The Issue Whether Medicaid overpayments were made to Petitioner by the Agency for Health Care Administration ("AHCA") for services performed during the audit period of August 1, 2000, to August 1, 2002 (the "audit period"), and, if so, what is the total amount of these overpayments.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Parties Respondent, William O. Kabry, M.D., is a licensed physician in the State of Florida, having been issued license number 28394. During the audit period, Dr. Kabry's specialty area of practice was general or family practice, and his office was in Naples, Florida. Dr. Kabry is now retired. AHCA is the agency responsible for administering the Florida Medicaid Program. One of AHCA's duties is to recover Medicaid overpayments from physicians providing care to Medicaid recipients. §§ 409.901, 409.902, and 409.9131, Fla. Stat. (2006). The Provider Agreement During the audit period, Dr. Kabry was authorized to provide physician services to eligible Medicaid patients, pursuant to a valid, voluntary Medicaid provider contract agreement with AHCA, Medicaid Provider No. 065342000. The 1996 Provider Agreement, in effect at the time of the audit, contained the following provisions, among others: Quality of Service. The provider agrees to provide medically necessary services or goods of not less than the scope and quality it provides to the general public. The provider agrees that services or goods billed to the Medicaid program must be medically necessary, of a quality comparable to those furnished by the provider's peers, and within the parameters permitted by the provider's license or certification. The provider further agrees to bill only for the services performed within the specialty or specialties designated in the provider application on file with the Agency. The services or goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim. Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they may be amended from time to time. * * * 5. Provider Responsibilities. The Medicaid provider shall: * * * (b) Keep and maintain in a systematic and orderly manner all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical, business, and fiscal records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid [sic]. The provider agrees that only records made at the time the goods and services were provided will be admissible in evidence in any proceeding relating to the Medicaid program. * * * (d) Except as otherwise provided by law, the provider agrees to provide immediate access to authorized persons (including but not limited to state and federal employees, auditors and investigators) to all Medicaid- related information, which may be in the form of records, logs, documents, or computer files, and all other information pertaining to services or goods billed to the Medicaid program. This shall include access to all patient records and other provider information if the provider cannot easily separate records for Medicaid patients from other records. * * * (f) Within 90 days of receipt, refund any moneys received in error or in excess of the amount to which the provider is entitled from the Medicaid program. Handbook Provisions Among the "manuals and handbooks" referenced in paragraph 3 of the Provider Agreement in effect during the audit period were the Medicaid Provider Reimbursement Handbook, HFCA- 1500 and Child Health Check-Up 221 ("Reimbursement Handbook") and the Physician Coverage and Limitations Handbook ("C&L Handbook"), with their periodic updates. The term "medically necessary" was defined in Appendix D of the Reimbursement Handbook as follows, in relevant part: Medically Necessary or Medical Necessity Means that the medical or allied care, goods, or services furnished or ordered must: Meet the following conditions: Be necessary to protect life, to prevent significant illness or significant disability, or to alleviate severe pain; 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; Be consistent with generally accepted professional medical standards as determined by the Medicaid program, and not experimental or investigational; Be reflective of the level of service 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 does not, in and of itself, make such care, goods, or services medically necessary or a medically necessary service. The Reimbursement Handbook sets out record keeping requirements for Medicaid providers. Chapter 2 of the Reimbursement Handbook states in pertinent part that Record Keeping Requirement: The provider must retain all medical, fiscal, professional and business records on all services provided to a Medicaid recipient. Records may be kept on paper, magnetic material, film, or other media. 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 stamp signatures must be initialed. Record Retention: The records must be retained for a period of at least five (5) years from the date of service. Types of Records That Must be Retained: The following types of records, as appropriate for the type of service provided, must be retained (the list is not all inclusive): Medicaid claim forms and any documents that are attached; Professional records, such as appointment books, patient treatment plans and physician referrals; Medical, dental, optometric, hearing, and other patient records; Copies of sterilization and hysterectomy consents; Prior and post authorization, and service authorization information; Prescription records; Orders for laboratory tests and test results; X-ray, MRI, and CAT scan records; Business records, such as accounting ledgers, financial statements, invoices, inventory records and check registers; Tax records, including purchase documentation; Partnership records; Purchase documentation; Provider enrollment documentation; and Utilization review and continued stay approvals for psychiatric or substance abuse inpatient stays. Right to Review Records: Authorized state and federal agencies and their authorized representatives may audit or examine a provider’s or facility’s records. This examination includes all records that the agency finds necessary to determine whether Medicaid payment amounts were or are due. This requirement applies to the provider’s records and records for which the provider is the custodian. The provider must give authorized state and federal agencies and their authorized representatives access to all Medicaid patient records and to other information that cannot be separated from Medicaid-related records. The provider must send, at his or her expense, legible copies of all Medicaid- related information to the authorized state and federal agencies and their authorized representatives. Requirements for Medical Records: Medicaid records must state the necessity for and the extent of services provided. The following minimum requirements may vary according to the service rendered: 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 or her entry by signature, written initials, or computer entry; Dates of service; and Referrals to other services. Note: See the service-specific Coverage and Limitations Handbook for record keeping requirements that are specific to a particular service. Incomplete Records: 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/or recoupment of Medicaid payments. Medicaid payments for services that lack required documentation and/or appropriate signatures will be recouped. Chapter 5 of the Reimbursement Handbook, titled "Medicaid Abuse and Fraud," defines "overpayment" and "incomplete or missing records" as follows: Overpayment. Overpayment includes any amount that is not authorized to be paid by the Medicaid Program whether paid as a result of inaccurate or improper cost reporting, improper claims, unacceptable practices, fraud, abuse, or mistake. * * * Incomplete or Missing Records. Incomplete records are records that lack documentation that all requirements or conditions for service provision have been met. Medicaid may recoup payment for services or goods when the provider has incomplete records or cannot locate the records. Chapter 3 of the C&L Handbook sets forth procedure codes to be used by physicians in claiming reimbursement for services provided to Medicaid recipients. The origin of the procedural and diagnosis codes is as follows, in relevant part: The procedure codes listed in this chapter are Health Care Financing Administration Common Procedure Coding System (HCPCS) Levels 1, 2, and 3. These are based on the Physician's Current Procedural Terminology (CPT) book. The CPT includes HCPCS descriptive terms and numeric identifying codes and modifiers for reporting services and procedures. . . . The CPT book is a systematic listing and coding of procedures and services provided by physicians. Each procedure or service is identified with a five digit code. For purposes of this proceeding, the relevant section of the CPT book is "Evaluation and Management-- Office or Other Outpatient Services," which sets forth the codes used to report evaluation and management services provided in the physician's office or in an outpatient or other ambulatory facility. The CPT book sets forth instructions for selecting the proper level of Evaluation and Management ("E/M") service, as follows in relevant part: Review the Level of E/M Service Descriptors and Examples in the Selected Category or Subcategory The descriptors for the levels of E/M services recognize seven components, six of which are used in defining the levels of E/M services. These components are: history; examination; medical decision making; counseling; coordination of care; nature of presenting problem; and time. The first three of these components (i.e., history, examination, and medical decision making) should be considered the key components in selecting the level of E/M services. An exception to this rule is in the case of visits which consist predominantly of counseling or coordination of care (See numbered paragraph 3, page 7).[1] Determine the Extent of History Obtained The extent of the history is dependent upon clinical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of history that are defined as follows: Problem focused: chief complaint; brief history of present illness or problem. Expanded problem focused: chief complaint; brief history of present illness; problem pertinent system review. Detailed: chief complaint; extended history of present illness; problem pertinent system review extended to include a review of a limited number of additional systems; pertinent past, family, and/or social history directly related to the patient's problems. Comprehensive: chief complaint; extended history of present illness; review of systems which is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems; complete past, family and social history. The comprehensive history obtained as part of the preventive medicine evaluation and management service is not problem-oriented and does not involve a chief complaint or present illness. It does, however, include a comprehensive system review and comprehensive or interval past, family and social history as well as a comprehensive assessment/history of pertinent risk factors. Determine the Extent of Examination Performed The extent of the examination performed is dependent on clinical judgment and on the nature of the presenting problem(s). The levels of E/M services recognize four types of examination that are defined as follows: Problem focused: a limited examination of the affected body area or organ system. Expanded problem focused: a limited examination of the affected body area or organ system and other symptomatic or related organ system(s). Detailed: an extended examination of the affected body area(s) and other symptomatic or related organ system(s). Comprehensive: a general multi-system examination or a complete examination of a single organ system. Note: The comprehensive examination performed as part of the preventive medicine evaluation and management service is multi- system, but its extent is based on age and risk factors identified. For the purposes of these CPT definitions, the following body areas are recognized: Head, including the face Neck Chest, including breasts and axilla Abdomen Genitalia, groin, buttocks Back Each extremity For the purposes of these CPT definitions, the following organ systems are recognized: Eyes Ears, Nose, Mouth and Throat Cardiovascular Respiratory Gastrointestinal Genitourinary Musculoskeletal Skin Neurologic Psychiatric Hematologic/Lymphatic/Immunologic Determine the Complexity of Medical Decision Making Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by: the number of possible diagnoses and/or the number of management options that must be considered; the amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed and analyzed; and the risk of significant complications, morbidity and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options. Four types of medical decision making are recognized: straightforward; low complexity; moderate complexity; and high complexity. To qualify for a given type of decision making, two of the three elements in Table 2 below must be met or exceeded. Comorbidities/underlying diseases, in and of themselves, are not considered in selecting a level of E/M services unless their presence significantly increases the complexity of the medical decision making. The referenced Table 2, titled "Complexity of Medical Decision Making," sets forth guidelines for the four types of decision-making (straightforward, low complexity, moderate complexity, and high complexity) in terms of the relative number and/or complexity of three elements: number of diagnoses or management options (minimal, limited, multiple, or extensive), amount and/or complexity of data to be reviewed (minimal or none, limited, moderate, or extensive), and risk of complications and/or morbidity or mortality (minimal, low, moderate, or high). The "Office or Other Outpatient Services" section of the CPT book provides the codes for those services in terms of the guidelines set forth above. Five codes of increasing complexity are provided for new patients, and five counterpart codes are provided for established patients: New Patient 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. 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 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. 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 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. 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 problems are of moderate severity. Physicians typically 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. 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 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. 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 problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. Established Patient 99211 Office or other outpatient visit for the evaluation and management of an established patient that may or 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; 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. 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; medical 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 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; medical 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 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; medical decision making of high 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 40 minutes face-to-face with the patient and/or family. Medicaid reimburses physicians according to the level of complexity of the office visit. The more complex the visit (and hence the higher the CPT code number), the greater the level of reimbursement. The Audit During the audit period, Dr. Kabry submitted 3,109 Medicaid claims for services rendered to 760 patients, for which he received Medicaid payments of $195,708.93. Out of those 3,109 claims, 589 were billed at CPT code 99205 (the highest level for a new patient) and 2,332 were billed at CPT code 99215 (the highest level for an established patient). An additional 80 claims were billed at CPT code 99214, the second-highest level for an established patient. The audit was triggered by Dr. Kabry's unusually high percentage of claims billed at the highest levels of service in a family practice setting.2 In making a determination of overpayment, AHCA is not required to review each and every Medicaid claim submitted by a provider. Subsection 409.913(19), Florida Statutes (2002), permits the agency to employ "appropriate statistical methods," including "sampling and extension to the population," to make its determination. In this instance, AHCA randomly selected a "cluster sample" of 30 patients from the 760 Medicaid patients to whom Petitioner had provided services during the audit period and asked Petitioner to produce the medical records he had on file for these 30 patients. AHCA chose the cluster sample of 30 patients according to a statistical formula indicating a 95 percent probability that any overpayment amount would be at least the amount identified. By selecting the 95 percent confidence factor, AHCA attempted to ensure that any potential error in the audit would be resolved in favor of the audited physician. AHCA's statistical expert, Professor Fred Huffer, professor of statistics at Florida State University, validated the methodology used by AHCA. Professor Huffer reviewed AHCA's work and then conducted his own independent analysis that reproduced AHCA's results. Professor Huffer's testimony as to the reliability of AHCA's methodology is credited. Dr. Kabry had submitted a total of 135 claims for services rendered to the 30 patients in the cluster sample during the audit period. Dr. Kabry had been paid $8,396.46 for these 135 claims. Each of these claims was reviewed by AHCA to determine whether it was supported by information contained in the medical records produced by Petitioner in response to AHCA's request. AHCA retained the services of Dr. E. Rawson Griffin to review all the claims for the 30-patient cluster sample. Dr. Griffin is a physician who has been in active practice continuously for 25 years, is board-certified in family practice and geriatrics, and is licensed to practice medicine in Florida, Georgia, and Virginia. Dr. Griffin is qualified as an expert witness and physician peer reviewer consultant to review the claims in the audit for issues of medical necessity, appropriateness, quality of care, and coding issues as required by Section 409.9131, Florida Statutes (2002). Based upon the initial review by Dr. Griffin, AHCA issued the PAAR with a determination that Dr. Kabry had been overpaid $89,589.10 during the audit period. Dr. Kabry communicated with AHCA and sent additional records. Based upon the additional documentation sent and a second review by Dr. Griffin, the overpayment amount was reduced to $89,095.70. The FAAR issued by AHCA on October 25, 2004, stated as follows, in pertinent part: Based upon a review of all documentation submitted, we have determined that you were overpaid $89,095.70 for services that in whole or in part are not covered by Medicaid. Be advised that pursuant to Section 409.913(22)(a), F.S., the Agency is entitled to recover all investigative, legal, and expert witness costs. * * * The following is our assessment of why certain claims paid to your provider number do not meet Medicaid requirements. * * * Review Determination(s) Medicaid policy defines the varying levels of care and expertise required for the evaluation and management procedure codes for office and hospital visits. The documentation you provided supports a lower level of office or hospital visit than the one for which you billed and received payment. The difference between the amount you were paid and the correct payment for the appropriate level of service is considered an overpayment. The overpayment was calculated using a random sample of 30 recipients for whom you submitted 135 claims having dates of service from August 1, 2000 through August 1, 2002. The statistical calculation used the formula appropriate to this sample, which is the cluster sample calculation. Recipients are sampled and all the claims respecting a given recipient form a cluster. In his deposition, Dr. Griffin discussed his review of the records Dr. Kabry had provided regarding the 30 patients in the cluster sample. Dr. Griffin found that Dr. Kabry had almost exclusively billed the highest levels of CPT coding for outpatient services, i.e., 99205 for new patients and 99215 for established patients. Out of 135 claims, Dr. Kabry billed all 23 new patient visits at CPT code 99205, of which Dr. Griffin found only eight fully justified. Dr. Kabry billed 101 out of 108 existing patient visits at CPT code 99215, and the remaining seven at CPT code 99214. Dr. Griffin found that Dr. Kabry failed to document a level of service consistent with these codes. Dr. Griffin performed his own review of Dr. Kabry's medical records and noted his conclusions as to the level of CPT coding that could be supported by the record of each patient for each visit to Dr. Kabry's office. Dr. Griffin found that all 108 of the existing patient visits and 15 out of 23 new patient visits should have been billed at lower levels, based on the documentation provided by Dr. Kabry.3 Dr. Griffin's testimony is credited as to his review of Dr. Kabry's records. Margarete Johnson, AHCA's registered nursing consultant, performed the calculations by which Dr. Griffin's conclusions as to the proper coding were translated into dollar figures. These calculations were a simple function of addition and subtraction, using the relevant Medicaid reimbursement amounts for the various codes. Dr. Kabry had been reimbursed $8,396.46 for the claims related to the 30 patients in the cluster sample. Following Dr. Griffin's analysis, Ms. Johnson calculated that $4,080.09 of that amount constituted overpayments. Using the generally accepted, appropriate, and valid statistical formula described by Dr. Huffer, AHCA extended this result to the total population of 3,109 Medicaid claims that Dr. Kabry had submitted for services rendered during the audit period, and correctly calculated that Petitioner had been overpaid a total of $89,095.70. In his case-in-chief, Dr. Kabry offered two points. First, he contended that the amount of time he spent with each patient justified the higher codings. Both Dr. Kabry and his wife, who worked as an LPN and billing clerk for Dr. Kabry, credibly testified that their Medicaid patients were largely uneducated, spoke little or no English, and required lengthy counseling to make them understand the treatments for such endemic diseases as high blood pressure and diabetes. However, Dr. Kabry did not document in his medical records the amount of time spent with each patient, and thus may not employ time as a controlling factor in his Medicaid billings. See footnote 1, supra. Second, Dr. Kabry contended that AHCA came into his office on several occasions, reviewed selected files, and gave his office a clean bill of health as to its Medicaid practices. As evidence, Dr. Kabry submitted a letter dated December 13, 2000, from Fran Nieves, a Medicaid field office manager from Fort Myers. The letter thanked Dr. Kabry for his assistance and cooperation "with the Medipass chart reviews that were conducted on 12/12 . . . These efforts provide the program with the ability to confirm that services were provided in accordance with the Medipass program, assuring that Medipass members have the access and quality health care that has been guaranteed to them." In rebuttal, Margarete Johnson testified that Ms. Nieves, the Fort Myers field office manager, is not employed by MPI and does not have the authority of MPI employees to check for possible fraud and abuse and Medicaid overpayments. Ms. Johnson testified that Medipass has a separate mission from MPI. Among other duties, Medipass is responsible for training and furnishing information to providers, and for enrolling recipients in Medipass as a cost containing measure. Relevant provisions of the Reimbursement Handbook confirm that Medipass is a "primary, case-management program designed to assure Medicaid recipients access to medical care, decrease inappropriate service utilization, and control costs." Medipass is not charged with MPI's task of recovering provider overpayments and is certainly not authorized to approve a provider's CPT coding practices so as to immunize the provider from a subsequent audit by a peer reviewer, as suggested by Dr. Kabry. Dr. Kabry did not submit any written documentation or exhibits into evidence to rebut AHCA's final overpayment determination of $89,095.07. Dr. Kabry presented no expert testimony or evidence to rebut the expert testimony presented by Dr. Griffin and Dr. Huffer. On the strength of the evidence and testimony presented by AHCA, and in the absence of any evidence or testimony to the contrary, it is found that Petitioner received Medicaid overpayments in the amount of $89,095.07.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Respondent received $89,095.07 in Medicaid overpayments for services rendered to his Medicaid patients from August 1, 2000, to August 1, 2002, and requiring him to repay this amount to the agency. DONE AND ENTERED this 5th day of March, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 5th day of March, 2007.
The Issue The issues in these consolidated cases are whether Respondent committed the violations charged in four Administrative Complaints and, if so, what is the appropriate discipline.
Findings Of Fact The Department has regulatory jurisdiction over licensed chiropractic physicians pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. In particular, the Department is authorized to file and prosecute an administrative complaint against a chiropractic physician after a probable cause panel (PCP) of the Board determines there is probable cause to suspect a licensee has committed a disciplinable offense, and provides direction to the Department on the filing of an administrative complaint. At all times material to the allegations in the Administrative Complaints, Dr. Aderholdt has been licensed to practice chiropractic medicine in Florida, having been issued license number CH 7814. He was first licensed on January 6, 2000. He practices in an office in Bradenton, Florida. Vax-D Therapy Three of the four Administrative Complaints involve patients of Dr. Aderholdt who received Vax-D therapy. The complaints are not directed to the provision of Vax-D therapy itself, or to any other treatments provided by Dr. Aderholdt. In all four cases, the patients generally spoke well of the chiropractic care they received from Dr. Aderholdt and the manner in which they were treated by him and his office staff. Vax-D therapy is a modality using the Vax-D model for decompression of the spinal discs and spinal structure. It is used to treat a range of issues associated with low back pain, including herniated, degenerated, and bulging discs. The Vax-D model is the originator of this technology; it was the first spinal decompression device. It is a large computerized moving table. It can be programmed to provide specific axial or distractive loading. The table moves in and out, pumping nutrients at the discs. Some research shows that it can actually pull discs away from where they are causing irritation on nerves and the spinal cord. The Vax-D model is FDA-cleared for use, and the literature supports its efficacy. The Vax-D model is an expensive piece of equipment. The price range for the initial purchase is between $100,000 and $150,000, with ongoing expense thereafter for maintenance and updates. Vax-D therapy is one of the most expensive forms of therapy, if not the most expensive, in the chiropractic profession. Other models coming out after Vax-D, as well as other tools, arguably can be used for similar purposes. However, as Petitioner’s expert readily acknowledged, Vax-D is the “Rolls Royce. It’s a really nice tool.” Vax-D spinal decompression is not covered by Medicare. In fact, when it comes to chiropractic care, Medicare has never covered anything besides spinal adjustments. Coverage for Vax-D treatment by private insurance companies is rare. In 2012, Dr. Salvatore LaRusso presented a study on spinal decompression to the profession, before the Federation of Chiropractic Licensing Boards, to inform state regulators of issues associated with Vax-D therapy. The one regulatory concern he reported was that some physicians were improperly billing Vax-D as a surgical decompression procedure, when it is plainly not surgery; it is an alternative to surgery, properly billed as a non-surgical decompressive tool or traction device. Dr. LaRusso’s study also made findings on the common methods of packaging and selling the service, and the range of charges observed. He found that most practitioners providing Vax-D therapy were selling the service as a cash item in their practice, with payment up front often required. The common model was to sell a package with a certain number of visits, with or without additional services included. Dr. LaRusso found that the per-visit charges ranged from $150 to $450, depending on the ancillary services added to the decompression. Dr. Shreeve does not have any issue with the use of or charges for Vax-D therapy. Dr. Aderholdt offers Vax-D therapy pursuant to a Vax-D Therapy Payment Plan agreement (Vax-D Agreement), which is comparable to the multi-visit packages that Dr. LaRusso’s study found to be common. After initial consultation, with intake forms, patient history, x-rays, evaluation, and examination, if a patient is determined to be appropriate for Vax-D therapy, Dr. Aderholdt will give his treatment recommendations and then turn the patient over to his office staff to address the financial aspects. If the patient wants to proceed with Vax-D therapy, the Vax-D Agreement will be reviewed and signed. Patients A.M., R.O., and P.D. each received Vax-D therapy, pursuant to signed Vax-D Agreements. The terms of the Vax-D Agreements for the three patients were the same. Patient B.O. wanted Vax-D therapy, but she was determined to not be an appropriate candidate for it. The Vax-D Agreements in evidence for Patients A.M., R.O., and P.D. provided that the named patient committed to 25 to 28 Vax-D therapy sessions, for $250.00 per session. The total amount that the named patient agreed to pay Dr. Aderholdt for 25 to 28 sessions was $5,500.00, which computes to an actual per-session cost of between $196.43 (for 28 sessions) and $220.00 (for 25 sessions). For the agreed price for 25 to 28 sessions, the Vax-D Agreement provided the following treatment package: at each session, the patient would receive 30 minutes of Vax-D therapy, 30 minutes of full range interferential electrical muscle stimulation (EMS), 15 minutes of hydro-massage therapy, and manipulation (adjustments) by the doctor if needed. The first set of x-rays was also included. Dr. Aderholdt requires an up-front payment for the Vax-D therapy package. For patients who want Vax-D therapy but need help coming up with the funds, Respondent’s office staff has put the patients in touch with Care Credit, which is a medical credit program. If a patient applies and is accepted, Care Credit will finance the cost without charging interest to the patient if the loan is repaid within one year. Care Credit apparently charges a fee to Respondent when credit is extended, similar to the fees charged to merchants by credit card companies for credit card purchases. No evidence was presented regarding Care Credit’s approval criteria or how widely this method is used. All that is known about Care Credit from the record evidence is that two patients who received Vax-D therapy applied for Care Credit and were approved. The other Vax-D patient charged half of the agreed price on a Visa credit card the first day of treatment, and charged the other half after 15 treatment sessions. Patient A.M. From the end of July 2013 to early February 2014, Dr. Aderholdt treated Patient A.M., then a 66-year-old female, for lower back pain and hip pain. Patient A.M. had tried other treatments and had seen chiropractors before, but reported that her pain kept getting worse. As shown by A.M.’s medical records, A.M. was first seen by Respondent on July 29, 2013. That day, A.M.’s intake form, patient history, and x-rays were taken and evaluated, and A.M. was examined by Respondent. Respondent then formulated A.M.’s initial treatment plan. Respondent recommended Vax-D therapy, along with chiropractic adjustments, EMS, and hydrotherapy. The initial treatment plan specified a two- session per day protocol for the first two to three weeks. On July 30, 2013, A.M.’s husband, J.M., signed the Vax-D Agreement (in the space for Patient Signature). J.M. did not remember signing the Vax-D Agreement, but both he and A.M. identified his signature on the Vax-D Agreement. A.M. was named in the agreement as the patient who committed to 25 to 28 Vax-D therapy sessions and agreed to pay $5,500.00 for those sessions. Respondent did not require full payment of the agreed price prior to treatment. Instead, he accepted payment of one- half ($2,750.00) of the Vax-D therapy package price, which was charged on A.M.’s or J.M.’s Visa credit card on July 30, 2013. In accordance with the initial treatment plan, Patient A.M. received two treatment sessions per day beginning July 30, 2013, in the morning and afternoon, for nearly three weeks. After 15 treatment sessions--more than half of the 25 to 28 sessions covered for $5,500.00--the balance of $2,750.00 was charged on A.M.’s or J.M’s Visa credit card. Between July 30, 2013, and February 3, 2014, Patient A.M. had more than 60 Vax-D therapy sessions--approximately 64 total sessions. A.M. initially testified with a fair degree of confidence that she thought she had about 30 treatment sessions, until she reviewed her prior statement made to Petitioner. A.M. testified that at every session, she received Vax-D decompression therapy, hydrotherapy, adjustments “up and down” her spine, and ice packs. She left every session feeling better, with relief from her pain. The relief was temporary, however; she said the pain would come back after a few hours. After 29 sessions, having received all of the treatment sessions covered by the Vax-D Agreement, A.M. started paying additional amounts for more Vax-D therapy and the other ancillary services that she continued to receive. For approximately 35 additional treatment sessions beyond those covered by the Vax-D Agreement, A.M. made seven additional payments in the total amount of $2,226.00. In all, A.M. paid $7,726.00 for approximately 64 Vax-D therapy sessions. Rounding down to an even 60 sessions, she paid an average of $128.77 per session. A.M. was covered by Medicare at the time of her treatment. She did not have any private “Medicare supplement” health insurance. At some point, the subject of Medicare coverage came up. The details of what was said, when, and to whom were not clearly established. The only fact clearly established was that Dr. Aderholdt did not bring up the subject. Patient A.M. testified that Dr. Aderholdt did not talk to her about payment when she first visited, but that she and J.M. asked him, “Does Medicare cover this,” and he said, “Yes.” J.M. said that Dr. Aderholdt did talk to them about payment, saying “we need to do so many treatments and we should pay so much money.” J.M. said that they asked, “Will Medicare take care of it?” Dr. Aderholdt answered, “Yes, we will bill Medicare.” J.M could not say whether he asked about billing Medicare before or after he signed the Vax-D Agreement, since J.M. did not remember signing the Vax-D Agreement. When Dr. Aderholdt was asked if he told A.M. her treatments would be covered by Medicare, he answered, “No, I don’t believe I did, no.” As an interesting contrast, Patient R.O. testified that Dr. Aderholdt told him Medicare would not cover treatment under the same Vax-D Agreement; Dr. Aderholdt does not believe he made that statement, either. In the middle of the spectrum, Patient P.D. testified that Respondent never said anything to her about insurance coverage or financial arrangements. He would only talk about treatment, turning P.D. over to the office manager or billing person to address the financial issues. This version is consistent with Respondent’s testimony that he does not address “the money thing” with patients. Instead, he said he assesses x-rays, takes patient histories, performs the evaluation and examination, and ultimately formulates the recommended treatment plans, whether Vax-D or something else. Then he turns the treatment plans over to his staff to address the financial issues with the patients. A.M. and J.M. did not demonstrate a clear and certain recollection of what they asked Dr. Aderholdt or exactly what he answered. Indeed, both J.M. and A.M. could not remember most every other detail about A.M.’s treatments, often confidently stating details that were shown to be wrong by more than a little, including how many treatment sessions, and how much was paid. For example, Patient A.M. initially reported that she had paid $13,179.00 to Dr. Aderholdt, when the total was $7,726.00. The undersigned cannot find--without hesitancy--that Dr. Aderholdt made any representation to J.M. and A.M. regarding Medicare coverage before J.M. signed the Vax-D Agreement by which A.M. committed to the Vax-D therapy package. Dr. Shreeve made the point well that it is difficult to resolve this kind of he said-she said conflict, although he made the point while confusing Patient A.M. (who claimed Respondent said there would be Medicare coverage) with Patient R.O. (who claimed Respondent said there would not be Medicare coverage), in the following exchange: Q: With Patient RO, what’s your understanding of what Dr. Aderholdt told him regarding Medicare reimbursements? A: Counselor, I’m going to tell you that the investigative record shows that the patient stated that Aderholdt told him that they would be paid, is what my recollection is. And, yet, that’s not something that weighs heavily on my mind because I wasn’t there. This becomes a “he said, she said.” He said he didn’t; he said he did. I can’t get into that fight. That’s not an issue for me. (Jt. Ex. 12 at 35). (emphasis added). Respondent (or his staff) may have told A.M. and J.M., when they asked about Medicare, that the office would complete and submit the Medicare claim forms. Respondent (or his staff) may have told A.M. and J.M., when they asked, that Medicare proceeds paid on the Vax-D therapy package would be refunded. But it would be unreasonable, on this record, to find that Respondent misrepresented that Medicare would provide full coverage, or that Respondent schemed to induce A.M. and J.M. to sign up for Vax-D by guaranteeing that Medicare would pay back everything, when Respondent did not even bring up the subject.8/ The Administrative Complaint alleges that on one or more occasions, Respondent did not submit Medicare claims for Patient A.M.’s treatment. Petitioner has apparently abandoned this allegation; its PRO has no proposed finding identifying any dates of service for which claims were not submitted. The Medicare claim forms for Patient A.M. were compiled by Petitioner’s counsel for use in taking Respondent’s deposition, and are attached as deposition exhibit 2. The evidence is difficult to cull through, as there are 84 separate pages of claims and they are not in chronological order; they start out in chronological order, but then jump forward two months, then continue jumping around on dates, back and forth and back again. As best can be determined, all service dates shown in Patient A.M.’s medical records appear to be accounted for by corresponding claim forms. It appears that one claim form may have a clerical mistake, identifying the date of service as August 3, 2013, when there was no treatment session that day; the actual service date may instead be September 4, 2013, which is the date the claim form was submitted. The Medicare claim forms in evidence demonstrate that claim forms for A.M.’s treatments were regularly submitted, either on or very shortly after the dates of service. The evidence is insufficient to prove that Respondent did not submit Medicare claims for Patient A.M.’s treatment.9/ The Administrative Complaint contains no allegations regarding the disposition of the Medicare claims, although it does allege that Patient A.M. received no reimbursement from Respondent for Medicare payments. Petitioner’s expert seemed to be under the impression that Respondent received Medicare payments, because he criticized Respondent for not providing reimbursement to Patient A.M. Respondent testified that he has received no payments from Medicare for A.M.’s treatments, and Petitioner acknowledges in its PRO that Medicare has not made payments to Respondent. Acknowledging that the Administrative Complaint allegation has not been established, Petitioner instead proposed a finding (not alleged in the Administrative Complaint) that all of A.M.’s Medicare claims submitted by Respondent were rejected and payment was denied. No evidence was offered to prove the actual disposition of the 84 pages of Medicare claims submitted for A.M.’s treatments. Instead, the only record evidence of Medicare adjudications on any claims for A.M. is a group of explanation of benefits forms (EOBs) attached to a March 6, 2014, letter from Patient A.M. to Petitioner’s investigator, which is a deposition exhibit. Patient A.M. identified the small handful of EOBs attached to the March 6, 2014, letter as EOBs she had at that time, reporting on the disposition of Medicare claims submitted by other providers during the same time period as her treatments with Respondent. The EOBs reported, as to each claim, whether the claim was covered in whole or in part; and, if covered, what amount was paid, or, if not, why not. There were no EOBs for claims submitted by Respondent’s office. Patient A.M. was not asked for, and did not offer, any additional EOBs at her deposition. If, in fact, all of the Medicare claims submitted by Respondent were rejected and payment denied, then there would be a stack of EOBs explaining why each claim was denied. On this record, the evidence is insufficient to make any finding as to the outcome of the Medicare claims submitted for Patient A.M.’s treatment. There is no evidence proving whether the claims were denied, approved, or simply never acted on by Medicare. A separate allegation in the Administrative Complaint is that Patient A.M. requested copies of the Medicare claim forms submitted by Respondent’s office for her treatment. Patient A.M. said that she made verbal requests to Respondent’s office staff for the Medicare claims on more than one occasion, and the parties stipulated that Patient A.M. made these requests. Respondent’s office should have responded by giving Patient A.M. copies of the Medicare claims. Dr. Aderholdt said that he was not aware that Patient A.M. had requested copies of her Medicare claim. But it is his responsibility to ensure that his staff promptly responds to requests by patients for insurance claim forms. In the course of Petitioner’s investigation, the Medicare claim forms for Patient A.M. were provided to Petitioner (according to the investigator’s report, on May 16, 2014). It is unknown whether a set of the claim forms was provided to A.M. at that time. She is entitled to a copy of the claim forms if she has not already been given a set. Respondent should have verified that Patient A.M. has received the claim forms she requested, or, if not, provided them to her. Finally, the Administrative Complaint alleges that on the Medicare claim forms for A.M.’s treatments on August 6, 2013, and December 11, 2013, Respondent utilized Current Procedural Terminology (CPT) code 98941, which is the code for adjustments to three or four regions of the spine. However, Respondent’s Subjective, Objective, Assessment and Plan notes (referred to as SOAP notes) for those dates identify spinal adjustments to L3, L4, and L5, which are in a single region--the lumbar region. Beyond the SOAP notes, however, Dr. Aderholdt’s notes for Patient A.M.’s morning session on August 6, 2013 (there were two sessions that day), show multiple adjustments, not only to the lumbar region, but also, to the sacrum and ilium. Dr. Aderholdt’s notes for December 11, 2013, show multiple adjustments to the thoracic, lumbar, and sacrum regions. At hearing, Dr. Shreeve identified the five spinal regions as follows: “a region would be considered cervical, thoracic, lumbar, sacrum, ilium.” (Tr. 106, lines 21-22). Based on his testimony, and considering all of Patient A.M.’s medical records, there were multiple adjustments to three spinal regions on both days identified in the Administrative Complaint.10/ The Administrative Complaint has no other factual allegations regarding CPT code issues in connection with Patient A.M.’s treatment. The complaint pointedly identified one specific CPT code that was used on two specific dates, but was allegedly not supported by SOAP notes for either date. At hearing, Dr. Shreeve attempted to expand the factual allegations regarding CPT coding issues by questioning other CPT codes shown on A.M.’s patient ledger. Dr. Shreeve’s criticism was improper, not only because he strayed beyond the allegations in the Administrative Complaint, but also, because the criticism was based on his misunderstanding of what Dr. Aderholdt’s patient ledgers portray. In particular, Dr. Shreeve was critical of CPT code 99212 entries (for focused patient examinations) on A.M.’s patient ledger, without use of modifier code -25. He said that these repeated entries of CPT code 99212 were inappropriate without use of modifier code –25, to indicate they should not be considered for payment, because they are redundant with other CPT treatment codes that include examination. Dr. Shreeve should have reviewed the actual Medicare claim forms to look for the modifier codes, because the CPT code 99212 entries do, in fact, add a modifier of -25. The modifier code conveys information to the third-party payor, as Dr. Shreeve acknowledged, regarding whether or how payment should be made. The modifier codes need to be used, when appropriate, on the Medicare claim forms, and they were used just as Dr. Shreeve said was appropriate. The modifier codes do not appear on Dr. Aderholdt’s patient ledgers because they are not claim forms sent to third- party payors, nor are they bills sent to patients. Instead, a patient ledger, as used in Respondent’s practice, is an internal practice management tool to account for and track everything associated with treating patients: how many examinations, how many adjustments, how many Vax-D treatments, how many ice packs, and so on. Dr. LaRusso explained that this is a perfectly reasonable use of patient ledgers, and is a common practice among physicians. The usage statistics are analyzed for practice management, for such purposes as making changes in the services or treatments and stocking supplies. Dr. Shreeve admitted that he assumed Respondent’s patient ledgers reflected the exact CPT coding used on insurance claims and bills sent to patients. The evidence refuted that assumption. Modifier codes were used on the Medicare claims. And Dr. Shreeve admitted he saw no evidence that Respondent’s patient ledger for A.M. was ever sent to her as a bill, or that any patient ledgers were ever sent to any patients as bills. Dr. Shreeve also admitted that there is no standard for patient ledgers, much less a regulation mandating the contents and use of patient ledgers. As he put it, he could go to 1,000 chiropractic offices and find 1,000 different variations in what is called a patient ledger. Dr. Shreeve would like to see a standard adopted for “patient ledgers,” but his aspiration simply underscores that there is no standard now; Respondent’s practices cannot be judged against or held to conform to a non-standard, non-regulation.11/ In somewhat stream-of-consciousness fashion, untethered from the Administrative Complaint, Dr. Shreeve interjected a number of other comments about Dr. Aderholdt’s practices related to Patient A.M., such as the adequacy and legibility of his medical records and the quality of x-rays. He raised questions about Dr. Aderholdt’s compliance with trust accounting requirements in connection with payments for A.M.’s Vax-D therapy, and Dr. Aderholdt’s compliance with obligations in connection with Petitioner’s investigation. None of these factual matters were alleged in the Administrative Complaint, and none of the corresponding statutory or rule provisions implicated by Dr. Shreeve’s open-ended commentary were charged in the Administrative Complaint. No findings can be made on matters not alleged, and violations not charged, in the Administrative Complaint. Moreover, there is no competent evidence fleshing out any of these matters, because they were not alleged, charged, or identified in the Joint Pre-hearing Stipulation as issues of fact or law to be litigated. Patient B.O. Between April and June 2013, Respondent treated B.O., then a 78-year-old female, for back and neck pain. B.O. is married to R.O. They both went to Respondent’s office on the same day for their initial consultation. B.O. completed intake forms, had x-rays and patient history taken, and was examined by Respondent, similar to R.O. Whereas R.O. was determined to be a candidate for Vax-D therapy, B.O. was not. Unlike for the Vax-D therapy plan, there was no protocol calling for a certain range of sessions needed and no set payment correlated to a planned number of sessions for B.O.’s recommended treatment plan that called for adjustments, hydrotherapy, and ice packs. At the time of her treatment, B.O. had Medicare coverage and a “Medicare supplement” insurance policy through Horizon Blue Cross and Blue Shield of New Jersey (Horizon). As was his practice, Respondent had B.O. address the financial aspects of the treatment he recommended with his office staff. Upon review of B.O.’s insurance coverage, B.O. was informed by Respondent’s staff that Horizon would probably cover the cost of her treatment that exceeded her copay. The staff determined that, although it was possible Horizon would apply its lower in-network copay of $15.00 per visit, there was no guarantee that Horizon would not consider Respondent out-of- network, with a copay of $25.00 per visit. Therefore, B.O. was charged $25.00 per visit. She paid that amount per visit, although sometimes she did not pay at all on one or more visits, and would catch up at a subsequent visit. B.O. received treatments on 23 occasions. B.O. experienced some relief from her pain as a result of those treatments.12/ For those 23 visits, B.O. paid a total of $575.00 in copays. After B.O. had stopped going to Dr. Aderholdt for treatment, Horizon determined that its lower in-network copay of $15.00 per visit applied. The total copay amount should have been $345.00 for 23 visits. The difference is $230.00. The Administrative Complaint alleges that Respondent “overcharged” B.O., misrepresenting that her copay was the out- of-network charge, to exploit her for financial gain. This allegation was not proven. Respondent made no representation. The representations of his staff, as described by B.O., were not shown to be the product of anything other than a good faith attempt to determine the undeterminable details of insurance coverage. There is no evidence to support the allegation that B.O. was intentionally charged more than she should have been charged, based on the information available at the time. On this point, the expert testimony was in lockstep: figuring out insurance coverage details is a “nightmare.” It is virtually impossible, according to both experts, to obtain sufficient information to make a correct determination for a new patient on such issues as in-network versus out-of-network, because, as they agreed, the insurance coverage details keep changing. “Now, you can be in network today and they can decide you’re out of network tomorrow. And then you can be out of network and then they decide you’re in network, and they don’t tell you.” That’s--that makes no sense.” (Dr. Shreeve, Tr. 131). In fact, when asked how he determines if a patient is out-of-network, Dr. Shreeve responded: “Counselor, I don’t. I leave that to the patient. I run a cash practice. I give them a bill. We’ll help them fill out a health insurance claim form, if they need it. But they pay us when they receive the service.” (Tr. 130). The Administrative Complaint also alleges that Respondent billed Horizon for medical visits by Patient B.O. that did not occur. There is no credible evidence of this allegation; the evidence is to the contrary. Petitioner contends in its PRO that Respondent billed B.O. for treatments received on June 3, 7, 11, and 14, 2013, when B.O.’s appointments were cancelled on those days. The record citations offered by Petitioner fail to support this proposed finding. Instead, B.O.’s bank records directly refute the proposed finding, and corroborate Dr. Aderholdt’s treatment notes and the SOAP notes that detail B.O.’s treatment on those four days.13/ In addition to B.O.’s bank records, B.O.’s patient records include the “merchant copy” receipt for a debit card payment on June 14, 2013. The receipt shows that a $50.00 payment was made at Dr. Aderholdt’s office on June 14, 2013, and it bears the clear signature of B.O. B.O.’s accusation that she did not go to Respondent’s office for treatment on these four days is belied by the documentation that she personally went there and paid the copay charges for her treatments on those four days ($50.00 check on June 7 for two copays; $50.00 debit card payment on June 14 for two copays). Petitioner’s own expert, Dr. Shreeve, conceded that this evidence refutes B.O.’s accusation that her insurer was billed for treatment on four days when she did not go to Respondent’s office for treatment. A separate problem proving this allegation (besides B.O.’s false accusation) is that there is no evidence to prove what was billed to Horizon for B.O.’s treatments. There is no evidence in the record of claims submitted by Respondent’s office to bill Horizon for B.O.’s treatment. In pre-hearing discovery proceedings, shortly before hearing, Petitioner sought to compel production of Medicare claim forms or Horizon claim forms submitted by Respondent’s office. However, Petitioner declined an Order compelling production that was offered along with additional time to pursue this evidence. Instead, Petitioner chose to go forward with the hearing on the basis that there were no such records (as Respondent represented). Another allegation in the Administrative Complaint is that B.O. was not given a copy of her medical records upon request. B.O. testified that she made several verbal requests to two staff persons at Respondent’s office, Lisa14/ and Amanda, for her medical records. She said she was given a copy of her patient ledger, but nothing more. B.O. and R.O. then mailed a letter addressed to Respondent that they jointly wrote on December 31, 2013, requesting their medical records and updated patient ledgers. Respondent said that he was never informed of any verbal requests for records, nor did he believe he ever saw the letter that was mailed to him. Indeed, B.O. handwrote on her file copy of the letter, provided to Petitioner’s investigator: “Letter to Dr. who probably didn’t see – no response to date.” The evidence is clear and convincing that Respondent has failed in his obligation to promptly respond to B.O.’s requests for medical records. However, there is no evidence that Respondent was aware of the requests before the investigation and intentionally refused to comply, or that he ever instructed his office staff to ignore such requests. But even though the evidence only establishes that Dr. Aderholdt’s staff failed to promptly respond to requests for medical records, the obligation to ensure these patient requests are promptly addressed remains Dr. Aderholt’s responsibility. It is clear that his office procedures require serious overhauling, as both Dr. Aderholdt and his expert acknowledged. It is unknown if B.O.’s medical records were provided to her when they were produced by Respondent’s counsel during the investigation.15/ In her deposition, when B.O. was asked if she had gotten the records from Respondent’s office yet, she said “not from them.” Among other remedial steps in the aftermath of this proceeding, if B.O. and R.O. do not already have copies of their medical records and updated patient ledgers as they requested long ago, Respondent must provide them. It is concerning that he did not come to this hearing with proof that he had provided B.O. and R.O. with the records they had requested or confirmed that they already had a copy. Lastly, the Administrative Complaint alleges that Respondent received payment from Horizon for B.O.’s treatment, but has not provided a refund. There is insufficient evidence to determine whether B.O. is entitled to a refund. The only information regarding the extent to which Horizon covered B.O.’s treatment is the information in the EOBs issued by Horizon after B.O.’s treatment ended, identifying amounts that would be covered and reporting payments to Respondent. For B.O.’s treatments, Horizon paid $1,770.00 to Respondent. What is unknown is whether B.O. owed more for her treatments than what Horizon paid. Dr. LaRusso reasonably opined that the receipt of an insurance payment would not generate an obligation for a patient refund if the payment is applied to a balance due by the patient. No evidence, methodology, or calculation was offered to prove that after Horizon’s payment was applied, a refund was owed to B.O. As noted previously, Respondent’s “patient ledger” is an internal practice management tool that does not function as an accounting of what a patient or insurance company owes. However, the patient ledger for B.O. reflects a total amount of $5,575.00 in services provided to B.O. Application of the Horizon payments of $1,770.00 and B.O.’s payments of $575.00 would reduce the patient ledger amount by less than half. Again, this is not to say that Patient B.O. owes the remaining patient ledger amount, but it is at least a point of reference suggesting the possibility that the Horizon payment did not cover all of B.O.’s treatment costs. Viewed another way, all B.O. paid for 23 treatment sessions was $25.00 per visit. B.O. was informed at the outset that she would not be charged for the full treatments she would be getting, because Horizon would “probably” cover her treatment except for the copay. Although she paid $230.00 more than the amount Horizon ultimately applied as copays, if B.O. owed $230.00 or more for treatment provided that was not covered by Horizon’s payment, then no refund would be due. Patient R.O. As noted previously, Patient R.O. is Patient B.O.’s husband. Like B.O., R.O. was treated by Respondent from April through June 2013. R.O., then a 64-year-old male, sought treatment for severe back pain. R.O. completed the intake form, had x-rays and patient history taken, provided detailed records of recent treatments and surgeries (including back surgery), and was evaluated and examined by Dr. Aderholdt. Dr. Aderholdt determined that R.O. was a candidate for Vax-D therapy. Respondent’s then-office manager, Lisa, took over to address the financial aspects of the recommended treatment. R.O. informed Respondent’s staff that he could not afford to pay $5,500.00 up front. R.O. was given contact information for Care Credit. He called Care Credit, then submitted an application. R.O.’s application was approved, and Care Credit agreed to finance the cost of Vax-D therapy without charging interest if the amount was paid off within one year. R.O. accepted the loan, and the result was that Care Credit paid Respondent $5,500.00 minus a fee absorbed by Respondent, similar to fees by credit card companies charged to merchants for sales using their credit cards. R.O. testified that he has paid off the Care Credit loan. R.O. signed the Vax-D Agreement, by which he committed to 25 to 28 Vax-D therapy sessions at $250.00 per session, for a total payment amount of $5,500.00. His Vax-D Agreement included the treatment package detailed in paragraph 13 above. R.O. testified that during the time of his treatment by Respondent, he had health insurance coverage with Medicare and Horizon (the private Medicare supplement insurance coverage that B.O. also had). He also had Tricare for Life, but said that that coverage would not have been applicable. R.O. recalled that Respondent told him that none of his insurance plans would cover the Vax-D therapy. As previously noted, Respondent does not believe he discussed insurance coverage with R.O., as that is not his standard practice. Regardless, R.O. had no expectation of insurance coverage. R.O. found the Vax-D therapy helpful in relieving his pain. He felt better after every treatment and wanted to continue. Rather than stopping after the 25 to 28 sessions included in the Vax-D Agreement, R.O. had a total of 40 treatment sessions. However, at some point, Respondent’s office manager informed R.O. that he needed to pay for additional sessions. R.O. said he could not afford to pay more, and discontinued treatment. After R.O. discontinued his treatments, he received an EOB from Horizon, stating that Horizon had paid a total of $5,465.84 in claims for both R.O. and B.O. According to the EOB summary, as noted above, $1,770.00 was paid to Respondent for treatments to B.O. The rest--$3,335.84--was paid to two providers for services to R.O. (A minor discrepancy is noted, in that Petitioner’s PRO stated that $3,335.00 was paid to Respondent for treatments to R.O.; however, the EOB reports that $10.84 was paid to a different provider (“Ga Emergency Phys”) for services provided to R.O. Thus, the actual total payment to Respondent for R.O.’s treatment was $3,325.00). The total amount paid to Dr. Aderholdt for R.O.’s 40 Vax-D therapy sessions, including Horizon’s payments, was $8,825.00, an average of $220.63 per session. R.O. believes the insurance payment should be paid to him as reimbursement for part of the $5,500.00 he paid. But that payment was for 25 to 28 sessions. The insurance payment was reasonably applied to the additional amounts due for R.O.’s sessions that were not covered by the $5,500.00 payment. No reason was offered as to why Dr. Aderholdt should not have applied the insurance payment to charges owed for the 12 sessions that were not covered by the Vax-D Agreement. Chiropractic physicians are not required to provide free care. Dr. Shreeve admitted that he does not provide chiropractic care to patients for free. As found above with respect to Patient B.O., R.O. joined B.O. in submitting a written request to Respondent for their medical records and updated patient ledgers by letter dated December 31, 2013, although Respondent said that he did not see the letter that was mailed to him. The findings above with respect to B.O., as one party to the joint written request, apply with equal force to R.O. as the other party to the joint written request. The Administrative Complaint also included an allegation that Respondent failed to practice chiropractic medicine at an acceptable level of skill, care, and treatment, charged as a violation under section 460.413(1)(r). This was the only charge in any of the Administrative Complaints that was based on the care provided by Dr. Aderholdt. The allegation was that adjustments indicated as having been performed on R.O. were physically impossible. However, at hearing, Petitioner’s expert retreated from the allegation, agreeing that the procedure in question was plausible. As a result of his concession, Petitioner’s PRO abandoned the charge, stating, “Petitioner is no longer pursuing discipline for the alleged violation of section 460.413(1)(r).” Pet. PRO at 4. Patient P.D. In March and April 2013, Respondent treated Patient P.D., then a 62-year-old female, for back pain. After completing intake forms and patient history, Patient P.D. was x-rayed, then examined and evaluated by Dr. Aderholdt, who determined that P.D. was a candidate for Vax-D therapy. Dr. Aderholdt turned P.D. over to his then-office manager, Lisa, to address the financial aspects of his recommended treatment plan. P.D. confirmed that Dr. Aderholdt never discussed financial issues or insurance with her. P.D. signed the Vax-D Agreement on March 8, 2013, the same day that she completed a Care Credit application that was approved for $5,500.00. P.D. paid off the Care Credit loan in 11 months, at $500.00 per month, so the loan was interest-free. At the time of the treatments, P.D. was not yet eligible for Medicare. She had insurance coverage through Blue Cross Blue Shield of Michigan (Blue Cross). P.D. said that Lisa, the office manager, told her that she would file claims with Blue Cross. Thereafter, P.D. had 33 Vax-D therapy sessions. P.D. was pleased with the Vax-D therapy. She found it effective in relieving her pain. P.D. learned at some point from Blue Cross that several months after her treatment ended, Blue Cross paid Respondent for a portion of P.D.’s treatment. No evidence was offered to prove the details of the Blue Cross coverage, such as EOBs explaining what was covered and what was not. P.D. said that she contacted Respondent’s office and spoke with staff multiple times before Respondent provided her reimbursement in the full amount of the Blue Cross payment. Respondent refunded $946.45 on April 8, 2015, and $1,046.45 on April 10, 2015, for a total of $1,992.90. P.D. acknowledged that she has been fully reimbursed and is owed nothing further. The Administrative Complaint includes an allegation that Respondent improperly utilized CPT “billing codes” 99204 and 99212 for P.D.’s first session on March 6, 2013. Dr. Aderholdt admitted that for March 6, 2013, P.D.’s patient ledger incorrectly lists both CPT code 99204 (for a comprehensive examination for a new patient), and CPT code 99212 (for a focused examination for an established patient). The first CPT code should have been the only one entered on this day. The second code was entered by mistake. Although Dr. Aderholdt admitted the error made in the patient ledger, there is no evidence that the erroneous CPT code was “utilized” for billing purposes. No evidence was presented that both CPT codes were submitted by Respondent in a claim for payment to Blue Cross (and Petitioner did not charge Respondent with having submitted a claim to P.D.’s insurer for a service or treatment not provided). No evidence was presented of the actual claims submitted to Blue Cross. No evidence was presented to show that P.D. was ever sent a bill utilizing the referenced CPT codes. The error recording an extra CPT code on P.D.’s patient ledger might throw off Respondent’s internal practice management statistics, but there is no evidence that the admitted CPT coding mistake on the patient ledger was repeated in any claim or bill submitted to anyone. Expert Opinions Considering All Four Cases Both Dr. Shreeve and Dr. LaRusso offered their overall opinions, taking the four cases as a whole. Dr. Shreeve’s Oinions Dr. Shreeve testified that, while he might be more understanding of issues he saw in each individual case, “I’ve got four cases that I reviewed together. I received them all at once. So my view on each individual case might be seen as a little more tolerant of something I saw. But when it becomes repeated, it becomes less understanding [sic].” (Tr. 109). In forming his opinions, Dr. Shreeve relied on allegations that have not been proven, his own extension of the Administrative Complaint allegations to add other concerns about use of CPT codes (which were also shown not to be valid concerns), and his observations about a litany of matters nowhere mentioned or charged in the Administrative Complaints. Dr. Shreeve made clear that he elevated his opinion from concerns about sloppy office practices to fraud, misrepresentation, and patient exploitation, because of matters that were either unproven, not alleged or charged, or both. For example, he injected the concern, shown to be based solely on patient ledgers, that CPT code 99212 appeared many times without the -25 modifier when used in conjunction with an adjustment CPT code. Starting with A.M.’s case, he complained of the repeated use of CPT code 99212 without a -25 modifier, when CPT code 98941 (adjustments) was used for the same office visit. He said, “If we were going to bill 99212, an E/M code with that, we would use a modifier of -25.” (Tr. 110). As previously found, however, Dr. Aderholdt did use the -25 modifier with every entry of CPT code 99212 in the Medicare claim forms. In explaining how his opinion was affected by his misimpression from the patient ledgers that CPT code 99212 was not used with the -25 modifier, he said: This is repeated over and over during the record. If it were one off, it occurred in one place in the ledger or on a form, you know, everybody is human. They can make a mistake. If it is the trend, that becomes not a mistake. That becomes, I’m doing the wrong thing. And if I’m doing it over and over again, and I’m then billing for one service two times, two different ways, and I’m – I hope to get paid for it. Then that’s where I start to see the trend of exploiting the patient for financial gain. (Tr. 111). Dr. Shreeve further elevated the significance of not seeing modifiers with the evaluation codes in the patient ledgers, when he spoke about R.O.’s case: If [Dr. Aderholdt] did both codes [for evaluation and adjustments] every visit, if he did, which is not normal, we would have to have a modifier, the -25, to tell us it’s a reduced service because it’s duplicative. A modifier was never present in any record I saw on this patient or any other patient of the records of Dr. Aderholdt. So misusing the codes. This is not standard of care that we expect, and this appears to me exercising influence on the patient to exploit them for financial gain. That’s what it looks like to me. By the time we’re through with the third case that’s what I see. (Tr. 148). Not only was this CPT coding issue not alleged in any of the four Administrative Complaints, but it is a false accusation. If Dr. Shreeve did not see a single use of CPT code 99212 with the -25 modifier in any record he saw, then he did not look at the records very carefully. As found above, the only evidence of actual claims submitted to any third-party payor--the Medicare claim forms for Patient A.M.--shows that CPT code 99212 was never used without the -25 modifier. But Dr. Shreeve only looked at the patient ledgers for modifiers. As also found above, the only two CPT coding issues that were alleged (improper use on two specified dates of CPT code 98941 for adjusting three or four spinal regions for Patient A.M.; and improper use on Patient P.D.’s first day of service of two patient examination CPT codes for billing purposes) were not proven. Dr. Shreeve also relied on the allegation that Patient B.O.’s insurance carrier was billed for treatment that was not provided. He pointed to “notes” written (by B.O.) on the patient ledger stating that the patient cancelled, but CPT codes were entered for treatments that day. He concluded: That’s blatant. I don’t have a way to explain that away. To me that absolutely says, I billed for something that I didn’t do. That’s fraud. Because that’s with intent. That’s not an accident. (Tr. 137). When Dr. Shreeve was shown the $50.00 debit card receipt signed by Patient B.O. on June 14, 2014, he quickly retreated: “That would indicate that they were there, even though they said they were not. So my apologies for that. It’s good to clear that up.” (Tr. 183). Later, he added that the June 14, 2013, payment of $50.00 was for that visit and the prior visit on June 11, 2013. He explained that this was consistent with Respondent’s daily notes, which identified treatments for each visit and also logged the copay charges by visit and B.O.’s periodic payments. Dr. Shreeve did not explain how he would alter his overall opinion after conceding that what he characterized as blatant fraud by Dr. Aderholdt was actually a false accusation by the patient. In formulating his overall opinion that what otherwise might be viewed as mistakes or sloppy office practice were elevated in his mind to fraud and exploitation, Dr. Shreeve also relied heavily on matters that were neither alleged nor charged in the Administrative Complaints, and, as a result, were not fleshed out with competent evidence in the record. Dr. Shreeve repeatedly alluded to issues regarding trust accounting requirements in statute and rule. The four Administrative Complaints that were issued as directed by the PCP on June 19, 2018 (as noted on the Administrative Complaints), contain no allegations related to trust accounting practices. The PCP-authorized Administrative Complaints do not charge Dr. Aderholdt under the trust accounting statute, section 460.413(1)(y), or the trust accounting rule, Board rule 64B2- 14.001. To the extent Dr. Shreeve’s perception of trust accounting issues contributed to his opinion that these four cases rise to the level of fraud and patient exploitation, that was error, and his opinion must be discounted accordingly. Likewise, Dr. Shreeve gratuitously offered critiques of Dr. Aderholdt’s medical records, including complaints about the handwriting, complaints about x-ray quality, questions about the adequacy of justifications for the course of treatment, and suggestions regarding how he would rewrite SOAP notes. Again, the Administrative Complaints are devoid of allegations directed to the quality or adequacy of Respondent’s medical records, and they are devoid of charges under the medical records provision in section 460.413(1)(m) and the corresponding medical records rule, Board rule 64B2-17.0065. To the extent these critiques contributed to Dr. Shreeve’s opinion that these four cases rise to the level of fraud and patient exploitation, that, too, was error, and his opinion must be discounted accordingly. Dr. Shreeve also relied on what he characterized as Respondent’s failure to respond, or failure to respond quickly enough, to investigative subpoenas. He made it clear that his opinion was greatly influenced by his perception that Respondent intentionally failed to meet his obligations in responding to the investigations: I think this is absolute fraud. The doctor is not wanting to do the right thing, has flagrant disregard for the law, and the statutes and the rules for the profession, for the Department of Health by not responding. (Tr. 153). Despite Dr. Shreeve’s view that he thinks it is “very clear” that Dr. Aderholdt did not respond timely during the investigation, the timeline and details of the investigation were not established by competent evidence; there is only hearsay evidence addressing bits and pieces of that history, with huge gaps and many questions about the reasons for those gaps (if the reasons why investigations were so protracted was relevant). But the details of the investigations are not laid out in the evidentiary record because the Administrative Complaints do not contain factual allegations related to Dr. Aderholdt’s actions or inactions during the investigation process, nor are there any charges predicated on what was or was not done during the investigation process. Either these matters were not presented to the PCP in June 2018 for inclusion in the Administrative Complaints, or they were presented and not included. Either way, Dr. Shreeve’s perception regarding whether Dr. Aderholdt met his legal obligations in responding to the investigations cannot be injected now. It was improper for Dr. Shreeve to consider, and give great weight to, circumstances that were neither alleged nor charged in the PCP-authorized Administrative Complaints. As found above, the proven allegations are that Respondent failed to provide Patient A.M. copies of the claims submitted to Medicare for her treatment (although she may have them now); and Respondent failed to provide copies of the medical records of Patients R.O. and B.O. upon their joint written request (although they may have them now). Only by considering allegations that were not proven and by injecting matters not alleged or charged was Dr. Shreeve able to characterize these four cases as involving the same problems again and again. In terms of the proven allegations, however, the only duplicative finding is with respect to the husband and wife team, in that Respondent did not meet his obligation to promptly respond to their joint request for medical records and updated patient ledgers. The matters considered by Dr. Shreeve beyond the allegations and charges in the Administrative Complaints were also improperly used by Dr. Shreeve to buttress his view that two disciplinary actions against Dr. Aderholdt based on facts arising in 2005 and 2006, raised “the same or similar” issues. Dr. Shreeve’s attempt to draw parallels between the prior actions and these four cases was unpersuasive. Dr. LaRusso disagreed with the characterization of the two prior actions as similar to the issues presented here. Dr. LaRusso’s opinion is credited. A comparison of the allegations, ultimately resolved by stipulated agreement in two 2008 Final Orders, confirms Dr. LaRusso’s view in this regard. The first disciplinary action was based on Respondent’s treatment of one patient in February 2005. An administrative complaint alleged that Respondent failed to complete intake forms, take the patient’s history, and conduct a sufficient examination to support the diagnosis. Respondent was charged with violating section 460.413(1)(m) by not having adequate medical records. The same facts gave rise to a second count of violating section 460.413(1)(ff) (violating any provision of chapters 456 or 460, or any rules adopted pursuant to those chapters), through a violation of rule 64B2-17.0065, which elaborates on the requirements for adequate medical records. There is no repetition of these statutory and rule violations charged in any of the four Administrative Complaints at issue here. The prior administrative complaint also alleged that Respondent billed the patient he saw in 2005 for neuromuscular reeducation and therapeutic exercises, when neither Respondent’s notes nor the SOAP notes reflected those services. In these cases, the only allegation regarding discrepancies between billing records and physician/SOAP notes is the allegation as to Patient A.M. that on two dates, Respondent used the CPT code for adjustments to three or four spinal regions, whereas the SOAP notes reflected adjustments to only one region. The prior disciplinary action supports the findings above that Respondent’s notes must also be considered, in addition to the SOAP notes, to determine what services A.M. received on those two days. A different kind of billing discrepancy allegation in Case No. 18-4485 is the claim that Respondent billed B.O.’s insurer for treatment on days on which services were allegedly never provided. This allegation was not proven, as found above. B.O.’s accusation that Respondent falsely charged for treatment on several days when no treatment was provided was itself proven to be a false charge. Perhaps Dr. Shreeve was thinking of this allegation, based on B.O.’s false charge, when he characterized the 2005 incident as involving the same or similar problems that he saw here. The allegation in the prior complaint was that the patient was actually billed for services not provided, and a refunded was ordered. At first, Dr. Shreeve believed the same was true in B.O.’s case. However, he later retreated and acknowledged that B.O. had not been truthful in her accusation. The only other allegation of a billing discrepancy in any of the four cases at issue was not a billing discrepancy at all, but rather, a CPT coding error on P.D.’s patient ledger that was not billed to anyone. As Dr. Shreeve noted, in the prior disciplinary action, Respondent agreed to be put on probation with a requirement that he practice with a monitor. Dr. Shreeve explained that the monitor would have worked with Respondent “to help this doctor not do the same behaviors that got them into trouble.” In his view, these four cases show that Dr. Aderholdt did not learn his lesson from the monitor “not to do the same problems again.” As he put it, “That really flips me rather quickly to think there’s a question of fraud.” (Tr. 152-153). To the contrary, whereas Respondent was faulted for not having intake records, patient histories, and appropriate examinations to support his diagnosis and recommended treatment plan in February 2005, no such issues were raised in these Administrative Complaints. Dr. Aderholdt did learn his lesson. The medical records for the four patients at issue include patient intake forms, patient histories, evaluations, and examinations that were not alleged to be inadequate. Nor was there any repetition of the problem with billing a patient for treatment or services that were not documented in the medical records taken as a whole, including Dr. Aderholt’s notes. The other disciplinary action resolved by settlement in a 2008 Final Order involved an advertising issue. The Department alleged that Respondent improperly advertised as a specialist in Vax-D disc therapy when the Board does not recognize any such specialty. The Department also found fault in the failure of the advertising to disclose the usual fee. The Department also critiqued an advertisement for identifying a different practice location than Respondent’s practice address of record. The charges were under section 460.413(1)(d), (cc), and (ff); rule 64B2-15.001(2)(e) and (i); and rule 64B2-10.0055. Quite plainly, this prior action bears no similarity to the four Administrative Complaints at issue here. No such allegations or charges were raised here. Dr. Shreeve did not contend that this prior action bears any similarity to the four cases here. Dr. Shreeve was never asked for his opinion as to the type or level of discipline he believes is warranted in these cases. However, his “flip” to “fraud,” due to the perceived repetitive nature of the issues in the four cases (whether charged or not)--which he characterized as the “same problems” in 2005 that resulted in discipline--was the basis for Petitioner proposing the most severe penalty available: license revocation, plus substantial fines and assessments of fees and costs. Dr. LaRusso’s Opinions Dr. LaRusso served as a Board member for multiple terms, and is a past-chair. After leaving the Board, he continued to serve on probable cause panels as recently as 2017. Having reviewed and been involved in thousands of disciplinary matters, he was of the strong opinion that nothing in the four Administrative Complaints warrant discipline at the level being sought here. Imposing a severe penalty in these four cases would be out of line with the Board’s prior practice in disciplinary matters. Dr. LaRusso’s studied review of all of the depositions and records in this case led him to opine that there is no evidence that Dr. Aderholdt deceived his patients, committed fraud, or engaged in double-billing or overbilling. Instead, Dr. LaRusso saw evidence of sloppy office practices, which he attributed to Dr. Aderholdt’s poor management skills. He has seen many doctors like Dr. Aderholdt over the years who just want to deal with taking care of patients. They do not want to have anything to do with administrative and clerical responsibilities. Instead, they leave everything besides patient care to their office manager and staff. In Dr. LaRusso’s view, Dr. Aderholdt’s office protocols and procedures require serious fine-tuning. He believes that Dr. Aderholdt would benefit from re-education in billing and collection practices, as well as laws and rules. He needs to ensure that procedures are in place, and followed, for prompt responses to patient requests for medical records or for claims sent to third-party payors. At the same time, however, Dr. LaRusso reasonably characterized the four cases as involving billing, clerical, communication, and correspondence issues. It bears emphasis that Dr. Aderholdt’s patient care is not in question. There are no issues of endangering the public, where a doctor is doing things that will hurt people, doing something dangerous or sexually inappropriate. Those are the cases where it is appropriate to go after someone’s livelihood, when the person does not belong in the profession. Dr. LaRusso observed that, rather than endangering the public, Dr. Aderholdt was helping his patients by relieving their pain, according to their own testimony. Dr. LaRusso agreed to become involved in this case because he found it so incongruous that the Department would be pursuing this action apparently to try to take Dr. Aderholdt’s license. Dr. LaRusso noted that the four investigations against Dr. Aderholdt were originally being spearheaded by a prior prosecutor for the Department (to whom Respondent’s counsel mailed CDs of patient records in 2014), and that the cases were assigned to Dr. Willis, who was a favored expert witness for the Department. Dr. LaRusso alluded to “inappropriate issues” with the prosecutor and expert that led to the Board having to pay a large award of attorneys’ fees and costs for pursuing discipline against Dr. Christian. According to Dr. LaRusso, those issues ultimately led to the prosecutor and expert being discharged from these cases. There is no evidence as to when or why Dr. Willis was replaced with Dr. Shreeve. Dr. Willis apparently was involved long enough to prepare an expert report. But then, according to Dr. LaRusso, the cases went dormant for a long period of time. The bits and pieces of hearsay evidence in the file comport with this understanding: there were four investigations that began upon complaints in 2014 by the four patients about billing and records issues; documents were collected from Respondent and from the patients; and Investigative Reports were issued, all before 2014 was over. It is unknown when Dr. Willis was involved, when he prepared his expert report, or when he was discharged from the cases. It is unknown when Dr. Shreeve was retained, but there was plainly some duplication of work, in that Dr. Shreeve prepared his own expert report. Neither expert report is in evidence. There is no evidence of any additional investigation or follow-up documentation from the patients or otherwise. There is no evidence of what was presented to the PCP--just that the panel met on June 19, 2018, and authorized the four Administrative Complaints issued on June 20, 2018. While this background is a bit of a curiosity, without impermissible speculation, the most that can be said about this history is that the protracted period of time from investigation to the PCP submission that resulted in issuance of the Administrative Complaints is apparently due, at least in large part, to the turnover in the prosecution-expert witness team assignments. Dr. LaRusso did not persuasively demonstrate grounds to cast nefarious aspersions on the Department for continuing forward with its investigation. One might reasonably question whether the Department dropped the ball, so to speak, in not updating its investigation, given the extended period of dormancy. For example, the Administrative Complaint in Case No. 18-4487 incorrectly alleged that P.D. was not reimbursed, when any cursory check with P.D. would have revealed the “news” that she had been repaid in April 2015, more than three years before the Administrative Complaint was authorized by the PCP. Dr. LaRusso may reasonably debate, as he did, whether the charges lodged against Respondent are inappropriate. And Dr. LaRusso may certainly question, as he did in convincing fashion, whether the discipline apparently being sought is unduly harsh, uncalled for, and way out of line with Board practice. But there is no basis in this record for attributing bad motives to the Department for prosecuting the Administrative Complaints. Dr. LaRusso’s opinions regarding the nature of the violations proven and the appropriate discipline in scale with those violations were more persuasive that Dr. Shreeve’s opinions. Dr. LaRusso’s opinions are credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Chiropractic Medicine: In Case No. 18-4484PL: Dismissing Counts I, II, and IV; and Finding that Respondent violated section 460.413(1)(aa), as charged in Count III; In Case No. 18-4485PL: Dismissing Counts I, III, and IV; and Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II; In Case No. 18-4486PL: Dismissing Counts II, III, and IV; and Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II; In Case No. 18-4487PL, dismissing Counts I and II; Placing Respondent on probation for a period of three years, with conditions deemed appropriate by the Board; Imposing a fine of $3,000.00; Requiring continuing education deemed appropriate by the Board; and Requiring payment of the costs of investigation and prosecution of the charges on which violations were found. DONE AND ENTERED this 15th day of February, 2018, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2018.
The Issue 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 The issue for determination is whether Respondent is liable to Petitioner for the principal sum of $2,284.13, which equals the amount that the Florida Medicaid Program paid Respondent for psychiatric services provided between January 2, 2002, and June 30, 2006, to patients who, at the time of treatment, were residents of custodial care facilities.
Findings Of Fact Petitioner Agency for Health Care Administration ("AHCA" or the "Agency") is the state agency responsible for administering the Florida Medicaid Program ("Medicaid"). Respondent Womesh C. Sahadeo, M.D. ("Sahadeo") is a psychiatrist. At all relevant times, Dr. Sahadeo was a Medicaid provider authorized to receive reimbursement for covered services rendered to Medicaid beneficiaries. Exercising its statutory authority to oversee the integrity of Medicaid, the Agency in 2006 performed a "generalized analysis" of claims involving psychiatric services rendered to patients who, at the time of treatment, had been residing in nursing homes, assisted living facilities, or other custodial care facilities. In a generalized analysis, claims within a category of services are reviewed to determine whether each claim meets a particular condition of coverage or falls within a specific exclusion. The conditions and limitations of interest to AHCA in this instance were (a) the requirement that, to be compensable, psychiatric services must be provided in a hospital or physician's office and (b) the corresponding exclusion from coverage of claims for psychiatric services rendered in any other place, e.g. nursing homes or other custodial care facilities. During the period from January 2, 2002 to June 30, 2006 (the "Audit Period"), Dr. Sahadeo had submitted a number of claims seeking reimbursement for psychiatric services provided to seventeen patients who were residents of group homes or other custodial care facilities. Medicaid had paid these claims, and, as a result, Dr. Sahadeo had received payments totaling $2,284.13. Being within the scope of the generalized analysis under way in 2006, these claims came to AHCA's attention. By letter dated November 9, 2006, the Agency informed Dr. Sahadeo that the aforementioned claims would not have been compensable if the patients in question had been seen in their respective residential facilities (as opposed to the doctor's office or a hospital). AHCA demanded that Dr. Sahadeo submit records showing that the psychiatric services at issue had been rendered in an eligible setting, to confirm that the subject claims were within Medicaid coverage. The deadline for compliance with this demand was 15 days after receipt of the letter. Dr. Sahadeo did not respond to the letter of November 9, 2006. Consequently, on December 20, 2006, the Agency issued a Preliminary Audit Report, which notified Dr. Sahadeo that, because he had failed to produce records documenting the place(s) of service as requested, each of the claims under review was now deemed to have resulted in an overpayment. Dr. Sahadeo was given the choice of either remitting payment of $2,284.13 or submitting documentation demonstrating that some or all of the claims were properly paid. The deadline for furnishing additional documentation was 15 days after receipt of the report. Dr. Sahadeo did not respond to the Preliminary Audit Report. Consequently, on February 20, 2007, the Agency issued a Final Audit Report. The Final Audit Report echoed the Preliminary Audit Report in regard to the place-of-service issue. This time, however, the Agency added allegations accusing Dr. Sahadeo of violating Medicaid's record keeping requirements, and it gave notice of its intent to impose a $500 fine for his failure to furnish Medicaid related records on demand. According to AHCA, the total amount due from Dr. Sahadeo was now $2,784.13. Dr. Sahadeo timely requested an administrative hearing, giving rise to this case. Before the final hearing, Dr. Sahadeo produced some medical records underlying some of the claims in question. None of these medical records, however, clearly and unambiguously documents the place of service, the critical fact which at all times during this audit has been the focus of AHCA's interest and concern. At hearing, Dr. Sahadeo presented persuasive evidence (his testimony and that of his office manager, Sonya Robinson) that the psychiatric services behind the claims at issue were, in fact, rendered in his office, and not at the respective residences of the patients. The undersigned finds this to be the case. But the evidence also established——and the undersigned finds——that, in addition to medical records, certain professional or business records were created in connection with each of the subject claims, records which, if retained, would have shown that the patients had come to Dr. Sahadeo's office for treatment. One set of such documents comprised the "sign in sheets" that patients signed upon arrival at the doctor's office. Located at the receptionist's desk, the sign in sheet was a paper on which each patient would write his name, time of arrival, and appointment time. Although a sign in sheet was (or should have been) inscribed by every patient each time he was seen in the doctor's office, Dr. Sahadeo either did not keep copies of these documents or was unable, for other reasons, to make them available for inspection by AHCA. The other set of documents which would have shown that the patients of interest had come to Dr. Sahadeo's office for treatment consisted of the "receipts" that the doctor would sign to confirm that a caretaker had transported the patient from the group home or other custodial facility to the doctor's office for his appointment. During the Audit Period, it was Dr. Sahadeo's practice to sign the receipt and return the paper to the caretaker or driver without keeping a copy for his own records. Consequently, Dr. Sahadeo was unable to make these documents available for inspection by AHCA. Dr. Sahadeo did not satisfy his continuing obligation to retain all of the records relating to the services that he had provided to the patients whose claims AHCA is disputing. Yet, when AHCA paid the Medicaid claims at issue, it did so believing——and in reliance upon the assumption——that Dr. Sahadeo was fulfilling his affirmative duty to provide the underlying services in accordance with all the applicable policies, rules, and laws, including the requirement that records relating to a Medicaid claim be kept for five years. AHCA was mistaken in this regard. As a result of the Agency's mistaken assumption that Dr. Sahadeo was complying with the record keeping requirements, Dr. Sahadeo received from Medicaid a total of $2,284.13 in payments that were not authorized to be paid. This grand total of $2,284.13 constitutes an overpayment that Dr. Sahadeo must return to the Agency.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Dr. Sahadeo to repay the Agency the principal amount of $2,284.13, together with an administrative fine of $500. DONE AND ENTERED this 20th day of November, 2007, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 20th day of November, 2007.
The Issue Whether an administrative fine should be imposed on the respondent for the violations alleged in Final Agency Audit Report number 94-0367-000-G, and, if so, the appropriate amount of the fine.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Agency for Health Care Administration is the state agency responsible for administering the Medicaid program in Florida. Ch. 93-129, 58, Laws of Fla. (1993). The Agency oversees the activities of Medicaid providers and is authorized in section 409.913(9), Florida Statutes, to impose sanctions for violations of the Medicaid rules and regulations. The division of the Agency responsible for monitoring payments to Medicaid providers is referred to as Medicaid Program Integrity, which is part of the Agency's Office of the Inspector General. Medicaid payments are monitored to ensure that such payments are made in accordance with federal and state rules and regulations. At all times relevant to this proceeding, the respondent was licensed to practice medicine in Florida and was an approved Medicaid treating provider assigned Treating Provider number 065767102. The respondent entered into a Noninstitutional Professional and Technical Medicaid Provider Agreement on October 14, 1981, in which he agreed to "abide by the provisions of the Florida Administrative Rules, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations," as provided in paragraph 7 of the agreement. The Medicaid Physician Provider Handbook provides in the introduction to section 11.1 that "[t]he services in this program must be performed for medical necessity for diagnosis and treatment of an illness for an eligible Medicaid recipient." The provider agreement also requires in paragraph 2 that the provider "keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance under the State Plan." The Agency audited a random sample of medical records of Medicaid recipients for whom payments were made to Dade Health Services for medical services provided from August 3, 1992 through October 31, 1993. The respondent's name appeared frequently in these records as a treating provider. As a result, the Agency extended its investigation to the respondent. The respondent provided medical services at Dade Health Services from the beginning of the audit period until February 9, 1993, when he terminated his association with the clinic. The medical records of seven Medicaid recipients treated by the respondent were among the Dade Health Services's medical records audited by the Agency. In order to ensure that the Agency had all the medical records relevant to these patients, a letter was sent to the respondent requesting any additional medical records he might have in his possession. The respondent notified the Agency through his attorney that he did not have any medical records relating to the seven patients. The medical records of the seven Medicaid recipients treated by the respondent were reviewed by Dr. John Sullenberger, Chief Medical Consultant for the State of Florida Medicaid Group, to determine if the services provided and billed to Medicaid were medically necessary. Dr. Sullenberger evaluated the medical records in accordance with generally-accepted practices and using generally-accepted tools such as the Current Physician Terminology Handbook. He concluded that certain of the tests and treatments ordered by the respondent were not medically necessary Patient Q.M. was seen by the respondent in an office visit on September 16, 1992. The patient's main complaint was shortness of breath. The respondent ordered spirometry, a test which measures lung function. Shortness of breath can have many causes, among them heart problems. There is no indication in the medical records that a chest x-ray was taken, and nothing in the records supports the medical necessity for a test measuring lung function for shortness of breath alone. Patient J.U. was seen by the respondent in an office visit on January 30, 1993. The patient complained of a dry cough and shortness of breath. The respondent noted that the patient wheezed when he blew air out of his lungs, and he ordered spirometry. Spirometry is contraindicated for wheezing, and there is nothing in the records to support the medical necessity for the test for shortness of breath alone. Patient M.V. was treated on November 11, 13, 16, 18, 20, 23, 25, 27, and 29, 1992, and on December 2 and 7, 1992, with aerosol treatments ordered by the respondent. An aerosol treatment consists of the patient's breathing in a vaporized mist to moisten the nose and the bronchial tubes, and it provides relief for approximately three hours. Aerosol treatments are properly administered every four to six hours, usually to patients who are hospitalized. There is nothing in M.V.'s medical records to support the medical necessity for aerosol treatments, and there is no medical justification for administering these tests every two to three days. Patient D.S. was seen by the respondent in an office visit on January 23, 1993. The medical record of this visit is largely illegible, but it appears that the patient's main complaint was a cough. The respondent ordered spirometry, an electrocardiogram, and radiologic testing. There is nothing in the medical records to support the medical necessity for spirometry, especially since the respondent noted in the records that an examination of the lungs showed that they were within normal limits. There was no legible entry in the medical records to support the medical necessity for an electrocardiogram, which measures, among other things, the rhythm of the heart beat, the rate of the beat, and any blockage of blood passing through the heart. The radiologic testing consisted of a chest x-ray, but there is nothing in the medical records to support the medical necessity for this test. Patient E.R. was seen by the respondent in an office visit on November 2, 1992. The entry in the medical records of this visit for the patient's chief complaint is illegible. The respondent ordered two non-invasive tests, one to measure the blood flow through the arteries of the patient's legs and one to measure the blood flow through the veins of the legs. The respondent also ordered echography to test the patient's peripheral vascular system. Echography uses sound waves to construct a picture or photographic plate of the area being tested. There is no indication in the medical records that the respondent observed any abnormality of the patient's legs or feet or that he took the pulse in the feet to determine if the tests were necessary. The two non- invasive tests and the echography were not justified as medically necessary by the information contained in the medical record of E.R.'s November 2 office visit. Patient E.R. was also seen by the respondent in an office visit on December 19, 1992. The respondent ordered a duplex scan, which is a sonogram of the arteries in the neck that go to the brain. It is unusual to perform such a test on a 45-year-old woman, and there is nothing in the medical records to support the medical necessity for this test. Based on his examination of patient E.R. on December 19, the respondent also ordered aerosol treatments, which were administered on December 21, 23, 26, 28, and 30, 1992, and on January 4, 1993. There is nothing in the medical records to support the medical necessity for aerosol treatments, and there is no medical justification for administering the treatments every two to five days. Patient W.L. was seen by the respondent in an office visit on November 23, 1992. The patient's chief complaint was pain in the legs. There is nothing in the medical records indicating that the respondent examined the patient's legs or took the pulses in the feet, behind the knees, or in the groin. Nevertheless, the respondent diagnosed the patient as having peripheral vascular disease and ordered two non-invasive tests and echography of the peripheral vascular system. There is nothing in the medical record to support a diagnosis of peripheral vascular disease or the medical necessity for the three tests. Patient A.A. was seen by the respondent in an office visit on October 19, 1992. The patient's chief complaint was hemorrhoids, and the respondent noted in the medical records that the patient's lungs were clear. Nevertheless, he ordered aerosol treatments, which were administered October 19, 21, 22, 23, 26, 28, and 30, 1992, and November 2, 4, 6, and 9, 1992. There is nothing in the medical records to support the medical necessity for these treatments, and there is no medical justification for administering the treatments on the prescribed schedule. The evidence is clear and convincing that the respondent administered or ordered administered forty-seven tests and treatments for these seven Medicaid recipients, that Medicaid claims were submitted for these tests and treatments, and that no medical necessity was shown in their respective medical records for these tests and treatments.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order finding that, from August 3, 1992, until February 9, 1993, Jaime Vergel, M.D., committed forty-seven violations of Medicaid rules and regulations and imposing an administrative fine in the amount of $25,000. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 14th day of November 1995. PATRICIA HART MALONO, 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 14th day of November 1995.
