. In support of this position, Respondent notes that in many cases, the documentation provided to support a claim did contain——among the many listed conditions and assessment——a diagnosis that matched the reason for the visit. There is little question in the undersigned's mind that Respondent actually provided the services in the claims he billed to Medicaid. However, the issue in this proceeding is not whether the provider did, in fact, provide the services or accurately diagnose and treat the patient's condition. Rather, the issue is whether the documentation submitted to Petitioner to support the Medicaid-billed claims is true, accurate, comprehensible, and demonstrates the medical necessity of the billed claim, as required by section 409.913 and the Handbooks. Unfortunately, due to the substantial flaws in the Intergy system and Respondent's difficulty in using that system, his records did not comply with those standards, so do not support the billed claims. As the enrolled Medicaid provider, Respondent is ultimately responsible for the completeness, accuracy, and comprehensibility of the documentation submitted in support of his claims billed to Medicaid. § 409.913(7), Fla. Stat. The Handbooks, section 409.913, and applicable rules do not recognize, as a defense to actions seeking reimbursement for overpayments, that deficiencies in the provider's records may be excused due to poor or dysfunctional EHR systems. Based on the foregoing, the undersigned found Dr. Jernigan's analyses and opinions credible, supported by the competent substantial evidence in the record, and persuasive. Accordingly, it is determined, as a matter of ultimate fact, that Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid by the Medicaid program in the amount of $72,084.43 for the disputed and undisputed claims in this proceeding. However, the undersigned determines that Petitioner did not prove the overpayments by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Agency for Health Care Administration, enter a final order directing Respondent to repay to the Agency the sum of $72,084.43 in overpayments. Pursuant to section 409.913(23)(a), Petitioner, as the prevailing party in this proceeding is, entitled to recover, as costs, all investigative, legal, and expert witness costs as the prevailing party is granted. If the amount of these costs cannot be stipulated by the parties, Petitioner may request a hearing solely to establish the amount of costs it is entitled to recover in this proceeding. DONE AND ENTERED this 12th day of March, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 12th day of March, 2018.
The Issue The basic issue in this proceeding is whether Petitioner's application for certification as a respiratory therapy technician should be granted. More specifically, the issue is whether Jack Mallan, Jr., submitted false information on, or in support of his application and, if so, whether that is sufficient basis to deny his application. Despite confusion throughout the proceeding, the basis for Mr. Mallan's termination from employment at Florida Hospital was also at issue. This matter is addressed in more detail below.
Findings Of Fact Jack Mallan, Jr., submitted his application for certification as a respiratory therapy technician through endorsement in September 1985. His application stated that he was employed as a graduate therapist at Florida Hospital in Orlando, Florida, from 1980-1984. His response checked the answer "no", to question #6 on the form, "Have you ever been terminated, disciplined, or allowed to resign from an employment setting where you were employed to deliver respiratory care services?" [Petitioner's exhibit #4, Application]. Sometime later, apparently in the course of the Board of Medical Examiners' routine investigation, it was disclosed by Florida Hospital that Jack Mallan was terminated in November 1986, for misconduct and falsification of patient records and that, prior to the termination, he had been "written up" several times regarding problems he had with patients. [Petitioner's exhibit #4, letter dated July 30, 1986]. Mallan was informed that he must make a personal appearance before the Advisory Council on respiratory care and he did appear on October 1, 1986. [Petitioner's exhibit #4, letters dated September 10, 1986, and September 24, 1986; Petitioner's exhibit #5]. At his appearance, Mallan denied having falsified patients records and claimed that the basis for the termination was "a travesty". He conceded that he erred in his answer on the application and, at one point in the proceeding, apologized for writing the wrong answer and said that he was embarrassed and was hoping it wouldn't be discovered. The Council voted to deny his application. [Petitioner's exhibit #5]. The order from the Council, dated January 5, 1987, states the following as grounds for denial: The applicant submitted false information on, or in support of, his application for licensure. See Section 468.365(1)(a), (d), and (f), Florida Statutes; Section 468.354(5), Florida Statutes; and Rule 21M-37.02(2), Florida Administrative Code. At the final hearing in this proceeding, Mr. Mallan continued to deny that he ever falsified patient's records. [Tr. 14]. In support of this, he presented the testimony of Catherine "Kitty" Arnold, the charge nurse on the floor where Jack Mallan worked in 1983. While she heard that he was fired, she denied hearing complaints from any patients about Mr. Mallan. She also told Mallan's supervisor, Jim Richardson, before the termination, that she had not heard any complaints. [Tr. 52]. In support of his professional qualifications and fitness to practice, Mr. Mallan presented an employee performance review from Winter Park Hospital dated February 13, 1986. For every factor on the rating form, he was rated "very good", the highest rating, by his supervisor, Avery Smith. Mr. Smith also appeared before the Advisory Council on Mallan's behalf. Mallan was employed as a therapist at Winter Park Hospital from February 1985, until October 1986, when the council voted to deny his certificate. He was granted leave from his employer in order to pursue remedies to obtain the certificate. [Petitioner's exhibits #3, #5, and #6; Tr. 21-22]. In response to his attorney's question, "... why did you not go into detail about why you left the employ of Florida Hospital?", Mallan explained that he felt the "alleged termination at Florida Hospital" was unjust and untrue, that he did not want to spread lies about himself and was afraid for his future career. [Tr. 25]. On cross-examination, he refused to admit that he was "terminated" from employment by Florida Hospital, but later conceded that he did not leave the employment voluntarily and was accused of wrongdoing. [Tr. 31, 32]. His responses continued to be evasive and vague, as characterized by the following exchange: Q [By Ms. Lannon] Were you ever disciplined at Florida Hospital prior to this occasion while you were employed there to deliver respiratory care services? A Yes. Q Isn't it true that in fact in August of that very same year, you were disciplined for allegedly falsifying patient records? MR. SIWICA: I'd like a continuing objection to the relevancy. THE HEARING OFFICER: Noted for the record but you may answer the question. THE WITNESS: I have a choice to answer yes or no? THE HEARING OFFICER: You'll be allowed to explain the answer but go ahead and answer the question. THE WITNESS: could you repeat it again, please? BY MS. LANNON: Q Isn't it true that in August of the same year, the year that you were terminated, you were disci- plined based on an accusation or an allegation that you had falsified a patient's records? A I don't recall. Q Weren't you in fact suspended for two days in August of that year? A What year was that, please? Q 1983. A I can't recall. Q Were you ever suspended from your job at Florida Hospital? A I took sick days. Q Were you ever suspended from your job at Florida Hospital? MR. SIWICA: I think he's answered that. THE HEARING OFFICER: Wait. No, he hasn't. MR. SIWICA: I'm sorry. THE WITNESS: There was an incident. They told me to stay home. I can't remember when it was. BY MS. LANNON: Q Well, that wasn't ever. Were you ever suspended? I wasn't asking you to remember when it was with that question. A I don't know if it was suspended. I was asked to stay home from my shift and I don't known how many -- it was maybe one day, I think. Q Maybe one day. You don't recall? A No. Q Were you paid for that day? A I don't remember that either. [Tr. 35-37]. His personnel record reflects a two-day suspension in August 1983 for charting treatment that the patient denied having received, and for rudeness to a patient. [Respondent's exhibit #1, Memo dated August 30, 1983, Discussion reports dated August 22, 1983, and August 20, 1983.] Irv Hamilton was associate director of personnel at Florida Hospital in 1983. In a meeting with Jack Mallen he discussed the basis for termination. Mallen was observed sitting at the nurses' station when he was supposed to be coaching a patient in therapy and recording vital signs. After investigating, his supervisor, Jim Richardson, concluded that the record of treatment made by Mallan was falsified. Hamilton also reviewed and briefly investigated Jim Richardson's recommendation for termination. While the nurses and patient denied talking with Richardson about the November incident, Hamilton affirmed the recommendation for termination. He felt that Mallan had contacted the witnesses after their initial statements to Richardson. He also concluded, based on Mallan's alleged admissions that he was in the nurses' station rather than in the patient's room for part of the therapy, that it would have been impossible for the treatment to have been properly administered. [Petitioner's exhibit #2; Tr. 59, 60, 73, 75, 81]. Hamilton confirmed from his own recollection that Mallan was suspended in August 1983 for falsification of patient records. [Tr. 62]. Jim Richardson insisted that the nurse and patient had changed their story, that the nurse had indicated to him on the date of the incident that she heard of a patient's complaint. Further, when he approached the patient, she first said she didn't want to get anyone in trouble, but then said that the therapist who gave her treatment that night simply gave her the apparatus with medicine, left the room and returned after she finished the treatment to pick it up. [Tr. 98-101] Mr. Richardson personally observed Mallan in the nurses' station but did not confront him at the time, nor was Richardson close enough to see exactly what Mallan was doing. [Tr. 104, 106-108]. Circumstantial evidence and hearsay in this proceeding is insufficient to establish conclusively that Mr. Mallan falsified records in November 1983. He clearly, knowingly and deliberately falsified his application for certification. Even after appearing before the Council and hearing the concern about the need to be forthright, he remained very defensive and evasive throughout the final hearing. He feigned ignorance of the details of an incident in August 1983, when that incident was referenced on a special performance evaluation dated October 16, 1983. That evaluation, completed by his supervisor, Jim Richardson, rated him well above average and commended him for excellent effort in improvement. Notably, the first page of that evaluation was submitted and received as Petitioner's exhibit #1. The first page contains the rating factors and very positive levels of achievement selected by the supervisor as applicable. The second and subsequent pages are found in the personnel file, Respondent's exhibit #1. Those pages include a signature page with reference to an attached sheet. The typewritten attachments include general comments which reference past problems, including the August incident, and the commendation for improvement. Jack Mallan obtained an Associates Degree in respiratory therapy from Valencia Community College in 1981. He received a "respiratory care technicians" certification from the National Board of Respiratory Care on March 16, 1985. [Tr. 9]. His qualifications as to training and experience are not in question in this proceeding.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: That a final order be entered DENYING Petitioner's application for certification as a respiratory therapy technician. DONE AND ORDERED this 17th day of August, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0618 The following constitute my specific rulings on the findings of fact proposed by the parties. Petitioner 1. Adopted in paragraph #12. 2-3. Rejected as immaterial. 4. Incorporated in the finding in paragraph #10. 5-6. Incorporated in the findings in paragraphs #9 and #10. Adopted in paragraph #5. Adopted in paragraph #9. Rejected as immaterial. Adopted in substance in paragraph #6. Adopted in paragraph #1. Adopted in paragraph #7. Respondent 1-2. Adopted in substance in paragraph #1. Adopted in paragraphs #3 and #4. Adopted in paragraphs #2 and #4. Adopted in substance in paragraph #10. Rejected as unsupported by competent evidence. 7-8. Adopted in part in paragraph #9, otherwise rejected as immaterial. Adopted in paragraph #7. Rejected as unnecessary, except the last sentence, which is adopted in paragraph #4. Adopted in part in paragraph #11. While the Florida Hospital witnesses were credible and adequately explained the basis for termination, their testimony was insufficient to establish conclusively that the falsification occurred. COPIES FURNISHED: Richard P. Siwica, Esquire EGAN, LEV & SIWICA 918 Lucerne Terrace Orlando, Florida 32806 M. Catherine Lannon, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue Whether Respondent, a registered nurse, committed the acts alleged in the Second Amended Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing pursuant to Chapters 20, 456, and 464, Florida Statutes. Respondent is a licensed registered nurse in the State of Florida, having been issued license number RN 832942. In the fall of 1997, Respondent enrolled in FAU's ARNP program, which she continued until the spring of 1999, when she was dismissed from the program. Respondent was dismissed from FAU's ARNP program after she received a failing grade (an F) in a required clinical course (NGR 6602L). All students in the FAU ARNP program are required to make a grade of B or higher in clinical courses to continue in the program. On May 7, 1999, Ellis Younkin, the Graduate Program Coordinator for FAU and an associate dean, advised Respondent in writing that she had been dismissed from the ARNP program. At all times pertinent to this proceeding, Respondent was advised of her right to seek permission to retake the clinical program she had failed and her right to appeal her dismissal from the ARNP program. Respondent attempted to gain permission to retake the clinical program and to appeal her dismissal from the ARNP program. In the spring of 2000, after her dismissal from the FAU ARNP program, Respondent asked Dr. Morris, a physician in private practice, to be her preceptor for the FAU clinical program she had failed (NGR 6602L). Respondent told Dr. Morris that she had failed the earlier clinical program (NGR 6602L), but she misled Dr. Morris into believing that she was nevertheless a student in good standing in the FAU ARNP program by her statements and by the papers she showed him, including an outdated preceptor request form, a cooperative agreement form, and a form cover letter. In the spring of 2000, when Respondent had the dealings with Dr. Morris described in this Recommended Order, Respondent knew or should have known that she had been dismissed from the FAU ARNP program and she knew or should have known that her actions to appeal that dismissal had not stayed her dismissal from the program. The preceptor arrangement was for Respondent to perform the clinical duties of an ARNP under Dr. Morris's supervision and responsibility for a total of 60 hours. Dr. Morris would thereafter evaluate her performance and submit that evaluation to the FAU ARNP program. Because of Respondent's deception, that arrangement was a sham. The FAU ARNP program requires that all preceptor arrangements and the physicians who are to serve as preceptors be approved before a preceptor program begins. When he agreed to the preceptor arrangement with Respondent, Dr. Morris was unaware that FAU required prior approval of a preceptor program, and he believed that Respondent would be responsible for any required paperwork. Respondent never requested the FAU ARNP program's approval of her preceptor arrangement with Dr. Morris, nor did she request authorization from FAU for Dr. Morris to serve as her preceptor. Between May 2 and May 26, 2002, pursuant to her arrangement with Dr. Morris, Respondent routinely talked to patients alone in the examination room about the reasons for the patient's visit, to obtain a medical history, and to ascertain the patient's current medication regime. Respondent would make a diagnosis and create a treatment plan, which could include the prescription of medication, for Dr. Morris's consideration. Dr. Morris would next come in and examine the patient. Respondent wrote patient notes in the medical records that were subsequently reviewed and co-signed by Dr. Morris. Respondent performed acts in Dr. Morris's office that were beyond the scope of her license as a registered nurse. Ms. Harriett Brinker testified, credibly, that as a registered nurse Respondent could not prescribe treatment plans for patients, nor could she prescribe medication. Respondent completed approximately 60 hours of clinical work with Dr. Morris under the guise of the preceptor arrangement. Dr. Morris would not have permitted Respondent to perform the work she performed in his office but for the sham preceptor arrangement. Respondent asked Dr. Morris to submit certain paperwork pertaining to the preceptor arrangement that had been completed, including an evaluation of her performance as an ARNP student, to FAU's School of Nursing. Thereafter, Dr. James Fisher, Associate Provost at FAU, contacted Dr. Morris about the paperwork he had submitted to FAU at Respondent's request. Dr. Morris learned from Dr. Fisher that Respondent was not a graduate nursing student at FAU. Until his conversation with Dr. Fisher, Dr. Morris believed that Respondent was a student in good standing in the FAU ARNP program. After working for Dr. Morris, Respondent provided FAU with her work evaluations from Dr. Morris, medical records from patients she had cared for, clinical encounter logs containing patient-specific information, and a taped recording containing a series of questions posed by Respondent to one of her patients and the patient's responses. The questions and answers pertained to the level of care Respondent provided the patient. Respondent did not have the permission of Dr. Morris or of any patient to provide these medical records to FAU. G.M. is a patient Respondent saw when she was serving as an ARNP student while she was enrolled in the FAU clinical course NGR 6602L. Dr. Archie McLean was Respondent's supervisor for that clinical course. Respondent hand-copied a portion of G.M.'s medical record and submitted it to FAU. Respondent did not have the permission of Dr. McLean or of G.M. to copy G.M.'s medical records or to submit the copied record to FAU at the time she did so. G.M. subsequently gave Respondent permission to use his copied medical record in the manner she did.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating the provisions of Sections 464.018(1)(h) and 456.072(1)(m), Florida Statutes, as set forth in this Recommended Order. For each violation, Respondent's license to practice nursing in the State of Florida should be reprimanded; she should be fined in the amount of $1,000.00 ($750 for the Count I violations and $250 for the Count II violation); she should be required to take continuing education classes on the topic of patient's rights and the topic of nursing ethics; and her license should be placed on probation for four years for the Count I violations and four years for the Count II violation, which should be served concurrently. DONE AND ENTERED this 10th day of July 2003, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2003.
The Issue The issue in this case is whether Respondent was overpaid Medicaid funds for services provided to his patients, and, if so, whether the alleged overpayment was properly calculated.
Findings Of Fact AHCA is the state agency responsible for, inter alia, administering the Medicaid program in the State of Florida. The Bureau, a division of AHCA located in Tallahassee, Florida, is responsible for monitoring payments to Medicaid providers, and, when necessary, collecting return of any overpayments made to the providers. Medicaid providers enter into a contract with AHCA agreeing to bill patients no more than the usual and customary charges for services provided. Charges are established, in part, in accordance with procedure codes from the Current Procedural Terminology (CPT) guidelines. The CPT codes describe the kind of office visit which occurs during treatment to individual patients. A monetary charge is then assigned to the CPT code so that Medicaid will know how much to pay for the visit in question. The provider submits its claim for payments each month to AHCA, setting forth the number of visits within each CPT procedure code. The Bureau then determines the amount of Medicaid payment earned by the provider pursuant to the claimed services. The payment is then made by AHCA to the provider. The Bureau periodically performs audits of the claims submitted by providers. If a discrepancy or overpayment is discovered during the audit process, the Bureau notifies the provider by way of a demand letter. The Bureau then requests records and documents from the provider concerning the patients and charges in question. Upon review of the provider's records, the Bureau issues a Preliminary Audit Report setting forth its findings. The provider may agree (and repay the overpayment amount) or challenge the audit findings. In the present case, Respondent challenged the audit findings. As a result of that challenge, AHCA requested and Respondent provided additional documentation concerning Respondent's provision of services to certain patients. The Bureau then issued a Final Audit Report, again stating the amount of the overpayment and imposing a fine. The overpayment amount in this case is $82,836.07 and a fine of $3,000 was imposed. The overpayment discovered by AHCA relates to 40 individual patients who Respondent treated during the period January 1, 2002, through August 31, 2006. Each will be more fully discussed below. For some of the patients, there was only one charge in dispute; for others there are numerous charges. There are a small number of CPT procedure codes relevant to Respondent's patients at issue in this proceeding. A discussion of them is necessary to the analysis of the individual cases. Definitions and descriptions of the various codes are found in the Evaluation and Management Services Guidelines manual issued by the American Medical Association (AMA). The codes at issue are: 99201--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: A problem focused history; a problem focused examination; and Straightforward medical decision making. Usually, the presenting problems are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. 99202--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: An expanded problem focused history; An expanded problem focused examination; and Straightforward medical decision making. Usually, the presenting problems are of low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family. 99203--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: A detailed history; A detailed examination; and Medical decision making of low complexity. Usually the presenting problems are of moderate severity. Physicians usually spend 30 minutes face-to-face with the patient and/or family. 99204--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: A comprehensive history; A comprehensive examination; and Medical decision making of moderate complexity. Usually the presenting problems are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. 99205--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: A comprehensive history; A comprehensive examination; and Medical decision making of high complexity. Usually, the presenting problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. 99211--Office or other outpatient visit for the evaluation and management of an established patient that may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services. 99212--Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: A problem focused history; A problem focused examination; and Straightforward medical decision making. Usually the presenting problem(s) are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient or family. 99213--Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: An expanded problem focused history; An expanded problem focused examination; and Medical decision making of low complexity. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. 99214--Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: A detailed history; A detailed examination; and Medical decision making of moderate complexity. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. 99215--Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: A comprehensive history; A comprehensive examination; and Medical decision making of high complexity. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family. 99382--Initial comprehensive preventive medicine evaluation and management . . . for a child age 1 through 4 years. 99384--An initial comprehensive preventive medicine evaluation and management . . . of a new patient, aged 12 through 17 years. 99385--An initial comprehensive preventive medicine evaluation and management . . . of a new patient, aged 18 to 39 years. 99392--A periodic comprehensive preventive medicine evaluation and management . . . for a child age 1 to 4 years. 99393--A periodic comprehensive preventive medicine evaluation and management . . . of a child age 5 through 11 years. 99395--A periodic comprehensive preventive medicine evaluation and management . . . of an existing patient, aged 18 through 39 years. 99396--A periodic comprehensive preventive medicine evaluation and management . . . of an existing patient, aged 40 through 64 years. W9881--A checkup and screening for a child.4 The exact correlation between the CPT procedure codes and specific dollar amounts was not provided at final hearing, but there was a dollar amount assigned (by AHCA) to each of the services provided by Respondent to his patients. The Medicaid Fee Schedules (of which official recognition were taken) do provide a maximum fee for each code, but there was no testimony as to how each fee was assigned in this case, i.e., whether it was the maximum fee or not. AHCA used the services of a hired consultant (Dr. Sloan) to review Respondent's patient records concerning the assignment of CPT procedure codes for services rendered. Dr. Sloan is an experienced physician with a family practice in Chipley, Florida (a city in the Florida panhandle). Dr. Sloan had never, prior to the instant action, performed a review of another physician's records for the purpose of ascertaining the proper procedure code. This was his first foray into this process. Dr. Sloan reviewed Respondent's patient records and determined that all 40 patient records at issue had at least one erroneous procedure code, resulting in the reduction of allowable charges for those procedures. After Dr. Sloan's review was completed, another medical professional (Greg Riley, a registered nurse) reviewed the charts and made some adjustments to the monetary charges. Riley had reviewed the records initially just to make sure the records were complete. His subsequent review, after Dr. Sloan, was to determine the correct charges based on Dr. Sloan's adjustments of the procedure codes. For the purposes of reviewing the following paragraph, the patients were each assigned a number (1 through 40) and will be referenced by their assigned number herein with a parenthetical number, e.g., (1) (2) (3), etc. Some patients had more than one visit at issue. For those patients, the visit will be referred to by a written number, e.g., One, Two, Three, etc. A review of each patient and each office visit will be discussed in the following Findings of Fact. The original code and monetary charge will be stated, followed by Dr. Sloan's revised code and Riley's reduction in monetary charge. A statement of Respondent's position concerning the charge will come next, followed by a conclusion as to the proper charge based on all the evidence presented. The evidence at final hearing as to each resident was presented by way of three groups of documentation. First, there is an AHCA form listing all claims in the Medicaid sample, showing the CPT code for each patient and each patient visit. Second, there is the Respondent's office chart from each patient visit. Third, there is a written response from Respondent's former counsel as to each patient visit. This evidence, along with the testimony of witnesses, shows: One: Coded 99205 with a charge of $85.41--Dr. Sloan reduced the code to 99203, due to lack of a comprehensive history; charge was reduced to $48.68. Respondent showed that, according to annotations in the chart, the patient presented with multiple problems and a comprehensive examination was conducted. 99205 is supported. Two: Coded 99214 for $39.46--claim denied in full, as visit was a follow up only; no face-to-face time with doctor. Respondent's records show he did meet with patient, but did not exercise complex medical decision-making. The evidence supports a reduction to 99211, with the appropriate charge for that code. One: Coded 99205 for $85.41--reduced to 99202 due to lack of documentation. Respondent did not prove entitlement to a higher code. 99202 is appropriate. Two: Coded 99215 for $58.28--reduced to 99212 for $21.84, because visit was not deemed "extensive" by Dr. Sloan. Respondent did not prove elements of 99215. 99212 is appropriate. Three: Coded 99395 for $51.85--denied in full due to lack of documentation and no management issues during the visit. Respondent's records indicate comprehensive exam, and he testified to long face-to- face visit with resident. 99395 is supported. One: Coded 99204 for $66.74--reduced to 99203 for $48.37, because the examination was deficient. Respondent's records show that comprehensive examination done, history taken, and moderate complexity medical decisions made. 99204 is supported. Two: Coded 99215 for $58.94--reduced to 99213 for $26.47, due to lack of complex history or exam. The records show some level of medical decision-making that could support a higher code. 99214 would be appropriate. One: Coded 99204 for $66.74--reduced to 99203 for $48.37, due to lack of complex history. Respondent did not prove otherwise. 99203 is appropriate. Three: Coded 99214 for $39.51--reduced to 99213 for $26.61 for lack of documentation. Respondent did not prove otherwise. 99212 is appropriate. Four: Coded 99213 for $24.47--reduced to 99212 for $21.84 (a difference of $2.63) for lack of complexity. Respondent did not prove otherwise. 99212 is appropriate. One: Coded 99204 for $68.74--reduced to 99203 for $48.66, due to lack of complexity. Respondent explained his notations in the patient chart and proved the complex nature of the patient's medical problems. 99204 is supported. Four: Coded 99214 for $39.64--reduced to 99212 for $21.84, because the examination lacked detail. Respondent's records and testimony established that a detailed examination was performed. 99214 is supported. One: Coded 99204 for $66.74--reduced to 99202 for $32.44, because of lack of complexity, i.e., upper respiratory infection. Respondent did not prove that a higher code was justified. 99202 is appropriate. One: Coded 99205 for $6.74--denied in full, because the exam lacked a review of services (ROS) component. Respondent's records showed otherwise. 99205 is supported. Three: Coded 99214 for $39.49--reduced to 99212 for $21.84 due to lack of exam and/or exam was "problem focused."5 Respondent indicated patient had undergone complete physical three days prior. Visit at issue was for a specific problem. 99212 is appropriate. Four: Coded 99213 for $24.47--reduced to 99212 for $21.84, because no exam shown; visit was problem focused. Respondent's records indicate only a brief visit. 99212 is appropriate. Five: Coded 99213 for $24.4--reduced to 99211 for $12.48, due to visit being solely to refill medication. Respondent states, erroneously, that the 99211 code means that only a nurse saw the patient. In actuality, the code says that the physician does not have to see the patient, but may do so. 99211 is appropriate. Six: Coded 99214 for $39.49--reduced to 99212 for $21.84, because the visit was only problem focused. The examination performed by Respondent appears to be just that, for an oral problem. 99212 is appropriate. Seven: Coded 99213 for $24.47--denied in full, because of absence of history taken and examination record. Doctor appeared to only provide results of prior test. Respondent did not prove otherwise. Denial is appropriate. One: Coded 99204 for $68.74--denied in full by Dr. Sloan, but upgraded to 99203 for $50.64, by the RN. No comprehensive history or exam was proven by Respondent. 99203 is appropriate. One: Coded 99384 for $71.54--reduced to 99213 for $32.56 due to insufficient documentation. Respondent showed that the patient came in for a school checkup. 99384 is supported. One: Coded 99204 for $68.74--reduced to 99202 for $34.01, because the visit was only problem focused. But Respondent showed that although patient showed with only one problem (toothache), other problems were identified during the visit. 99204 is supported. One: Coded 99204 for $68.74--reduced to 99202 for $32.71, because visit was only problem focused, i.e., skin irritation. Respondent showed that patient was also in a high risk pregnancy and additional services were provided. 99204 is supported. Two: Coded 99395 for $71.54--denied in full by Dr. Sloan for failure to do more than an abdominal exam and take vital signs. Respondent did show that an annual evaluation was done, but the records do not appear to indicate a full examination. 99212 would be warranted. One: Coded 99214 for $41.51--reduced to 99213 for $32.56, because the visit was problem focused. Respondent did spend some time with patient, but did not show elements of higher code. 99213 is appropriate. One: Coded 99204 for $68.74--reduced to 99202 for $34.01, because visit was problem focused for an ingrown toenail. Respondent showed that the patient actually had multiple issues and Respondent did a fairly comprehensive history and examination. 99204 is supported. (14) One: Coded 99204 for $68.74--reduced to $32.71, because visit was problem focused for an upper respiratory infection. Respondent showed that a comprehensive history and examination were done in order to more adequately address the new patient's needs. 99204 is supported. Two: Coded 99395 for $68.84; denied in full, because of full examination done just one week prior. Respondent showed that the annual evaluation done on this date had a different focus than the prior visit and was justified and necessary. 99395 is supported. One: Coded 99215 for $58.29--reduced to 99212 for $21.84, because the visit was only to refill a prescription. A one-item exam plus vitals was performed. Respondent did not establish need for higher code. 99212 is appropriate. Two: Coded 99214 for $39.46--reduced to 99213 for $26.61, because the visit was only to address dermatitis. Respondent showed the existence of multiple problems and extensive time spent with patient. 99214 is supported. Three: Coded 99214 for $41.46--reduced to 99212 for $21.84, because visit was problem focused for an insect bite. Respondent did not prove higher code was needed. 99212 is appropriate. Four: Coded 99214 for $39.46--reduced to 99213 for $23.61, because visit was problem focused for vaginitis. Respondent did not prove otherwise. 99213 is appropriate. Five: Coded 99396 for $53.72--initially denied in full by Dr. Sloan, then reduced to 99211 by the RN. Respondent showed that a legitimate annual evaluation of patient was done. 99396 is supported. Six: Coded 99215 for $60.29--reduced to 99213 for $26.61, because Dr. Sloan deemed the examination inadequate; Respondent failed to do a ROS. Respondent showed that he spent a lot of time with the patient, but not that there was any degree of medical decision-making at a high complexity level involved. 99214 would be appropriate. Seven: Coded 99214 for $41.46--reduced to 99213 for $26.21, because visit was for an expanded problem- focused reason (ear infection). Respondent did not prove otherwise. 99213 is appropriate. One: Coded 99215 for $58.88--reduced to 99212 for $21.84, due to lack of examination documentation and that visit was problem focused. Respondent showed that additional issues were presented and discussed. 99215 is supported. Four: Coded 99214 for $41.49--reduced to 99212 for $21.84 for same reasons as prior visit. Respondent did not provide evidence of further issues. 99212 is appropriate. One: Coded 99214 for $41.51--reduced to 99213 for $27.67, due to lack of examination details. Respondent could not support higher code. 99213 is appropriate. One: Coded 99204 for $66.73--reduced to 99203 for $48.25, due to inadequate ROS and low complexity of the patient. Respondent could not support higher code. 99203 is appropriate. One: Coded 99204 for $68.74--reduced to 99202 for $34.01, because visit was for an expanded problem focus reason with straightforward medical decision- making. Respondent did not establish reason for higher code. 99202 is appropriate. One: Coded 99204 for $66.74--reduced to 99202 for $32.37, because it was a problem focused visit for an upper respiratory infection (URI). Respondent found patient to be in a high risk pregnancy and examination escalated due to that fact. 99204 is supported. One: Coded 99204 for $66.74--reduced to 99202 for $37.37, because visit was problem focused for URI. Respondent did not support higher code. 99202 is appropriate. One: Claim was allowed. Two: Coded 99214 for $41.51--reduced to 99213 for $32.56, because the visit was problem-focused for a URI. Respondent could not prove higher code was necessary. 99213 is appropriate. Three: Coded 99213 for $26.47--reduced to 99212 for $26.45 (two cent difference). Respondent acquiesced. 99212 is appropriate. Four: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem-focused for an allergic reaction. Respondent noted that patient had allergic rhinitis and perhaps pneumonia. 99214 is supported. Five: Coded 99213 for $26.47--reduced to 99212 for $26.45 (two cent difference). Respondent acquiesced. 99212 is appropriate. Six: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused for URI. Respondent did not prove need for higher code. 99213 is appropriate. Eight: Coded 99393 for $71.54--denied in full, due to fact that prior visit should have covered examination. Respondent showed that the annual evaluation or physical focused on different aspects of patient's wellbeing than regular office visits. 99393 is supported. Ten: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused for gastrointestinal problem. Respondent did not sufficiently justify the higher code. 99213 is appropriate. Twelve: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Thirteen: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Fourteen: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Sixteen: Coded 99214 for $41.51--reduced to 99213 for $27.67, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. One: Coded 99205 for $85.11--reduced to 99203 for $48.69, because of lack of documentation. The evidence and documentation presented by Respondent was sufficient to validate higher code. 99205 is supported. Two: Coded 99214 for $41.51--reduced to 99212 for $26.45, because visit was problem focused. Respondent did not support a higher code. 99212 is appropriate. Three: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. One: Claim was allowed. One: Coded 99205 for $87.41--reduced to 99202 for $34.01, due to inadequate documentation. Respondent showed sufficient documentation to warrant code. 99205 is supported. Three: Coded 99215 for $60.95--reduced to 99213 for $27.67, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Four: Coded 99212 for $21.84--reduced to 99211 for $12.97, because visit was for a lab draw only. Respondent did not prove otherwise. 99211 is appropriate. Five: Coded 99214 for $41.51--reduced to 99212 for $27.71, because visit was problem focused. Respondent failed to show all elements of higher code. 99212 is appropriate. Six: Coded 99214 for $41.51--reduced to 99213 for $27.67, because visit was problem focused. Respondent failed to show all elements of higher code. 99213 is appropriate. One: Coded 99214 for $41.49--reduced to 99213 for $32.56, because visit was problem focused. Respondent showed that patient had several complex problems. 99214 is supported. One: Coded 99204 for $68.74--reduced to 99202 for $33.66, because visit was problem focused for a URI. Respondent did not prove otherwise. 99202 is appropriate. One: Coded 99214 for $41.51--reduced to 99212 for $26.45, because no examination done on a problem focused visit. Respondent showed that more extensive examination was done, that patient had disappeared for two years and doctor needed to catch up on their history, and diagnoses were complex. 99214 is supported. Two: Coded W9881 for $68.74--reduced to 99211 for $12.48, because visit was for minor checkup. Respondent showed that visit was a legitimate checkup for the child. W9881 is supported. Three: Coded 99212 for $21.84--reduced to 99211 for $12.97, because visit was just for refills and vital signs taken. Respondent did not show otherwise. 99211 is appropriate. Four: 99214 for $41.51--reduced to 99213 for $32.56, because visit was only for expanded problem focus. Respondent did not prove elements of higher code. 99213 is appropriate. One: Coded 99204 for $68.74--reduced to 99202 for $33.74, because visit was problem focused. Respondent showed the patient had multiple problems that required treatment. 99204 is supported. Three: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused for URI. Respondent showed the elements of the higher code. 99214 is supported. Four: Coded 99392 for $71.54--reduced to 99212 for $26.45, because it was deemed a simple office visit. Respondent proved that the visit was indeed an annual evaluation. 99392 is supported. Five: Coded 99214 for $41.51--reduced to 69210 (a procedure code having to do with cerumen impaction removal, i.e., removing wax from the patient's ear) for $25.31. Respondent proved the difficulty of that procedure for a child and that by doing so he saved the family a much higher medical charge had they gone to a specialist. 99214 is supported. One: Claim was allowed. One: Coded 99204 for $66.74--reduced to 99202 for $33.66, because visit was problem focused for a depressive disorder. Respondent did not prove otherwise. 99202 is appropriate. One: Coded 99215 for $60.35--denied, in full, because of lack of evidence that face-to-face examination occurred. Respondent showed sufficient evidence that such an examination did occur. 99215 is supported. One: Coded 99382 for $71.54--initially denied, in full, but then reduced to 99202 for $34.01 by the RN. Respondent showed that a full screening for a new patient was done. 99382 is supported. One: Coded 99204 for $66.74--reduced to 99202 for $33.74, because visit was problem focused for hypertension. Respondent indicated he spent considerable time with the patient, but did not meet the requirements for a higher code. 99202 is appropriate. Two and Three: The dates and designations for these two visits are confused in the record. One visit is coded 99396 for $55.16, the other is 99215 for $58.35. The first was allowed, the second denied. Respondent did not prove the elements of the two higher codes. 99396 is appropriate. 99215 is denied. Four: Coded 99212 for $19.84--reduced to 99211 for $12.48, because the visit was simply a blood pressure check. Respondent did not prove otherwise. 99211 is appropriate. Five: Coded 99214 for $39.46--reduced to 99212 for $21.84, because visit was problem focused, and there was no examination. Respondent did not prove otherwise. 99212 is appropriate. Six: Coded 99396 for $54.75--denied, in full, because of lack of documentation. Respondent showed the existence of a legitimate annual exam. 99396 is supported. Seven: Coded 99214 for $39.46--reduced to 99213 for $26.61, because visit was an expanded problem focused relating to hypertension. Respondent did not prove otherwise. 99213 is appropriate. Eight: Coded 99214 for $39.46--reduced to 99212 for $21.84, because visit was problem focused with only vitals taken. Respondent showed the visit was more extensive than that, but not to the level of 99214. 99213 would be supported. One: Coded 99204 for $66.74--reduced to 99202 for $32.37, because visit was problem focused. Respondent showed that patient had many special needs and additional services were required. 99204 is supported. Two: Coded 99214 for $39.51--amount was adjusted to $34.75, due to fact that wrong code was used. Respondent provided sufficient evidence to support his code. 99214 is supported. Four: Coded 99214 for $39.51--denied, in full, because lack of documentation and belief that visit was simply a pre-op visit. Respondent did not support the higher procedure code, but did support a code of 99202. Six: Coded 99214 for $41.49--reduced to 99213 for $26.61, because visit was problem focused to remove foreign object from patient's ear. Respondent satisfied elements of the higher procedure code. 99214 is supported. Seven: Coded 99212 for $19.84--denied, in full, because of lack of documentation. Respondent's testimony and documents show that services were performed. 99212 is supported. Nine: Coded 99213 for $24.47--denied, in full, because visit seemed to be only an interpretation on a test. Respondent did not prove otherwise. Claim is denied. Ten: Coded 99214 for $41.46--reduced to 99213 for $26.61, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Eleven: Coded 99395 for $51.83--denied in full, because the issues had been covered during the patient's prior visit. Respondent showed that the visit was an annual periodic visit and was legitimate. 99395 is supported. Twelve: Coded 99213 for $24.47--denied, in full, because of lack of documentation and visit was only for lab work. Respondent did not prove otherwise. Claim is denied. One: Coded W9881 for $68.74--reduced to 99212 for $26.45, because visit was only a skin evaluation. Respondent showed that the patient was brought in by a state agency for a physical. W9881 is supported. One: Coded 99204 for $66.74--reduced to 99201 for $31.20, because visit was problem focused on obesity. Respondent spent time with the patient, but did not prove the elements of the higher code. 99202 would be appropriate. Two: Coded 99212 for $19.84--denied, in full, because there is no evidence of a visit. Respondent did not prove otherwise. The claim is denied. Three: Coded 99396 for $54.75--denied, in full, because of lack of medical necessity. Respondent did not prove otherwise. Claim is denied. Four: Coded 99214 for $39.46--reduced to 99211 for $12.48, because no exam was conducted. Respondent did not prove otherwise. 99211 is appropriate. Five: Coded 99212 for $19.84--denied, in full, because the visit was for a lab draw only. Respondent did not prove otherwise. 99211 is appropriate. Six: Coded 99214 for $39.46--reduced to 99211 for $12.48, because visit was only for lab work review. Respondent proved that more services were provided. 99214 is supported. Seven: Coded 99212 for $19.84--denied, in full, because of absence of face-to-face meeting. Respondent showed documentation that such a meeting occurred. 99212 is supported. Eight: Coded 99213 for $24.47--denied, in full, because no face-to-face meeting occurred. Respondent did not prove otherwise. Claim is denied. One: Coded 99204 for $68.74--reduced to 99202 for $32.71, because visit was problem focused for HIV patient. Respondent did not prove otherwise. 99202 is appropriate. Two: Coded 99385 for $49.83--denied, in full, because of lack of medical necessity. Respondent showed need for annual medical evaluation. 99385 is supported. Three: Coded 99214 for $39.46--reduced to 99213 for $26.61, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Four: Coded 99214 for $39.46--reduced to 99212 for $21.84, because visit was problem focused. Respondent showed that more than a simple visit occurred. 99213 would be appropriate. Dr. Sloan, although undeniably a qualified family medicine practitioner in his own right, operates his business in a geographic area far removed from Respondent. Dr. Sloan's office is located in Chipley. Respondent's office is in central Florida, in Winter Haven. No evidence was presented to indicate how the diversity of those two areas would affect Dr. Sloan's ability to accurately address Respondent's coding. Thus, it is presumed for purposes of this proceeding that Dr. Sloan was competent to perform the review of records. Nonetheless, Respondent is uniquely positioned to evaluate the patients who came to his office. Respondent is the only witness who testified at final hearing who knows exactly what kind of treatment each such patient received. His descriptions of the office visits and interpretation of the patient charts are, therefore, given great weight. Further, Respondent's testimony was very credible as to his description of his patients and their various ailments. The assignment of charges to each code was not discussed sufficiently at final hearing for the undersigned to make any specific findings as to the proper Medicaid charges for the revised codes. That is the purview of AHCA. The fee schedule introduced into evidence contains only the maximum fee for each CPT code; it does not provide guidance in setting a fee less than the maximum. No evidence was presented to refute Respondent's description of his services to the 40 patients at issue; nor did Dr. Sloan address Respondent's explanation and interpretation of the patient charts. The Agency used the technique of "cluster sampling" to determine the amount of overpayment to Respondent. This technique, which has been upheld in Agency for Health Care Administration v. Custom Mobility, 995 So. 2d 984 (Fla. 1st DCA 2008), rev. den., Custom Mobility, Inc. v. Agency for Health Care Administration (Fla. Feb. 2, 2009), was correctly applied in the instant case. It was the cluster sampling of Respondent's 40 patients that resulted in the calculation of overpayment by AHCA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Agency for Health Care Administration, setting forth the following: That each CPT code substantiated by Respondent, Hamid Bagloo, M.D., be deemed proper and that the amount paid for those office visits be allowed; That the codes validated by Respondent pursuant to his testimony at final hearing in this matter be assigned a monetary charge consistent with the Medicaid Fee Schedule; That the sum total of AHCA's overpayment to Respondent be reduced in an amount commensurate with the findings herein; and That the fine imposed against Respondent be stricken. DONE AND ENTERED this 10th day of September, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 10th day of September, 2009.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Robb E. Ross was a licensed physician engaged in the practice of family medicine as a sole practitioner. He was licensed to practice medicine in the State of Florida in 1966 and holds license number 12433. He was board certified in family practice in 1970. Respondent also holds a license as a pharmacist. Respondent treated patient N.B. from September of 1970 through October of 1986. She initially presented as a new patient moving into the area, aged 61, for maintenance of her general physical medical care, primarily relating to her mild depression that she had for years following a mastectomy. While believing that patient N.B. had previously been under the care of a psychiatrist or psychologist, respondent never requested her prior medical records. Patient N.B. informed the respondent that she had been taking Biphetamine, a steroid amphetamine that is no longer produced, for the past ten years. Respondent continued patient N.B. in that treatment modality for over ten years, as well as treating her for other complaints. At some point, he did attempt to titrate her from Biphetamine, but she did not function as well with a substitute drug. When the drug Biphetamine was phased out of the market in either 1980 or 1982, respondent prescribed Dexedrine to patient N.B. and continued to do so approximately every six months. Respondent maintained her on Dexedrine due to her mild depression and the fact that she had been on amphetamines for many, many years. He was reluctant to take her off Dexedrine for fear that she could become overtly depressed. Since she did well with Dexedrine, respondent maintained her on that regiment due to the adverse side effects of other compounds utilized to control depression. The respondent's medical records for patient N.B. contain virtually no patient history or background information. For each patient visit, there is a brief notation which includes N.B.'s temperature, blood pressure and weight and also a reason for the visit. The reason noted on the records are either "check- up" or a brief statement of the patient's complaint on that particular day. The medication prescribed is noted, though very difficult to read. While the symptom or patient complaint is often noted, the patient records contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from N.B.'s medical records the reason that Dexedrine was prescribed for this patient. While N.B. complained of tiredness, she did not suffer from narcolepsy. Patient G.B. was under respondent's care from August of 1979 through May of 1985. He initially presented, at age 56, with problems relating to emphysema, lung collapse, exhaustion, impotency and aches and pains. Respondent prescribed various medications for him, including Nitroglycerin for chest pains. Respondent felt that due to his age and his complaints, patient G.B. had some type of arteriosclerosis. Patient G.B. frequently complained of being weak, exhausted and having no endurance or energy. For this reason, respondent prescribed Dexedrine for him on March 30, 1984. Other medications to increase his energy were tried before this and after this time. Nothing appeared to give him any relief. After determining that patient G.B. "liked his medicine too much," respondent terminated his treatment of him. The respondent's medical records for patient G.B. are brief and difficult to decipher. Again, the patient's temperature, blood pressure and weight are recorded for each visit, and there is a brief statement of the patient's complaint. There is no statement indicating a medical diagnosis or a treatment plan. The medications prescribed at each visit are written on the records, but are difficult to read. D.M. was a patient under respondent's care from December of 1976 until his death, at age 84, in March of 1986. He initially presented with stomach problems and subsequently had a host of other medical problems, surgeries and hospitalizations throughout the years. This patient was given so many different medications for his various physical problems that respondent did not always write each of them down on his records after each office visit. It appears from respondent's medical records that he first started patient D.M. on Dexedrine in January of 1984. At that time, D.M.'s chief complaint was "dizziness, falling, no pep." Respondent maintained D.M. on Dexedrine or an amphetamine type of compound from that period until his death, primarily because of his weakness, dizziness, falling down and low blood pressure. Other specialists were consulted regarding D.M.'s fainting and falling episodes, caused by postural hypotension, and were unable to remedy the problem. Respondent was of the opinion that the administration of Dexedrine enabled patient D.M. to function more properly and that it worked better than anything else. Patient D.M. expired in March of 1986. Respondent listed the cause of death as "cardiac arrest." The respondent's medical records on patient D.M. are typical of those previously described for patients N.B. and G.B. The office visit notes list patient complaints or symptoms and no medical diagnosis or comprehensive assessments. There are indications in the record that D.M. complained of chest pains in 1983, 1984 and 1985. The medications prescribed indicate the presence of cardiac disease. Respondent's record-keeping with regard to patients N.B., G.B. and D.M. are below an acceptable standard of care. They fail to include an adequate patient history and initial assessment of the patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the patient's background. The respondent's only notation of treatment is a listing, and a partial listing in the case of D.M., of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken. Dextroamphedimine sulfate, also known as Dexedrine, is a sympathomimetic amine drug and is designated as a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Commonly, it is referred to as "speed" or an "upper." It is addictive and highly abusive. While individual patients react differently to Dexedrine, its consumption can cause psychosis, marked elevations of blood pressure and marked rhythmic disturbances. As such, its use is contraindicated in patients with coronary disease. In addition, because Dexedrine is an "upper" and makes a patient "feel good," it can mask a true physical condition and prevent the patient from being treated for the physical ailment he is experiencing. A patient should not be relieved of pain without first knowing what is causing the pain. In Florida, Dexedrine may only be prescribed, administered or dispensed to treat specifically enumerated diseases, conditions or symptoms. Section 458.331(1)(cc), Florida Statutes. Neither respondent's medical records nor his testimony indicate that patients N.B., G.B. and/or D.M. suffered from the conditions, symptoms or diseases which warranted the statutorily approved and limited use of Dexedrine. Respondent was not aware that there were statutory limitations for the use of Dexedrine. He is aware of the possible dangers of amphetamines and he prescribes Dexedrine as a treatment of last resort when he believes it will help the patient. Respondent further testified that his medical record-keeping is adequate to enable him, as a sole practitioner, to treat his patients, though he admits that his medical records could be improved.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 458.331(I), subparagraphs (cc),(q),(t) and (n), Florida Statutes, and that the following penalties be imposed: an administrative fine in the total amount of $2,000.00, and probation for a period of twelve (12) months, with the following conditions: (a) that respondent complete continuing medical education courses or seminars in the areas of medical record-keeping and the dangers and authorized use of compounds designated as Schedule II controlled substances, and (b) that respondent submit to the Board on a monthly basis the medical records of those patients for whom a Schedule II controlled substance is prescribed or administered during the probationary period. Respectfully submitted and entered this 2nd day of September, 1987, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3483 The proposed findings of fact submitted by counsel for the parties have been carefully considered. To the extent that the proposed factual findings are not included in this Recommended Order, they are rejected for the following reasons: Petitioner: The 48 proposed findings of fact submitted by the petitioner consist of summaries or recitations of the testimony of the witnesses presented by the petitioner in this proceeding. While the summaries and/or recitations constitute an accurate representation of the testimony received by those witnesses at the hearing, and are thus accepted, they do not constitute proper factual findings by themselves. Instead, they (along with the testimony presented by the respondent) form the basis for the findings of fact in this Recommended Order. Respondent: Page 4, Paragraph 1 The reference to 30 years is rejected as contrary to the evidence. COPIES FURNISHED: David E Bryant, Esquire Alpert, Josey, Grilli, Paris and Bryant 100 South Ashley Drive Suite 2000 Tampa, Florida 33602 David J. Wollinka, Esquire P. O. Box 3649 Holiday, Florida 33590 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact The parties Petitioner, Agency for Health Care Administration, Division of Quality Assurance, Board of Medicine, formerly Department of Business and Professional Regulation, Board of Medicine, is the state government licensing and regulatory agency charged with the responsibility and duty of regulating the practice of medicine pursuant to the laws of the State of Florida, in particular Section 20.42, Florida Statutes, Chapters 120, 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto. Chapter 93-129, Laws of Florida. Respondent, Muhammad S. Mustafa, M.D., is now and was at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0047360. Respondent was licensed by endorsement on October 7, 1985, but did not, ostensibly, actively engage in the practice of medicine in the State of Florida until September 14, 1988. 4/ Respondent's last known address, as of the date of hearing, was 8245 North Nebraska Avenue, Tampa, Florida 33604. Respondent received his medical degree from the Oklahoma University School of Medicine in 1970, performed an internship from 1970 to 1971 at the Altoona Hospital, Altoona, Pennsylvania, did a four-year residency in general surgery from 1971 to 1975 at The Cleveland Clinic, Cleveland, Ohio, and started practice as a sole practitioner in Cleveland, Ohio, in November 1975. Respondent's practice consisted of general surgery and family medicine, and he practiced in a predominately blue collar neighborhood until his license to practice medicine was revoked by the State Medical Board of Ohio, as discussed infra. While practicing in Cleveland, respondent had staff privileges at St. Vincent Charity Hospital, Luthern Medical Center, St. John's Hospital, and St. John's Westshore Medical Center, but by May 1988 had restricted his practice to Luthern Medical Center and St. John's Hospital. Respondent resigned his staff privileges at Luthern Medical Center and St. Johns in December 1989. The Ohio charges On May 11, 1988, the State Medical Board of Ohio, the licensing authority for medicine in the State of Ohio, notified respondent that it proposed to take disciplinary action against his certificate to practice medicine and surgery in Ohio. The gravamen of the Board's charges were as follows: That respondent's prescribing practices with regard to approximately 83 difference patients, as well as his overall prescribing as reflected by a listing entitled "Total Drug Amounts by Drug, Year and Month," constituted: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease," as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes," as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established," as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. That as to Patient 152 respondent did between March 27, 1984 and December 12, 1985, and again between November 13, 1986 and April 1, 1987, prescribe controlled substance stimulants when the patient either gained weight or failed to lose weight, contrary to the provisions of Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further charged that respondent's billing to Patient 152's insurance company for services rendered between March 27, 1984 and December 15, 1986, reflected a diagnosis of "hypertension, obesity, ingrown toenail, nerves, low back pain, and arthritis" when there was no indication in respondent's record that he had treated the patient for any condition other than obesity. Such conduct was alleged to constitute "publishing a false, fraudulent, deceptive or misleading statement," as that clause is used in Section 4731.22(B)(5), Ohio Revised Code, and the "obtaining of, or attempting to obtain money or anything of value by fraudulent misrepresentation in the course of practice," as that clause is defined in Section 4731.22(B)(8), Ohio Revised Code. That as to Patient 151 respondent did between February 21, 1979 and April 17, 1986, and again between November 13, 1986 and April 1, 1987, prescribe controlled substances and stimulants when the patient either gained weight or failed to lose weight, contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further alleged that on respondent's billing to Patient 151's insurance company for services rendered between January 10, 1984 and November 13, 1986, the diagnosis of "menopause; arthritis; glossitis; bronchitis; hypertension; nerves; and chest wall pain" were entered when the majority of services rendered by respondent were for "obesity," a diagnosis not listed, and his records contain no indication that she was being treated for hypertension, nerves or arthritis. Moreover, an EKG and "comprehensive office exam" performed on November 13, 1986 and billed under a diagnosis of "chest wall pain" were in fact performed as part of the physical required prior to starting the diet program. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent's reports and billing to two different attorneys with regard to Patient 140 (who had been involved in accidents in June and November 1985) reflected dates of service and patient complaints which were not reflected in the medical records. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent prescribed controlled substances for Patient 241 in 1979, 1982 and 1983 through 1985 contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code, in that the patient had admitted to respondent in 1979 that he was addicted to Codeine and in 1985 that he was addicted to Percocet. Respondent was alleged to have first prescribed Percocet in 1983, upon the patient's complaint of back pain, without noting any physical exam or findings, and had continued prescribing it on a regular basis well into 1985. His prescribing of Codeine-based medications and Percocet continued after the patient's admission of addiction to those substances. Finally, citing 13 different patients as examples, the Board alleged that respondent routinely kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications prescribed or dispensed; prescribed controlled substances and dangerous drugs based upon patient requests for medications or patient complaints, often without utilizing appropriate testing or other methods for evaluating the validity or etiology of the complaints; and routinely prescribed controlled substance stimulants for weight loss over extended periods of time without regard to whether or not the patient demonstrated weight loss. Such conduct was alleged to violate Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. Moreover, respondent's acts or omissions with regard to certain prescriptions written on or after November 17, 1986, for patients 25, 34, 130, 166, 265, and 276, were alleged to constitute violations of Rules 4731-11-02 and/or 4731-11-04, Ohio Administrative Code, and therefore Section 4731.22(B)(20), Ohio Revised Code. The aforesaid notice of charges dated May 11, 1988, advised respondent of his right to request a hearing on the matter, his right to appear at such hearing in person or through his attorney, to present his position and argument, and to present evidence and examine witnesses appearing for or against him. Respondent timely requested such hearing, and was represented by counsel. The subject charges were heard before Wanita J. Sage, Esquire, Hearing Examiner for the State Medical Board of Ohio, on September 18, 1988. Thereafter, the Hearing Examiner rendered an extensive recommendation, which contained findings of fact, conclusions and an order. Such findings of fact sustained the charges filed against respondent, and are contained in petitioner's exhibit 2. The recommendation, which summarized the factual findings, concluded: The acts, conduct, and/or omissions of Muhammad S. Mustafa, M.D., as set forth in the above Findings of Fact, constitute: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease", as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes", as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and/or "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established", as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. The testimony and evidence presented in this Matter amply establish that Dr. Mustafa, in the routine course of his practice, prescribed controlled substances and dangerous drugs for patients for excessive periods of time, without establishing valid medical indication or diagnosis. He prescribed potentially addictive controlled substances, often in dangerous combinations, for patients for years without adequately evaluating their complaints or attempting alternative therapies. In the case of Patient 241, Dr. Mustafa admitted that he had prescribed Codeine for this patient for a period of over one month in 1979 as treatment for his admitted Codeine addiction. Several years later, Dr. Mustafa began prescribing Percocet upon this same patient's complaint of back pain, without any evidence of evaluation, and continued to do so over a two-year period. When Patient 241 then admitted that he was addicted to Percocet, Dr. Mustafa continued to prescribe it for three addi- tional months as treatment for his addiction. Such prescribing contravenes both federal and state laws, including each of those provisions listed above. Dr. Mustafa's claim that there was no adequate treatment program available in 1979 does not satisfactorily explain his prescribing for Patient 241's addiction in 1985. The patient records clearly demonstrate Dr. Mustafa's willingness to prescribe whatever patients requested, even when objective data indicated that there was no valid medical indication for such drugs and no medical basis for the patients' complaints. In the case of Patient 36, Dr. Mustafa liberally prescribed synthetic thyroid hormone at her request, despite the fact that he had obtained tests showing her thyroid levels to be normal. He provided this same patient with narcotic pain medications, even when her complaints of pain were apparently related to urinary tract infections, menstrual cramps, or other conditions which would not appear to justify the use of controlled substances. In the case of Patient 308, Dr. Mustafa prescribed combinations of controlled substances and dangerous drugs, including narcotic analgesics, tranquilizers, hypnotics, barbiturates, antipsychotics, tricyclic antidepressants, and stimulants, even though he was aware that her complaints generally [had] no physical cause, but rather stemmed from emotional problems. On one occasion, he actually telephoned in a prescription for Compazine for Patient 308 when she was in the hospital under the care of another physician for treatment of a drug overdose. Even though Dr. Mustafa was admittedly aware that she had been hospitalized on three occasions due to drug overdoses, he continued afterwards to prescribe dangerous combinations of drugs for her, including the substances on which she had overdosed. In the case of Patient 130, Dr. Mustafa regularly prescribed and administered large amounts of narcotic analgesics over an approximately four year period. Dr. Mustafa admitted that Patient 130 was chemically dependent on narcotics, but claimed they were necessary to control his back pain. Yet, the patient record clearly indicates that Dr. Mustafa made no effort to independently evaluate or diagnose, but rather relied solely upon this patient's representations as justi- fication for his inappropriate prescribing in response to this patient's requests for addictive drugs. Furthermore, the patient record indicates that Dr. Mustafa abruptly discontinued prescribing pain medications and tranquilizers for Patient 130 in early 1987. In general, the patient records demonstrate lack of independent evaluations by Dr. Mustafa of patients' complaints of pain, for treatment of which he prescribed large amounts of controlled medications for excessive periods of time. Such prescribing violates each of the above provisions of law. Further, the patient records of Patients 152, 151, 25, 26, 36, 218, 236 and 265 support the State's allegations that Dr. Mustafa routinely prescribed controlled substance stimulants for weight loss purposes over extended periods of time, whether or not a patient demonstrated weight loss. Dr. Mustafa admitted that it had been his standard practice to prescribe a controlled substance anorectic upon a diet patient's initial visit, without first attempting to achieve weight loss through other means, such as diet or nutritional counseling. In addition, Dr. Mustafa often prescribed Lasix, a diuretic, for weight control purposes. As indicated by the testimony of Dr. Junglas, there is no valid medical indication for the use of a diuretic for weight loss. Such pre- scribing of diet medications also violates each of the above provisions of law. Certainly, both the patient records and the testimony of Dr. Mustafa support the Board's allegations that Dr. Mustafa, in the routine course of his practice, kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications he prescribed or dispensed to his patients. Although Dr. Mustafa appeared to claim that he had done examinations or made physical findings which justified the medications he prescribed, he stated that he simply didn't have time to write down everything he knew about his patients. The patient records generally reflect only patient requests for refills of medications, non-specific patient complaints, and lists of drugs prescribed or administered by Dr. Mustafa. They are generally devoid of evidence of appropriate diagnostic testing; documentation as to the nature or severity of the patient's reported pain, illness, or injury; evidence of investigation of alter- native therapies; thorough histories, physical examinations, and diagnoses; in short, infor- mation necessary to assure that the patient receives appropriate treatment. Such records evidence Dr. Mustafa's violations of each of the above provisions of law. As indicated by the testimony of Dr. Donald Junglas, Dr. Mustafa's treatment with regard to each of the 17 patients whose records were reviewed at hearing violates each of the above provisions of law. Further, the prescriptions identified as State's Exhibits #6A through #6H and summarized by the "Prescription List by Patient Number" and the listing of "Total Drug Amounts by Drug, Year, and Month" (State's Exhibit #1) indicate that Dr. Mustafa's inappropriate, long-term prescribing of controlled substances was not confined to those 17 patients, but rather was common in his practice. Dr. Mustafa's prescribing of controlled substances for weight reduction for Patients 152 and 151 after November 17, 1986, constitutes "violating . . ., directly or indirectly, . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rule 4731-11-04, Ohio Adminis- trative Code, as in effect on and after November 17, 1986. Rule 4731-11-04(B) requires that a physician's use of controlled substances for purposes of weight reduction in the treatment of obesity be only as an adjunct in a regimen of weight reduction based on caloric restriction. It further requires the physician to determine, before instituting treatment with a controlled substance, that the patient has made a "substantial good-faith effort to lose weight in a treatment program utilizing a regimen of weight reduction based on caloric restriction, nutritional counseling, behavior modification, and exercise, without the utilization of controlled substances, and that said treatment has been ineffective. Further, the physician must obtain a thorough history, perform a thorough physical examination, and rule out the existence of any recognized contradictions to the use of the controlled substance. Further, according to this rule, the physician may not initiate or must discontinue utilizing controlled substances immediately upon determin- ing that the patient has failed to lose weight while under treatment with a controlled substance over a period of 14 days, such determination to be made by weighing the patient at least every fourteenth day. Dr. Mustafa's prescribing of Schedule IV anorectics for Patients 152 and failed to meet these requirements. Patient testified that he had never tried dieting before seeing Dr. Mustafa. Dr. Mustafa's lecturing Patient 152 about snacking does not constitute the institution of a regimen of weight reduction based on caloric restriction. The documentation in the patient records, parti- cularly in the case of Patient 151, fails even to establish that these patients' overweight constituted obesity which might have justified the use of a controlled substance in the event that other treatment methods had been proven ineffective. Further, Dr. Mustafa failed to discontinue prescribing Schedule IV anorectics for Patients 152 and 151 when they failed to lose weight, as required by Rule 4731-11-04(B). In fact, although Dr. Mustafa admittedly become aware of this Rule in December, 1986, he prescribed Schedule IV anorectics for Patient 152 when he demonstrated weight gains on February 5, March 5, and April 1, 1987, and he prescribed Schedule IV anorectics for Patient 151 when she demonstrated failure to lose weight on January 9, February 5, and March 5, 1987. Pursuant to Rule 4731-11-04(C), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Further, Dr. Mustafa's prescribing for Patients 25, 34, 130, 166, 265, and 276, on and after November 17, 1986, constitutes "violating . . ., directly or indirectly . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rules 4731-11-02 and/ or 4731-11-04, Ohio Administrative Code, as in effect on and after November 17, 1986. With respect to patient 25, Dr. Mustafa violated Rule 4731-11-04(B) by prescribing the Schedule IV controlled substance Fasin 30 mg. for purposes of weight reduction on both December 19, 1986, and February 13, 1987, without: instituting a regimen of weight reduction based upon caloric restriction, first determining the ineffectiveness of other methods of weight reduction, or determining whether or not she failed to lose weight by weighing her at least every fourteenth day. Further, Dr. Mustafa violated Rule 4731-11-02(D) by telephoning in a prescription for 30 Tranxene 7.5 mg., a Schedule IV anxiolytic, for Patient 25 on April 2, 1987, without documenting any exam- ination, evaluation, diagnosis, or purpose for this controlled substance. On seven occasions from November 19, 1986, through April 29, 1987, Dr. Mustafa prescribed Vicodin, a Schedule III narcotic analgesic, for Patient 34 without documenting any examination, evaluation, diagnosis, or purpose for his use of this addictive controlled substance. In fact, four of these prescriptions were issued after Dr. Mustafa had discussed with Patient 34 the addictiveness of Vicodin and the need for him to take less of it. Such acts and omissions violate both paragraph (C) and (D) of Rule 4731-11-02. Dr. Mustafa's acts and omissions with regard to Patient 130 also constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Without documenting any examination, evaluation, diagnosis, or purpose other than the patient's requests for pain medication, Dr. Mustafa administered IM injections of Demorel 100 mg., a Schedule II narcotic analgesic, to Patient 130 on December 13, 1986, January 6, 1987, and April 7, 1987. In addition to the Demerol injection, he also prescribed 100 Tylenol #4, a Schedule III narcotic analgesic, for this patient on April 7, 1987, solely upon Patient 130's request for pain medications for vacation. Dr. Mustafa had previously notified this patient on January 12 that he would prescribe no more tranquilizers or pain medications for him. Dr. Mustafa admitted at hearing that this patient had been chemically dependent upon narcotics, though he claimed that he had needed them to control his pain. Upon Patient 166's request, without document- ing any examination, evaluation, diagnosis, or purpose, Dr. Mustafa prescribed for her 100 Vicodin, a Schedule III narcotic analgesic, on December 24, 1986, and 50 Vicodin on January 29 and again on April 23, 1987. Such acts violate Rule 4731-11-02(D). With respect to Patient 265, Dr. Mustafa initiated treatment with Adipex-P, a Schedule IV stimulant anorectic controlled substance, on December 9, 1986, without first determining the effectiveness of other methods of weight reduction, without instituting a regimen of weight reduction based on caloric restriction, and without obtaining a thorough history or performing a thorough physical examination to rule out the existence of any contradiction. Dr. Mustafa continued to prescribe Apidex-P through April 31, 1987, without weighing Patient 265 at least every fourteenth day and without immediately discontinuing such treatment when this patient showed a weight gain on February 10, 1987. Such acts and omissions violate Rule 4731-11-04(B). Furthermore, from December 9, 1986, through May 11, 1987, Dr. Mustafa prescribed Valium for her on three occasions, two of which prescriptions he telephoned in. On five occasions during this period, he prescribed Darvon Compound 65 for her, including one occasion when Patient 265 indicated that she had 30 tablets left from a previous prescription, two occasions where Dr. Mustafa provided her with postdated prescriptions, and one occasion where he telephoned in a prescription. At no time did Dr. Mustafa document any examination, evaluation, diagnosis, or purpose other than the patient's stated complaint, for his prescribing of these controlled substances. Such acts and omissions constitute violation of both paragraphs (C) and (D) of Rule 4731-11-02. In an approximately five month period from November 17, 1986, through April 28, 1987, Dr. Mustafa prescribed for or administered to Patient 276 a total of 519 dosage units of controlled substances, including: 25 Demerol 50 mg., a Schedule II narcotic analgesic; 2 IM injections of Demerol 50 mg.; 2 IM injections of Demerol 75 mg.; 60 Fiorinal, a Schedule III barbiturate analgesic; and 430 Darvocet N-100, a Schedule IV narcotic analgesic. Of these, 230 dosage units were prescribed by telephone. Throughout this period, Dr. Mustafa failed to document examination, evaluation, diagnosis, or purpose for this prescribing other than patient requests and complaints. On one occasion, he did note a physical finding of severe pain and tenderness in the back, radiating downward; however, no further evaluation was done and no diagnosis was indicated. On another occasion, Dr. Mustafa noted a diagnosis of severe migraine headache, but failed to state any information upon which that diagnosis was based. In view of the addictiveness and volume of the substances so prescribed, it is concluded that Dr. Mustafa's acts and omissions with regard to Patient 276 constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Pursuant to Rule 4731-11-04(C), Ohio Administ- rative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Pursuant to Rule 4731-11-02(F), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-02(C) and (D) also violate Sections 4731.22(B)(2) and (B)(6), Ohio Revised Code. Further, in view of the nature and/or amounts of the drugs prescribed and the circumstances with regard to such prescribing, Dr. Mustafa's acts and omissions with regard to Patients 130, 265, and 276 are found to constitute purposeful, knowing, or reckless violations of paragraph (C), and thus, pursuant to paragraph (F), also violate Section 4731.22(B)(3), Ohio Revised Code. Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of Fact #7 and #13, above, constitute: "Publishing a false, fraudulent, deceptive, or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Reviewed Code. Claim forms submitted by Dr. Mustafa or his office staff to insurers for reimbursement for Dr. Mustafa's services for both Patient 152 and Patient 151 reported diagnoses for which he had not treated those patients. The fact that diagnoses appeared on claim forms, but not in the patient records, cannot be attributed merely to Dr. Mustafa's poor documentation. Although Dr. Mustafa's patient records clearly indicate that the EKG's done in November, 1986, were part of physical examinations for initiation of diet programs, these EKG's were claimed under diagnoses of hypertension for Patient 152 and chest wall pain for Patient 151. In fact, the "Weight Reduction Program" form contained in Patient 152's file indicates that he had no history of hypertension or heart disease. It must be concluded that false diagnoses were reported for purposes of obtaining reimbursement from the insurer for performance of these routine tests. Although not included in the Board's allegations, it is noted that a similar billing was submitted on behalf of another patient reviewed in this Matter, Patient 25 (See Finding of Fact #19). Although Dr. Mustafa denied knowledge of or responsibility for these false billings, copies of the claims, many of which were signed by Dr. Mustafa, were made a part of the patients' records. Furthermore, contrary to Dr. Mustafa's contentions, he is responsible for the billing procedures of his office. It must be concluded that Dr. Mustafa knew or should have known of the fraudulent billings submitted on behalf of Patients 152 and 151. Further, Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of fact #15 and #16, above, constitute: "Publishing a false, fraudulent, deceptive or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Revised Code. Dr. Mustafa submitted billings and reports of Patient 140's attorneys, listing dates of service and fees not reflected in the patient record. In addition, he billed both attorneys for a January 28, 1986, office visit. Dr. Mustafa's attempts to explain these discrepancies are not convincing. The reports to the attorneys listed no specific treatments or medications for the dates reported; thus, they could not be adequate substitutes for clinical notes which Dr. Mustafa claimed to have recorded on separate cards. Further, Dr. Mustafa claimed that he had made clinical notes on cards, later discarded, because Patient 140 had come to his home, rather than to his office, for treatment; yet he had earlier testified that his office was in his home (Tr. at 41). Also, Dr. Mustafa's attempt to blame his receptionist for the double billing of the January 28, 1986, visit is not well taken. Dr. Mustafa signed the reports submitted to both attorneys and was responsible for their accuracy. It is evident that the billings submitted to Patient 140's attorneys for reimbursement for professional services fraudulently misrepresented the extent of and fees for Dr. Mustafa's services. Although not part of the Board's charges, it is further noted that the patient record for Patient 166 contains a billing submitted to an attorney which contains both dates of service and fees which are not reflected in the patient record (see Finding of fact #31). * * * * * The testimony and evidence in this Matter sub- stantially shows that Dr. Mustafa, in the routine course of his practice, engaged in inappropriate, indiscriminate prescribing of controlled substances and dangerous drugs. The patient records evidence his willingness to prescribe at the patient's request, without regard for medical indications or patient welfare. In at least one case, he admittedly prescribed narcotics to a known addict for an inappropriate period of time without referring him to an authorized treatment program. Both the State's exhibits and the testimony of its expert, Dr. Junglas, rob Dr. Mustafa's claim, that his prescribing was in accordance with acceptable community standards for the time, of credence. Dr. Mustafa admitted that he had ignored the warnings of drug manufacturers and FDA labeling with regard to his long-term prescribing of controlled substances, relying on information he claimed to have obtained from his colleagues. At best, Dr. Mustafa's prescribing practices reflect a willful ignorance of the properties and effects of drugs. Neither willful ignorance nor the lack of moral character demonstrated by Dr. Mustafa's fraudulent billings would seem to be remediable. PROPOSED ORDER It is hereby ORDERED that the certificate of Muhammad S. Mustafa, M.D., to practice medicine and surgery in the State of Ohio shall be and is hereby REVOKED. This Order shall become effective thirty (30) days from the date of mailing of notification of approval by the State Medical Board of Ohio, except that Dr. Mustafa shall immediately surrender his United States Drug Enforcement Administration certificate and shall not order, purchase, prescribe, dispense, administer, or possess any controlled substances, except for those prescribed for his personal use by another so authorized by law. Further, in the interim, Dr. Mustafa shall not undertake treatment of any individual not already under his care. Wanita J. Sage Attorney Hearing Examiner The Hearing Examiner's proposed findings of fact, conclusions and order were adopted by the State Medical Board of Ohio on December 6, 1989. Respondent appealed the Board's order through the courts and on May 4, 1992, the Ohio Supreme Court refused respondent's request that it take jurisdiction of the case. Consequently, the order of the State Medical Board of Ohio revoking respondent's license to practice medicine became effective June 15, 1992. Other matters At hearing, respondent offered the opinion of Adnan E. Mourany, M.D., Soundiah Selvaraj, M.D., and Marcello Mellino, M.D., by way of deposition (Respondent's exhibits 9-11), concerning respondent's reputation as a physician. Dr. Mourany is licensed to practice medicine in the State of Ohio, as well as Indiana, Minnesota and New York, and has practiced since 1986. He is Chairman of Surgery and Chief of Otolarynology at St. John's Westshore Hospital, and has known respondent professionally and personally since 1979. Dr. Selvaraj is licensed to practice medicine in the State of Ohio, and has practiced since 1974. he is Chief of Internal Medicine and Ambulatory Care at the Luthern Medical Center, and has known respondent professionally since 1976. Dr. Mellino is licensed to practice medicine in Ohio, and has practiced for 13 years. He is a cardiologist, and has known respondent professionally since 1978. It was the opinions of Doctors Mourany, Selvaraj and Mellino that respondent was an excellent surgeon who enjoyed a reputation as a good physician. 5/ At hearing, respondent also presented proof that during medical school he received an award from the Governor of Oklahoma for having performed volunteer work with charitable organizations, and that during his practice in Cleveland he received a ten-year service award from Luthern Medical Center and an award from the United States Senate recognizing his volunteer work for the Cleveland Foundation. Respondent also participated in two projects in Cleveland, one in 1983 and one in 1987, to treat patients without charge. All such activities predated the charges filed by the Ohio Board of Medicine. Since revocation of his Ohio license, respondent attended three courses of continuing medical education programs. The first, "Medical Malpractice and Risk Management--1993," was apparently completed in October 1993; the second, "AIDS and Florida Law--1993," was apparently completed in October 1993; and the third, "Surgical Education and Self-Assessment Program," was apparently completed in November 1993. Other than having attended such courses, respondent's activities since the revocation of his Ohio license do not appear of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license to practice medicine in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1994. WILLIAM J. KENDRICK 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 12th day of September 1994.
The Issue The issues presented for consideration on this occasion concern an administrative complaint brought by the State of Florida, Department of Professional Regulation, against the Respondent. In particular, it is alleged that on the named dates, January 7 and 8, 1983, Respondent failed to check vital signs for patients in the intensive care unit who were receiving her care. Additionally, it is alleged that Respondent abandoned patients in her care by leaving her assigned floor for long periods of time without notifying her supervisor. These actions purportedly are acts of unprofessional conduct which depart from or fail to conform to minimal standards of acceptable nursing practice per Section 464.018(1)(f), Florida Statutes, and violate Section 464.018(1)(j) , Florida Statutes, by violating Board of Nursing Rule 210- 10.05(2)(d) and (2)(e) 1., Florida Administrative Code, through inaccuracies in record keeping or falsification of patient records or charts.
Findings Of Fact Respondent is a licensed practical nurse, having been issued license No. 0524551 by the Board of Nursing in the State of Florida. At all times relevant to these proceedings, Respondent was employed as a nurse at Ormond Beach Hospital, Ormond Beach, Florida. Beginning at 11:00 p.m. on January 7, 1983, and continuing until January 8, 1983, at 7:00 a.m., Respondent was working in the intensive care unit of Ormond Beach Hospital. During that time, she was primarily responsible for the care of the Patients Eleanor Prentzel and Evelyn Burkman. On that duty shift, at 12:00 midnight and 6:00 a.m., Respondent checked the vital signs of the two patients. In addition, other assessments were made during that duty cycle related to the patients. The recordation of the vital signs and statement of assessments may be found in the 24 hour nurse's notes pertaining to the two patients. These entries are part of Petitioner's exhibits 2 and 3 admitted into evidence which are patient records related to the patients in question for Burkman and Prentzel respectively. During the duty shift, between 1:30 a.m. and 5:00 a.m., Respondent was gone from her duty station for an unacceptable amount of time. While absent, Ms. Burkman, who was a cardiac patient, complained of chest pains and had to be attended by Margaret S. Vogini, R.N., who was working in the ICU on this shift. Vogini had the patient do deep breathing and listened to her lungs and heart, checked her blood pressure and watched the cardiac monitor. The patient was experiencing pain on deep inspiration, which led Vogini to believe that the problem was with the patient's lungs and not related to cardiac difficulty. Respondent worked the duty shift beginning 11:00 p.m., January 8, 1983, and concluding 7:00 a.m., January 9, 1983. Again, she attended patients in the intensive care unit. One of those patients was Prentzel. The patient Burkman was assigned to Vogini on this duty shift. Again there were unacceptably longer periods of time when Respondent was out of the intensive care unit. During that duty shift, an unnamed patient became comatose and suffered cardiac arrest; requiring cardiopulmonary resuscitation. At that time, Respondent was not in the intensive care unit and had to be summoned back to the unit to assist other nurses that were working that shift. On this same shift, at 12:00 midnight, Respondent failed to take the temperature of the patient Prentzel. This should have been done in keeping with physician's orders either 30 minutes before or 30 minutes after midnight. Respondent indicated that the reason for not taking the temperature was because she did not want to wake the patient up. This was an inappropriate decision about a patient in the intensive care unit. Respondent also failed to record the blood pressure reading which she took related to the patient Prentzel at 12:00 midnight on this shift. Again, this was an inappropriate judgement about a patient in the intensive care unit. During the two evenings in question, Respondent was suffering from a bladder infection and reported this problem to Virginia Hilbert, R.N., nurse supervisor of the Respondent. This medical problem required frequent trips to the bathroom on the part of Respondent. On occasion, it was necessary for the Respondent to leave the intensive care unit to accomplish her purposes. At most, those trips would have taken four minutes and did not satisfactorily account for the length of time in which the Respondent was not caring for her patients on the two duty shifts at issue. Because of her conduct on the evenings in question, Respondent was called before the hospital administration for counseling. In the course of this session, Respondent admitted that she did not always take respiration of patients in her charge. She made this comment during the course of a discussion of the events of the two duty shifts in question. Nonetheless, the record does not establish with reasonable certainty that her comments pertained to those patients Burkman and Prentzel who were in her care on January 7-8 and 8-9, 1983. The circumstances described in discussing the absence of Respondent on the two duty shifts in question, leads to the conclusion that the Respondent was absent from her duty station without properly notifying another nurse or supervisor working in the unit. That absence without proper notification, as established through testimony of Nurse Vogini, was a departure from acceptable nursing practice in that it was below the minimal standards of acceptable and prevailing nursing practice in Florida. Charlotte Brooks, R.N., Assistant Administrator at Ormond Beach Hospital and Director of Nursing, set forth the importance of taking vital signs as next described. By taking vital signs, the nurse discovers the patient's reaction to illness, stress, and drugs. In the intensive care unit, the results of these checks demonstrate the need to either start or stop medication and measure the patient's response to the disease process. The taking of vital signs can detect shock and various other kinds of problems that the patient may experience. Generally, temperature and respiration checks help to track the patient's progress. Finally, these notations of vital signs made by the nurses assist subsequent shift nurses in treating the patients, to include initiation or institution of doctor's orders based upon reported vital signs.
