The Issue Whether Respondent was overpaid for Medicaid claims submitted during the audit period January 1, 2007, through December 31, 2008, and, if so, what amount Respondent is obligated to reimburse Petitioner; and whether sanctions and costs should be assessed against Respondent.
Findings Of Fact This case involves a Medicaid audit of claims paid by AHCA to Respondent for dates of service from January 1, 2007, through December 31, 2008. The audit in this case evaluated 258 paid claims and of these, 255 were found to be claims that, according to Petitioner, were not submitted in compliance with Medicaid rules.1/ During the audit period, Respondent was an enrolled Medicaid waiver provider, had a valid Medicaid Provider Agreement with AHCA, and received in excess of $102,953.97 for services provided to Medicaid recipients. Paragraph 3 of the Medicaid Provider Agreement states that "[t]he provider agrees to comply with local, state and federal laws, as well as rules, regulations, and statements of policy applicable to the Medicaid program, including the Medicaid Provider Handbooks issued by AHCA." Among other duties, Petitioner investigates and audits Medicaid providers in an effort to identify and recoup overpayments made to providers for services rendered to Medicaid recipients. Petitioner is also empowered to impose sanctions and fines against offending providers. Petitioner, when it identifies overpayment, fraud, or abuse, is charged with taking affirmative steps to recoup any overpayments and can, as appropriate, impose fines, sanctions, and corrective actions plans on the offending provider. Pursuant to what is commonly referred to as the "pay- and-chase" system, Petitioner pays Medicaid providers under an honor system for services rendered to Medicaid recipients. If Petitioner determines that the provider was paid for services rendered which were not in compliance with Medicaid requirements, then Petitioner seeks reimbursement from the provider. By correspondence dated March 17 and April 12, 2010, Petitioner contacted Respondent and requested records related to claims billed to Medicaid by Respondent. Respondent provided documents in response to Petitioner's requests. After considering the information provided by Respondent, Petitioner, on July 16, 2010, issued a Preliminary Audit Report (PAR) and advised therein that it was believed that Petitioner had overpaid Respondent in the amount of $160,159.77. In response to the PAR, Respondent met with Petitioner's representatives and submitted additional documentation that it desired for Petitioner to consider. After receipt and evaluation of the additional information submitted by Respondent, Petitioner, on August 4, 2011, issued an FAR and noted therein that Petitioner had determined that Respondent was overpaid by Medicaid in the amount of $105,010.14.2/ In this same correspondence, Petitioner notified Respondent that Petitioner was seeking to impose against Respondent a $3,000.00 fine and investigative, legal, and expert witness costs. The FAR provided to Respondent provides, in part, as follows: A statistically valid random sample of 30 of your Medicaid recipient records, involving 258 paid claims, for dates of service from January 1, 2007, through December 31, 2008, was reviewed. This review determined that: Lower Level (LL)--You billed and received payment for procedure codes that were not properly documented to substantiate the procedures for which you were paid. Medicaid policy defines the varying levels of care and expertise required for the procedure codes specific to your specialty of podiatry. The documentation that you provided supports a lower level than the one for which you billed and received payment. This determination was made by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. These claims have been adjusted accordingly and are indicated on the enclosed worksheets. The Medicaid Podiatry Services Coverage and Limitations Handbook, Update January 2004, Chapter 2, pages 2-1 and 2-2, state: "General Service Requirements, Limitations and Exclusions * * * Medically Necessary 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 necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; 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; Be consistent with generally professional medical standards as determined by the Medicaid program, and not experimental or investigational; 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; and Be furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods, or services medically necessary or a covered service." Review Determination #1 Procedure codes for which you billed and were paid have been adjusted to lower levels of service and the difference between the amount you were paid and the amount allowed for the appropriate level of service is considered an overpayment. Routine Foot Care (ROUT)--Medicaid policy states that routine foot care must be billed with a report submitted with the claim form that documents the service and contains the name and Medicaid provider number of the referring physician. The Medicaid Podiatry Services Coverage and Limitations Handbook, Update January 2004, Chapter 2, pages 2-10, states: "Podiatry Visit Services, Continued Routine Foot Care Routine foot care, procedure code 28899, can be reimbursed in addition to an office visit if the recipient is under a physician's care for a metabolic disease, has conditions of circulatory impairment, or conditions of desensitization of the legs or feet. Routine foot care must be billed with a report submitted with the claim form that documents the service and contains the name and Medicaid provider number of the referring physician." "Definition of Routine Foot Care Routine foot care means the cutting or removal of corns and calluses, the trimming of nails, routine hygienic care, and other routine-type care of the foot." Review Determination #2: Routine foot care services that you billed and were paid by billing with procedure codes 11306 and 11307, have been denied. According to the peer reviewer, the documentation substantiates that routine foot care (procedure code 28899) was rendered.However, you billed and were paid by billing procedure codes 11306 and 11307. As Medicaid policy states, routine foot care must be billed as procedure code 28899 with a report submitted with the claim form. Our review did not reveal that reports were included in the recipients' documentation. Therefore, the amount you were paid for services that were determined by your peer as routine foot care, is considered an overpayment. Incomplete Documentation (ID)--Medicaid policy states that medical records must state the necessity for and the extent of services provided. Medicaid payments for services that lack required documentation are considered overpayment. The Florida Medicaid Provider General Handbook, Chapter 5, page 5-8, January 2007, states the following: "Incomplete or Missing Records Incomplete records are records that lack documentation that all requirements or conditions for service provision have been met. Medicaid may recover payments for services or goods when the provider has incomplete records or does not provide the records. Note: See Chapter 2 in this handbook for Medicaid record keeping and retention requirements." No Documentation (NO DOC)--Medicaid policy specifies how medical records must be maintained. A review of your medical records revealed that some services for which you billed and received payment were not documented. Medicaid requires documentation of the services and considers payment made for services not appropriately documented as overpayment. The Florida Medicaid Provider General Handbook, Chapter 5, page 5-4, January 2007, states the following: "Provider Responsibility 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 Medicaid-covered services that are medically necessary; Are of a quality comparable to those furnished to the general public by the provider's peers; Have not been billed in whole or in part to a recipient's responsible party, except for such co-payments, coinsurance, or deductibles as are authorized by AHCA; Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accord 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 the medical basis and specific need for them are fully documented in the recipient's medical record." Respondent is a doctor of podiatric medicine and has practiced podiatry since graduating from the Ohio College of Podiatric Medicine in 1979. Respondent has been licensed to practice podiatry in Florida since 1979 and is certified by the American Board of Podiatric Surgery. In the late 1990's Respondent opened his own practice and, since that time, has focused his professional efforts on providing podiatric services to patients residing throughout the panhandle of Florida. Respondent visits patients in their homes and also sees patients that reside in group homes and assisted living facilities. Dr. Peter M. Mason (Dr. Mason) was offered and accepted as Petitioner's expert in areas regarding podiatric medical claims coding, podiatric standards of care, and podiatric medical necessity. Dr. Mason was also offered and accepted as a physician peer reviewer pursuant to section 409.9131, Florida Statutes (2011).3/ Dr. Mason is a doctor of podiatric medicine and has practiced podiatry since graduating in 1973 from Temple University School of Podiatric Medicine (formerly Pennsylvania College of Podiatric Medicine). Dr. Mason holds certification from the American Board of Podiatric Orthopedics and Primary Podiatric Medicine and has been a Diplomate in Foot and Ankle Orthopedics since 1978. Dr. Mason is licensed by the State of Florida to practice podiatric medicine and has maintained a private practice in Largo, Florida, since 1975. Dr. Mason has been a physician advisor and peer reviewer continuously since 1990 and has conducted approximately 100 peer reviews. CPT Codes 11306 and 11307 Of the 258 audited claims, 60 were identified as claims where Respondent billed either CPT Code 11306 or 11307. CPT Code 11306 is used when the following service is provided: "[s]having of epidermal or dermal lesion, single lesion, scalp, neck, hands, feet, genitalia; [with] lesion diameter .06 to 1.0 cm." CPT Code 11307 is used when the following service is provided: "[s]having of epidermal or dermal lesion, single lesion, scalp, neck, hands, feet, genitalia; [with] lesion diameter 1.1 to 2.0 cm." The CPT Procedure Guidelines and Codes Manual (2007- 2008) for CPT Codes 11306 and 11307 provides that "[s]having is the sharp removal by transverse incision or horizontal slicing to remove epidermal and dermal lesions without a full-thickness dermal excision [and] [t]his includes local anesthesia, chemical or electrocauterization of the wound [and] [t]he wound does not require suture closure." The American Medical Association publishes a CPT Coders' Desk Reference (AMA Desk Reference). According to the AMA Desk Reference, the guidelines for CPT Codes 11306 and 11307 provide as follows: The physician removes a single, elevated epidermal or dermal lesion from the scalp, neck, hands, feet, or genitalia by shave excision. Local anesthesia is injected beneath the lesion. A scalpel blade is placed against the skin adjacent to the lesion and the physician uses a horizontal slicing motion to excise the lesion from its base. The wound does not require suturing and bleeding is controlled by chemical or electrical cauterization. For each of the 60 claims where Respondent used either CPT Code 11306 or 11307, Respondent diagnosed a benign neoplastic lesion. As applied to the instant case, a benign neoplastic lesion is a non-cancerous new growth on a patient's foot or feet. Medicaid will reimburse for routine foot care when included within a claim for reimbursement associated with an office visit. For the same date of service, Medicaid will not, however, reimburse for routine foot care, in addition to an office visit, unless "the recipient is under a physician's care for a metabolic disease, has conditions of circulatory impairment, or conditions of desensitization of the legs or feet." There is no evidence of record that the 60 claims in dispute involved recipients who were under the care of a physician for a metabolic disease, a condition of circulatory impairment, or a condition causing desensitization of the legs or feet. Respondent, as an experienced podiatrist, is capable of independently diagnosing whether a growth on a patient's foot is either a corn or a callus. According to Dr. Mason, corns and calluses are benign growths "caused by friction and pressure against an area of the foot [and] can be on the bottom of the foot, on a toe, [or] it can be in various locations, but it is always caused by friction or pressure . . . [and] the simplest form of care that can be offered to a patient with that type of growth is to just shave the growth . . . smooth it down, [and] take off the excessive growth. That makes the patient feel better." Tr. pgs. 109-10. Dr. Mason credibly opined that when a skin growth is neither a corn nor callus, the medical standard of care for determining whether the growth is benign or malignant requires that the growth, or some portion thereof, be submitted to pathology for microscopic evaluation and diagnosis. According to the medical records associated with the 60 claims where Respondent secured reimbursement using CPT Codes 11306 and 11307, none of the growths removed by Respondent were sent to pathology for microscopic evaluation and diagnosis. CPT Codes 11306 and 11307 are primarily used when a physician cannot determine what a growth is by looking at it, and the physician wants to get a sample of the growth so that it can be submitted to pathology for microscopic evaluation. For the 60 claims in dispute, Respondent identified each patient as possessing some combination of the following skin characteristics: tender, painful, swollen, regular, raised, inflamed, indurated, hyperkeratotic, yellow, erythematous, and hyperpigmented. Dr. Mason credibly opined that each of these skin characteristics is associated with corns and calluses and may also be associated with other medical conditions. Though Respondent, for each patient, noted the presence of the skin characteristics enumerated above, he did not include in the patient medical records specific information related to, for example, the duration, range, or intensity of the identified characteristics. For a significant majority of these recipients, the medical records prepared by Respondent merely note that the respective benign neoplastic lesions have existed for "an extended duration," that the quality of the pain associated with the condition is "tender and throbbing," and that "shoe gear worsens [the] condition." Dr. Mason credibly opined that the medical records where CPT Codes 11306 and 11307 were used for treatment of benign neoplastic lesions do not affirmatively demonstrate that the benign neoplastic lesions were medical conditions other than corns or calluses. Because the benign neoplastic lesions were corns or calluses and, thus, included within the definition of "routine foot care," Respondent was not permitted to receive additional reimbursement for the shaving of the corns and calluses because as previously noted, none of the patients to which Respondent provided these services was under a physician's care for a metabolic disease, had conditions of circulatory impairment, or had desensitization of the legs or feet. Included within the cluster of 60 claims where Respondent sought reimbursement using either CPT Code 11306 or 11307, are three claims for patient A.R. where Respondent claimed and secured reimbursement for the removal of corns or calluses. Unlike the other 57 claims, Respondent did not couple these claims with a separate charge for an office visit. Petitioner denied these three claims. In his review of these claims, Dr. Mason opined that these claims should be denied because the "[s]having of [a] corn or callus is routine foot care, a non-covered service by Medicaid as it is routine foot care." As previously noted, included within the definition of "routine foot care" are services related to the removal of corns and calluses and the trimming of nails. When Respondent trimmed a patient's toenails and used CPT Code 99336, Petitioner allowed the charge, but reduced it to CPT Code 99334. If the trimming of nails and the removal of corns and calluses are both considered routine foot care, then consistent with how Petitioner adjusted the charges for the trimming of nails, Petitioner should not have denied these claims. While it is true that these three claims were billed using CPT Code 11306, and not 99336 or 99334, Petitioner did not deny the claims because Respondent used the wrong CPT code. It is inconsistent for reimbursement purposes to treat the removal of corns and calluses differently from the trimming of nails, when both are considered routine foot care. Additionally, Respondent provided services to patient A.R. on October 17, 2007, related to the shaving of a corn or callus. Respondent billed for this service date using CPT Code 11721. Dr. Mason's written opinion as to this claim erroneously indicates that Respondent submitted this claim using CPT Code 11306. As previously stated, it is inconsistent for reimbursement purposes to treat the removal of corns and calluses differently from the trimming of nails, when both are considered routine foot care. Petitioner erroneously determined that Respondent should not have been reimbursed for this claim. Lower Level Billing 30. CPT Codes 99309, 99325, 99326, 99334, 99335, 99336, and 99349 are used, in part, to identify whether a patient is a "new or existing" patient and where a patient was physically located (e.g., nursing home) when evaluated by the Medicaid provider. These CPT codes are included within the phrase "office visit," as found within the section of the Podiatry Services Coverage and Limitations Handbook where billing procedures for "routine foot care" is discussed. In each instance where claims submitted by Respondent were reduced to a lower level of service, the medical records created by Respondent showed that Respondent's examination of the patients included an assessment of the patients' neurological, cardiovascular, constitutional, integumentary, and musculoskeletal systems (Systems). Dr. Mason credibly opined that Respondent's evaluation of these respective Systems was not medically necessary. A. CPT Codes 99324, 99325, 99326 According to the CPT Evaluation and Management Service Guidelines and Codes Manual (2007 and 2008), CPT Codes 99324 through 99326 are service billing codes used by Medicaid providers for a "[d]omiciliary or rest home visit for the evaluation and management of a new patient. " For CPT Code 99324, the patient medical records maintained by the Medicaid provider must document the following three key components: a problem-focused history; a problem- focused examination; and straight-forward medical decision- making. "Usually, the presenting problem(s) are of low severity [and] [p]hysicians typically spend 20 minutes with the patient and/or family or caregiver." For CPT Code 99325, the patient medical records maintained by the Medicaid provider must document the following 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 moderate severity [and] [p]hysicians typically spend 30 minutes with the patient and/or family or caregiver." For CPT Code 99326, the patient medical records maintained by the Medicaid provider must document the following 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 [and] [p]hysicians typically spend 45 minutes with the patient and/or family or caregiver." Respondent saw patient B.B. on June 24, 2007, for services related to the removal of corns and calluses and used CPT Code 99326 in support of the claim for reimbursement. For this service, Petitioner correctly changed the CPT Code to 99324 to reflect a lower level of service. Dr. Mason credibly opined that the medical record for this claim reflects that Respondent conducted a problem-focused history and examination related to the patient's corns and calluses and that the ultimate decision to shave the patient's corns and calluses involved straight- forward medical decision-making as contemplated by CPT Code 99324. Respondent saw patient D.B. on February 28, 2008, for services related to complaints about areas of skin on the patient's feet being inflamed, itchy, raw, and scaly. For the services provided, Respondent used CPT Code 99326 in support of the claim for reimbursement. For this service, Petitioner correctly changed the CPT Code to 99325 to reflect a lower level of service. Dr. Mason credibly opined that the medical record for this claim reflects that Respondent conducted an expanded problem-focused history and examination related to the patient's complaint and that the ultimate treatment decision was of low complexity as contemplated by CPT Code 99325. Respondent saw patient D.C. on April 22, 2007, for services related to elongated toenails and used CPT Code 99326 in support of the claim for reimbursement. For this service, Petitioner correctly changed the CPT Code to 99324 to reflect a lower level of service. Dr. Mason credibly opined that the medical record for this claim reflects that Respondent conducted a problem-focused history and examination related to the patient's toenails and that the ultimate decision to trim the patient's toenails involved straight-forward medical decision- making as contemplated by CPT Code 99324. Respondent also saw D.C. for elongated toenails on April 16, 2008, and again used CPT Code 99326 in support of the claim for reimbursement. Petitioner correctly denied this claim on the basis that the medical records do not establish that D.C. was a "new patient" when Respondent provided services to the patient on April 16, 2008. Respondent saw patient J.D. on May 9, 2007, for services related to the removal of corns and calluses and used CPT Code 99326 in support of the claim for reimbursement. For this service, Petitioner correctly changed the CPT Code to 99324 to reflect a lower level of service. Dr. Mason credibly opined that the medical record for this claim reflects that Respondent conducted a problem-focused history and examination related to the patient's corns and calluses and that the ultimate decision to shave the patient's corns and calluses involved straight- forward medical decision-making as contemplated by CPT Code 99324. Respondent saw patient R.J. on October 18, 2007, for services related to a small abrasion on the right foot and used CPT Code 99326 in support of the claim for reimbursement. For this service, Petitioner correctly changed the CPT Code to 99324 to reflect a lower level of service. Dr. Mason credibly opined that the medical record for this claim reflects that Respondent conducted a problem-focused history and examination related to the patient's small abrasion and that the ultimate decision to apply antibiotic ointment to the small abrasion involved straight-forward medical decision-making as contemplated by CPT Code 99324. Respondent saw patient I.W. on July 31, 2007, for services related to elongated toenails and used CPT Code 99326 in support of the claim for reimbursement. For this service, Petitioner correctly changed the CPT Code to 99324 to reflect a lower level of service. Dr. Mason credibly opined that the medical record for this claim reflects that Respondent conducted a problem-focused history and examination related to the patient's toenails and that the ultimate decision to trim the patient's toenails involved straight-forward medical decision- making as contemplated by CPT Code 99324. Respondent saw patient M.H. on February 28, 2008, for services related to elongated toenails and used CPT Code 99325 in support of the claim for reimbursement. Dr. Mason credibly opined that the medical record for this claim reflects that the patient presented with no symptoms or abnormal findings related to the complaint of elongated nails, and, therefore, the record provides no basis for a diagnosis. For this service, Petitioner correctly denied the claim. B. CPT Codes 99334, 99335, 99336 According to the CPT Evaluation and Management Service Guidelines and Codes Manual (2007 and 2008), CPT Codes 99334 through 99336 are service billing codes used by Medicaid providers for a "[d]omiciliary or rest home visit for the evaluation and management of an established patient. " For CPT Code 99334, the patient medical records maintained by the Medicaid provider must document at least two of the three following key components: a problem-focused interval history; a problem-focused examination; and straight-forward medical decision-making. "Usually, the presenting problem(s) are self-limited or minor. Physicians typically spend 15 minutes with the patient and/or family or caregiver." For CPT Code 99335, the patient medical records maintained by the Medicaid provider must document at least two of the three following key components: an expanded problem-focused interval 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 25 minutes with the patient and/or family or caregiver." For CPT Code 99336, the patient medical records maintained by the Medicaid provider must document at least two of the three following 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 40 minutes with the patient and/or family or caregiver." Respondent used CPT Code 99336 for 153 of the 258 audited claims and used CPT Code 99335 only once. Unless otherwise indicated, in those instances where Respondent used CPT Code 99336 or CPT Code 99335 for services related to the trimming of elongated toenails, Petitioner correctly changed the CPT Code to 99334 to reflect a lower level of service. Dr. Mason credibly opined that the medical records for these claims reflect that Respondent conducted problem-focused interval histories related to the patients' elongated toenails and that the ultimate decision to trim the patients' toenails involved straight-forward medical decision-making as contemplated by CPT Code 99334. Respondent used CPT Code 99336 for services related to the removal of corns and calluses. For these services, Petitioner correctly changed the CPT Code to 99334 to reflect a lower level of service. Dr. Mason credibly opined that the medical records for these claims reflect that Respondent conducted problem-focused interval histories related to the patients' corns and calluses and that the ultimate decision to shave the patients' corns and calluses involved straight-forward medical decision-making as contemplated by CPT Code 99334. For patient J.T., Dr. Mason did not express an opinion regarding date of service January 24, 2008, where Respondent filed the claim using CPT Code 99336. Respondent saw patient J.H. on May 30, 2008, and used CPT Code 99336 in support of the claim for reimbursement. Dr. Mason opined in his written narrative that "[t]he record indicates a problem-focused history (elongated nails), and straight-forward decision making (trimmed toenails). The note is a duplicate of the previous note, except for change of date. Adjust to 99334." As for the patient's elongated nails, it is factually accurate that other than the date, the entries in the medical record duplicate previous entries. However, this record also lists a second chief complaint expressed by the patient that is not duplicative of a previous complaint. There is no indication in the record that Dr. Mason considered the second complaint when reaching his opinion regarding the patient history taken by Respondent and the nature of the medical decision-making involved in treating the patient. Finally, as to patient J.H., Dr. Mason credibly opined that for date of service August 14, 2008, the CPT Code should be adjusted to 99334; and for dates of service October 16, 2008, and December 18, 2008, the CPT Code should be adjusted to 99335. Respondent saw patient M.H. on May 8, 2008, for treatment related to an ingrown toenail and used CPT Code 99336 in support of the claim for reimbursement. For this service, Petitioner correctly changed the CPT Code to 99334 to reflect a lower level of service. Dr. Mason credibly opined that the medical record for this claim reflects that Respondent conducted a problem-focused interval history related to the patient's ingrown toenail and that the ultimate decision to "slant back" the patient's ingrown toenail involved straight-forward medical decision-making as contemplated by CPT Code 99334. Respondent saw patient R.J. on November 16, 2007, for follow-up treatment related to an injury to the top of the patient's right foot. For this visit, Respondent submitted a claim for reimbursement using CPT Code 99336. For this service, Petitioner correctly changed the CPT Code to 99334 to reflect a lower level of service. Dr. Mason credibly opined that the medical record for this claim reflects that Respondent conducted a problem-focused interval history related to the patient's injury. The medical decision-making was straight-forward, as Respondent provided no specific treatment to the patient other than counseling the patient about treatment options and related matters. Respondent saw patient S.L. on April 27, 2007, for elongated toenails. For this visit, Respondent submitted a claim for reimbursement using CPT Code 99336 and a diagnostic code of 701.1. For patient S.L., Respondent, in other instances where he used CPT Code 99336 for reimbursement related to trimming elongated toenails, used diagnostic code 703.8. Dr. Mason credibly opined that this claim should be denied because "[t]he diagnosis used is not consistent with the medical record." Respondent saw patient J.M. on October, 17, 2007, December 19, 2007, and February 27, 2008, for treatment related to "the skin over both feet [that was] blistering, inflamed, itchy, painful, raw, reddened, scaly and swollen." Respondent, for each visit, used CPT Code 99336 in support of the claim for reimbursement. For these services, Petitioner correctly changed the CPT Code to 99334 to reflect a lower level of service. Dr. Mason credibly opined that the medical records for these claims reflect that Respondent conducted a problem-focused interval history related to the patient's skin condition and that the ultimate decision to treat the patient's condition with antifungal spray involved straight-forward medical decision- making as contemplated by CPT Code 99334. Respondent saw patient Y.P. on June 13, 2007, for treatment related to the right third toenail that was swollen, reddened, painful, ingrown, inflamed, deformed, and had a thickened nail groove. Respondent used CPT Codes 99336 and 11730 in support of the claim for reimbursement. For CPT Code 99336, Respondent used a CPT Code Modifier 25. For CPT Code Modifier 25, the Podiatry Services Coverage and Limitations Handbook provides as follows: Use modifier 25 for a significant, separately identifiable evaluation and management service by the same podiatrist or podiatry group on the same day of the procedure or other service. A podiatrist may need to indicate that on the same day a procedure or service identified by a procedure code was performed, the patient's condition required a significant, separately identifiable evaluation and management service above and beyond the usual preoperative and postoperative care associated with the procedure that was performed. The evaluation and management service may be prompted by the symptom or condition for which the procedure or the service was provided. As such, different diagnoses are not required for reporting of the evaluation and management services on the same date. The circumstance is reported by adding the modifier 25 to the appropriate level of evaluation and management service. The modifier is not used to report an evaluation and management service that resulted in a decision to perform surgery. A report must be submitted with the claim. This modifier requires the claim to be reviewed by a Medicaid medical consultant for justification of the evaluation and management service and appropriate pricing. Petitioner reimbursed Respondent for services claimed under CPT Code 11730, but denied reimbursement for services claimed pursuant to CPT Code 99336, as modified. Dr. Mason credibly opined that the medical record for this claim failed to include the "significant, separately identifiable evaluation and management service" as required. This claim was properly denied by Petitioner. C. CPT Codes 99307, 99308, 99309 According to the CPT Evaluation and Management Service Guidelines and Codes Manual (2007 and 2008), CPT Codes 99307 through 99309 are service billing codes used by Medicaid providers for "[a]ll levels of subsequent nursing facility care [that] include[s] reviewing the medical record and reviewing the results of diagnostic studies and changes in the patient's status (i.e. changes in history, physical condition, and response to management) since the last assessment by the physician." For CPT Code 99307, the patient medical records maintained by the Medicaid provider must document at least two of the three following key components: a problem-focused interval history; a problem-focused examination; and straight-forward medical decision-making. "Usually, the patient is stable, recovering, or improving." For CPT Code 99308, the patient medical records maintained by the Medicaid provider must document at least two of the three following key components: an expanded problem-focused interval history; an expanded problem-focused examination; and medical decision-making of low complexity. "Usually, the patient is responding inadequately to therapy or has developed a minor complication." For CPT Code 99309, the patient medical records maintained by the Medicaid provider must document at least two of the three following key components: a detailed history; a detailed examination; and medical decision-making of moderate complexity. "Usually, the patient has developed a significant complication or a significant new problem." Respondent used CPT Code 99309 to secure reimbursement for services provided to patients C.H. and L.T. for the trimming of elongated toenails and the shaving of corns and calluses. Unless otherwise indicated, Petitioner, in each instance where Respondent used CPT Code 99309, correctly changed the CPT Code to 99307 to reflect a lower level of service. Dr. Mason credibly opined that the medical records for these claims reflect that Respondent conducted problem-focused interval histories related to the patients' ailment(s) and that the ultimate treatment decisions involved straight-forward medical decision-making as contemplated by CPT Code 99307. Respondent used CPT Code 99309 to secure reimbursement for services provided to patient C.H. on July 26, 2008. Petitioner properly denied this claim, because Respondent failed to provide documentation to support the same. D. CPT Codes 99347, 99348, 99349 According to the CPT Evaluation and Management Service Guidelines and Codes manual (2007 and 2008), CPT codes 99347 through 99349 are service billing codes used by Medicaid providers "to report evaluation and management services provided [to an established patient] in a private residence." For CPT Code 99347, the patient medical records maintained by the Medicaid provider must document at least two of the three following key components: a problem-focused interval history; a problem-focused examination; and straight-forward medical decision-making. "Usually, the presenting problem(s) are self limited or minor [and] [p]hysicians typically spend 15 minutes face-to-face with the patient and/or family." For CPT Code 99348, the patient medical records maintained by the Medicaid provider must document at least two of the three following key components: an expanded problem-focused interval history; an expanded problem-focused examination; and medical decision-making of low complexity. "Usually, the presenting problem(s) are of low to moderate severity [and] [p]hysicians typically spend 25 minutes face-to-face with the patient and/or family." For CPT Code 99349, the patient medical records maintained by the Medicaid provider must document at least two of the three following key components: a detailed history; a detailed examination; and medical decision-making of moderate complexity. "Usually, the presenting problem(s) are moderate to high severity [and] [p]hysicians typically spend 40 minutes face-to-face with the patient and/or family." Respondent used CPT Code 99349 to secure reimbursement for services provided to patient T.E. for trimming the patient's elongated toenails and prescribing cream for a skin rash. Unless otherwise indicated, Petitioner, in each instance where Respondent used CPT Code 99349, correctly changed the CPT Code to 99347 to reflect a lower level of service. Dr. Mason credibly opined that the medical records for these claims reflect that Respondent conducted problem-focused interval histories related to the patient's ailment(s) and that the ultimate treatment decisions involved straight-forward medical decision-making as contemplated by CPT Code 99347. Respondent used CPT Code 99349 to secure reimbursement for services provided to patient T.E. on October 15, 2008. Petitioner properly denied this claim, because Respondent failed to provide documentation to support the same. Costs Petitioner submitted affidavits in support of its claim for costs. Petitioner retained Drs. Huffer and Mason to provide expert services in the instant matter. For the combined services of Drs. Huffer and Mason, Petitioner incurred expert witness costs totaling $4,756.25. Petitioner had two investigators to perform tasks related to the instant dispute: Effie Green and Jennifer Ellingsen. Petitioner's total cost incurred for work performed by Ms. Green related to the audit and ensuing litigation is $1,025.46. Petitioner's total cost incurred for work performed by Ms. Ellingsen related to the audit and ensuing litigation is $561.17. Petitioner's total costs related to the instant dispute are $6,342.88.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that Petitioner, Agency for Health Care Administration, issue a final order and note therein that: Respondent, Mark Isenberg, D.P.M., was not overpaid for services provided to patient A.R. during the audit period; Respondent was not overpaid for services provided to patient J.T. on January 24, 2008; Respondent was not overpaid for services provided to patient J.H. on May 30, 2008; Petitioner shall recalculate, using generally accepted statistical methods, the total overpayment determination to reflect that Respondent was not overpaid for certain services provided to patients A.R, J.T., and J.H., as set forth in the Findings of Fact; Respondent was overpaid for all other services identified in the FAR and that Petitioner is entitled to recoup the overpayment as determined in accordance with the preceding paragraph; Petitioner is entitled to statutory interest on the overpayment; Petitioner is entitled to recover from Respondent its costs in the amount $6,342.88; and Petitioner is entitled to impose against Respondent an administrative fine in the amount of $3,000.00. DONE AND ENTERED this 31st day of May, 2012, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 31st day of May, 2012.
The Issue Whether Respondent is guilty of being in violation of Section 468.365(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based upon the evidence adduced at the final hearing and the record as a whole, the following findings of fact are made: Respondent is now, and has been since January 5, 1987, a Florida-licensed respiratory therapist. He holds license number CRT 830. Respondent has a lengthy history of drug abuse. In or about June of 1996, when he was employed as a blood gas laboratory technologist by Miami Children's Hospital (MCH) in Miami, Respondent submitted to a drug screen (performed at the request of MCH) and tested positive for cocaine. 2/ MCH referred Respondent to South Miami Hospital's (South Miami's) addiction treatment program, to which Respondent was admitted on June 6, 1996. Respondent successfully completed the South Miami program. He was discharged from the program on July 3, 1996. Respondent thereafter voluntarily enrolled in the state-approved program for impaired Florida health care practitioners offered by Physicians Recovery Network (PRN). PRN monitors the care, treatment, and evaluation of the impaired practitioners in its program. On July 11, 1996, Respondent entered into an "Advocacy Contract" with PRN, in which he agreed to, among other things, the following: "participate in a random urine drug and or blood screen program through [the] PRN office within twenty-four hours of notification"; "release by waiver of confidentiality the written results of all such screens to the Physicians Recovery Network to validate [his] continuing progress in recovery"; "abstain completely from the use of any medications, alcohol, and other mood altering substances including over the counter medication unless ordered by [his] primary physician, and when appropriate, in consultation with the Physicians Recovery Network"; "attend a self help group such as AA or NA"; "participate in continuing care group therapy"; "attend a 12- step program of recovering professionals"; "notify Physicians Recovery Network in the event of use of mood altering substances without a prescription"; and "be appropriately courteous and cooperative in all contacts with the PRN staff and representatives of PRN." The contract further provided that "[r]elapse will result in re-assessment and possible residential treatment." A "monitoring professional" or "facilitator" was appointed by PRN to assist in Respondent's recovery. PRN "facilitators" are responsible for providing therapy in a group setting to those under their charge and reporting to PRN any suspected failure on the part of a member of their group to adhere to the terms of the group member's "Advocacy Contract." (There are 33 "therapy groups" led by PRN "facilitators" throughout the State of Florida.) In March of 1997, Respondent's "facilitator" reported to PRN that Respondent had started using cocaine again (this time intravenously), resulting in his being fired from his position at Miami Children's Hospital. PRN responded to the facilitator's report by voiding Respondent's July 11, 1996, "Advocacy Contract." Respondent was thereafter involuntarily hospitalized pursuant to the Baker Act at the request of his family. Following his discharge from the hospital, Respondent was reported missing. In June of 1997, Respondent resurfaced and, pursuant to a court order, was admitted to Miami-Dade County's Treatment Alternative to Street Crime (TASC) program. In August of 1997, after Respondent completed Phases I and II of the TASC program, he was evaluated, at PRN's request, by Anthony P. Albanese, M.D., the Co-Director of the Addiction Treatment Program at Mount Sinai Medical Center in Miami Beach. Dr. Albanese determined that Respondent was suffering from "cocaine . . . dependence in early remission" and was "medically able to return to work." On September 10, 1997, Respondent entered into a second "Advocacy Contract" with PRN, which was similar to the first contract. In March of 1998, after receiving word that Respondent had again relapsed, as evidenced by the results of a urine screen, which revealed the presence of cocaine metabolites, PRN voided Respondent's second "Advocacy Contract." Subsequent analysis of Respondent's hair confirmed that he had been using cocaine. In July of 1998, Respondent was evaluated by David Myers, M.D., a PRN-approved evaluator and treatment provider. Dr. Myers diagnosed Respondent as having "cocaine dependency, continuous and severe," "marijuana dependency," and "nicotine dependency." On July 7, 1998, Respondent was admitted as a patient in the Tampa-based Healthcare Connection P.I.N. [Professionals in Need] Program (P.I.N. Program). Respondent was referred, through the P.I.N. Program, for treatment at the Salvation Army Adult Rehabilitation Center. On January 8, 1999, after receiving treatment at Salvation Army Adult Rehabilitation Center and successfully completing the P.I.N. Program, Respondent entered into a third "Advocacy Contract" with PRN, which was similar to the first two contracts. In early February of 1999, Respondent's "facilitator" reported that Respondent was not attending required group meetings and could not be located. Based upon the facilitator's report, PRN voided Respondent's third "Advocacy Contract." At no time subsequent to the voiding of his third "Advocacy Contract" has Respondent made contact with PRN. Because of the "continuous and severe" nature of his cocaine dependency, Respondent is presently unable to deliver respiratory care services with reasonable skill and safety to patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board enter a final order finding Respondent is in violation of Section 468.365(1)(x), Florida Statutes, as alleged in the Administrative Complaint, and disciplining him therefor by revoking his license and fining him $500.00. DONE AND ENTERED this 10th day of January, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 January, 2001.
The Issue Whether Petitioner, Riquel Gonzalez-Salcerio ("Dr. Gonzalez"), has disqualifying offenses under section 435.04(4), Florida Statutes; if so, whether Dr. Gonzalez has demonstrated rehabilitation by clear and convincing evidence; and, if so, whether Respondent, Agency for Health Care Administration's ("AHCA"), intended action to deny Dr. Gonzalez's request for an exemption from disqualification constitutes an abuse of discretion.
Findings Of Fact Dr. Gonzalez is a 53-year-old licensed podiatric physician seeking to qualify, pursuant to section 435.07, to re- enroll as a Medicaid provider, which requires compliance with background screening standards set out in section 435.04(4).1/ AHCA is the state agency responsible for administration of the Medicaid program in Florida, including the issuance of a Medicaid provider number for which Dr. Gonzalez seeks to qualify. In 1990, Dr. Gonzalez, who is of Cuban descent, received a medical degree from Central University in Las Villas, Cuba. Following graduation, Dr. Gonzalez entered a three-year residency program in invasive cardiology at the Cardiac Institute in Havana, Cuba. Upon completion of the residency program, Dr. Gonzalez practiced cardiology at the Central Institute of Cardiology in Las Villas. In 1997, Dr. Gonzalez traveled from Cuba to Uruguay and worked at Sanatorio Americano Hospital as the Chief of Cardiology. While in Uruguay, Dr. Gonzalez became the chief of Cardiology for the entire country of Uruguay, and he obtained a doctorate in diagnostic radiology. In 1999, Dr. Gonzalez decided to leave Uruguay, defect from Cuba, and live in the United States. In order for Dr. Gonzalez to be permitted to leave Uruguay and travel directly to the United States, it was necessary for him to conceal his Cuban descent. In order to conceal his Cuban descent, Dr. Gonzalez obtained a fake Florida driver's license in a fictitious name. In 1999, Dr. Gonzalez traveled from Uruguay to the United States by airline and entered the United States at Miami International Airport. Once he arrived in Miami, Dr. Gonzalez did not use the fake driver's license at the airport. Dr. Gonzalez presented to immigration in his own name and announced his intent to defect to the United States. Dr. Gonzalez was immediately accepted as a Cuban refugee, paroled into the United States, and he is now a permanent resident of the United States. Following his receipt of a work permit, Dr. Gonzalez remained in Miami and obtained a job as a medical assistant at Gables Medical Center, a clinic owned by one of his cousins. As a foreign doctor, Dr. Gonzalez was able to obtain certification authorizing him to work as a medical assistant. Dr. Gonzalez worked at the clinic as a medical assistant from 1999 to 2001. In 2001, Dr. Gonzalez began working at Echofet Diagnostic Center as an ultrasound technician, which was within the scope of his medical assistance certification. On October 14, 2003, while working as an ultrasound technician, Dr. Gonzalez used his fake driver's license in an attempt to cash a check as a favor for Dr. Guillermo Achon, who also worked at the facility. Dr. Achon wrote a check made payable to the fictitious name on the driver's license and gave the check to Dr. Gonzalez to cash for him. Dr. Gonzalez took the check and went to a bank. Dr. Gonzalez presented the check and fake driver's license to the bank teller in an effort to obtain cash. Upon presentment of the check and the fake driver's license to the bank teller on October 14, 2003, Dr. Gonzalez was immediately arrested for one count of violating section 831.01, Florida Statutes (2003)(forgery); one count of violating section 812.014, Florida Statutes (2003)(grand theft); and one count of violating section 322.212(1)(a), Florida Statutes (2003)(possession of a counterfeit driver's license). Dr. Gonzalez was ultimately charged with only a single count of violating section 322.212(1)(a), possession of a counterfeit driver's license, a third-degree felony. Dr. Gonzalez pled guilty to the charge. Adjudication was withheld and he was sentenced to two years of probation and was required to complete community service and an anti-theft course. Dr. Gonzalez completed his probation early, and he completed the community service and anti-theft course requirements.2/ In 2006, Dr. Gonzalez left Echofet Diagnostic Center and decided to enroll in podiatry school. In 2007, Dr. Gonzalez was accepted to podiatry school at Barry University. During this time period, Dr. Gonzalez was also working for Dr. Roberto Rivera, a radiologist in Miami. While working for Dr. Rivera, Dr. Gonzalez read and interpreted radiological scans, such as X-rays and CT scans. At that time, Dr. Gonzalez was not legally authorized to read and interpret radiological scans because he was not licensed by the State of Florida as a physician. As a result of his conduct, on June 13, 2007, Dr. Gonzalez was arrested for 36 counts of violating section 817.234, Florida Statutes (2006) (false/fraudulent insurance claims); three counts of violating section 812.014 (2006)(grand theft, third degree); and 36 counts of violating section 456.065(2)(d)1., Florida Statutes (2006)(unlicensed practice of health care). Dr. Gonzalez was ultimately charged with only a single count of violating section 456.065(2)(d)1. (unlicensed practice of health care), a third-degree felony. Dr. Gonzalez pled guilty. Adjudication was withheld and he was sentenced to five years of probation, required to complete community service, and ordered to pay restitution of $6,875.00 and costs of $1,557.60. Dr. Gonzalez also agreed to cooperate with the investigation and prosecution of two other defendants. Dr. Gonzalez completed his probation early, and he completed the community service and restitution requirements. Dr. Gonzalez contends that the October 14, 2003, criminal offense of possession of a counterfeit driver's license and June 13, 2007, criminal offense of unlicensed practice of health care are not disqualifying criminal offenses. As discussed in more detail below in the Conclusions of Law, the October 14, 2003, criminal offense of possession of a counterfeit driver's license, in violation of section 322.212(1)(a), and the June 13, 2007, criminal offense of unlicensed practice of health care, in violation of section 456.065(2)(d), are not disqualifying criminal offenses. However, even if these two offenses are disqualifying, Dr. Gonzalez has demonstrated rehabilitation by clear and convincing evidence. At hearing, Dr. Gonzalez accepted full responsibility for the two criminal offenses that AHCA considered disqualifying. Dr. Gonzalez has had no arrests or other criminal history since his arrest on June 13, 2007, and the resulting offense of unlicensed practice of health care. In 2011, Dr. Gonzalez completed the podiatry program at Barry University that he began in 2007 and obtained a medical degree in podiatric medicine. After graduation, Dr. Gonzalez entered a residency program in foot and ankle reconstructive surgery at Mercy Hospital in Miami, which he completed in 2014. In 2014, Dr. Gonzalez applied for his medical license with the State of Florida, Department of Health, Board of Medicine. During the application process, Dr. Gonzalez disclosed all of his criminal history. The Board of Medicine initially denied the license. However, Dr. Gonzalez appeared before the Board of Medicine, and following a hearing, he was granted a license. Since that time, Dr. Gonzalez has continuously maintained his license to practice podiatric medicine in Florida. Since becoming licensed in 2014, Dr. Gonzalez has specialized in foot and ankle surgeries. He is well-known and an active and respected member of the Miami and south Florida communities. Dr. Gonzalez has privileges at Mercy Hospital and Larkin Community Hospital, Palm Springs campus. Dr. Gonzalez is only one of three podiatric physicians in Miami who perform total ankle replacements. Dr. Gonzalez's office practice, Dr. Riquel Gonzalez DPM, PA, is located at 1435 West 49th Place, Suite 604, Hialeah, Florida 33012. In his practice, he has approximately 6,000 patients, seeing 40 to 50 patients a day. More than 70 percent of his practice is surgical and 30 percent of his patients are covered under the Medicaid program. In addition to his medical practice, Dr. Gonzalez is a professor at Barry University, teaching podiatric surgery, foot and ankle surgery, and radiology. While at Barry University, Dr. Gonzalez has received the honor of Professor of the Year. Dr. Gonzalez has also received a national award from the Foot and Ankle Society as one of the top ten podiatrists in the United States. Dr. Gonzalez is also the current director of the residency program at Larkin Community Hospital, Palm Springs campus. As director, Dr. Gonzalez supervises nine residents, who also train in his office and assist in surgeries under his supervision. Dr. Gonzalez also spends substantial time as a volunteer in his local community and elsewhere on behalf of various charitable causes. He treats the homeless at Camillus House, a homeless shelter in the Miami area. Dr. Gonzalez brings his residents to the shelter, and they perform basic podiatric care, such as cleaning feet and clipping nails. Dr. Gonzalez travels to Mexico with other physicians and residents for medical missions, providing podiatric surgical services for patients, particularly children, who have no medical insurance or ability to pay. Since 2011, Dr. Gonzalez has travelled annually to different locations where he provides free podiatric services. Presently, Dr. Gonzalez is planning a trip to Columbia to conduct similar medical mission work. In addition, Dr. Gonzalez donates podiatric medical equipment to new podiatric school graduates. From 2014 until April 2019, Dr. Gonzalez treated Medicaid patients under a Medicaid provider number issued by AHCA. In April 2019, AHCA terminated Dr. Gonzalez's Medicaid provider number and agreement. As a result of not having a Medicaid provider number, insurance companies providing Medicaid coverage have also terminated Dr. Gonzalez as a Medicaid provider. Nevertheless, Dr. Gonzalez continues to treat Medicaid patients in his office free of charge. However, Dr. Gonzalez is not permitted to perform surgery on Medicaid patients at a hospital because he is no longer a Medicaid provider. Since 2014, Dr. Gonzalez has never had an issue with Medicaid billing for services performed. He has never received an overpayment notice, none of his billings have been questioned, and he has complied with the Medicaid provider requirements. At hearing, Dr. Gonzalez presented the testimony of Dr. Mario Cala, a fellow podiatric surgeon in Miami. In 2008, Dr. Cala received his degree in podiatric medicine from Barry University, and he has practiced in Miami for the past eight years. He has known Dr. Gonzalez for approximately 15 years. Until recently, Dr. Cala was the chief of Podiatry at Jackson Memorial Hospital in Miami. When Dr. Cala was a fellow at Mercy Hospital, Dr. Gonzalez was a first-year resident. Dr. Cala testified that Dr. Gonzalez is one of the best podiatric surgeons in Miami. Dr. Cala regularly consults with Dr. Gonzalez and refers patients to Dr. Gonzalez for total ankle replacement surgery. Dr. Cala and Dr. Gonzalez have traveled together on medical mission trips. Dr. Cala is aware of Dr. Gonzalez's prior legal problems. Dr. Cala credibly and persuasively attested to Dr. Gonzalez's good character and great reputation in the community. He described Dr. Gonzalez as compassionate, kind, thoughtful, and humble. There was no cross-examination of Dr. Cala by AHCA. Dr. Gonzalez also presented the testimony of Paula Camacho. For the past ten years, Ms. Camacho has been a medical sales distributor for Generation X Technologies, a company which sells medical devices to assist physicians who treat patients with lymphedema. She has known Dr. Gonzalez for the past five years, having met him at his office when she was scheduling a training session on the use of lymphedema pumps. Dr. Gonzalez is a client of Ms. Camacho and she has observed him interacting with patients. Ms. Camacho is also a member of the Miami-Dade Podiatric Medical Association, where Dr. Gonzalez has lectured at association meetings on trends and developments involving podiatric medicine. Ms. Camacho described Dr. Gonzalez as a "pillar of the medical community, very well-respected" throughout Miami-Dade County. Ms. Camacho credibly and persuasively attested to Dr. Gonzalez's good character and great reputation in the community. She described Dr. Gonzalez as trustworthy, compassionate, kind, thoughtful, and humble. There was no cross-examination of Ms. Camacho by AHCA. Dr. Gonzalez also presented the testimony of Anthony Kirchner, a sales representative for Generation X Technologies. Mr. Kirchner has known Dr. Gonzalez for almost seven years. As a sales representative, Mr. Kirchner has been present during surgeries performed by Dr. Gonzalez and other podiatrists. He also observes Dr. Gonzalez interacting with residents. Mr. Kirchner described Dr. Gonzalez as "[p]robably one of the best surgeons I've ever seen in the whole City of Miami. Hands down." Mr. Kirchner further testified that Dr. Gonzlaez "puts the patient first" and that he is "professional" and "hands-on" with residents. Mr. Kirchner credibly and persuasively attested to Dr. Gonzalez's good character, great reputation in the community, and how he is trustworthy, compassionate, kind, thoughtful, and humble. There was no cross-examination of Mr. Kirchner by AHCA. Dr. Gonzalez also presented the testimony of his step- daughter, Estefany Garcia. Ms. Garcia has known Dr. Gonzalez for the past 15 years. She has also worked at Dr. Gonzalez's medical office for the past two years as an office manager. As office manager, Ms. Garcia has had the opportunity to observe Dr. Gonzalez interact with patients. She described Dr. Gonzalez as a "great person," and her "second father," and she testified that patients are very fond of him. Ms. Garcia credibly and persuasively attested to Dr. Gonzalez's trustworthiness and great reputation in the community. There was no cross- examination of Ms. Camacho by AHCA. After the presentation of Dr. Gonzalez's witnesses, AHCA recalled Ms. Risch as a witness. Ms. Risch, an AHCA operations management consultant manager for the past year, testified that there was information presented for the first time at the hearing bearing on Dr. Gonzalez's rehabilitation, such as his involvement in the community, mission work, and provision of podiatric treatment to patients free of charge. Ms. Risch acknowledged that this additional information presented at hearing could have affected AHCA's decision to deny the exemption. In addition to the live testimony presented by Dr. Gonzalez, he provided letters of support from other friends and colleagues. These letters explain or supplement the substantial testimony at hearing regarding Dr. Gonzalez's good character. In one of the letters dated September 5, 2018, Ramon Hechavarria, M.D., stated that he has known Dr. Gonzalez as both a close friend and colleague. Dr. Hechavarria first met Dr. Gonzalez in 1999. Dr. Hechavarria described Dr. Gonzalez as "one of the most disciplined, intelligent, and dedicated people I've ever known." According to Dr. Hechavarria, Dr. Gonzalez's ability to work efficiently under stressful conditions and nerve-wracking deadlines speaks volumes about his hard work, determination, and composed demeanor. During all this time he has demonstrated excellent leadership skills and morale. I would also like to add that, Riquel is a compassionate human being with praiseworthy perseverance and ambition. I believe that he is an indispensable asset for the Podiatric profession and he has all my support and admiration. In another letter dated September 6, 2018, Iris Berges, who is the chief executive officer of Larkin Community Hospital, Palm Beach campus, stated that she has known Dr. Gonzalez for over three years. Ms. Berges stated that her relationship with Dr. Gonzalez "has been one of mutual professional respect along with friendship." Ms. Berges further stated that Dr. Gonzalez "is a highly respected and skilled Foot and Ankle Surgeon. He is admired and relied upon by our physicians. His patients trust and rely on him." It is abundantly clear, from the credible and heartfelt testimony of Dr. Gonzalez, Dr. Cala, Ms. Camacho, Mr. Kirchner, and Ms. Garcia, that Dr. Gonzalez is a responsible individual and rehabilitated from the two offenses in 2003 and 2007. The incidents in question occurred over a decade ago. Since 2007, Dr. Gonzalez has lived as a model law-abiding citizen. Dr. Gonzalez has operated a successful podiatric medicine practice providing medical treatment to underserved and underprivileged persons within his community. He has provided pro bono medical services to patients within his medical practice and in other communities and other countries on medical mission trips. Dr. Gonzalez has been an upstanding, well- respected physician and member of his community who has contributed greatly to his profession, the development of those aspiring to join his profession, and the underserved in need of his highly skilled professional services. Under the particular circumstances of this case, there is no evidence that would indicate that Dr. Gonzalez would present a danger if granted a Medicaid provider number. To the contrary, the evidence presented at hearing demonstrates that patients and persons within Dr. Gonzalez's community and elsewhere have benefited, and will continue to benefit, from Dr. Gonzalez's podiatric services through Medicaid. The only danger evident here would be that the Medicaid population would not be able to obtain medical surgical services if Dr. Gonzalez were not granted a Medicaid provider number. Based on the clear and convincing evidence presented at hearing, the undersigned finds that Dr. Gonzalez is rehabilitated from the two disqualifying criminal offenses in 2003 and 2007, and that he presents no danger if approved to re- enroll as a Medicaid provider and issued a Medicaid provider number.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order granting Dr. Gonzalez's renewal application as a Medicaid provider because of a lack of disqualifying criminal offenses or, in the alternative, an exemption from disqualification as a Medicaid provider. DONE AND ENTERED this 5th day of August, 2019, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 5th day of August, 2019.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined. At all times relevant hereto, respondent, Eileen F. Rowan, was a licensed respiratory therapist having been issued license number RT 0001346 by petitioner, Department of Professional Regulation, Board of Medicine (Board). She has been licensed by the Board since September 1987 and has been a practicing member of the profession since 1981. When the events herein occurred, respondent was using her license in the State of Florida. She now resides in Gilbertville, Pennsylvania. On July 17, 1990, respondent plead nolo contendere to the charges of unlawfully purchasing a controlled substance, crack cocaine, and possession of drug paraphernalia. Based upon those charges, on February 12, 1991, the Board suspended her license until such time as she established her ability to practice respiratory care with skill and safety. In March 1991, respondent agreed to participate in a recovery program sponsored by the Physicians Recovery Network (PRN), a program for impaired health care professionals. Her physician monitor was Dr. Kenneth W. Thompson, the clinical director of an addictive disease unit at Charter Springs Hospital in Ocala, Florida. She also executed an advocacy contract with PRN wherein she agreed to participate in a twelve-step recovery program, including attending various meetings and submitting to random drug testing. Based on a recommendation by Dr. Thompson in September 1991 that respondent had made "dramatic progress" while participating in the rehabilitation plan, the Board reinstated respondent's license and concurrently placed it on five years' probation with PRN involvement and the implementation of a practice plan. The probation order provided that "respondent shall not consume, inject, or ingest any controlled substances unless prescribed or administered by another practictioner authorized by law to prescribe or dispense controlled substances." The order also provided that respondent "attend AA or NA meetings on a frequency of at least one meeting per week" and "attend Cadeucus meetings on a frequency of not less than one meeting per week." This action was formalized in a Board order entered on October 19, 1991. Shortly thereafter, respondent began employment as a respiratory therapist with Citrus Memorial Hospital (hospital) in Inverness, Florida. Under the terms of her employment, she was required to submit to random drug screening. On March 12, 1992, Dr. Thompson reported to PRN that respondent had been taking prescribed narcotics due to surgery on her hand and had missed several scheduled meetings. He accordingly recommended a PRN reevaluation. A few weeks later, respondent executed an updated PRN advocacy contract containing essentially the same conditions and requirements as were in the original contract. On May 13, 1992, and in compliance with her employment agreement, respondent provided two urinalysis samples for testing. One was collected by her employer, placed in a tamper-evident bag and sent to SmithKline Beecham Clinical Laboratories in Tampa, Florida, for testing. Using a 50 nanogram per milliliter cutoff level, the urine sample tested positive for the presence of marijuana. A subsequent confirmatory test on the same sample yielded positive results for the presence of marijuana. The second urine sample was tested by Doctors & Physicians Laboratory in Leesburg, Florida, and used a higher cutoff level of 100 nanograms per milliliter. It tested negative. Even so, because the first sample tested positive, respondent was dismissed from her position with the hospital. This positive finding also constituted a violation of a condition of the Board's order of October 19, 1991, regarding the prohibition against consumption of controlled substances. Except for the one positive result on May 13, 1992, however, there is no evidence that respondent tested positive on any of the other numerous drug screens during her probationary period. Respondent has challenged the results of the first sample on the grounds the testing may have been in error and an appeals referee for the Florida Department of Labor and Employment Security accepted that argument in favorably ruling on her unemployment compensation claim. However, that ruling is not binding here, and testimony by Dr. Amos for the testing laboratory established the validity and reliability of the test results. On May 20, 1992, respondent telephoned Dr. Thompson and advised him that she had been terminated from her position at the hospital because she had tested positive for marijuana on a drug screen. Although later denied by respondent, she also admitted to him at that time that she had "occasionally" been using marijuana. Armed with this information, the Board suspended respondent's license on an emergency basis on June 8, 1992, pending the outcome of this proceeding. Expert testimony by Dr. Thompson and Dr. Roger A. Goetz established that as of May 1992, respondent was suffering from chemical dependency and required treatment for that addiction. Therefore, it may be inferred from the evidence that respondent is unable to practice respiratory therapy with reasonable skill and safety to patients by reason of her use of chemicals. There is no evidence of record that respondent's one-time confirmed use of marijuana during the spring of 1992 caused any danger to the public or injury to a patient. Except for the disciplinary order entered in 1991, there has been no other disciplinary action against her license since 1987. Also, there are no complaints from former employers or patients regarding her quality of work during the last eleven years. At the same time, it should be noted that respondent depends upon her license for her livelihood. Indeed, since the emergency suspension of her license, respondent has been unable to secure meaningful work in Florida or Pennsylvania. She now desires to return to Florida and resume her profession. Finally, respondent states that she is now "clean" of drugs and in essense wants a second chance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order finding respondent in violation of Subsections 468.365(1)(i) and (x), Florida Statutes, and that her existing probation terms and conditions be extended for an additional year. Subject to such terms and conditions as the Board may deem appropriate, the emergency suspension of respondent's license should be lifted and she be allowed to resume her profession. DONE AND ENTERED this 21st day of October, 1992, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-4897 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 3. 5-9. Partially accepted in finding of fact 4. 10. Rejected as being unnecessary. 11-12. Partially accepted in finding of fact 5. 13. Rejected as being unnecessary. 14-16. Partially accepted in finding of fact 6. 17-20. Partially accepted in finding of fact 7. 21. Partially accepted in finding of fact 8. 22-23. Rejected as being unnecessary. 24. Partially accepted in finding of fact 8. 25-35. Partially accepted in finding of fact 7. 36. Partially accepted in finding of fact 8. 37-38. Partially accepted in finding of fact 9. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, subordinate, or not supported by the more persuasive evidence. COPIES FURNISHED: Dorothy J. Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Randolph P. Collette, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Ms. Eileen F. Rowan 2821 Leidy Road Gilbertville, Pennsylvania 19525
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the State of Florida agency responsible for regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2004). As set forth herein, the Respondent was a physician licensed to practice medicine in the area of critical need (ACN), and holding Florida license number ACN144. A physician holding an ACN licensed must practice in a facility that meets certain statutory requirements or which is designated by the State Health Officer as an entity providing health care to an indigent population, and must submit documentation establishing employment at an ACN-designated facility for licensing. The secretary of the Florida Department of Health is the state health officer. Prior to the events at issue in this proceeding, the Respondent practiced medicine as medical director at "Mariner's Medical Center" (Mariner's), which closed in October 2002. Mariner's was an approved ACN facility. After the closure of the Mariner's facility, the Respondent accepted a position in Miami at Jackson Memorial Hospital (Jackson) in October 2002; however, prior to commencing his employment, circumstances at Jackson changed and the Respondent's position at Jackson was eliminated. The Respondent's employment contract at Jackson was terminated and, he received payment under the terms of the agreement. The Respondent subsequently returned to central Florida, apparently intent on opening a medical practice. By letter to "Sandy Condo," from the Respondent dated July 17, 2003, the Respondent sought responsibility for Mariner's medical records. The letter did not further identify Sandy Condo, but the address was that of the Petitioner. The letter, which identified the practice as an entity called "Boriquen Healthcare Plus," stated as follows: This is to certify my desire for the responsibility of the medical records of Mariner's Medical Center, where I was the Medical Director until October 24, 2002. I am willing to be the custodian of these medical records and I would like the computer data base (sic) be transferred to my care. I intend to follow up on the care of all these patients. In August 2003, the Respondent opened a private practice at 931 West Oak Street, Suite 103, Kissimmee, Florida, and began treating patients. The practice was initially named "Boriquen Health Care" (reflecting the historical name for Puerto Rico), but within a few days of opening was renamed "Physician's Health Care Plus." Towards the end of August 2003, the Respondent made efforts to acquire the ACN designation for his practice. Materials seeking the designation were submitted by Glenda E. Gonzalez-Cortes, M.D., the Medical Director for Physician's Healthcare Plus, to the Board of Medicine (Board). Although the materials were received by the Board, the Board was not the agency responsible for ACN facility designations. It is unclear whether the Board forwarded the materials to the appropriate office within the Department of Health for processing. It is likewise unclear whether the Respondent understood the distinction between the "Department of Health" and the "Department of Health, Board of Medicine." In any event, the fact that materials were submitted seeking ACN designation for the practice clearly establishes that the Respondent was aware that the practice was not designated as an ACN facility. A memo dated October 2, 2003, from Melinda K. Gray, Regulatory Supervisor of the Board of Medicine, to Larry McPherson, Jr., Executive Director of the Board of Medicine, stated as follows: Attached please find a letter dated July 17, 2003, from Dr. Jose A. Gutierrez, expressing his desire to take responsibility for the medical records of Mariner's Medical Center. Based on my conversation today with Dr. Gutierrez, he again expressed his desire to take responsibility of the medical records and to follow-up on the care of these patients who received medical treatment at Mariner's Medical Center Please be advised of the following: Mariner's Medical Center is closed. Mariner's Medical Center is owned by a non-health care licensee. The medical records located at Mariner's Medical Center are currently inaccessible and are being maintained by a leasing company. Dr. Gutierrez or the patients do not have access to these medical records. Dr. Gutierrez is willing to take custody of these records, which are located on a computer hard drive, and paper records. The hard drive is necessary to be able to link between the patient's name and patient identification numbers. Dr. Gutierrez indicated he intends to follow the care of these patients. Dr. Gutierrez holds a clear active medical license in the area of critical need in the state of Florida and reflects no prior discipline. Dr. Gutierrez indicated that either the leasing company or the owner of Mariner's Medical Center would not release these records to him until the Board of Medicine reviews his request to take custody of the records and the Board grants his request. Dr. Gutierrez agrees, accepts and acknowledges the responsibility to maintain the medical records and follow-up patient care of the patients who received medical treatment at Mariner's Medical Center, beginning July 17, 2003. By letter dated October 7, 2003, from the executive director of the Board of Medicine, the custodial request was approved. The letter stated as follows: It is my pleasure to advise you that, pursuant to your request, the Board of Medicine voted on October 4, 2003, to permanently appoint you as the Custodian of Records for the former Mariner's Medical Center. This appointment is pursuant to Section 456.057(19), Florida Statutes, which authorizes the Board of Medicine to permanently appoint a person as a custodian of medical records in the event of the death of a practitioner, the mental or physical incapacitation of the practitioner, or the abandonment of medical records by a practitioner. The custodian appointed shall comply with all provisions of this section, including the release of patient records. The Respondent suggests that the release of the records to his custody constituted approval of his July 17 request to provide treatment; however, the October 7 letter clearly did not address issues regarding provision of patient care. The statutory citation referenced in the letter addresses only custody, maintenance, and use of medical records. There is no credible evidence that the ongoing dialogue between the Respondent and representatives of the Petitioner constituted approval of the Respondent's request to provide medical care to Mariner's patients. Further, there is no evidence that the Respondent's practice at "Boriquen Health Care" or "Physician's Health Care Plus" was limited solely to patients who had received care at Mariner's. By letter dated November 25, 2003, to Kimberly Rivers, Regulatory Supervisor for the Department of Health, Board of Medicine, the Respondent referenced a conversation of November 21, 2003, wherein a discussion allegedly occurred regarding the requirements for ACN designation. The letter clearly establishes that the Respondent was aware that the practice had not yet received the ACN designation. The Respondent's ACN license was due to expire on January 31, 2004. On January 30, 2004, the Respondent submitted his ACN re-licensure application. Because he was not practicing at an ACN facility as of the expiration date, the ACN license was not automatically renewed. By letter dated February 5, 2004, the Petitioner notified the Respondent that his ACN license renewal could not be completed until submission of a letter from "your employer in an area of critical need." The letter referenced an enclosure that allegedly identified the ACN-designated facilities. An email dated February 16, 2004, from Joanne Davis-Trexler to the Respondent references a prior conversation and advises that the Respondent's license can not be renewed without "proof of employment in a facility approved as an Area of Critical Need." The email further advises that the Respondent's license is "delinquent" and that "practice with a delinquent license is a violation of Florida Statutes." An exchange of email between the parties indicates that subsequent to February 16, 2004, additional information, including Medicaid/Medicare billing records, was submitted by the Respondent to the Petitioner to document the patient population being served by the Respondent. On March 8, 2004, the secretary of the Department of Health, acting as the state health officer, approved Physician's Health Care Plus as an ACN-designated facility based on the staff's recommendation. On March 24, 2004, following the facility's ACN designation, the Respondent's ACN licensure was renewed. Between August 2003 (when the Respondent's practice began operating absent the ACN designation) and March 8, 2004, the Respondent failed to comply with licensure requirements limiting his practice to ACN-designated facilities. Between February 1 and March 24, 2004, the Respondent failed to comply with requirements related to timely renewal of his ACN licensure. The Respondent has moved to Texas, is no longer practicing medicine in Florida, and has placed his Florida license into a "retired" status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order issuing a letter of concern to the Respondent related to the licensing violations cited herein. DONE AND ENTERED this 12th day of May, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 12th day of May, 2006. COPIES FURNISHED: Patrick L. Butler, Esquire Katharine B. Heyward, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 George F. Indest, III, Esquire Joanne Kenna, Esquire The Health Law Firm 220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
