Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner, Michael Selinsky, was a candidate for the chiropractic examination given in November of 1987. The practical examination is composed of three portions, X-ray interpretation, technique and physical diagnosis, and a score of 75% must be achieved on all three subject areas in order to pass. The petitioner received a score of 77.1 on the X-ray interpretation area, a score of 77.5 on the technique area and a score of 72.5 on the physical diagnosis area. In this proceeding, petitioner challenges two of the scores he received on the examination in the area of physical diagnosis. The physical diagnosis portion of the examination consists of oral questions posed to the candidate by two examiners. The answers are graded on a scale of 1 to 4, with 4 being the highest grade. Petitioner challenges the grade of 3 one of the examiners gave him for the "neurological" portion of the exam and the grade of 2 another examiner gave him for the "X-ray technique & diagnosis" portion of the examination. On these two areas of the examination, Examiner number 14 awarded petitioner a grade of 3 on both areas. Examiner number 23 awarded petitioner a grade of 4 on the "neurological" portion anal a grade of 2 on the "x-ray technique & diagnosis" portion. During the neurological section of the oral examination, petitioner was requested to demonstrate upon a live model how he would test the extensor hallicus longus muscle for the L-5 mytome. In response, he extended the great toe in the wrong direction. In responding to a question concerning an upper motor neuron lesion and a lower motor lesion, petitioner's answers were very incomplete. During the X-ray technique portion of the oral examination, petitioner was requested to demonstrate with a live model how he would position a patient for a lateral shoulder x-ray. The petitioner responded that he had never heard of such a position, but then attempted to position the patient. In fact, there is no way to take an x-ray of the lateral shoulder view because two bones would be superimposed. While this might be viewed as a "trick" question, petitioner should have been aware that no such x-ray could be taken. During another x-ray positioning question, petitioner failed to turn the patient's head. Also, during the X-ray technique portion of the oral examination, petitioner was asked to identify three factors that affected his exposure to radiation as an operator. The petitioner's answer included such things as lead- lined booths, lead-lined walls in the x-ray room and proper film developing to decrease the number of retakes. Several times, the examiners asked him questions regarding his answers, and the petitioner responded that he was not sure. When considering an operator's safety with regard to radiation exposure, there are three fundamental and established factors to take into account: time of exposure, distance and shielding. The petitioner's answers had relevance to patient safety, but not to the safety of the operator. In spite of prodding and grilling by the examiners with regard to operator safety, petitioner was unable to elucidate the three fundamental factors of radiation safety.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petition be DISMISSED. Respectfully submitted and entered this 17th day of October, 1988, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1988. COPIES FURNISHED: Copies furnished: William A. Leffler, III, Esquire Bruce D. Lamb, General Counsel Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399-0750 Tallahassee, Florida 32399-0750 Michael Selinsky Pat Guilford, Executive 5259 Wayside Court Director Spring Hill, Florida 34606 Board of Chiropractic Examiners Lawrence A. Gonzalez, Secretary Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399-0750 Tallahassee, Florida 32399-0750
The Issue The central issue in this case is whether Petitioner should be granted additional credit for the responses given during his practical examination for licensure which was conducted during November, 1991, and for which Petitioner entered this challenge.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner, David Sanders, is a candidate for chiropractic licensure. His candidate for licensure number is 200142, and he took the November, 1991, practical examination administered by the Department. Petitioner received a score of 64.0 on the practical examination. Petitioner's score fell below the minimum score for passing, 75.0. Petitioner timely challenged the examination results and claimed that the Department had incorrectly graded Petitioner's responses and performance during the examination. In this case, the practical examination was administered by two examiners who, independently of one another, scored the responses given by Petitioner when presented with two case studies. For Case 1, the scoring was divided into fourteen sections or subsections where the candidate was evaluated and given points based upon the responses given. For the orthopedics section of Case 1, the Petitioner was given a scenario of facts from which he was to determine the appropriate tests to be administered to the patient. Following selection of the tests to be given, Petitioner was required to perform the test. For an inappropriate test, no points were awarded, even if the candidate performed the test correctly. Of the nine tests listed, four were to be chosen and performed. One point was awarded for each appropriate test correctly performed. In response to the orthopedics section, Petitioner selected three appropriate tests to perform. Consequently, the maximum grade, per examiner, he could have received was a score of three. Petitioner received a score of two from one examiner, and a three from the other. The first examiner commented that the Yeomans test was wrong. Since Yeomans was an appropriate test to perform, and Petitioner correctly performed the test, Petitioner should have received a three on that section from that examiner. Under the neurological subsections of Case 1, Petitioner was required to identify, based upon the fact scenario given, four muscles which should be examined and tested. Petitioner only identified three relevant muscles. Consequently, he received a score of three from each examiner. The scoring on this subsection was correct. Under subsection 8 of the neurological portion Petitioner received no credit as he failed to select three appropriate tests and correctly interpret the responses. Accordingly, the scoring on this subsection was correct. The final subsection of the neurological portion was the diagnosis rendered based upon all the findings of the scenario and test results. Since Petitioner rendered an inappropriate diagnosis, no points were awarded. The scoring on this subsection was correct. Case 2 of the physical examination contained nine sections or subsections for which Petitioner could have received credit. The first section of Case 2 required Petitioner to obtain a history from the patient. To achieve a perfect score on this section, the candidate had to inquire into seven or more areas of relevant history. If so, the score for the section would be a four. In this case, Petitioner should have received a four from both examiners regarding the history taken. As it was, Petitioner only received a three from the examiners. In order to receive credit on the physical-selection portion of the test, Petitioner was required to auscultate the heart and lungs, and purcuss the chest. Since he failed to do so, the scoring on this subsection was correct. In connection with subsections 18 and 19 of Case 2, Petitioner failed to receive full credit because he did not indicate an appropriate laboratory test. Had Petitioner requested a SMAC test, full credit would have been given for both subsections. As it was, because Petitioner failed to request a SMAC test, he could not receive credit on either subsection. The scoring on these subsections was correct.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Chiropractic Examiners enter a final order changing Petitioner's score on the November, 1991, physical examination as noted above in order to recalculate and determine whether or not Petitioner failed the examination through no fault of his own. DONE and ENTERED this 30th day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1992. APPENDIX TO CASE NO. 92-2709 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: With regard to paragraph 1, with the deletion of the words "on physical diagnosis" in sentence 1, the paragraph is accepted. Paragraph 2 is accepted. Paragraph 3 is rejected as contrary to the weight of the evidence. Paragraph 4 is accepted. Paragraphs 5 through 9 are accepted. COPIES FURNISHED: David Sanders 359 Glenwood Avenue Satellite Beach, Florida 32937 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Diane Orcutt Executive Director Board of Chiropractic Examiners 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Introduction The Respondent, Jon F. Stoneburner, O.D., is a licensed optometrist in the State of Florida, and has been so licensed since January, 1977. On November 7, 1985, Alison Lichtenstein and Mary Pfab, O.D., went to the office of the Respondent, Jon F. Stoneburner, O.D., for eye examinations. Both used fictitious names. Ms. Lichtenstein presented herself as Alison Smith, and Dr. Pfab presented herself as Mary Parker. During the visual analysis by Dr. Stoneburner of Ms. Lichtenstein, Dr. Pfab was seated six to eight feet away. T2. 43. Dr. Stoneburner's back was facing Dr. Pfab, and she was viewing the examination of Ms. Lichtenstein from an angle. T2. 41. On the diagram drawn by Dr. Pfab, Dr. Pfab was seated in the position marked either 1 or 2, Dr. Stoneburner was located at the position marked St., and Ms. Lichtenstein was seated in the chair which is marked C. R. Ex. 3; T2. 40. Located in the room was a stand, a Phoropter, a biomicroscope, a keratometer, a retinoscope, and a tangent screen. T2. 40, 42. It is normal for such equipment to be placed on either the right or left side of the examination chair. T2. 43. It is concluded that some of this equipment was to one side or the other of the examination chair in which Ms. Lichtenstein was seated, but the actual positioning of the equipment is not in evidence in this record. T2. 41- Although the equipment may have been to the left or right of the examination chair, from the diagram it is evident that placement of the equipment to either the left or right side would not have obstructed Dr. Pfab's vision of Dr. Stoneburner and Ms. Lichtenstein since Dr. Pfab was seated on an angle behind Dr. Stoneburner. R. Ex. 3. From the diagram drawn and Dr. Pfab's testimony, it is concluded that Dr. Pfab was unable to clearly see Dr. Stoneburner's examination of Ms. Lichtenstein with respect to placement of Dr. Stoneburner's hands very close to Ms. Lichtenstein's face, i.e., one or two inches away from Ms. Lichtenstein's face, since Dr. Pfab's vision of such movements would have been partially blocked by Dr. Stoneburner's body. Other than that blind spot, Dr. Pfab could clearly see Dr. Stoneburner's movements during the examination, and could hear everything he said. T2. 43-44. Dr. Pfab received a degree in optometry in 1985. T. 10. At the time of the examination by Dr. Stoneburner, Dr. Pfab had had an externship in Jacksonville, Florida, and Fort Lee, Virginia, and was a licensed optometrist in Tennessee. T. 10-11. During her externships, she was required to perform eye examinations that conformed to the requirements of rule 21Q- 3.007, Fla. Admin. Code. T. 11. Dr. Pfab was licensed as an optometrist in Virginia and North Carolina in 1986, and in Florida in 1987. T. 11. Dr. Pfab was tendered as and accepted as an expert witness in the practice of optometry in Florida. T. 12, 16-18. In the first day of the formal hearing, the Hearing Officer sustained an objection to the testimony of Dr. Pfab to the extent that it involved her work for the Petitioner as an investigator. Following the close of the hearing, the Hearing Officer on his own motion determined that this ruling was in error, and reopened the record to allow Dr. Pfab to testify as to the results of her investigation on behalf of the Petitioner. That portion of the reopened hearing was conducted on August 31, 1988. Ms. Lichtenstein was not accepted as an expert with respect to the minimum examination procedures in the practice of optometry in Florida. T. 47, 50-51. She was allowed, however, to testify as a lay witness to what she perceived in the course of her investigation conducted on behalf of the Petitioner. Following the November 7, 1985, visit of Dr. Pfab and Ms. Lichtenstein, Ms. Judith Leff interviewed the Respondent and obtained copies of the records of the examinations of Dr. Pfab and Ms. Lichtenstein. T. 65. Ms. Leff asked Dr. Stoneburner to show her in the records of each patient where each of the minimum procedures listed in the rule had been recorded as having been performed, and Dr. Stoneburner showed Ms. Leff in both records where there was an entry that each procedure had been performed. T. 74. The patient records that are at issue in this case, P. Exs. 5 and 6, were not signed by Dr. Stoneburner in his capacity as a licensed practitioner of optometry, and Dr. Stoneburner's signature on these patient records was not required by law. It is normal practice in optometry for an optometrist to improvise and devise his or her own techniques for performing the minimum examination procedures. T. 92, 95. The visual fields or confrontation fields test A visual fields test tests the retina and the nerve pathways to the brain. T. 84. A visual fields test is a check for a brain tumor, and particularly a pituitary tumor. T2 -22. A visual fields test is required as a part of a minimum eye examination by an optometrist in the State of Florida. A minimum visual fields test is a confrontation fields test. T. 28, 80. In the confrontation fields test, the patient covers one eye with an opaque object, commonly a paddle. The patient is then asked to focus the other eye upon an object held by the examiner. The patient is required to tell the examiner when he or she can see the object moving into his or her peripheral vision. The examiner then moves a second object from beyond the peripheral vision of the patient from both horizontal sides (left and right) and from both vertical sides (up and down). The examiner observes that the patient continues to focus upon the target object. A confrontation fields test necessarily involves communication from the patient to the optometrist. T. 20-21,80-81, 124, 164, 185. The movements necessary to conduct a confrontation fields test (movement of paddles, movement of objects to the right and left sides of and above and below the patient's head) would have been visible to Dr. Pfab seated behind Dr. Stoneburner, and would not have been blocked by his body or equipment. Dr. Pfab, of course, could easily have observed these movements during her own examination. Dr. Pfab could have heard Dr. Stoneburner communicating with Ms. Lichtenstein during the confrontation fields test had he done so, and certainly would have observed Dr. Stoneburner communicating with her during her own examination. Neither Dr. Pfab nor Ms. Lichtenstein had any handicap or other impediment that would make normal voice communication not feasible between either of the two patients and Dr. Stoneburner. T. 189. Other forms of visual fields tests are more complicated and involved than a confrontations fields test. There is no evidence in this record that Dr. Stoneburner used any other more complicated test. Dr. Stoneburner could not remember whether he did a confrontation fields test on Ms. Lichtenstein by moving objects in and out of her peripheral vision and communicating with her concerning what she saw. T. 180. He did not testify that he performed any other specific form of confrontation fields test on Ms. Lichtenstein. He asserted, however, based upon his written record that some form of visual fields testing was done. T. 181. At no point during the examination did Dr. Stoneburner ask Ms. Lichtenstein if she could see his fingers or any other object moving or to look straight ahead at any object. T. 56-57. At no point during the examination did Dr. Stoneburner stand in front of Ms. Lichtenstein and bring an object into and out of view or ask her to line up objects horizontally and vertically. T. 59. Ms. Lichtenstein moved her eyes, as one normally does, as she entered the room and while she was in the examination room. T. 62. Observation of a patient as he or she walks and avoids obstacles gives the optometrist some indication as to the visual field of the patient. It is not an adequate confrontation fields test. The expert who testified as to this issue was asked on two occasions whether mere observation of a patient walking would constitute an adequate visual fields test, and he failed to answer except to imply that such observation would be a partial visual fields test. R. Ex. 2, pp. 15-17. It is concluded that observation of a patient as he or she walks and avoids obstacles is not an adequate visual fields test. Ms. Lichtenstein could have observed Dr. Stoneburner moving equipment within the room, but Dr. Stoneburner did not ask her the extent to which she saw the equipment move. T. 64. Without such communication, the movement of equipment is not an adequate visual fields test because Dr. Stoneburner would have had no way to know the extent to which Ms. Lichtenstein saw such movement. Dr. Stoneburner did not perform a visual fields or confrontation fields test on Ms. Lichtenstein. T2. 19. Dr. Stoneburner called out to his secretary for recording the results of a confrontation fields test for Ms. Lichtenstein, however, and Ms. Lichtenstein's patient record has an entry indicating that a confrontation fields test was done. T2. 19; P. Ex. 5. Dr. Stoneburner called out to his secretary for recording the results of a confrontation fields test for Dr. Pfab, and Dr. Pfab's patient record has an entry that indicates that a confrontation fields test was done, but Dr. Stoneburner did not perform a confrontation fields test on Dr. Pfab. T2. 25-26; P. Ex. 6. The pupillary examination A pupillary examination is required as a part of a minimum eye examination by an optometrist in the State of Florida. T2. 27. A pupillary examination is useful to detect brain tumors, diabetic conditions, retinal detachment, temple arteritis, optic neuritis, and other diseases. T. 82; T2. 21-22. There are three parts to a pupillary examination: direct, consensual, and accommodative. T. 79. In the direct pupillary examination, the doctor observes if the pupils are the same size and shape. T. 25. The eye is then approached from about 12 inches away with a light such as a penlight, and if the pupil constricts, a normal response is recorded. In the consensual pupillary examination, the light from 12 inches is moved to the opposite eye, and the response of the first eye is observed. T. 79, 26, 34, 123. Additionally, the light is swung back and forth from eye to eye from about 12 inches to check for Marcus Gunn pupil defect. T. 26, 34. The accommodative pupillary examination is performed by having the patient focus in the distance; the patient then is asked to look at a close object, with the eyes crossed, and the reflex of the pupils is observed. T. 80. A pupillary examination is performed in dim illumination. T. 25; T2. 21, 44-46. The actions of a doctor performing a pupillary examination are very obvious to an observer familiar with the nature of such an examination. The exam is not difficult to see as it occurs. T2. 36. The movements of hands and oral communication necessary to conduct a pupillary examination on Ms. Lichtenstein (movement of a light back and forth from a distance of 12 inches and communicating with the patient to ask the patient to focus in the distance and then to focus at a close object) involve activities that Dr. Pfab could have clearly perceived from where she was seated behind Dr. Stoneburner. Dr. Pfab clearly could have observed and heard these same actions during her own examination. It is irrelevant that she could not observe the results of the examination. T2. 44. Dr. Stoneburner stated to investigator Leff that he normally performed the external examination and the pupillary examination during the biomicroscopy (slit lamp) examination, and that he normally also performed the external examination during the ophthalmoscope examination. T. 68. In direct testimony, however, Dr. Stoneburner testified that he normally does the external examination and the pupillary examination with his penlight. T. 169. He also stated that he did these examinations right after (or during) the visual acuities test. T. 169. He testified that he generally does the visual acuities test, but he assumed that his staff did it on Ms. Lichtenstein and Dr. Pfab, though he was unclear on the point. T. 168, 183. There is no evidence that Dr. Stoneburner used a pen light to examine either Ms. Lichtenstein or Dr. Pfab. Later in his testimony, Dr. Stoneburner testified that he did the pupillary examination in three ways. The first was by "sweeping of the pencil while they're watching the chart . . . ." T. 173-74. The second was during the slit lamp observation. T. 174. And the third was with the ophthalmoscope. T. 174. During the examination of Ms. Lichtenstein, Dr. Stoneburner did not shine the light of the opthalmoscope into either of her eyes from a distance greater than one inch. T. 52- 53. Dr. Stoneburner did not stand in front of her and shine a light into either of her eyes. T. 59. Dr. Stoneburner testified that he felt he could do a direct pupillary examination with a slit lamp, but admitted that a consensual pupillary examination is often not done with a slit lamp. T. 175. Since the slit lamp is so large and heavy, it is unsuitable to use for a consensual pupillary examination because it is so difficult to move the slit lamp back and forth. T2. 31-32. Moreover, the slit lamp fits directly against the face, and has a chin rest, making such gross movements improbable. T. 143. In the examination of Ms. Lichtenstein and of Dr. Pfab, Dr. Stoneburner did not swing the biomicroscope (slit lamp) from eye to eye. T. 60; T2. 64. Dr. Stoneburner did not conduct a pupillary examination upon either Ms. Lichtenstein or Dr. Pfab, T. 59-60, T2. 17, 20-21, 27, 30, but the notation "normal" for the direct and consensual pupillary test ("pupils D & C") was entered on the charts of both Ms. Lichtenstein and Dr. Pfab. P. Exs. 5 and 6; T2. 30. The extra ocular muscle balance test An extra ocular muscle balance test is one of the minimum procedures that must be performed by an optometrist during vision testing in the State of Florida. T2. 16-17, 23. The purpose of the extra ocular muscle balance test is to check for the existence of binocular vision (use of both eyes) and the neurological integrity of the eye muscles. T2. 64. From notations in Ms. Lichtenstein's record, Dr. Stoneburner believed that the extra ocular muscle balance test was performed on Ms. Lichtenstein. T. 181-82. Relying upon notations on the chart, since he had no memory on the subject, he concluded that a stereo fly test and depth perception fusion tests had been performed on her, and that these tests assessed extra ocular muscle balance. Id. He noted in particular that "No. 8," which is the place on the chart for recording phorias, was "ortho" or normal. Ms. Lichtenstein's record shows the notation "0" for phorias No. 8. P. Ex. 5. He also noted that there was a negative (abbreviated "ng") notation on her record for the cover test. Observation of a person moving his or her eyes around the room from across the room is not an acceptable method in the practice of optometry to perform an extra ocular muscle balance test. T2. 78. One form of extra ocular muscle balance test is a cover test. The test is performed with the patient focusing upon a distant object and a near object. In both cases, the optometrist covers and uncovers the one eye several times, watching the movement of the eye that is not being covered. Then the other eye is tested in the same way. Finally, the object used to cover the eye is moved back and forth to cover one eye and then the other, and the movement of the uncovered eye as it is uncovered is observed. Thus, the cover test has four parts. T2. 20; T. 126. Only one fourth of a cover test can be performed during a visual acuity test. T. 31, 34-35. Thus, an extra ocular muscle balance test cannot be done by an acuity test. T2. 37. A stereo acuity test is not an acceptable method in the practice of optometry to perform an extra ocular muscle balance test. T2. 64, 38. Phorias is a form of extra ocular muscle balance test. T2. 30. Phorias are a measurement of the alignment of the eyes. T2. 29. The patient's eyes are disassociated with prisms, and the patient is asked to align the image from each eye vertically and horizontally. Id. Although there is a notation in her record (the symbol O) that phorias were performed on Dr. Pfab, Dr. Stoneburner did not perform that procedure upon her. P. Ex. 6; T2. 29. Dr. Pfab certainly would have observed if Dr. Stoneburner had disassociated her eyes with prisms. The movements necessary to perform a cover test (covering and uncovering an eye) would have been clearly seen by Dr. Pfab from where she was sitting behind Dr. Stoneburner. Dr. Stoneburner did not perform a cover test or extra ocular muscle balance testing on Dr. Pfab, but he called out tests results for a cover test, and those results were recorded on Dr. Pfab's chart by the notation "ng." T2. 25, 27, 29; P. Ex. 6. Dr. Stoneburner did not perform an extra ocular muscle balance test or a cover test upon Ms. Lichtenstein, but he did call out results of a cover test for recording on Ms. Lichtenstein's chart, and those results were recorded on Ms. Lichtenstein's chart by the notation "ng." T2. 20, 23; P. Ex. 5. The tonometry test A tonometry test is required as a part of a minimum eye examination by an optometrist in the State of Florida. T2. 27. Dr. Stoneburner had an air-puff tonometer in his office, but not in the room he used to examine Ms. Lichtenstein and Dr. Pfab. T2. 27, 42. Dr. Stoneburner has delegated the tonometry examination to a non- optometrist member of his staff. T. 133. Dr. Pfab wore hard contact lenses during her visit to Dr. Stoneburner. P. Ex. 6. Dr. Stoneburner determined to not perform tonometry testing on Dr. Pfab because he determined that he needed her records to be able to do a proper test because she wore hard contact lenses. T2. 83. Dr. Stoneburner noted in Dr. Pfab's patient record that he would perform tonometry on her next visit. P. Ex. 6. Dr. Pfab was not told that she needed to return for tonometry testing. T2. 28. Prior disciplinary action By order dated January 30, 1984, Dr. Stoneburner paid $500.00 in costs to settle disciplinary case number 31308, but neither admitted nor denied the charges brought against him. The case ended by settlement, and Dr. Stoneburner was not represented by a lawyer. The charge is accurately represented in P. Ex. 9 and concerned the allegation of practice under a trade name. "The Eye Center," and thus the allegation of engaging in the practice of optometry with unlicensed persons.
Recommendation For these reasons, it is recommended that the Department of Professional Regulation, Board of Optometry, enter its final order finding that Jon F. Stoneburner, O.D., committed the violations alleged in counts one, two, and three, of the administrative complaint, and imposing an administrative fine of $4,000 and probation, upon such conditions as the Board may direct, for 12 months. DONE and ENTERED this 24th of October, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4103 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used by the parties. Statements of fact in this appendix are hereby adopted as additional findings of fact in this recommended order. Findings of fact proposed by the Petitioner: None. Findings of fact proposed by the Respondent: 1-2. These proposed findings of fact are not supported by the record. Dr. Pfab was not tendered as an expert consultant or investigator, but as an expert in the practice of optometry. T. 12, 16. The Hearing Officer's initial ruling to exclude Dr. Pfab's testimony was limited to her role as an investigator, not as an expert as tendered; Dr. Pfab was at all times in this case accepted as an expert as tendered. T. 17-18. The Hearing Officer subsequently determined that this initial ruling, a ruling that precluded testimony, but was not based upon lack of expertise, was in error since the employment rule of the Petitioner was not intended to preclude testimony in a hearing. Rejected as explained in findings of fact 3-5, 17-18, 33, and 54. It appears from the record that in the March 16, 1986, statement, Dr. Pfab stated that a pupillary test was not obviously done, and visual testing was not done. T. 32-33. Since some "visual testing" was in fact done, it is inferred by the wording of the question that "visual testing" here means visual fields testing. The records clearly indicate that tonometry was not performed on Dr. Pfab. Thus, the only relevant question is whether Dr. Pfab omitted the extra ocular muscle balance test in her March 16, 1986, statement, and if she did, whether her credibility was impaired. The text of Dr. Pfab's sworn statement dated March 16, 1986, was not placed in evidence. Thus, the context of her statement is unknown. Absent some further evidence as to the context and circumstances surrounding the making of the March 16, 1986, statement, a finding of a lack of credibility of Dr. Pfab cannot be made based upon the foregoing, particularly in light of her credible demeanor during cross examination. The text of Dr. Pfab's sworn statement dated March 16, 1986, was not placed in evidence. There is no other evidence in the record as to Dr. Pfab's characterization of the lack of performance of the pupillary examination on either herself or upon Ms. Lichtenstein in the March 16, 1986, statement in this record. Thus, a finding of "great discrepancy" between that statement and testimony with respect to the pupillary exam is not supported by the record evidence. There was some cross examination concerning Dr. Pfab's statement in her November 8, 1985, report (also which is not in evidence) that the pupillary exam was "not obviously done," but that had nothing to do with the March 16, 1986, statement. Moreover, Dr. Pfab credibly explained that a pupillary exam, when performed, would be obvious. T2. 36. This proposed finding of fact is not supported by the evidence of record. The proposed finding of fact fails to identify the nature of the "major differences," or to cite to the record. The observations of Ms. Lichtenstein were observations to which any competent lay witness could testify, and added credence to the testimony of Dr. Pfab. This proposed finding of fact is irrelevant since Ms. Leff was simply presented with Dr. Stoneburner's false records. Her conclusion is limited to her conversations with Dr. Stoneburner on April 9, 1986. R. Ex. 1; T 65-74. 14, 16-19, 21, 22, 25, 26. These proposed findings of fact are subordinate to findings of fact that have been adopted. They are true, however, and are adopted by reference. 20. Dr. Kantor's testimony was too vague to constitute a contradiction of Dr. Pfab's testimony. Dr. Kantor only described bits and pieces of the minimum tests that might be used. He never explicitly described or defined an adequate test. For example, he acknowledged that a pupillary examination might involve consensual light reflex and direct light reflex, R. Ex. 2, p. 7, but failed to explain how consensual light reflex might be tested with a slit lamp. Dr. Pfab, on the other hand, testified that swinging the slit lamp back and forth would be very awkward, very obvious, and was not done by Dr. Stoneburner. 23. Dr. Shewmaker's description of the pupillary examination, and the movement needed if the biomicroscope was used, was essentially the same as Dr. Pfab's. T. 117, 122, 123. Dr. Shewmaker's description of the movements needed to perform the procedure and need for communication in the visual fields test was essentially the same as Dr. Pfab's. T. 117, 124. Dr, Shewmaker's description of the cover test was essentially the same as Dr. Pfab's. T. 125. To the extent that Dr. Shewmaker testified that a cover test can be done during a visual acuity test, that opinion, having not been explained, is rejected in favor of Dr. Pfab's explanation to the contrary. T. 24-25, 34- 35. Thus, Dr. Shewmaker is not found to be a "more credible witness" than Dr. Pfab. A comparison to Ms. Lichtenstein is irrelevant. Ms. Johnson's description of the pupillary examination was incomplete, and thus it cannot be concluded from her testimony that she observed a minimally adequate pupillary examination. T. 140. Ms. Johnson could not testify that a visual fields test was in fact performed. T. 140-41. Ms. Johnson testified that Dr. Stoneburner performed the extra ocular muscle balance test upon Ms. Lichtenstein using the Phoropter, T. 142, but there is no credible evidence in the record to sustain a finding that an adequate extra ocular muscle balance test can be performed with a Phoropter. Ms. Johnson was not qualified as an expert to express an opinion as to what the minimum requirements are. This proposed finding of fact is true, since that is Dr. Stonburner's testimony, but further findings of fact have not been made from the testimony due to clear and convincing evidence to the contrary. The records from which this proposed finding of fact must be made were not identified by competent evidence as including a record of examination by another doctor; the only indication come from the assertions of counsel, and there is no stipulation of fact in the record precisely explaining the nature of the records. R. Ex. 2, p. 12, lines 6-7, p. 18, lines 5-7. Moreover, the testimony indicates that the witness performing the record comparison was too unfamiliar with the forms to develop a credible opinion. R. Ex. 2, pp. 12-15, 18-20, especially p. 12, lines 23-24 and p. 20, lines 13-17. This proposed finding of fact is actually a conclusion of law, and has been rejected for the reasons stated throughout this recommended order. The second half of this sentence is rejected as contrary to the clear and convincing evidence of record. 32, 33 and 35. These proposed findings of fact have been rejected as contrary to the clear and convincing evidence of record. 34. The Respondent did not keep a written record of the failure to perform the three minimum tests upon Ms. Lichtenstein and Dr. Pfab. COPIES FURNISHED: Thomas W. Stahl, Esquire Phillip Miller, Esquire Newell & Stahl, P.A. 817 North Gadsden Street Tallahassee, Florida 32303-6313 Robert J. Elkins, Esquire 46 North Washington Street, Suite 12 Sarasota, Florida 33577 Mildred Gardner, Executive Director Board of Optometry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 ================================================================= AGENCY ORDER REJECTING MOTION FOR REHEARING ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTOMETRY DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF OPTOMETRY, Petitioner, vs. CASE NO. 86-4103 JON F. STONEBURNER, O.D., Respondent. /
The Issue Whether the Respondent committed the violations set forth in the Administrative Complaint dated November 2, 1998, and, if so, the penalty which should be imposed.
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 Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine in Florida. Sections 20.43 and Chapters 455 and 458, Florida Statutes (1997). Dr. Carida is, and was at the times material to this proceeding, a physician licensed to practice medicine in Florida, having been issued license number ME 0019622. Dr. Carida is board-certified in cardiology and internal medicine and has practiced non-invasive cardiology since 1973. Dr. Carida has not attended patients in the hospital since 1989 because of his own health problems. It is, and has been, Dr. Carida's practice to place his hospitalized patients under the care of another cardiologist or a physician practicing in the appropriate specialty. In April 1994, R.M. was a 72-year-old man who had a medical history significant for insulin-dependent diabetes mellitus, alcohol abuse, chronic obstructive pulmonary disease, peptic ulcerative disease, obesity, prostate cancer, and clinically insignificant coronary artery disease. He had been Dr. Carida's patient since approximately 1986. J.M., R.M.'s wife, called Dr. Carida on March 19, 1994, and reported that R.M. was bleeding. Dr. Carida told J.M. to take her husband to North Broward Medical Center. Dr. Carida saw R.M. in the emergency room and explained to J.M. and R.M. that he would not be attending R.M. in the hospital. Dr. Carida advised them that Dr. Stephen G. Sackel, a gastroenterologist, would be caring for R.M. during his hospital stay. R.M. was admitted to the North Broward Medical Center by Dr. Sackel on March 19, 1994, with the diagnoses of insulin- dependent diabetes out-of-control, GI (gastrointestinal) bleeding and anemia, coronary artery disease with chest pain, and obesity. Based on R.M.'s medical history and physical examination in the emergency room, Dr. Sackel called in Dr. Salvatore DiGiorgi, a cardiologist, for a consultation. R.M. was discharged from the North Broward Medical Center on March 29, 1994, by Dr. Sackel with a discharge diagnosis of anemia secondary to gastrointestinal bleeding, chest pain, emphysema, diabetes, gastritis, history of ischemic heart disease, and obesity. Dr. Sackel noted in his discharge summary that R.M. had a Cardiolite stress test, which is a very sensitive stress test, while he was hospitalized because R.M. complained of chest pains, that the test results were within normal limits, and that the test results were negative for ischemia. Upon R.M.'s discharge from the hospital, Dr. Carida referred R.M. to a home health agency, although the instructions provided to the agency were based on Dr. Sackel's discharge orders, and the medications R.M. took after his discharge on March 29, 1994, were those ordered by Dr. Sackel. Additionally, Dr. Sackel and his partner, Dr. Paul Quentzel, were identified on the home health agency's treatment plan as physicians who could write orders for R.M. The home health nurse visited R.M. on March 30, March 31, April 1, April 4, April 6, and April 8, 1994. The nurse's notes show that R.M.'s temperature ranged from 97.1 to 98 degrees; that, on April 1, 1994, R.M. reported that his stool was brown/black; that on the other days he was visited by the home health nurse, he reported that his stool was soft and brown. R.M. generally did not feel well after his discharge from the hospital on March 29, 1994. On April 11, 1994, Dr. Carida was told by one of his staff that R.M. had been scheduled for an appointment that afternoon 1/ When R.M. and J.M. arrived at Dr. Carida's office, Dr. Carida observed them sitting in the waiting room, and he noted that R.M. looked pale and semi-lethargic. R.M. was taken into an examination room by one of Dr. Carida's staff, who noted R.M.'s major complaints on the chart maintained by Dr. Carida as part of R.M.'s medical record: R.M. complained that both his feet were swollen, that he had been up all night for three nights, that he had shortness of breath, and that he had been hot and cold all day. At the time of his office visit, his blood pressure was 140/56, and his temperature was 99.1 degrees. When Dr. Carida examined R.M. on April 11, 1994, R.M. told Dr. Carida that he had experienced shortness of breath for two or three days. Because of this complaint and because R.M. had experienced chest pains during his hospitalization in March 1994, Dr. Carida asked R.M. if he had any chest pain at the time of the office visit on April 11, 1994. R.M. denied having any such pain. Because of R.M.'s fever and shortness of breath and because of the possibility of pneumonitis, Dr. Carida asked R.M. if he had any yellow sputum, which R.M. denied. Dr. Carida also asked R.M. if he had coughed up any blood, and R.M. denied having done so. R.M. did not report any dizziness to Dr. Carida, nor did R.M. indicate that his stool was black. Dr. Carida examined R.M., and the examination of his lungs and his abdomen was negative. Dr. Carida noted a mild systolic murmur, which was consistent with the mitral regurgitation noted in the electrocardiogram ordered by Dr. DiGiorgi during R.M.'s March 1994 hospitalization. Dr. Carida ordered two blood tests, a chemical screen to determine if R.M. had a metabolic problem and a "CBC," or complete blood count, to determine if R.M. was anemic or was developing congestive heart failure and to determine if R.M. had an infection. Blood was drawn for these tests by the phlebotomist working in Dr. Carida's office on April 11, 1994. Pursuant to the usual procedure, the blood test results would be available to Dr. Carida the following morning. Dr. Carida told J.M. to bring R.M. to his office the next day, April 12, 1994, for a chest x-ray, and Dr. Carida gave R.M. a stool card to take home with him and told J.M. to return the card the next day so R.M.'s stool could be tested for occult blood. Dr. Carida also gave J.M. two Lasix tablets, which is a diuretic used to help decrease fluid accumulating in the heart and lungs. Dr. Carida instructed J.M. to give R.M. one Lasix tablet that night and the other the next morning. Even though Dr. Carida suspected that R.M. had an infection on April 11, 1994, his suspicion had not yet been confirmed by blood tests. Consequently, Dr. Carida did not prescribe an antibiotic for R.M. or administer an antibiotic by injection because it would not have been appropriate under the circumstances. Antibiotics can mask an infection without curing it and make it difficult to get a blood culture that accurately identifies the source of the infection. Dr. Carida ordered several other tests for R.M., which were done on April 11, 1994, in his office: Dr. Carida ordered an electrocardiogram, which showed non-specific "ST" changes, which can be caused by a number of conditions, including ischemia, a decrease in blood flow to the heart with a resulting lack of oxygen to the heart muscle. However, Dr. Carida did not believe R.M. had ischemia because the stress test R.M. had taken in March 1994, was negative and because R.M. reported on April 11, 1994, that he had no chest pain. Non-specific "ST" changes can also be an indication of sepsis, an infection, or an electrolyte imbalance. Dr. Carida ordered a pulmonary function test because R.M. was experiencing shortness of breath and had a history of chronic obstructive pulmonary disease. The results showed an accumulation of fluid in the lungs and were consistent with congestive heart failure. Dr. Carida ordered a "2-D" echocardiogram. This test uses sound waves to show the valves and the walls of the heart. The results were generally normal and showed normal ejection fraction, which is an indication that ischemia was not present. The test also showed mild aortic valve disease, but no narrowing of the aortic valve. Dr. Carida ordered a cardiac color doppler, which measures blood flow generally and in the heart specifically. The results were consistent with sepsis and also showed an accumulation of fluid in the heart, which is consistent with developing congestive heart failure. After R.M. returned to the examination room after having these tests, R.M. began exhibiting chills and rigors, which are shaking chills that cause the body to move in a rhythmic fashion. At the time, R.M. was sitting in the examination room wrapped in a blanket. When Dr. Carida observed these symptoms and the pallor of R.M.'s skin, Dr. Carida told J.M. that R.M. should be taken to the emergency room immediately. 2/ J.M. told Dr. Carida that she would not take R.M. to the hospital. Dr. Carida did not document on R.M.'s chart his instruction to J.M. to take R.M. to the emergency room on R.M.'s chart or her refusal to do so. Because he needed to see other patients, Dr. Carida asked his staff to talk with J.M. and to try to convince her to take R.M. to the emergency room. As far as Dr. Carida knew at the time, these efforts were unsuccessful. Sometime between 4:00 p.m. and 5:00 p.m., shortly after she and R.M. left Dr. Carida's office, J.M. called Dr. Carida's office and notified a member of his staff that she was taking R.M. to the emergency room after all. Dr. Carida told the phlebotomist to cancel the blood tests and the chest x- ray he had ordered for R.M., which was done before 5:30 p.m., when the office closed for the day. About 11:00 p.m. on April 11, 1994, Dr. Carida received a telephone call from the emergency room at the North Broward Medical Center notifying him that R.M. had been admitted to the hospital. After being briefed by the person from the emergency room, Dr. Carida told the person to call Dr. Sackel, the gastroenterologist, and Dr. DiGiorgi, the cardiologist, who had both treated R.M. during his March 1994 hospitalization and were familiar with his condition. J.M. was aware as a result of the March 1994 hospitalization that Dr. Carida did not attend patients in the hospital. When R.M. was admitted to the North Broward Medical Center, the admitting diagnosis was gastrointestinal bleeding, and R.M. was given a transfusion. In addition, Dr. DiGiorgi diagnosed congestive heart failure on the morning of April 12, 1994, and prescribed Lasix. R.M. was also given several different antibiotics during his hospitalization, which had no effect on the infection that continued to worsen. J.M. telephoned Dr. Carida on April 14, 1994, and told him that R.M. was confused and appeared mentally unstable. Dr. Carida called R.M.'s nurses at the hospital, who did not know much about his condition. Dr. Carida then telephoned Dr. Sackel and Dr. DiGiorgi, who agreed to evaluate R.M. and call him back. Dr. Sonderling, Dr. Sackel's partner, telephoned Dr. Carida and told him that R.M. had taken a turn for the worse and that he was being transferred to the intensive care unit. On April 14, 1994, the physicians attending R.M. proposed doing additional tests and possibly exploratory surgery in an effort to identify the source of R.M.'s infection. R.M.'s family refused further treatment for R.M. even though they were aware of the possibility that, with surgery, R.M. could have recovered completely. R.M. suffered a cardiopulmonary arrest late in the evening on April 14, 1994, and, although R.M. was resuscitated and placed on life support, he remained comatose. J.M. telephoned Dr. Carida on April 15, 1994, and complained that Dr. Carida had not been to see R.M. since his admission to the hospital on April 11, 1994. As a result, Dr. Carida went to the hospital on April 15 and read R.M.'s chart in the intensive care unit. He was shocked at R.M.'s condition. J.M. was very upset with Dr. Carida, and he did not visit R.M. during the April 15, 1994, visit. On April 15, 1994, the family refused any further intervention for R.M., and he was declared legally dead on April 16, 1994, with final diagnoses including gastrointestinal bleeding and congestive heart failure. The final diagnosis is not necessarily the cause of death, and it appears from the hospital records that, in addition to multiple-system organ failure, R.M. suffered from a catastrophic infection in the abdominal area that was ultimately the cause of his death. The notes made on R.M.'s chart by Dr. Carida documenting his examination and diagnosis of R.M. on April 11, 1994, while sufficient to inform Dr. Carida of the important observations and of his diagnosis, are not legible for the most part, and it is virtually impossible to make out most of the written words and abbreviations even when those words and abbreviations are being read aloud. Dr. Carida's own expert witnesses were unable to read his notes. Summary The evidence presented by the Department is not sufficient to establish with the requisite degree of certainty that Dr. Carida practiced medicine below an acceptable standard of care with respect to the care he provided to R.M. during R.M.'s April 11, 1994, office visit. Even given R.M.'s recent hospitalization for gastrointestinal bleeding, Dr. Carida did not fall below the accepted standard of care by failing to perform an orthostatic test during R.M.'s April 11, 1994, office visit. The orthostatic test assists in determining if a person has gastrointestinal bleeding because it can identify if a person is hypovolemic. 3/ A person with hypovolemia has decreased volume of blood in the vascular space, which would be consistent with gastrointestinal bleeding. First, at the time of his office visit to Dr. Carida on April 11, 1994, R.M. had no symptoms that would indicate that he suffering from clinically significant gastrointestinal bleeding, which symptoms would include vomiting blood, black stools, and low blood pressure. Additionally, the results of the echocardiogram, the pulmonary function test, and the cardiac color doppler test performed in Dr. Carida's office on April 11, 1994, showed an excess of fluid in R.M.'s heart and lungs, which is consistent with congestive heart failure, rather than hypovolemia. Even had Dr. Carida performed an orthostatic test on R.M., the results would have been indeterminate because diabetics such as R.M. can have orthostatic hypertension even when they are "normal volemic," that is, when their blood volume is normal. Dr. Carida likewise did not fall below the accepted standard of care by failing to do a digital rectal examination of R.M. on April 11, 1994, to determine if there was blood in his stool. Prior to his instructing J.M. to take R.M. to the emergency room, Dr. Carida intended to do an occult blood test from a stool sample as an alternative to a rectal examination in Dr. Carida's office, and Dr. Carida instructed his staff to give R.M. a stool card home to take home and return the next day. Once R.M. began exhibiting chills and rigors, Dr. Carida appropriately determined that there was a risk that R.M. would have a life-threatening vasovagal reaction to a rectal examination. The evidence presented by the Department is not sufficient to establish that Dr. Carida failed to consider R.M.'s March 1994 hospitalization for gastrointestinal bleeding when Dr. Carida examined R.M. on April 11, 1994; that Dr. Carida failed to obtain an accurate history of R.M.'s complaints and symptoms during R.M.'s April 11, 1994, office visit; that Dr. Carida failed to recognize R.M.'s cardiac symptoms; or that Dr. Carida failed to recognize the emergent status of R.M. during R.M.'s April 11, 1994, office visit. Dr. Carida's failure to record in his notes of R.M.'s April 11, 1994, office visit that he told J.M. to take R.M. to the emergency room and that she refused is not, of itself, sufficient to establish that these events did not occur. Dr. Carida did not fall below the accepted standard of care under the circumstances by instructing J.M. to take R.M. to the emergency room at the North Broward Medical Center rather than calling the hospital and admitting R.M. to the hospital directly. R.M. was experiencing chills and rigors in Dr. Carida's office, and R.M.'s condition generally was worsening. It was generally known among physicians in the community that a patient would likely receive the necessary tests and therapeutic interventions much more quickly if he or she presented in the emergency room than he or she would if directly admitted into the hospital. The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Dr. Carida did not prepare an adequate record of R.M.'s April 11, 1994, office visit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Board of Medicine, enter a final order: Dismissing Count I of the Administrative Complaint dated November 2, 1998; and With respect to Count II of the Administrative Complaint dated November 2, 1998, finding that Dr. Robert V. Carida violated Section 458.331(1)(m), Florida Statutes (1993), issuing a written reprimand, and imposing an administrative fine in the amount of $250.00. DONE AND ENTERED this 24th day of March, 2000, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 24th day of March, 2000.
The Issue Whether Petitioner's challenge to the failing grade he received on the physical diagnosis portion of the May 2001 chiropractic licensure exam should be sustained.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is a chiropractic doctor who has been licensed to practice in the state of Ohio since 1993. He maintains an active practice in Ohio, and he currently sees approximately 190 patients per week. Petitioner filed an application with the Department for a Florida chiropractic license. Applicants for licensure are required by statute and rule to take the licensure exam developed by the Department. Petitioner took the exam in May 2001. The exam consists of four parts, three practical and one written. The practical parts test the applicant on physical diagnosis, X-ray interpretation, and technique; and the written part tests the applicant on the Florida laws and rules regulating chiropractors. An applicant for licensure must receive a score of 75 on each part to pass the examination. Petitioner passed the written part of the exam as well as the X-ray and technique practical parts; however, on the physical diagnosis part, he received a failing score of 70. As a result, he failed to pass the exam and may not receive a Florida chiropractic license.2 The physical diagnosis part of the exam consisted of 26 tasks which the applicant was required to perform within the allotted time of 70 minutes. The physical diagnosis part of the chiropractic licensure exam is developed by a team of consultants retained by the Department. The team consists of licensed chiropractic doctors with varied practices and at least ten years of experience. The team derives the exam questions from case studies from prior administrations of the exam. The team meets on several occasions to refine the case studies and rework the questions. The team also develops and refines the answers to the questions based upon their research and a consensus reached after debate. After the exam questions are finalized and before the administration of the exam, the Department holds standardization sessions which all of the examiners are required to attend. The purpose of the standardization sessions is to ensure that each examiner knows what is a correct answer and what is an incorrect answer for each question. This, in turn, ensures consistency in the evaluation and grading of all applicants. The examiners who evaluated Petitioner's performance on the physical diagnosis exam attended all of the standardization sessions. The applicant's performance of each task in the physical diagnosis part of the exam is independently graded by two examiners. The purpose of the independent grading is to eliminate any potential bias in the grading and to increase reliability in the scoring of the exam. The examiners independently assigned a letter score -- A, B, or C -- to the applicant's performance on each task. A score of "C" represents full credit for the task. A score of "B" represents partial credit for the task. A score of "A" represents no credit for the task. Where the examiner awards less than full credit, he or she provides a notation on the score sheet regarding what the applicant failed to do properly. The letter score was translated into a numerical score based upon the pre-determined point value for the task. Each of the tasks at issue in this proceeding -- numbers 13, 14, 18, 21, and 22 -- were worth 4 points each. A grade of "C" for these tasks translates into a raw score of 4 points; a grade of "B" on these tasks translates into a raw score of 2 points; a grade of "A" on these tasks translates into a raw score of 0 points. The raw scores resulting from each examiner's grades are totaled separately and, then, those totals are averaged. The averaged score is what is reported to the applicant as his or her final score on the physical diagnosis part of the exam. As noted above, Petitioner received a score of 70 on that part. Task 13 (S1 Dermatome) Task 13 contained two sub-tasks. To receive full credit for Task 13, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the S1 dermatome, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 13. Thus, Petitioner received only two of the possible four points for that task. A "dermatome" is an area of the body surface served by a particular spinal nerve. The S1 dermatome is the area of the body surface served by the S1 nerve. The S1 dermatome encompasses an area which begins on the back of the leg below the calf, runs down the back of the foot over the heel, along a portion of the bottom of the foot to the toes, and then around the outside (lateral) portion of the foot. The expert testimony and the scientific texts introduced in this case vary on the exact portion of the bottom of the foot included in the S1 dermatome. Some indicate that it encompasses only that area from the outside of the foot to the fourth or fifth (little) toe, while others indicate that it extends from the outside of the foot all the way to the midline of the foot at the third (middle) toe. The common element in all of the expert testimony and the scientific texts is that the location of the S1 dermatome on the bottom of the foot is towards the outside of the foot rather than the inside (arch) of the foot. The S1 dermatome is tested by touching the dermatome with an instrument to determine whether the patient exhibits any sensory reaction, i.e., whether and to what degree the patient feels the touch. The dermatome can be tested without tracing its entire area; however, in order to map out the entire dermatome, its entire area would be tested. On the video tape of Petitioner's performance of Task 13, it appears that he is attempting to test the S1 dermatome, rather than demonstrating its area as the task requires. Petitioner can be heard telling the patient that he is going to "test" the dermatome level by touching the patient's foot to see if the patient can feel it. Immediately after these comments, one of the examiners (Dr. Weiss) can be heard on the video tape telling Petitioner to "trace the path of S1." Dr. Weiss also can be heard asking Petitioner to show the examiners where S1 starts and where it goes. Petitioner performed Task 13 by making a single straight-line motion starting on the back of the leg below the calf, then proceeding downward and under the foot, and ending near the big toe. Petitioner repeated the movement, again ending near or even slightly to the inside (arch side) of the big toe. By making only a single straight-line motion along the bottom of the foot, Petitioner failed to demonstrate the area of the S1 dermatome. At most, Petitioner demonstrated the line separating the S1 dermatome from the L5 dermatome, which is adjacent to the S1 dermatome on the bottom of the foot. As noted above, however, the S1 dermatome extends no further than the mid-line of the foot and therefore the line demonstrated by the Petitioner could not have been the boundary of the S1 dermatome. Even if Petitioner understood the task as "test the S1 dermatome" rather than demonstrate its area, the weight of the evidence shows that Petitioner did not correctly test the dermatome along the bottom of the foot. As discussed above, Petitioner's instrument appeared to travel along the inside (arch) of the bottom of the foot rather than the outside of the bottom of the foot. The S1 dermatome does not extend inward on the bottom of the foot beyond the mid-line and it certainly does not extend to the big toe. The notes written by the examiners on the grading sheets indicate that the "B" grade that Petitioner received on Task 13 was based upon the his tracing of an incorrect area on the bottom of the foot. The notes written by Dr. Weiss, the examiner who testified at the hearing, stated "traced wrong area under foot." The notes written by the other examiner similarly stated "S1 under foot incorrect." The notes were corroborated at hearing by the videotape and the testimony of Dr. Mathis. Because Petitioner failed to properly demonstrate the S1 dermatome, the examiners properly gave him only partial credit on Task 13. Task 14 (Acquilles Reflex Test) Task 14 contained two sub-tasks. To receive full credit for Task 14, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the Achilles reflex test, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 14. Thus, Petitioner received only two of the possible four points for that task. Petitioner tested the Achilles reflex by lying the patient face down (prone) and then tapping a reflex hammer directly on the Achilles tendon of each foot. Petitioner did not dorsiflex either foot before striking the tendons. The taps elicited a reflexive response which can be clearly seen on the video tape of Petitioner's exam. Had the tap not elicited a response, Petitioner testified that he would have pursued alternative means of testing the reflex. The expert testimony and scientific texts introduced at the hearing show that there are several alternative ways to test the Achilles reflex, all of which are professionally accepted. One way is to tap directly on the Achilles tendon as Petitioner did. This can be accomplished with or without dorsiflexing the foot. The Department was looking for the candidate to pre-stress the tendon by dorsiflexing the foot prior to striking the tendon with the reflex hammer. The evidence does explain why dorsiflexing the foot would be the preferable method of testing the Achilles reflex under the facts of the case study. Another way to test the Achilles reflex is for the doctor to dorsiflex the foot by pressing his or her fingers against the ball of the patient's foot and then tap his or her fingers with a reflex hammer. Where the ankle is swollen or it is too painful to strike the tendon itself, this method of eliciting the reflex is preferred. The case study on which Task 14 was based indicated that the patient had "severe pain and swelling in the right calf, ankle, and heel." The case study did not indicate that the patient had a ruptured Achilles tendon, but that injury could not be ruled out based on the case study. In such circumstances, the expert testimony and scientific texts indicate that the preferred method of checking Achilles reflex would not be striking the tendon itself. Task 18 (X-Ray of 5-year Old) Task 18 contained two sub-tasks. To receive full credit for Task 18, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to answer the question of whether he or she would X-ray a 5-year-old child with certain symptoms, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 18. Thus, Petitioner received only two of the possible four points for that task. The question required applicants to answer "yes" or "no." They were not permitted to explain their answer. The question provided only limited information regarding the child and his medical history. The question did not state whether the parent had signed a consent form authorizing treatment of the child. Without parental consent, it would not be proper for the doctor to render any medical treatment to the child. It would have been reasonable for Petitioner to assume that any necessary consent forms had been signed. Petitioner did not request any clarification on this point from the examiners nor did his response during the exam mention the lack of a signed parental consent form. Instead, Petitioner explained that he would not X-ray the child because of the apparent severity of the child's injury and a concern that the child may have an injury "that wouldn't be chiropractic in nature." Based on these concerns, Petitioner stated during his exam that he would refer the child to his family physician. At hearing, Petitioner indicated that his concern regarding the severity of the child's injury was based upon the case study which indicated that the child was holding his neck. Petitioner considered this to be Rust's Sign. Petitioner did not request any clarification from the examiners regarding the manner in which the child was holding his neck. The expert testimony and scientific texts introduced at hearing indicate that Rust's Sign is most commonly exhibited by the patient supporting his or her head by holding the chin, rather than the neck. The patient holds his or her head to compensate for some muscular, ligament, or disk damage, which causes the neck to be unable to support the head. Even if Petitioner construed the limited case history provided to be evidence of Rust's Sign, the proper course of treatment would not have been to refer the patient to a family physician as Petitioner stated during his exam. Instead, the expert testimony and scientific texts indicate that the proper course of treatment would have been to immediately stabilize the neck with a cervical collar or something similar and immediately perform imaging (e.g., X-ray) to determine the source of the injury. Petitioner is not entitled to additional points for Task 18. Task 21 (Gluteus Maximus Test) Task 21 contained two sub-tasks. To receive full credit for Task 21, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the second sub-task. Only the first sub- task, which required the applicant to perform the gluteus maximus muscle test, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 21. Thus, Petitioner received only two of the possible four points for that task. The gluteus maximus muscle is the largest muscle in the body and is largely responsible for the shape of the buttock. It extends and laterally rotates the hip joint. The muscle is tested by having the patient lie face down (prone) with his or her knee bent 90 degrees or more. The importance of bending the knee is to isolate the muscle. While the doctor holds the patient's hip to stabilize it and applies downward pressure to the back of the thigh, the patient attempts to raise his or her leg. The video tape of Petitioner's exam shows that Petitioner had the patient in the prone position. Petitioner did not have the patient bend his knee. Nor did Petitioner have the patient lift his leg up. Instead, the tape shows Petitioner pulling the leg outward as the patient attempted to move the leg inward. Petitioner did not rotate the leg. The expert testimony and scientific texts introduced at hearing show that the test performed by Petitioner was the proper test for the gluteus medius or gluteus minimus rather than the gluteus maximus. This evidence corroborates the notation on one of the examiners' score sheet which stated "did gluteus med[ius]?" And see Endnote 1. Indeed, it appears from the video tape that Petitioner misunderstood the task he was to perform. When Petitioner first read the question for Task 21, he correctly read the two tests he was to perform, gluteus maximus and soleus. Petitioner then performed the soleus test. Then, he could be heard saying "gluteus medius" as if to remind himself what test he was to perform. Immediately after that comment, one of the examiners suggested that Petitioner reread the question. He did so, correctly reading "gluteus maximus." Petitioner then set up the table and got the patient situated. Then, one of the examiners asked which muscle test Petitioner was going to perform. He stated "gluteus medius." Petitioner then stood over the patient for a minute or so, apparently thinking to himself, and then performed the test as described above. Any confusion regarding the test to be performed was not a result of the form of the examination or the conduct of the examiners. The examination clearly indicates that the test to be performed is gluteus maximus. The words "gluteus maximus" are in bold type. The examiners attempted to clarify Petitioner's confusion by giving him an opportunity to correct himself after he first misstated the test to be performed. Task 22 (Trendelenburg Test) Task 22 required the applicant to perform two distinct tests and state what he or she is looking for in each test. To receive full credit for Task 22, the applicant was required to properly perform each test and state what he or she is looking for in each test. The only dispute in this proceeding is whether Petitioner's statement of what he was looking for in the Trendelenburg test was the correct response. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 22. Thus, Petitioner received only two of the possible four points for that task. The Trendelenburg test is used to evaluate the ability of the hip abductors, primarily the gluteus medius, to stabilize the pelvis on the femur. The test is performed by having the patient stand facing away from the doctor. The patient then lifts one of his or her legs. A positive sign is where the pelvis/hip of the lifted leg tilts downward instead of rising. Reference to the pelvic/hip tilt was what the Department considered to be a correct answer for Task 22. When performing the Trendelenburg test, the doctor should stand behind the patient with his or her hands on the patient's hips. This placement of the hands serves two purposes. First, it allows the doctor to feel even slight movement of the pelvis/hip in order to detect even a mildly positive sign. Second, it allows the doctor to stabilize the patient in the event that the patient loses his or her balance. The video tape of Petitioner's exam shows that he correctly performed the Trendelenberg test. He was positioned behind the patient with his hands on the patient's hips. He directed the patient to raise his right leg. Then, he stated that if the patient were to fall over, there would be a gluteus medius problem. Dr. Weiss requested clarification from Petitioner, specifically asking him what he was looking for. Again, Petitioner stated that the patient would fall over or lose his balance. Petitioner never used the word "lurch." The Trendelenberg test could cause the patient to lose his or her balance and "lurch" in the direction of the lifted leg or even fall over, but only in cases of severe weakness in the gluteus medius muscle. Such a response would be a positive Trendelenburg sign. The most common positive sign, however, is a downward tilt of the pelvis/hip on the side of the lifted leg. All of the scientific texts, including that offered by Petitioner, identify the tilt as the positive sign which the doctor should be looking for. The tilt is what causes the "lurch" that occurs in more severe cases. If the doctor is looking only for a "lurch," he or she might miss the tilt and thereby miss the most common positive sign of the Trendelenburg test. Because Petitioner stated that he was looking for the patient to fall over or lose his balance, rather than looking for the pelvis/hip tilt, his response to Task 22 was incomplete at best. Therefore, Petitioner is not entitled to any additional points for Task 22. Disruptive Noise During Petitioner's Examination The physical diagnosis part of the May 2001, licensure exam was administered in several conference-type rooms of a hotel. Approximately five or six applicants were administered the exam in the same room as Petitioner. Several of those applicants went before Petitioner and several went after him. While Petitioner was taking the examination, loud noises could be heard. On the video tape of Petitioner's exam, the noises sounded like loud scraping, scratching, and rumbling of metal, as if a large piece of equipment or furniture was being moved in a nearby area of the hotel. At other points, the noises sounded like thumping or banging. In his testimony, Petitioner described the noise as sounding like a mechanical tool or jack-hammer. Dr. Weiss, one of the Department's examiners who graded Petitioner's performance on the physical diagnosis part of the exam, testified that he heard the noise as well and described them as construction noises outside of the room. The noise was not continuous throughout the exam. The noise first could be heard on the video tape near the end of Petitioner's performance of Task 1. It was very loud, but lasted only for several seconds before subsiding. It could also be heard at a very loud level during Tasks 2, 4, 7, and 17, again for only a few seconds each time. The noise could also be heard during Tasks 6, 8, and 16, but at a much lower level. Immediately after the noise first occurred during Task 1, one of the examiners asked Petitioner if the noise was bothering him. Specifically, the examiner asked, "Is that distracting you?" To which Petitioner responded "No, it’s okay." Had Petitioner indicated that the noise bothered him, Dr. Weiss testified that the examination would have been stopped until the source of the noise problem could be addressed. Neither Petitioner nor the examiners mentioned the noise during the remainder of the exam. The video tape does not show any significant difference in Petitioner's demeanor during the tasks where the noise could be heard than the remainder of the tasks. Throughout the test, Petitioner looked somewhat uncomfortable, but not any more so than would be expected under the pressure of this type of exam. At most points where the noise could be heard, Petitioner appeared to be oblivious to it because he was so deep in concentration on the task at hand. Petitioner completed the physical diagnosis exam with more than 17 minutes of the allotted 70 minutes remaining. After he completed his exam, Petitioner filled out a Candidate Concern Form on which he stated that the noises made it hard for him to concentrate. The form was provided to Adrian Washington who was the Department employee in charge of administration of the exam. Mr. Washington informed the two examiners who evaluated Petitioner that a concern had been filed and requested that they independently describe the incident. Dr. Weiss' written comments on the incident referred to the noises as "distracting to me." However, Dr. Weiss' comments, as well as the comments of the other examiner, stated that Petitioner was asked during the examination whether the noises were distracting to him and that he said "no." The comments of the other examiner confirmed what the undersigned witnessed on the video tape, i.e., that "he [Petitioner] did not appear to be visually upset during the examination." The examiners comments also noted that even with the distraction from the noise, Petitioner completed the physical diagnosis part of the exam with time remaining. Based upon the responses of the examiners, primarily the fact that Petitioner stated during the exam that the noises were not bothering him, Mr. Washington determined that no further action was warranted with respect to Petitioner's examination. He did notify the hotel staff about the distractions around the testing area. No other candidate or examiner expressed any concern to Mr. Washington regarding noise problems during the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order which denies Petitioner's application for a chiropractic license based upon the failing score that he received on the physical diagnosis part of the May 2001 licensure exam. DONE AND ENTERED this 15th day of March, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 15th day of March, 2002.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed in the State of Florida, having been issued license number ME 0055126. On December 4, 1989, D.W. presented herself as a patient at Unity Health Center, where Respondent was employed as a physician. She complained of headaches, insomnia, and jerking of her muscles. She advised that she had had her roof repaired and other repairs done to her home and feared she was reacting to some of the chemicals involved with those repairs. She further advised that the health department had evaluated her home for the presence of formaldehyde, carbon monoxide, and other toxins but none had been detected. Respondent took a minimal, at best, history but performed no physical examination. Yet, Respondent diagnosed the patient as suffering from chemical toxicity. He recommended a holistic diet and prescribed a number of homeopathic or holistic substances. He recommended that the patient return in three weeks to be re-checked. The patient returned to Unity Health Center on December 28, 1989. Respondent recommended an Interro test to check her chemical toxicity levels. The patient submitted to that test, and Respondent used the results of the Interro testing to confirm his diagnosis of chemical toxicity related to chemicals in the patient's environment from the repair of her roof. The Interro machine indicated that the patient had elevated levels of formaldehyde; toxic levels of arsenic, lead, and mercury; and a sensitivity to mold and yeast. Respondent prescribed additional homeopathic or holistic substances including "de-tox drops", prescribed a tranquillizer, and recommended that the patient return in three weeks to be re-checked. Respondent used the Interro machine as a diagnostic instrument. His medical records contain no notation that the patient gave informed consent for the use of the Interro machine for that purpose, and no written informed consent is contained in Respondent's records. The Interro machine is a device with certain dials and switches on it and an electrode 3-4 inches long and approximately 1/2 inch in diameter, cylinder-shaped, which is held in the patient's hand. The other cord attached to the machine has two electrodes that go around the patient's index and ring fingers of the left hand, much like a polygraph machine. The third component is a wand which is held by the tester. When the patient is hooked up to the Interro machine with the two electrodes on the left hand and holding the other electrode in the right hand, the wand is pressed into certain "acu-pressure points" by the tester. A needle on the machine indicates the patient's sensitivity to whatever substance the tester has the machine "tuned to". The Interro machine is a device purported by its manufacturer to be a computerized question and answer device which measures changes in the patient's skin conductivity in response to computer-generated questions. The Interro's training manual specifically represents that it is not a medical device; rather, it is a communication device. The Interro machine is not approved by the federal Food and Drug Administration as a medical diagnostic device. Rather than returning to Respondent or Unity Health Center, the patient went to Dr. Tillinghast Lybass, a specialist in allergies and immunology, for a second opinion on January 9, 1990. She complained of allergies and chemical toxicity and advised Lybass of Respondent's diagnosis. She advised Lybass of the inspection of her home by the health department and of the repairs done on her roof. She discussed her previous exterminating service. D.W.'s complaints to Lybass were headaches, itching, body jerking, blurred vision, redness of her eyes, and insomnia. Lybass took a complete history of her symptoms, the course of her illness, her past medical history, her family medical history, and her environmental history. He did an allergy work-up on D. W. and tested her for sensitivity to mold and mildew, to a natural pesticide found in a plant, to formaldehyde, and to some of the materials that were listed in the safety information sheets the patient obtained from the contractor that had done the repair work in her home. He obtained a copy of Respondent's medical records on the patient. Dr. Lybass was unable to document any significant degree of allergy antibodies in the patient's blood. Although he performed specific skin tests for the major molds, the patient did not demonstrate any sensitivity. Further, the patient's blood chemistries were normal except for an elevated cholesterol level. Lybass did not do any specific tests for heavy metals since there was no reason to indicate or expect that the patient had any kind of heavy metal poisoning from the patient's history. He had the patient expose a culture plate at her home and learned there was no significant amount of mold there. Dr. Lybass diagnosed the patient's condition, based on her history and his physical examination and the tests he performed, as stress, anxiety, and fear or phobia of her environment. Respondent was engaged in the practice of medicine when he diagnosed and treated patient D. W. His diagnosis was a medical diagnosis. He undertook to treat her complaints, recommending certain holistic or homeopathic remedies and even prescribing a tranquillizer which is a prescription drug. Respondent failed to keep an adequate medical record of his examination and treatment of the patient. He took only a minimal history and documented no physical examination, not even vital signs. His medical record includes no plan for any recognized medical tests to support his diagnosis, and his records contain no justification for the use of the Interro machine on that patient. Although the patient presented with complaints that could have serious medical implications, Respondent did not perform or document any recognized medical tests to rule out any potential causes for the patient's symptoms. The Interro device is not an accepted medical device in the medical community. The Interro device cannot be used to make a diagnosis of chemical toxicity since it does not test the patient's bloodstream. The Interro report contained in Respondent's medical record for patient D. W. does not purport to measure the chemicals in a patient's body; rather, it simply lists body systems in a graph. Since the Interro device is not a diagnostic medical device, the use of that device to make a medical diagnosis, without first obtaining the full and informed consent of the patient, constitutes experimentation on a human subject. Respondent made deceptive or untrue representations to patient D. W. Based on the results of the Interro testing, Respondent diagnosed the patient's symptoms as chemical sensitivity and mold sensitivity and recommended treatments and remedies. Respondent's representation of the Interro machine as a medical diagnostic device was untrue as was Respondent's representation that the patient was suffering from chemical and mold sensitivity. Those misrepresentations constituted a trick or scheme in the practice of medicine. D. W. was tricked into believing that Respondent had made an accurate diagnosis with the Interro device when the device in fact had no medical value. Respondent practiced medicine below the acceptable standard of care of a reasonably prudent physician under similar conditions and circumstances in his diagnosis and treatment of patient D. W. On the basis of just a few questions and without a physical examination or the use of any medically recognized tests, Respondent made the diagnosis of chemical toxicity and prescribed various holistic medicine drops. He then used the Interro machine as a medical testing instrument and relied on the results of that testing in prescribing various holistic or homeopathic substances and diets.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of the allegations contained in Counts One, Two, Three, Five and Six of the Administrative Complaint filed in this cause; Finding Respondent not guilty of the allegations contained in Count Four; Dismissing Counts Seven and Eight of the Administrative Complaint filed in this cause; and Suspending Respondent's license to practice medicine in the State of Florida until such time as Respondent can demonstrate to the Board of Medicine that Respondent can practice with skill and safety. DONE and ENTERED this 5th day of February, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 5th day of February, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-3214 Petitioner's proposed findings of fact numbered 2, 4-24, 26 and 27 have been adopted either verbatim or in substance. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact. Petitioner's proposed finding of fact numbered 3 has been rejected as being irrelevant to the issues involved herein. Petitioner's proposed finding of fact numbered 25 has been rejected as not being supported by competent evidence. COPIES FURNISHED: Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joseph S. Garwood, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Plagenhoef, M.D. Post Office Box 12131 Dallas, Texas 75225 Richard Plagenhoef, M.D. Post Office Box 2129 Cherokee, North Carolina 28789
The Issue Whether respondent was in violation of Section 43.201 (6), Florida Statutes, and Rule 10D-41.33(2), Florida Administrative Code, by failing to observe certain quality control procedures and by failing to document actions taken as alleged in the Administrative Complaint.
Findings Of Fact STANDARDS APPLIED: In 1967, the Medicare program was established by the federal government. It provided for reimbursement to independent clinical laboratories for services furnished to Medicare patients. Standards for the clinical laboratories were set forth in Subpart M of the Social Security Administration's Regulations No. 5 (Code of Federal Regulations, Title 20, Chapter 3, Part 405), entitled Conditions for Coverage of Services of Independent Laboratories (henceforth Subpart M). Subpart M was administered by the Health Care Financing Administration (HCFA). Also in 1967, the Clinical Laboratories Improvement Act of 1967 (CLIA) was passed by the federal government which applied to laboratories engaged in interstate commerce, and a new Part 74 was added to the Public Health Services Regulations, Title 42, Code of Federal Regulations, which set forth the standards for these laboratories. In 1967, the Florida legislature completely revised the clinical laboratory law that had been in effect in Florida since 1949 by enacting the Florida Clinical Laboratory Law. Ms. Phillips testified that the purpose of the legislation was to parallel the federal requirements for clinical laboratories so that the same standards would apply to all laboratories in Florida. Thus Florida has applied federal standards in its state inspections since 1967. Rule 10D-41.33, Florida Administrative Code, 1/ contains language patterned after the language set forth in Subpart M in 1967. 2/ Thus, although the rule does not incorporate the federal standards by reference, HRS contends that clinical laboratories would be aware that federal standards would apply to state inspections due to the language used in the Rule. 3/ However, clinical laboratories in Florida were never specifically notified that federal standards would apply to state inspections and they were never sent federal regulations, standards or guidelines. TMRMC has been accredited by the Joint Commission on Accreditation of Hospitals (JCAH) since 1979. In 1978, the JCAH adopted the federal quality control standards. Therefore, JCAH accredited hospitals are not subject to federal inspection because, if they meet JCAH standards, they met federal standards. However, the JCAH inspects only once every three years. HRS INSPECTIONS: HRS has a contract with the federal government to perform the inspections of clinical laboratories that are required under federal law. HRS also performs the inspections required by state law. HRS applies the same standards regardless of whether it is a state or federal inspection. Since 1983, state inspections of clinical laboratories have been required annually. However, due to a lack of personnel, annual inspections of every laboratory have not been possible. When an inspection is done, the HRS surveyor has a checklist form to provide a guideline for the inspection. The checklist form follows the requirements in the rules and policies put out by the federal government. After the inspection is concluded, the hospital is not provided with a copy of the checklist but is given a list of deficiencies which are taken from the checklist. The inspector also informs the laboratory director of the deficiencies verbally at an exit conference. The hospital or laboratory gets the statement of deficiencies from HRS on a standard form which lists the deficiencies on the left side and provides space for the laboratory to indicate a plan for correction on the right side. The hospital fills in the right side of the form and returns it to HRS. If the laboratory does not receive a reply back from HRS, the response from the laboratory is acceptable to HRS. HRS INSPECTIONS OF TMRMC: The TMRMC laboratory has been inspected three times by HRS: in 1980, in 1982, and in 1985. The inspection involved in this case occurred from April 16th through April 19th of 1985. The inspection that occurred in 1982 resulted in cited deficiencies. The lab responded to those deficiencies in accordance with HRS procedure. TMRMC did not receive a reply back from HRS on most of the responses and, therefore, considered that those responses provided for adequate quality control. HRS does not customarily impose a fine for a violation unless it is a repeat violation. SPECIFIC CHARGES a. RIA BACKGROUND RECORD DID NOT CONTAIN ACCEPTABLE LIMITS: The RIA background records are associated with an instrument called a gamma counter. The gamma counter counts radioactivity. To insure accurate readings, the level of background radiation must be determined and must be within acceptable limits. Each day prior to running any tests, TMRMC personnel determined the background level, recorded it, and adjusted the machine to subtract the background level so that it would not affect the test results. However, as the background level gets higher, the possibility for error becomes greater. A background level that is too high might affect the test results. Therefore, an acceptable background limit is established. TMRMC established 35 as an acceptable limit. The limit was recorded in the procedures manual for the machine. Since the background limit was stated in the manual, the laboratory technologists did not write it down each time they recorded the background level. Laboratory personnel were to read the procedures manual prior to doing the test and thus would be aware of the limit. Further, the technologists who ran the tests were highly skilled personnel and, after performing the procedure several times, were aware of the limit since it does not change. The background level recorded was outside the limit nine days in March and about 14 days in April of 1985. However, there was no evidence presented as to how far over limit the levels were. TMRMC has a very stringent background limit. A limit of up to 100 would be acceptable. Therefore, at TMRMC, if the background level is slightly over limit, where the test results would not be affected, the machine might simply be adjusted to the background level. However, if the background level is well over limit, the machine would be cleaned. In 1982, TMRMC was notified of a deficiency in their records with the statement "RIA background counts records did not contain acceptable limits." (P. Ex. #7, p.3). TMRMC interpreted this as meaning that the background limit had to be recorded in the manual. The failure to write down the background limit each time the background level is recorded is not inadequate quality control since the background limit is recorded in the procedures manual. Although the labs inspected by Mrs. Bass have always included the background limit on their records, the repetition of the limit each time the level is recorded is simply unnecessary for adequate quality control, and there was no evidence presented that any state, federal, or other authority required that it be done to insure adequate quality control. b FAILURE TO PROVIDE DOCUMENTATION TO SHOW THAT OSMOMETER WAS CALIBRATED EACH DAY OF USE. An osmometer measures osmolality, the concentration of particles in a solution. TMRMC calibrated the instrument to three standards each time the instrument was run. The osmometer displays from 0 to 1,000 millivolts. A standard is placed in the instrument, and the instrument is set so that the volt reading correlates to the standard. TMRMC uses 100, 290, and 1,000 standards. Each standard is placed in the machine, the machine is calibrated to that standard, and an electronic curve is created. After all three standards are set, the technician puts a checkmark on the sheet to indicate the procedure has been followed. Each standard has its number on the bottle. Therefore, it is unnecessary to write down that the 100 standard was set at 100, the 290 set at 290, and the 1,000 set at 1,000. The checkmark indicates that all three standards have been properly set. After the standards are set, controls are run to insure that the calibration is correct. Mrs. Bass, who performed that inspection, felt that the three numbers had to be written down each time the machine was calibrated. However, TMRMC uses the same three standards to calibrate the osmometer each time, the written procedure for the machine requires that all three standards be used to calibrate the instrument, and a checkmark provides the same quality control as writing down 100, 290 and 1,000. Therefore, the checkmark is sufficient documentation to show that the osmometer was calibrated each day of use. HRS rules do not require that the standard number be written down each time to provide documentation, nor do the regulations of Medicare, the CLIA, or the College of American Pathologists. The only requirements are that the machine be calibrated and that the performance of the calibration be documented. FAILURE TO INCLUDE CONTROLS WITH EACH RUN OF TOXI LAB DETERMINATION Toxi-lab is a screening procedure for abusive drugs, such as marijuana and cocaine. A control should be included with each run. TMRMC did include a control with each run, but did not run a control each time in the extraction process. 4/ A control is a sample that contains the analyte which is being checked. It is run through the process at the same time that the specimen is tested. If the control reads the way it is supposed to read at the end of the process, it is presumed that the specimen has been properly processed. There is nothing in the HRS rules that requires a control to be run with each test. However, the federal regulations specify that a standard and a control are to be run with each clinical chemistry test when such are available. Further, adequate quality control would generally require a control to be run. However, with the newer more automated instruments and procedures, running a control with each test is not necessarily required. The toxi-lab test is a fairly new test which became commercially available in 1980 or 1981. There are two types of controls that are used with the test. When HRS inspected in 1982, it stated that a control needed to be run in the extraction process. However, there was no control available for the extraction process at that time. Subsequent to that inspection, a control for the extraction process was found. The company that produced the control recommended that it be run at least once a week, and TMRMC followed the manufacturer's recommendation. Running a control through the extraction process could indicate whether a tube was defective or whether the technologist's technique was correct. However, due to the nature of the test, the fact that the technologist's technique on the control is adequate does not indicate that the patient's specimens are handled properly, and the same applies to the incident of defective tubes. In other words, running a control along with the specimens cannot insure that the tubes with the specimens are not defective or that the technologist's technique on the specimens is the same as on the control. 5/ There was no evidence presented to show that the failure to run a control through the extraction process each time resulted in inadequate quality control. In 1982, HRS stated only that TMRMC had to run a control through the extraction process: it did not specify that the control had to be run each time. Therefore, TMRMC followed the manufacturer's recommendation for the frequency in which to run a control through the process. THREE LEVELS OF CONTROLS WERE NOT RUN ON THE FIRST SHIFT AND A MINIMUM OF TWO (2) LEVELS OF CONTROLS WERE NOT RUN ON EACH EIGHT-HOUR SHIFT THEREAFTER IN THE BLOOD GAS LABORATORY On the blood-gas analyzers, there are three basic levels of controls-a low, a medium, and a high-which are used to check the calibration of the instrument. TMRMC did not have any shift in which all three levels were run. Mrs. Bass stated that HRS requires three levels to be run on one shift, and two levels to be run on the other two shifts, in order for a lab to provide adequate quality control. There is a dispute among the authorities on what is necessary to provide adequate quality control. Some authorities suggest that three levels must be run on each of the three shifts; other authorities believe that two, two, and two is sufficient. In 1982, TMRMC was advised that they had to run the tests on a three, two and two basis. However, subsequent to 1982, TMRMC acquired a newer instrument that was more sophisticated. Thereafter, TMRMC ran one level on each shift, except on days when open-heart surgery was scheduled. On these days, two levels were run on the first shift. The new instrument acquired by TMRMC performs self- checks with sufficient frequency to detect problems in the instruments. The earlier instruments were completely manual and had no self-checks built into them. Therefore, a greater number of controls had to be run to provide adequate quality controls on the earlier machines. Further, the laboratory has two of these highly sophisticated instruments, and whenever a value for a patient deviates from the norm, the specimen is checked on the other machine. Although TMRMC contends that it was running at least one level on each shift, and two levels on the first shift when there was open heart surgery scheduled, TMRMC failed to provide any documentation that they were consistently running a control on the 11:00 at night to 7:00 on the morning shift. Obviously, despite the degree of sophistication of the instruments used by TMRMC even TMRMC felt that adequate quality control required that a control level be run in each shift. However, it is impossible to determine whether the control was run each shift because there was no documentation that it was done. Therefore, TMRMC failed to provide adequate quality control by failing to provide documentation that any control was run daily on the third shift. FAILURE TO CONSISTENTLY DOCUMENT CORRECTIVE ACTION WHEN CONTROL RESULTS WERE OUT OF LIMITS IN THE CHEMISTRY LAB: In February, March and April of 1985, control results in the chemical laboratory were out of limits on 21 occasions. During this time, there was no documentation of any action taken to correct this situation. There was no way of knowing what corrective action was taken before patient results were reported. Since there was no documentation as to what corrective action was taken when the laboratory records showed that the results were not within the stated acceptable limits, there was no way of knowing whether corrective action was actually taken. In many cases a control specimen may be out of limits and still be acceptable. Approximately five percent of the control results will be outside the limits that are set. Corrective action is not always indicated merely because the control is outside of the acceptable limits. It must be judged in the context of the entire day's work to determine whether there is something actually wrong or whether it is just a statistical fluke. Nevertheless, in the 21 instances cited, TMRMC failed to indicated that corrective action was not necessary under the circumstances. Because no documentation was provided, it is impossible to determine whether the out of limits results were acceptable, so that corrective action did not need to be taken, or whether the out of limits results indicated that corrective action needed to be taken and no corrective action was performed. Therefore, by failing to provide the appropriate documentation, TMRMC failed to provide adequate quality control. TAPES FROM THE QUANTUM DRIFT TEST WERE NOT RETAINED FOR TWO (2) YEARS: TMRMC was unable to locate the tapes from the Quantum drift test for the previous two years. During her investigation, Mrs. Bass asked the supervisor to produce the tapes containing the results of the Quantum drift test, which is used as part of RIA analysis, but the supervisor was unable to produce the requested documentation. TMRMC stated that the tapes for the Quantum drift test were retained for two years. The majority of them were discovered after the inspection. The tapes had been relocated from one room to another. Nevertheless, at the time of the inspection, TMRMC did not have the tapes and didn't know where they were. THE CONSTANT PACKING OF THE MICROHEMATOCRIT CENTRIFUGE, IN THE HEMOTOLOGY LAB, WAS NOT CHECKED QUARTERLY: To determine optimum packing of the centrifuge, twelve viales are paired, and one pair is run one minute, one pair is run two minutes, one pair is run three minutes, one pair is run four minutes, one pair is run five minutes, and one pair is run six minutes. The time which reveals the optimum packing in both of the tubes would be the amount of time to spin hemotocrits in the centrifuge. TMRMC did not provide any documentation to show that this procedure was run quarterly. In 1932, HRS advised TMRMC that the timer and constant packing of the microhematoc it centrifuge had to be checked quarterly. TMRMC responded saying that it felt that checking the timer monthly on the centrifuge and checking the speed of the centrifuge monthly was a better check than the constant packing quarterly. TMRMC also noted that such testing was in compliance with College of American Pathologists' checklist, and that quarterly packing would not assure better results. HRS failed to reply to TMRMC's response. Therefore, TMRMC assumed that HRS had accepted the alternate quality control provided by TMRMC. In that the evidence established that HRS replied to any response by a laboratory that was not acceptable, it must be concluded that the procedures followed by TMRMC provided adequate quality control. FAILURE TO PROVIDE DOCUMENTATION TO SHOW THAT CONTROLS WERE INCLUDED WITH FACTOR ASSAY: There are different factors pertaining to the clotting of blood. when Ms. Bass reviewed the records for February and March, she could not find any FDP controls, and for the month of February, she could not find any Thrombin controls. The controls are needed to insure that the reagents are performing as they should, that the methodology is performing as it should, that the technique is acceptable, and that the patient results are as accurate as possible. The records provided documentation that the controls were used in other months but not during the particular months mentioned. The problem with the documentation was that TMRMC had installed a computer system which only retained the results for a period of 45 days. Some of the supervisors did not realize that the results had to be printed onto hard copy within the 45 day period or they would be lost forever. Therefore, when Ms. Bass inspected in April, some of the documentation was missing because the section head forgot to run a hard copy of the results prior to 45 day expiration period. Nevertheless, without the documentation, it was impossible to determine whether those controls had been run during the months in question, and thus determine whether adequate quality control was provided. FAILURE TO INSURE THAT THE ACTUAL RESULTS FOR THE FIBROMETER TIMER AND STOPWATCH WERE RECORDED: TMRMC did have documentation showing the actual results of the fibrometer timer and stopwatch checks. For some reason unknown to the manager of the TMRMC laboratory, the records apparently were not seen by Ms. Bass during her inspection. The records were kept at the particular bench where the test was performed, and the manager had no idea why Ms. Bass did not see them. Had Ms. Bass asked the laboratory manager for the records, they would have been produced. The records indicate that the fibrometer timer was checked against the stopwatch for ten seconds, with an acceptable variation of plus or minus .3 seconds, and that the stopwatch was checked against the wall clock-for thirty seconds with an acceptable variation of plus or minus 1 second. Because TMRMC did document the results of the fibrometer check and the stopwatch check and did provide the acceptable limits on the records that were kept, TMRMC did not have inadequate quality controls. FAILURE TO INSURE THAT CORRECTIVE ACTION WAS CONSISTENTLY DOCUMENTED WHEN CONTROL RESULTS WERE OUT OF LIMITS. The above is the same violation alleged in violation a "e". However, this violation refers to the hematology lab, whereas "e" concerns the chemistry lab. On several dates, the controls were outside of the limits, and no documentation was provided to show what corrective action had been taken. On several other dates, there was no documentation indicating that the controls were run, and therefore there was no way to know if the results were out of limits. For the reasons set forth in the findings of fact for violation "e", TMRMC failed to provide. adequate quality control due to its failure to provide appropriate documentation of the action taken. THE CONSTANT PACKING OF THE MICROHEMATOCRIT-CENTRIFUGE IN THE FAMILY PRACTICE LAB WAS NOT CHECKED QUARTERLY: This is the same violation as alleged in violation "g", except that this refers to the centrifuge in the family practice lab rather than the centrifuge in the hematology lab. - For the reasons set forth in the findings of fact relating to violation "g", TMRMC provided adequate quality control by checking the timer and the speed of the centrifuge monthly.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that TMRMC violated Rule 10D-41.33(2), Florida Administrative Code, as alleged in paragraphs 3(d), (e), (f), (h), and (j), dismissing those charges set forth in paragraphs 3(a), (b), (c), (g), (i) and (k), and imposing a fine of $100 for each violation, a total fine of $500.00. DONE and ENTERED this 17th day of September, 1986, in Tallahassee, Florida. DIANE A. GRUBBS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1986.
The Issue The issue is whether Petitioner can prove Medicaid overpayments to Respondent and, if so, how much Petitioner is entitled to recoup.
Findings Of Fact Respondent is a licensed physician with an office in Stuart. He is Board-certified in neurology and pain medicine. During the audit period and until recently, Respondent was an enrolled Medicaid provider. The audit in this case involved 237 claims on behalf of 30 recipients. Of these 237 claims, Petitioner determined that 59 were overpayments. After determining the total of these 59 overpayments, Petitioner referred the file to a statistician, who extended these 59 overpayments to the total overpayment shown in the Final Audit Report. The statistician based the extension on generally accepted statistical methods that he explained, at the hearing, to everyone's satisfaction, as evidenced by the fact that no one asked to hear more. During the statistician's testimony, the parties agreed that, if the overpayments in the Final Audit Report are altered in the Final Order, Petitioner will refer the new determinations to a statistician for another extension, based again, of course, on generally accepted statistical methods. Recipients will be identified by the numbers assigned them in Petitioner Exhibit 7. The only recipients addressed are those for whom Petitioner has determined overpayments. Nine billings are at issue with Recipient 1. On March 8, 2007, Respondent saw Recipient 1 and billed a CPT Code 99245 office consultation. Petitioner downcoded this to a CPT Code 99244 office consultation and generated an overpayment of $20.39. The CPT describes these office consultation codes as follows: 99244 Office consultation for a new or established patient, which requires these three key components: A comprehensive history; A comprehensive examination; Medical decision making of moderate complexity. * * * Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. 99245 Office consultation for a new or established patient, which requires these three key components: A comprehensive history; A comprehensive examination; Medical decision making of high complexity. * * * Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 80 minutes face-to-face with the patient and/or family. Recipient 1 was the victim of a severe beating at the hands of her husband in July 2006. Petitioner's determinations concerning this case partly arose out of the failure of its consultant to find in Respondent's medical records a date of incident, but Respondent provided this information at the hearing. Recipient 1 suffered fractures of the skull and orbital bone from the spousal battery. Continuously since the incident, she had suffered headaches; vertigo, especially when blowing her nose; memory loss; and a complete inability to use her left hand. The initial office consultation was on March 8, 2007, and Respondent billed it correctly, given the complexity of the medical decisionmaking. She had five diagnoses, and Respondent gave her 11 recommendations. Considerable time and effort were required of Respondent to address her case at this initial office consultation, for which there is thus no overpayment. On March 20, 2007, Recipient 1 underwent an MRI of the brain, for which Respondent billed a CPT Code 70553, which is for brain MRIs with and without dye or contrast. Petitioner downcoded this to a CPT Code 70551, with a reduction of $76.59, because Respondent had ordered only an MRI of the brain without dye. Respondent produced at hearing a copy of the prescription, which cryptically states: "MRI Brain c /o contrast." The "c" and the "o" have dashes over them. The "c" with a dash is a traditional abbreviation of cum, so it means "with." The meaning of the dash over the "o" is unclear. Lacking a conjunctive symbol in the space between the letters, it appears that the combination means "without," rather than "with" and "without." The downcoding is appropriate, and the overpayment is $76.59. On the same date, Recipient 1 underwent an MRI of the neck and spine without dye. Petitioner denied this billing, which was for $233.47, for lack of medical necessity due to the absence of appropriate pain symptoms, especially radiating pain. At the hearing, Respondent explained that Recipient 1 suffered from moderate to severe stenosis, and he needed to rule out neck involvement in the patient's inability to use her left arm. The neck and spine MRI was medically necessary, so there is no overpayment for this test. On May 2, 2007, Recipient 1 underwent a muscle test, one limb--billed as CPT Code 95860; a sense nerve conduction test--billed as CPT Code 95904; and a motor nerve conduction test--billed as CPT 95903. On the next day, she underwent the identical tests--all billed under the identical codes. Petitioner denied all of these, and generated overpayments of $40.81, $73.05, $65.60, $40.81, $73.05, and $65.60, respectively. Petitioner denied these tests because Respondent had not ordered them. This does not seem to have been inadvertent on Respondent's part. None of these tests appeared to be part of Respondent's treatment plan for this patient. Petitioner thus determined correctly that these six sums are overpayments. Five billings are at issue with Recipient 3. The first is an office consultation on April 9, 2008. Petitioner has downcoded this from CPT Code 99245 to CPT Code 99244 due to a lack of complexity of decisionmaking. This generates an overpayment of $20.18. Respondent testified that Recipient 3 was a 63-year- old patient with "total body pain." Respondent testified that the patient complained of neck pain, low back pain, and chronic pain, all emanating from a bicycle accident five years earlier that had necessitated the placement of a titanium rod in the patient's leg. However, the eight diagnoses and 18 recommendations do not, on these facts, merit the complexity of decisionmaking claimed by Respondent in his billing. Petitioner has proved an overpayment of $20.18. Recipient 3 raises the issue of the reimbursability of an sNCT administered by Respondent. On April 21, Recipient 3 underwent two procedures billed as sense nerve conduction tests under CPT Code 95904 at $143.70 each. Two days later, Recipient 3 underwent two procedures billed under the same name and CPT Code at $141.70 and $143.70. Petitioner has disallowed all four of these billed amounts. CPT Codes 95900-95904 describe nerve conduction tests that measure the nerve's response to an electrical stimulation in terms of speed, size, and shape. CPT Code 95904 is "nerve conduction, amplitude and latency/velocity study, each nerve; sensory." A procedure meeting the definition of CPT Code 95904 must measure the nerve's response in terms of amplitude and latency/velocity. Amplitude is a measure of size. Latency is a measure of time of travel, so, provided travel distance is known, as it typically is, velocity, or speed, may be derived from latency. The device used by Respondent for all of the sense nerve conduction tests that he billed as CPT Code 95904 was an Axon II device. The inventor of the device testified at the hearing and explained how conventional sense nerve conduction tests, which were developed during World War II, are appropriate for the detection of gross injuries because they detect damage in the large nerve fibers. Fifty to 100 times smaller than these large fibers are the small nerve fibers, which transmit pain. Among these fibers are the fast-transmitting A-delta fibers and the slow-transmitting fibers are C-fibers. The Axon II focuses on the activity of the A-delta fibers. Originally, the witness produced a neurometer that relied on patient response to the application of increasing voltage to the point that the nerve produced a response in the form of a stimulus. Seven years later, in 2002, the witness added a potentiometer, or voltage meter, to allow what he terms a psychophysical assessment of a sensory nerve conduction test that applies electricity and records amplitude, but not latency or velocity. The witness claims that the A-delta fibers are too small for a useful test of latency or velocity. Among A-delta fibers, the only useful parameter for measurement is amplitude. He added that, similarly, the shape of the signal emanating from the nerve is also irrelevant when dealing with the smaller A- delta fibers. Whatever larger issues of medical necessity that may attach to the Axon II device, the issue in this case is whether it may be billed under Florida Medicaid law, which reimburses only those services designated in Chapter 2, Physician Services Coverage and Limitations Handbook. Pursuant to this requirement, Respondent billed the sNCTs that he performed with the Axon II device under CPT Code 95904. But, as noted above, this code requires at least a measure of latency and possibly measures of latency and velocity, and the sNCTs do not provide latency or velocity data. Respondent thus miscoded all of the sNCT procedures that he performed in this case. The sNCTs performed with the Axon II device are described by CPT Code 95999, which is assigned to unlisted neurological diagnostic procedures, and Code G0255, which is a unique code for sNCTs. If the sNCTs performed in this case were properly coded only under CPT Code 95999, another issue would emerge because the fee schedule for this code in the Physician Services Coverage and Limitations Handbook bears an "R" code. This means that the provider performing a procedure falling into the residual category of CPT Code 95999 may submit "either documentation of medical necessity for the procedure performed. . . or information . . . in order to review and price the procedure correctly." Physician Services Coverage and Limitations Handbook, p. 3-3. It is unnecessary to determine whether Respondent complied with the "by-report procedure" established for procedures classified within CPT Code 95999, or whether, consistent with the de novo nature of the proceeding, as discussed in the Conclusions of Law, Respondent could first present such evidence at hearing. The Centers for Medicare and Medicaid Services (CMS) created CPT Code G0255 for sNCTs because it determined that the devices producing this data were not medically necessary, and Medicare and Medicaid would not reimburse claims for these procedures. On March 19, 2004, CMS revised its National Coverage Determinations Manual regarding sNCTs. Noting that these procedures are different from the assessment of nerve conduction velocity, amplitude, and latency, section 160.23 of the manual states that providers may not use codes for tests eliciting nerve conduction velocity, latency, or amplitude for sNCTs. CMS has clearly expressed its intent that, although falling within the residual CPT Code 95999 procedures, sNCTs are ineligible for reimbursement, even by the "by-report procedure." Petitioner thus correctly disallowed the four procedures performed on April 21 and 23, 2008, because they were miscoded and are ineligible for Medicaid reimbursement. Recipient 3 raises another recurring issue. This one concerns an H-Reflex Test, CPT Code 95934. For Recipient 3, it was billed on May 8, 2008, for $27.49. Petitioner properly disallowed the billing because the procedure was not done. Respondent concedes that he never performed an H-Reflex Test on an upper extremity and explains that an inexperienced office worker misconstrued a handwritten mark indicative of a negative to mean that the test had in fact been ordered and conducted. The issue on the H-Reflex Test is not whether Respondent was initially entitled to reimbursement--it was not. The issues are 1) whether this overpayment may be extended to the larger total overpayment determined in this case and 2) whether Respondent has already reimbursed Petitioner for this overpayment of $27.49, if not considerably more. The answer to the first question is no, and the answer to the second question is probably not. The bottom line is that Petitioner may add $27.49 to the total overpayment, but may not include this sum in the extension calculations due to Respondent's timely correction of this billing error. Respondent discovered that his office had wrongly billed this procedure on 28 different occasions, but he (or his wife/office manager) informed Petitioner of this fact prior to the audit. Among the 30 patients randomly selected for the audit, four of them had these incorrect billings for an H-Reflex Test on an upper extremity. For obvious reasons, corrections after the start of an audit may not be allowed, but a timely correction remedies the overbilling, as though it had never taken place. Respondent contends that the situation is even more complicated. Respondent's wife testified that she voided the claims on Petitioner's automated electronic claims paying process, which is the proper procedure, but, for some reason, all other procedures performed on the same day as the procedure date reported for the H-Reflex Tests were also voided. If so, it would mean that Respondent has already reimbursed Petitioner for the $27.49 erroneous billing, and Petitioner must credit Respondent--and possibly extend the credit--for any other allowable procedures performed on the same date. For Recipient 3 on May 8, 2008, for instance, this would amount to a direct credit of $107.78 for the two other allowable procedures performed on the same day that the H-Reflex Test was reported as performed. Respondent's wife failed to detail these wrongfully aggregated voids, nor did anyone on Petitioner's side of the hearing room have any idea what she was talking about. On this record, it is impossible to credit the testimony so as to require Petitioner to restore the value of other procedures billed on the same date as the H-Reflex Test (here, $107.78), extend this value to a much higher credit, or even restore the value of the H-Reflex Test itself ($27.49). Three billings are at issue with Recipient 6. Two of them are sNCTs billed under CPT Code 95904 for two procedures done on February 27, 2008. They were billed at $141.70 and $143.70, respectively. For the reasons discussed above, these are miscoded and are ineligible for reimbursement, so they are overpayments. The third issue involves an office visit on April 3, 2008, which Respondent billed under CPT Code 99211. Respondent admitted at the hearing that he lacked documentation for this office visit, so Petitioner properly disallowed the $12.48 associated with it. One billing is at issue with Recipient 7. It is a brain MRI with and without dye, which is billed on May 23, 2007, under CPT Code 70553. Petitioner properly disallowed the entire $410.85 because it was obviously double-billed, and Petitioner allowed the "other" procedure. Three billings are at issue with Recipient 9. On November 2, 2007, Respondent billed a neck and spine MRI without dye as CPT Code 72141 and a lumbar spine MRI without dye as CPT Code 72148. On November 13, 2007, Respondent billed a head angiography without dye as CPT Code 70544. Citing a lack of medical necessity, Petitioner denied all of these items, which amount to $233.47, $236.65, and $300.09, respectively. At the time of the procedures in question, Respondent had been seeing this 37-year-old patient for only one month. Another physician had referred the patient, who, for three months, had been suffering from headaches in the right frontal temporal area. The pain was severe enough to cause the patient to go to the hospital emergency room three times. Finally, the emergency room physicians instructed the patient not to come to the emergency room, and they referred him to a neurologist--who had been dead for two years at the time of the referral. The emergency room physicians had prescribed Dilaudin, but the patient, who was also on a blood thinner, presented to Respondent with the need for a full neurological workup. He was a construction worker and needed to return to work. Respondent ordered the angiography to rule out vascular malformation, which could have caused the headaches and could be fatal. Respondent ordered the MRIs to assess significant anatomical problems and rule out metastatic disease. These three procedures were medically necessary, so there is no overpayment due in connection with them. One billing is at issue with Recipient 11. On January 10, 2007, Respondent billed an office consultation under CPT Code 99243. Petitioner allowed only an office visit, not an office consultation, resulting in an overpayment of $15.33. Respondent has not contested this adjustment, which appears to be correct. Four billings are at issue with Recipient 15. They are sNCTs billed under CPT Code 95904 for two procedures done on March 4, 2008, and two procedures done on March 24, 2008. Two of the procedures were billed at $141.70 and two were billed at $143.70. For the reasons discussed above, these are miscoded and are ineligible for reimbursement, so they are overpayments. Four billings are at issue with Recipient 16. They are sNCTs billed under CPT Code 95904 for two procedures done on January 22, 2008, and two procedures done on March 5, 2008. They are billed the same as those described in the preceding paragraph. They are miscoded and ineligible for reimbursement, so they are overpayments. Three billings are at issue with Recipient 17. They are sNCTs billed under CPT Code 95904 for one procedure done on March 17, 2008, and two procedures done on March 19, 2008. They are billed at $141.70 for two procedures and $143.70 for the third procedure. They are miscoded and ineligible for reimbursement, so they are overpayments. Four billings are at issue with Recipient 20. They are sNCTs billed under CPT Code 95904 for two procedures done one June 24, 2008, and two procedures done on June 30, 2008. They are each billed at $143.70. They are miscoded and ineligible for reimbursement, so they are overpayments. Six billings are at issue with Recipient 21. Four are sNCTs billed under CPT Code 95904 for two procedures done on February 20, 2008, and two procedures done on February 28, 2008. They are each billed at $143.70. They are miscoded and ineligible for reimbursement, so they are overpayments. The other two billings are for H-Reflex Tests of upper extremities--one on March 25, 2008, and one on April 2, 2008. As noted above, Respondent never performed these tests, but corrected the misbilling prior to the audit. The $27.49 billed for each of these tests may not be extended in determining the total overpayment, but Petitioner may add $54.98 to the total overpayment determination, and Petitioner is not required to credit Respondent for additional sums due to claimed problems in voiding these billings. Four billings are at issue with Recipient 25. They are sNCTs billed under CPT Code 95904 for two procedures done on June 5, 2008, and two procedures done on June 10, 2008. They are each billed at $143.70. They are miscoded and ineligible for reimbursement, so they are overpayments. One billing is at issue with Recipient 26. On February 15, 2007, Respondent billed an office visit under CPT Code 99205, which Petitioner reduced by $16.64 by downcoding it to CPT Code 99204. The CPT Manual describes these office visit codes as follows: 99204 Office or other outpatient visit of the evaluation and management of a new patient, which requires these three key components: A comprehensive history; A comprehensive examination; Medical decision making of moderate complexity. * * * Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. 99205 Office or other outpatient visit of the evaluation and management of a new patient, which requires these three key components: A comprehensive history; A comprehensive examination; Medical decision making of high complexity. * * * Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. Recipient 26 is a 43-year-old with migraines. She has suffered three headaches weekly since fourth grade. An MRI of her lower back in 2004 revealed a herniated disk, and she has pain in her right leg and foot numbness, if she drives too long. The medical decisionmaking was no more than moderately complex, so Petitioner properly downcoded this office visit, resulting in an overpayment of $16.64. Four billings are at issue with Recipient 27. On January 15, 2008, Respondent billed an office visit under CPT Code 99205, which Petitioner reduced by $18.64 by downcoding it to CPT Code 99204. Recipient 27 was referred by her obstetrician and saw Respondent two and one-half months post-partum. She was unable to lift her right arm. She had pain in her right outside shoulder. Her fingers were numb. Based on a physical examination, Respondent detected nerve damage in the axilla, and she reported cervical radiculopathy. The constellation of symptoms suggested three or four problems that obviously required immediate attention to facilitate her caring for her newborn. The medical decisionmaking was highly complex, so there is no overpayment for this office visit. Respondent billed two sNCTs under CPT Code 95904 for two procedures done on January 24, 2008, for $143.70 each. They are miscoded and ineligible for reimbursement, so they are overpayments. Respondent billed an H-Reflex Test under CPT Code 95934 on February 7, 2008, for $27.49. As noted above, Respondent never performed this test, but corrected the misbilling prior to the audit. The $27.49 may not be extended in determining the total overpayment, but Petitioner may add $27.49 to the total overpayment determination, and Petitioner is not required to credit Respondent for additional sums due to claimed problems in voiding these billings. Petitioner conceded error in its disallowance concerning Recipient 28, for whom Respondent billed $41.00 under CPT Code 95860 for a muscle test conducted on February 21, 2008. See Petitioner's proposed recommended order, paragraph 21. This is therefore not an overpayment. Three billings are at issue with Recipient 29. On February 7, 2007, Respondent billed an office consultation under CPT Code 99245, which Petitioner reduced by $46.24 by downcoding it to CPT Code 99205, which is for an office visit. This was an office visit, not an office consultation, as billed by Respondent, so the downcoding was correct, and there is an overpayment of $46.24. On February 16, 2007, Respondent billed for a neck and spine MRI without dye under CPT Code 72141 and a chest and spine MRI without dye under CPT Code 72146--twice each. Petitioner properly disallowed $357.60 and $305.18 for one pair of these procedures, which obviously were double-billed, so there are overpayments of these amounts. Two billings are at issue with Recipient 30. Respondent billed two sNCTs under CPT Code 95904 for two procedures done on April 14, 2008, for $141.70 and $143.70. They are miscoded and ineligible for reimbursement, so they are overpayments. The Final Audit Report claims that the audit cost $5658.09, but Petitioner failed to produce any evidence on these costs.
Recommendation It is RECOMMENDED that: Petitioner submit the file to a statistician for an extension, using generally accepted statistical methods, of the redetermined overpayments, as set forth in the Findings of Fact, to a total overpayment determination. Petitioner issue a Final Order determining that Petitioner is entitled to recoup the total overpayment determined in the preceding paragraph, statutory interest on this sum from the date of the Final Order, and a $4,000 administrative fine for multiple violations of Florida Administrative Code Rule 59G-9.070(7)(e). DONE AND ENTERED this 19th day of May, 2011, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2011. COPIES FURNISHED: George Kellen Brew, Esquire Law Office of George K. Brew 6817 Southpoint Parkway, Suite 1804 Jacksonville, Florida 32216 L. William Porter, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Monica Ryan, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Jeffries H. Duvall, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
The Issue Whether petitioner should have been awarded a passing grade on the clinical portion of the September 1990 optometry licensure examination?
Findings Of Fact As instructed, petitioner reported for the clinical portion of his optometry licensure examination with his own retinoscope. But the patient he brought with him was not suitable (as a subject for another candidate) because neither of her eyes had spherical objective and subjective error cali- brated in minus cylinder form within +6.0D to -6.0D and . . . an astigmatic correction objectively and subjectively within +0.75 to +4.0D or -0.75 to -4.0D. Respondent's Exhibit No. 1. Once this was discovered, petitioner left the examination site, recruited another patient, and returned in time to take the examination with a group of about ten other applicants. An information pamphlet explained beforehand what the candidates would be asked to do during the clinical examination: . . . You will be allowed 35 minutes to com- plete this section. Two licensed optometrists will independently observe and grade you. You may conduct the specified procedures in any appropriate order. A blank sheet of paper will be provided to you to record the results of your examination. You are allowed a brief period of time to make notes on the blank sheet of paper before you enter the examination room. Tests should be done on both eyes (including dilated eye). Points will be assigned according to the criteria listed below: Patient History (5 points) Chief complaint Personal medical history Personal ocular history Family medical history Family ocular history Follow-up Information (7 points) Follow-up as necessary on the above criteria. Visual Acuity (2 points) Pupillary Examination (6 points) Pupil size Direct and consensual response to light Afferent Pupillary Reflex Confrontation Fields Test (4 points) Confrontation Fields test should be done as described in Duane, J.D. Clinical Ophthal- mology, Harper and Row. Extra-ocular muscle balance (4 points) Versions Distance cover test Objective examination (retinoscopy) (8 points) Note: Points will be assigned on the basis of a comparison to the range obtained by licensed optometrists. Subjective refraction (12 points) Note: Points will be assigned on the basis of a comparison to the range obtained by licensed optometrists. In the second section, you will examine your own patient's eyes. This portion will be graded by examiners different from the exam- iners of Section 1. They will give you direc- tions and request certain views of the eye or ask for information as observe your performance through a teaching arm on the slit lamp or a teaching mirror on the BIO. They will assign grades independently. You will be asked to do the following procedures according to the specified criteria: Binocular indirect ophthalmoscopy (15 points) Accurately views and evaluates retinal land- marks as requested. Five points will be given for each of the three areas. Note: Patient will be in reclined position during this pro- cedure. We will supply a Keeler BIO headset. However, you will be allowed to use your own BIO if it has attached teaching mirrors. Biomicroscopy (anterior segment) (16 points) Demonstrates requested view of anterior struc- tures of the eye. Four points each will be given for performance related to: Cornea Anterior chamber Lens Anterior vitreous Goldman[n] tonometry (5 points) Accurately measures intra-ocular pressure. Biomicroscopy (posterior segment) (8 points) Accurately views and evaluates posterior pole landmarks as requested with two points each for four designated areas. Note: The Zeiss slit lamps are equipped with Hruby lenses. If you prefer a fundus contact lens, or a 90 diopter lens, you must provide your own lens. Gonioscopy (8 points) Accurately views and evaluates angle structure. To protect the patient, we will put time limits on the amount of time you will have to attempt each of the section two procedures. Timing will start after you receive the instructions from the examiner and will continue until you notify the examiner to grade the procedure. Respondent's Exhibit No. 1. After petitioner's return with a patient whose eyes met the examiners' criteria, he was tested in the manner the candidate information booklet had described, which is the same procedure that has been followed since 1986. Refractions Robert Roos, a 43-year-old compound myopic astigmatic (who was assigned the number 079), was the patient it fell to petitioner to examine in section one. Before petitioner saw Mr. Roos, three licensed optometrists independently evaluated Roos' eyes. After objective refraction or retinoscopy of his right eye, they recorded astigmatic orientation or axis values of 110o, 115o and 116o, spherical values of -2.75, -2.5 and -1.75 diopters, and cyllindrical values of - 1.0, -1.75 and -1.75 diopters. Their subjective examination of the same eye yielded axis values of 107o, 110o and 111o, spherical values of -2.25, -2.25 and -1.75 diopters, and cyllindrical values of -1.5, -1.5 and -2.0 diopters. After the examiners' retinoscopy and subjective refraction, but before the candidates evaluate the patients, their left eyes are dilated with drops containing 1.0% tropicamide and 2.5% neosynephrine, the same solution that has been used since 1983. The result is left-eyed cycloplegia, paralysis of the intraocular muscle which precludes normal pupillary response of the kind petitioner observed (and reported as +4) in Mr. Roos' right eye, just before performing the refractions. (Patients' left eyes are dilated so candidates can perform other procedures.) As required, petitioner performed his own objective refraction with a retinoscope. He reported an astigmatic orientation of 105o, assigned a spherical value of -0.75 diopters, and put the cylindrical value at -2.25 diopters, for Mr. Roos' (undilated) right eye. After subjective evaluation, he reported a prescription he said effected a correction to 20/20 (a claim no examiner had occasion to evaluate), an axis value of 100o, a spherical value of -1.25 diopters and a cylindrical value of -2.0 diopters. In keeping with the grading protocol applied evenhandedly to all candidates, petitioner's evaluations were compared, item by item, to those of the examiner who most nearly agreed with his conclusions. This yielded discrepancies of 5o, 1.0 and 0.5 diopters for the retinoscopic or objective refraction results; and of 7o, 0.5 and 0.0 diopters for the subjective results. In no case did his results fall between differing examiners' results, although he agreed with one examiner on one result. Petitioner received two points for the objective refraction portion of the test and three points for the subjective portion. Chamber Depth For section two of the clinical portion of the test, Mr. Roos returned to the candidate with whom he came to the examination, and petitioner turned to the eleventh-hour recruit who had accompanied him. Reading the prescribed script, an examiner instructed petitioner in these words: Estimate the depth of the anterior chamber using the Von Herrick-Shaffer technique. Remember that IV is wide open and I is narrow. Respondent's Exhibit No. 2. The anterior chamber is deepest at the center and shallowest near the limbus, where the cornea joins the sclera, and aqueous fluid filters out of the eye. Because the angle at the junction affects the rate of flow, the depth at the chamber periphery is more likely to be of clinical significance than the depth at the center. The Von Herrick-Shaffer technique is a means of measuring chamber depth at the periphery, and not in the middle: a slit lamp casts the cornea's shadow on the chamber floor, and the ratio between the length of the shadow and the width of the cornea is determined. By whatever technique, custom and practice mandate measurement of the depth of the anterior chamber at the edge. When petitioner reported the depth at the center of the chamber, neither examiner (both of whom evaluated independently) awarded any points. Tonometry The Goldmann tonometry portion of the test required candidates to gauge intraocular pressure by placing fluorescein on the white of the patient's eye, then placing a probe and aligning the mires of the tonometer. An examiner read to each candidate these directions beforehand: Add fluorescein to non-dilated eye. Perform applanation tonometry and indicate when you have the proper measurement. You will be given a maximum of 2 minutes to perform this procedure. Respondent's Exhibit No. 2. Because the first examiner gave petitioner full credit, and the second gave him no credit, he received half credit for this part of the examination. At hearing, petitioner testified that he was not ready for the second examiner to grade, and conceded that the mires were no longer in alignment when the second examiner checked. (The second examiner also noted a misplaced light source.) But petitioner, who had the prerogative to "indicate when [he] ha[d] the proper measurement," Respondent's Exhibit No. 2, and did so before the first examiner checked, said nothing to the second examiner (who followed closely on the first) to indicate that he felt the measurement was no longer "proper."
Recommendation It is, accordingly, recommended that respondent deny petitioner's application for licensure on the basis of the September 1990 optometry licensure examination, without prejudice to any subsequent application. RECOMMENDED this 10th day of September, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1991. COPIES FURNISHED: Alejandro M. Tirado 606 First Street Neptune Beach, FL 32266 Vytas J. Urba, Esquire 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, FL 32399-0792
