Findings Of Fact Billings for home health care services once made CCI the recipient of substantial Medicaid moneys. By resort to, among other things, "a variety of different types of statistical investigations," (T.82) the Office of Program Integrity within HRS' Medicaid Office is "continuously asking the question, do we get what we pay for?" Id. A separate, legislative agency, a unit of the Office of the Auditor General, investigates allegations of Medicaid fraud. Investigation In February of 1990, Ellen Williams, a medical health care program analyst in HRS' Office of Program Integrity, noticed that CCI was "suddenly showing up as either number one or number two in the State, and . . . was intrigued why a home health agency in Palatka would be [b]illing to the extent it appeared that they were." T.36. She "requested a printout of their billings" (T.37) and opened a file. Not long afterwards, Ms. Williams learned that the Medicaid Fraud Control Unit (MFCU) in the Auditor General's Office "had basically a new review of the same agency." T.37. MFCU investigators copied "a number of boxes" (T.116) of CCI's records, including "pieces of files" for ten of the 49 patients whose files HRS subsequently attempted to obtain from CCI. T.53. As far as the evidence showed, MFCU did not obtain "the entire files on any of these people." Id. In early May of 1990, Ms. Williams received an unsigned investigative report the Medicaid Fraud Control Unit had prepared. On the strength of this report, at her supervisor's direction, she prepared a letter which was sent to CCI by certified mail on May 20, 1991. Petitioner's Exhibit No. 3. She did not attempt at that time to verify the allegations in the MFCU report. Prosecution The letter dated May 20, 1991, initiated a recoupment and termination proceeding, Conval-Care, Inc. v. Department of Health and Rehabilitative Services, No. 91-4020, intended to end CCI's "participation in the Florida Medicaid program for [alleged] violation of federal and state laws and regulations respecting the Medicaid program," stating: Information has been received from the Medicaid Fraud Control Unit of the Office of the Auditor General (MFCU) to the effect that you have billed and been paid $591,082.00 for services that are not covered by Medicaid. Petitioner's Exhibit No. 3. HRS also sought to recover the alleged overpayment, and impose an administrative fine. The letter did not allege times. (HRS later concluded that the overbillings alleged in the letter occurred between December of 1989 and November of 1990, but HRS never sought leave to amend to allege this, and took no other step to limit the allegations in the recoupment and termination proceeding.) In response to CCI's request for formal administrative proceedings, HRS referred Case No. 91-4020 to the Division of Administrative Hearings. Discovery and Further Investigation On September 23, 1991, while Case No. 91-4020 was pending at the Division of Administrative Hearings, HRS' Ellen D. Williams wrote CCI's Inez Browning, as follows: In order to complete the Medicaid review of services billed by Conval-Care, Inc. to the Department of Health and Rehabilitative Services, it will be necessary to obtain completed home health records on a selected statistical sample of recipients. I plan to arrive at your Palatka office on Tuesday, October 8, 1991, for the purpose of copying the records for the individuals on the attached list. Please have them available at that office. If you have any problems or questions, please call me at (904) 488-3588. Respondent's Exhibit No. 1. Although not identified as such, the list of names was purportedly a random sample of Medicaid beneficiaries to whom CCI had provided services between December of 1989 and May of 1991, a period during which CCI's alleged overbillings were even higher. In response to Ms. Williams' letter of September 23, 1991, counsel for CCI wrote Ms. Williams, on September 30, 1991, as follows: Please recall that your office, due in large part to your actions, is involved in litigation with Conval-Care, Inc. As a result, any request for documents must be pursued through appropriate discovery channels pursuant to the Florida Rules of Civil Procedure. No records will be provided as a result of your letter of September 23rd. If you appear at the door, you will be refused entry. You referred to a "statistical sample" of recipients, yet requested information concerning both recipients whose records have already been provided and the remaining recipients whose records were not provided during the initial investigation. This hardly reflects any statistical sampling. Further, your letter contradicts your sworn testimony in which you indicated there was no pending investigation of Conval-Care, Inc. by DHRS. In any event, Conval-Care, Inc. is a represented party in active litigation with your agency and neither you or any other representative from DHRS may contact Conval- Care, Inc. or any of its employees without my consent. You and others at the agency may have realized the weakness of your claims against Conval-Care, Inc., since the credibility of several of your key witnesses has been seriously undermined, but we will not permit you to go on a fishing expedition to try to develop new allegations against our client. You made your case Ms. Williams, now live with it. If DHRS must seek other documents related to the matters at issue, its attorneys should know how to do that. Respondent's Exhibit No. 2. HRS did not file any request for production in Case No. 91-4020 under Fla. R. Civ. P. 1.310(b), 1.350 or 1.351, which are applicable to administrative proceedings by virtue of Rule 60Q-2.019, Florida Administrative Code. Instead, attaching the same list of 49 names that Ms. Williams had attached to her letter of September 23, 1991, counsel for HRS wrote CCI's counsel, on October 17, 1991, as follows: Pursuant to Chapter 400.484 and 409.913 Florida Statutes, representatives of the Department of Health and Rehabilitative Services intend to copy certain records in the possession of Conval-Care, Inc. It is their intention to go to your clients place of business on Tuesday, October 22, 1991 and obtain these copies. I have attached a list of those records which are of interest. Please advise the undersigned if this date is inconvenient. Respondent's Exhibit No. 3. Some, but not all, of the listed records concerned patients for whom reimbursement between December of 1989 and November of 1990 was at issue in Case No. 91-4020. On October 21, 1991, in response to Mr. Scott's letter dated four days earlier, Respondent's Exhibit No. 3, Julie Gallagher wrote, on behalf of CCI: Section 400.487, F.S., grants HRS the authority to make "such inspections and investigations as are necessary in order to determine the state of compliance with the provisions of this act and of rules or standards in force pursuant thereto." It is our position that HRS has already made such "inspections and investigations" and has determined that Conval-Care, Inc. is not in compliance with various provisions of the statute and rules and, hence, HRS has initiated termination proceedings to exclude Conval-Care, Inc. from the Medicaid Program. Further "inspections and investigations" are not necessary as required by the statute and will, therefore, not be permitted. The other statute you cited, Section 409.903 [sic], F.S., has nothing to do with the inspection of documents. Should you desire documents from Conval-Care, Inc., which are pertinent to the issue in the pending litigation, please submit a discovery request and we will respond appropriately. Respondent's Exhibit No. 4. Insisting it had the right to inspect the records in question, HRS sent Ms. Williams to Palatka where, as CCI's counsel had forewarned, nobody from CCI was on hand to receive her. Main Case Abandoned "In the month or so preceding" (T.52) September 23, 1991, Ms. Williams came to believe "that what MFCU referred to . . . as their sample was not in fact a [random] sample . . . [and] did not encompass the entire billing period." Id. At hearing, she testified that she wanted "to determine an overpayment amount, irrespective of the termination proceeding." T.60. But at the time this desire arose HRS was seeking to recover the "overpayment amount" in Case No. 91-4020, the recoupment and termination proceeding in which final hearing was then set for October 14, 1991. HRS' counsel in the recoupment and termination proceeding relied on the attempt to obtain records Ms. Williams initiated on September 23, 1991, as his sole means of securing records that HRS listed as exhibits it intended to offer in the recoupment and termination proceeding, Case No. 91-4020. Petitioner's Exhibit No. 7.; T. 134-5. After the attempt to gather evidence in this fashion proved unavailing, and after several continuances, HRS dropped the recoupment and termination proceeding it had initiated against CCI.
Recommendation It is, accordingly, RECOMMENDED: That HRS dismiss the sanctions letter which initiated these proceedings. DONE AND ENTERED this 30th day of June, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 30th day of June, 1993.
The Issue Whether Respondent is liable for overpayment of Medicaid claims, for the period of January 1, 2004, through January 1, 2006, as stated in Petitioner’s Final Audit Report (FAR), dated July 19, 2006, due to Respondent’s failure to properly document for services billed and collected, in violation of Section 409.913, Florida Statutes (2006),1 and, if so, in what amount.
Findings Of Fact Petitioner is the single state agency under federal law, charged with administration of the Medicaid Program in Florida, and is charged with recovering overpayments to providers. Petitioner’s Bureau of Medicaid Integrity (MPI) has the primary responsibility to audit medical service providers who participate in the Medicaid program. MPI is a Bureau under the AHCA Inspector General. MPI conducts audits to review provider’s compliance with applicable statutes, rules, and policies regarding billing Medicaid for services rendered. An MPI audit is separate and distinct from an annual or other licensure survey or inspection conducted by Petitioner. The MPI audit is a compliance audit not a licensure one. MPI is mandated to review for provider fraud and abuse to ensure that the recipients are receiving the service for which Medicaid is paying. Respondent is a Florida licensed Advanced Registered Nurse Practitioner (ARNP) and provided medical services, including psychological counseling to Medicaid recipients, pursuant to a contract with Petitioner under her Provider number 302123800. Respondent participated in the Medicaid program at least from July 1, 2001, and continuously through December 31, 2005 (end of the Audit Period). Petitioner was paid for the services rendered. The audit period for Respondent was determined to be from January 1, 2004, through December 31, 2005. Claims for services were reviewed for a standard two-year audit period, and were audited for coding, records and visits. Thirty recipients were picked as a sample of recipients to examine during the two-year audit period. The selection was random and computer generated. Respondent was notified that Petitioner was conducting an audit. Respondent provided the charts on the 30 recipients to be examined and each of their claims during the audit period, which comprised all of her medical records. Gary Mosier is a Registered Nurse (RN), and holds a master’s degree in health care administration. Mosier is employed by the AHCA Inspector General, MPI, and is a nurse consultant and investigator. He was lead analyst and investigator in this matter. James Edgar, M.D., a psychiatrist with 35 years of experience, was retained by Petitioner as a peer review expert to review the charts and give a coding opinion. Billing codes are five-digit numbers. There are general guidelines for establishing the degree of difficulty which are set forth in documents such as Documentation Guidelines for Evaluation and Management Services, published by the American Medical Association. However, the correct coding can only be established through expert testimony, which is based upon established and identified criteria. With respect to each of the services reviewed, Petitioner relied upon the opinion of its expert, Dr. Edgar, as to whether or not Respondent billed Medicaid correctly. Dr. Edgar based his opinion on a review of documents regarding each service which were provided to him by Petitioner. In each instance where the Billing Code 90807, Individual Psychotherapy, Insight Orientation, appeared on Respondents charts for all 30 patients, Dr. Edgar down-coded the charts to Code 90862, medical management. He did not disallow payment, he adjusted each of them. His opinion was that, without the time spent with the patient being delineated on the medical chart, then the visit must be down-coded, or it could be denied completely. Dr. Edgar’s testimony was credible and persuasive. A Preliminary Audit Report (PAR) was sent to Respondent on September 12, 2006. The PAR informed Respondent of an alleged overpayment and explained her options prior to the completion of a FAR. It also put Respondent on notice of possible sanctions for lack of response to Petitioner. AHCA pays for mental health counseling when the face- to-face time spent with the recipient is documented. The medical records resulting from these services are required by law to be maintained for five years following the dates of service. These records must be made available when requested by Petitioner. Respondent was requested to produce office appointment sheets or calendars in order to document her face-to-face time with patients. Respondent sent non-contemporaneous time listings, rather than chart materials or office materials to verify and document time spent. There existed no charted or office records of the time spent with patients. Although Respondent testified that these time listings were implied because of the code that she submitted to Petitioner, this testimony is not persuasive in proving a material fact in dispute. The FAR was sent to Respondent on November 7, 2006, with the spreadsheet attachment. As with the PAR, it informed Respondent of the issues involved with the audit and the overpayment calculations and sought to levy a sanction, if one applied. There was no documentation in the charts of the time expended in the patient encounter, as required under the law. Although Petitioner agreed that the use of the Code 90807 implied that there was one hour of face-to-face contact with a patient, CPT policy requires both medication management and therapy, not just medication management. There was no time of service, time spent, and no start or stop times noted in the medical records. These notations are specifically required under Medicaid policy. A record must reflect the time spent face-to-face with a patient. The final overpayment calculation and final audit reports document that the overpayment to be recouped, and which Petitioner seeks, is $12,500.70, with an added sanction of $1,500.00. The preponderance of evidence has shown that Respondent was overpaid in the amount of $12,500.70, and that Petitioner is authorized to impose a penalty of $1,500.00.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order instructing Respondent to repay the sum of $12,500.70, and imposing a fine if appropriate. DONE AND ENTERED this 2nd day of March, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2010.
The Issue The issues are whether Respondent violated Sections 458.331(1)(m) and/or 458.331(1)(t), Florida Statutes (2005), and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of medicine. Respondent is a licensed Florida physician. He practices medicine as a board-certified surgeon in Niceville, Florida. His medical license number is ME 82923. At all times relevant here, Mark Schroeder, M.D. shared office space with Respondent in Niceville, Florida. Dr. Schroeder is a primary care physician. He has been board- certified in internal medicine since 1989. At all times relevant here, Patrick J. Anastasio, D.O., was a practicing physician in Fort Walton Beach, Florida. Dr. Anastasio is dual board-certified in internal medicine and infectious disease. In November 2005, Patient A.R. was a 35-year-old female. Her primary care physician was Dr. Schroeder. As part of her medical history, Patient A.R. reported to Dr. Schroeder that she was allergic to Amoxil/Amoxcillian. On November 2, 2005, Patient A.R. had an appointment with Dr. Schroeder. Patient A.R. complained that she suffered from constant nausea and stomach discomfort associated with her meals. On November 4, 2005, Patient A.R. underwent a gallbladder ultrasound to rule out her gallbladder as the cause of her nausea. The ultrasound indicated that Patient A.R.’s gallbladder was normal. On or about November 29, 2005, Patient A.R. had a blood test. The test results showed a positive result for Helicobacter pylori (H. pylori), which is a bacterium that infects the stomach. H. pylori causes gastritis, ulcers, and possibly even gastric cancer in some people. Other people infected with H. pylori may never have these symptoms or problems. On December 6, 2005, Dr. Schroeder prescribed a 14-day regimen of antibiotics to treat Patient A.R.’s gastritis and H. pylori infection. Specifically, Dr. Schroeder prescribed Tetracycline, Flagyl, and Nexium (a proton pump inhibitor). Patient A.R. took the medicine as prescribed for two days. She then called Dr. Schroeder’s office, requesting an alternative treatment plan due to severe nausea and sleeplessness. Before providing Patient A.R. with an alternative treatment plan, Dr. Schroeder consulted with Dr. Anastasio. Dr. Schroeder explained that Patient A.R. was allergic to Amoxil and that she had not been able to tolerate the regimen of Tetracycline and Flagyl. After this consultation, Dr. Schroeder prescribed a 7-day regimen of the following: (a) the antibiotic Biaxin to substitute for the Tetracylcine; (b) Tigan to help with Patient A.R.’s nausea; and (c) Xanax to relieve Patient A.R.’s anxiety. On December 13, 2005, Patient A.R. had a follow-up office visit with Dr. Schroeder. Dr. Schroeder understood that Patient A.R. was doing better overall on the Biaxin-based treatment regimen. On December 21, 2005, Patient A.R. reported to Dr. Schroeder that she had almost finished her antibiotics but was still not feeling well. Patient A.R. also reported that she might have oral thrush and needed a prescription to treat it. On December 27, 2005, Dr. Schroeder prescribed Nexium for Patient A.R. Despite missing some days of work, Patient A.R. completed the treatment therapy consisting of Biaxin, Flagyl, and Nexium. On January 3, 2006, Patient A.R. had another follow-up office visit with Dr. Schroeder. Dr. Schroeder’s records indicate that Patient A.R. was doing well and that her gastritis had resolved. Dr. Schroeder prescribed continued use of Nexium. On or about January 23, 2006, Patient A.R. called Dr. Schroeder’s office to report problems with persistent nausea and to request a referral for a “scope of her stomach.” She made the request based on prior discussions with Dr. Schroeder as to the next option if the Biaxin-based treatment regimen was not successful. Dr. Schroeder referred Patient A.R. to Respondent for a possible esophagogastroduodenoscopy (EGD or upper endoscopy). On February 13, 2006, Patient A.R. presented to Respondent with complaints of epigastric and abdominal pain and nausea. Respondent’s record of the visit indicates that Patient A.R. had a history of H. pylori infection in a post-treatment status. The record also indicates that Patient A.R. was allergic to Amoxil. On February 22, 2006, Respondent performed an EGD on Patient A.R. After the procedure, Respondent diagnosed Patient A.R. with moderate to severe gastritis. A pathology report dated February 23, 2006, confirmed that Patient A.R. was suffering from a H. pylori stomach infection. On February 28, 2006, Patient A.R. had an office visit with Respondent to discuss the pathology results. During this visit, Respondent inquired about Patient A.R.’s reported and documented allergy to Amoxil. Patient A.R. told Respondent that when she was 15 years old and suffering from mononucleosis, her family physician prescribed Amoxil for her. Patient A.R. took Amoxil for about a week with no indication of a reaction or sensitivity. When she began the second bottle of the antibiotic, Patient A.R. developed a head- to-toe rash and swelling. The delayed onset rash did not present an anaphylactic or life-threatening reaction. The symptoms resolved after cessation of the drug with no need for further medical intervention. There is a known interaction between ingestion of amoxicillin and mononucleosis. The reaction manifests itself in a delayed development of a rash occurring on the patient’s trunk and extremities. Children who take amoxicillin while infected with mononucleosis experience this symptomatic interaction in a great percentage, almost 100 percent, of cases. Respondent discussed Patient A.R.’s previous history of allergy to Amoxil with Dr. Schroeder. Respondent’s record states as follows: . . . She has an allergy to penicillin and failed other non-penicillin based drug regimens for H. pylori treatment, specifically, [T]etracycline/Flagyl and Biaxin/Flagyl both prescribed by Dr. Mark Schroeder. . . . * * * I immediately discussed this case with Dr. Schroeder. Ms. [R.] and her husband should both be treated with antibiotics for Heliocobacter pylori infection concurrently. After careful review of her previous history with Dr. Schroeder, there is a possibility that she is not allergic to amoxicillin, as she developed a rash while she had a mononucleosis infection, which is a common side effect. Dr. Schroeder recommended a trial of amoxicillin/Biaxin as she has exhausted all other H. pylori treatments that are not penicillin based. She will take her amoxicillin judiciously, and if she does develop any side effects will stop it immediately and report this to either myself or Dr. Schroeder. Otherwise, she will follow up with me in six months for consideration for repeat upper endoscopy. Based on the determination that Patient A.R. possibly was not allergic to Amoxil, Respondent prescribed her a 14-day treatment regimen of Amoxicillin and Clarithromycin (Biaxin), along with Nexium. As Patient A.R. left Respondent’s office, Respondent told Patient A.R. to take the treatment, assuring her that she absolutely was not truly allergic to Amoxcil. Patient A.R. did not begin taking the Amoxil treatment regimen until March 25, 2006. She delayed starting the treatment because she knew the treatment would be “rough.” She was concerned that she would miss work and be unable to enjoy a visit from out-of-town family. Patient A.R. began the treatment on a Saturday to give her body “a couple of days to adjust to the medication.” Within three hours of taking the Amoxil, Patient A.F. experienced a tingling and stinging sensation in her left middle finger. Because she had been working in the yard, Patient A.R. believed that a bee might have stung her. She did not suspect an allergic reaction because she had not had a localized reaction to Amoxil when she was fifteen years old. On Sunday, March 26, 2006, Patient A.R. continued to take the Amoxil. Her finger continued to tingle, so she soaked it in a saltwater solution. On Monday, March 27, 2006, Patient A.R.’s finger looked terrible; it was red and purple in color and swollen to twice its normal size. As previously instructed by Respondent, Patient A.R. called his office and spoke with a nurse. The nurse suggested that Patient A.R. call an immediate care facility because Respondent was in the operating room that morning and had a “room full of patients” to see in the afternoon. On March 27, 2006, Patient A.R. ultimately saw a physician or a physician assistant at Gulf Coast Immediate Care. She was diagnosed with cellulites in the finger and prescribed a cream to put on it twice a day. Patient A.R. was advised to continue taking the Amoxil. On March 28, 2006, Patient A.R.’s finger continued to get worse, turning “purplish black” in color. Patient A.R. continued to take the Amoxil-based treatment regimen because she did not have a head-to-toe rash or swelling like she did when she took the drug as a teenager. On Wednesday, March 29, 2006, Patient A.R. woke up with a head-to-toe rash, swelling, and tightness in her chest. Realizing that she was suffering from an allergic reaction to the Amoxil, Patient A.R. went to the emergency room of the Fort Walton Beach Medical Center around 7:00 a.m. The emergency room physician noted his clinical impression of Patient A.R. to be an acute allergic reaction and cellulites in her third left finger. He immediately treated her intravenously with Benadryl, Pepcid, and Solumedrol. After the trip to the emergency room, Patient A.R. stopped taking the Amoxil. Patient A.R.’s rash and the problem with her finger subsequently resolved. On or about March 31, 2006, Patient A.R. saw Leo Chen, M.D., an orthopaedic surgeon. Dr. Chen examined Patient A.R.’s finger on a referral from Respondent. On or about April 3, 2006, Patient A.R. presented to Respondent for the last time. Regarding that visit, Respondent’s notes state as follows: Again I discussed this case with Dr. Schroeder while the patient was in my office, and a phone consultation was obtained with Dr. Patrick Anastasio of Infectious Disease. The patient did have an allergic reaction to amoxicillin, and this has now been confirmed. She developed an allergic reaction to amoxicillin approximately twenty years ago while she had mononucleosis, and this was thought to be a side effect due to the combination of mononucleosis and amoxicillin, however this apparently is not the case. She did seek appropriate treatment at the emergency room and was placed on appropriate drug therapy, and seems to be resolving quite well at this time. The patient will be sent for an infectious disease consultation with Dr. Patrick Anastasio, who will take on treating the patient’s Helicobacter pylori infection, which will need to be some form of unconventional treatment or desensitization to penicillin. . . . On or about May 4, 2006, Patient A.R. presented to Dr. Anastasio at Emerald Coast Infectious Diseases. Dr. Anastasio prescribed “quadruple therapy” including the antibiotics Biaxin and Flagyl for 14 days, along with Nexium and Bismuth Subsalicylate, commonly known as Pepto Bismol. Patient A.R. completed the treatment prescribed by Dr. Anastasio. An August 2006 stool sample confirmed that the treatment had eradicated the H. pylori stomach infection. Subjecting Patient A.R. to Amoxil in 2006 was a challenge to her reported allergy. Her allergic reaction was more serious than when she was a teenager because it involved a localized reaction in her finger. This time the challenge to the allergy did not lead to anaphylaxis and death.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that Respondent violated the statutes as charged, issuing a letter of concern, imposing a $10,000 fine, and requiring five hours of continuing medical education. DONE AND ENTERED this 5th day of July, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 2007. COPIES FURNISHED: Matthew Casey, Esquire Department of Health 4052 Bald Cypress Way Bin C-65 Tallahassee, Florida 32399-3265 Thomas F. Gonzalez, Esquire Beggs and Lane Post Office 12950 Pensacola, Florida 32591-2950 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Respondent, Florida Hospital Orlando (Respondent or FHO), was overpaid by Medicaid for care provided to patients in the amount of $34,644.10, as alleged by Petitioner, Agency for Health Care Administration (Petitioner or AHCA); or, as Respondent maintains, such care was medically necessary and supported by the record presented in this cause. Petitioner also maintains an administrative fine in the amount of $2,000.00 is warranted in this matter and that it is entitled to recover costs associated with the case in the sum of $7,635.27.
Findings Of Fact Petitioner is the state agency charged with the responsibility of monitoring the Medicaid Program in Florida. Centers for Medicare and Medicaid Services (CMS) is the federal agency which administers Medicare, Medicaid, and the State Children's Health Insurance Program. CMS initiated an audit of Respondent’s Medicaid claims and contracted with Booz Allen Hamilton (BAH), a Medicaid Integrity Contractor, to perform the audit. At all times material to the instant audit, Respondent was enrolled as a Medicaid provider, governed by a Medicaid Provider Agreement, and subject to all pertinent Medicaid rules and regulations related to the provision of Medicaid goods and services to Medicaid recipients/patients. Respondent was required to retain records documenting goods and services billed to the Medicaid program for a period of not less than five years. All of the disputed claims occurred within that five-year period. BAH requested medical records pertinent to the claims and FHO produced medical records in response to BAH’s audit. Respondent intended to produce all of its medical records as requested by BAH. Respondent's Medicaid Provider No. was 0010129001. All services provided to Medicaid patients are billed and identified by patient name, date of service, and provider. For purposes of confidentiality, the names of patients are redacted in audit proceedings. All goods and services billed to Medicaid must be medically necessary. If an audit determines that goods or services billed to Medicaid were, in fact, not medically necessary, Petitioner is entitled to recover monies paid as an overpayment claim against the Medicaid provider. The amount of the alleged overpayment is the subject of this proceeding. Before a Medicaid provider is authorized to bill Medicaid for medical goods and services rendered to a patient, several checks are considered. First, the patient must be Medicaid-eligible. There is no dispute that all recipients of care in this case were Medicaid-eligible patients. Second, before an inpatient stay is reimbursable, a Medicaid provider must seek prior authorization. To do so, at all times material to this case, AHCA enlisted the assistance of, and contracted with, KePro South (KePro) to perform utilization management for inpatient hospital services for Medicaid recipients. This meant the Medicaid provider contacted KePro by e-mail through a system known as "I-Exchange." In this case, FHO followed the protocol and requested prior approval for all of the claims at issue that required prior approval. All claims at issue were either approved by KePro or were exempt from the authorization requirement. Petitioner agrees that Respondent followed all of the protocols for approval of claims through the KePro system. Respondent agrees that all claims at issue as identified in the final audit report (FAR) were billed and paid. KePro approval does not mean goods and services billed to Medicaid are, in fact, medically necessary. All patient records for the claims at issue have been re-visited in the course of this case and have been thoroughly debated by doctors for both parties. In summary, AHCA's expert, Dr. Ferdinand Richards, opined that the records for the disputed claims do not support the "medical necessity" for the claims paid by Medicaid. In contrast, Dr. John Busowski and Dr. Ross Edmundson opined that the disputed claims were accurately billed and all care rendered was medically necessary. Medicaid has a "pay and chase" policy of paying Medicaid claims submitted by providers. Audits performed after-the-fact reconcile the amounts paid to providers with the amounts that were payable under the Medicaid guidelines, pertinent rules, and law. The Medicaid provider agreement executed between the parties governs the contractual relationship between FHO and AHCA. The parties do not dispute that the provider agreement, together with the pertinent laws or regulations, control the billing and reimbursement of the claims that remain at issue. The provider agreement pertinent to this case was voluntarily entered into by the parties. Although Respondent claims it could not negotiate the terms of the agreement, it is undisputed that Respondent agreed to be bound by the agreement. Respondent was not obligated to become a Medicaid provider. Any Medicaid provider whose billing is not in compliance with the Medicaid billing policies may be subject to the recoupment of Medicaid overpayments. Medicaid providers are aware that they may be audited. Audits are to assure that providers bill and receive payment in accordance with applicable rules and regulations. Respondent does not dispute Petitioner's authority to perform audits. If services rendered in this case were medically necessary, Petitioner does not dispute the amount billed as accurately reflecting the services. There is no question that Respondent provided the services identified in the disputed claims. For billing purposes, this case centers on three types of billing practices dictated by the medical circumstances of the patient. A Medicaid patient may be treated in an emergency room setting and once the presenting condition is addressed the stay may be considered outpatient, observation, or inpatient depending on the nature of the patient’s illness. Outpatient services may also be appropriate when a patient presents for a scheduled test or procedure. Observation services may be appropriate when additional time is needed to evaluate a patient’s condition. Inpatient care is dictated when the patient requires medical services or treatments because the severity of an illness or condition dictates an intensity of care that could not be provided at a less acute level. The levels of care at issue in this case are defined and specified in the Medicaid Hospital Services Coverage and Limitation Handbook and by Florida Administrative Code Rule. In this case, the disputed claims center on whether the claims were billed at the appropriate level of care. That is, if billed at the inpatient level should the claim have been billed as observation or outpatient? If billed as observation, should the claim have been billed as outpatient? Each disputed claim is listed and explained below. Each claim is described and evaluated based upon the medical documentation available to the treating physician at the time the services were rendered. The expert opinions of the parties’ witnesses have been fully considered and weighed in reaching the findings noted. The first five claims, identified as Adventist-FL-3006, 6, 7, 8, 9 and 11, concerned a three-year-old patient with Acute Lymphocytic Leukemia. The child required five separate intravenous chemotherapy treatments. The five claims ($1,503.04 per day) were billed at an inpatient rate. For each of the claims, the patient’s hospital stay was for less than 24 hours, the patient had no significant complications from the treatments, and was able to return home at the conclusion of the treatment. Based upon the weight of the persuasive evidence in this case, it is determined that these claims should have been billed as scheduled outpatient services. Petitioner is entitled to recoup the difference between the inpatient rate and an outpatient rate for these five claims. The amount of the overpayment is $7,515.20. Claim Adventist-FL-3006-21 concerned a 40-year-old morbidly obese female who went to the hospital emergency room (ER) on July 28, 2007. This patient complained of shortness of breath and chest pains. By history, it was known this patient had bipolar disorder, sarcoidosis, hypertension, and a record of being non-compliant with medications. A pulmonary function test was administered by ER staff and it was discovered the patient was at 50 percent of the expected function level. Although the initial admission to inpatient status was well documented, the record in this case is deficient, and the physicians who reviewed the record could not indicate why a four-day admission was required for this patient. Once the patient was provided a treatment for asthma (including IV steroids) and the evaluation for congestive heart failure proved negative, the patient should have been discharged. Based upon the weight of the persuasive evidence in this case, it is determined that this claim should be discounted to only two days of inpatient stay and not the four days billed. The exact amount of the overpayment for this claim cannot be determined from the evidence but is less than the $5,723.60 claimed by Petitioner. Claim Adventist-FL-3006-22, involved the same patient as described in paragraph 14. Less than two months after the visit described above, the patient returned to the ER with mild wheezing, and the patient was admitted for three days as an inpatient. Given the history of this patient, and the lack of significant change to the presenting symptoms, it is determined that the weight of the persuasive evidence would require this claim to be reduced to two days of observation, not inpatient services. This patient did not have a medical condition to justify a three-day stay. It may have been that the patient needed a place to stay, and her shortness of breath was a convenient excuse for her to seek medical attention; in any event, she did not have a medical condition of the acuity requiring a multi-day inpatient stay. Respondent does not turn patients away. Nevertheless, Medicaid does not provide for housing of patients who need care other than to meet medical needs. It is undoubted Respondent provided a meaningful service to this patient, but the level of medical care is not supported by the record in this case. AHCA is entitled to recover $2,717.52 for this claim. The next disputed claim, Adventist-FL-3006-30, concerned a 31-year-old male who went to the ER after having thrown-up blood. The patient reported a history of blood in his stools and gastro-esophageal reflux disease. Although the patient’s vital signs were normal, and there was no evidence of bleeding in the ER, the patient was admitted to the intensive care inpatient unit (ICU) and monitored. After a period of time in the ICU, it was noted that the patient’s hemodynamic was stable and he was moved to a “step down” inpatient room. The weight of the persuasive evidence would require this claim to be reduced to two days of observation services not the two days of inpatient billed. The record does not support any acuity requiring intensive care services. Moreover, the endoscopy resulted in normal findings. Had the endoscopy been performed on admission, the normal findings could have ruled out the need for inpatient services. In this case, the treating physician did not think the patient’s condition required an emergency endoscopy. Based upon that determination and the patient’s normal hemoglobin and hematocrit, it was unlikely the patient required more than observation. Giving Respondent the benefit of the doubt with regard to this claim, and assuming this patient required more care than observation to rule out a more acute illness, that determination could have easily been concluded within a one-day inpatient stay. AHCA accepts a two-day observation stay for this patient thereby reducing the overpayment to $2,716.18 for this claim. Adventist-FL-48 claim was a 44-year-old male who, while working on a ladder, touched a live electrical wire. This patient was taken by rescue squad to the ER and presented with atrial fibrillation. The patient was admitted to inpatient status, and it was recommended he be given a full cardiac work- up. At some point during his ER stay, and prior to the cardiac testing, the patient returned to a normal cardiac rhythm. Against the recommendation of medical staff, the patient left the hospital. Approximately three days later this patient returned to the ER and requested the cardiac testing he had declined on his prior visit. When he returned, the patient had a normal heart rhythm, had no other symptoms to suggest a cardiac irregularity, and had normal vital signs. Instead of billing the cardiac testing as outpatient services, the patient was admitted for inpatient status and given the full complement of cardiac tests to rule out any adverse cardiac condition resulting from the electrical shock. The weight of persuasive evidence supports that the testing should have been given with this patient in an outpatient status. There was no medical instability supporting a more acute setting for the testing that was done. The overpayment for this claim is $1,503.04. The patient described in Adventist-FL-78 claim was a 63-year-old female who went to the ER with stomach discomfort, nausea, and headache. It was feared the patient was in a cardiac-related condition as the patient had multiple risk factors including atrial fibrillation. By history, the patient had suffered a heart attack in the recent past, and the ER physician rightly admitted the patient for inpatient care to perform a cardiac work-up and to rule out any cardiac event. The inpatient stay was for a 24-hour period so that the testing could be concluded. The weight of persuasive evidence supports this stay. Respondent has shown the medical necessity for the treatment provided for this patient. Adventist-FL-96 claim concerned a patient with a significant bone marrow disorder similar to leukemia. The patient had had a bone marrow transplant. Upon admission to the hospital he suffered nausea, vomiting, and abdominal pain. He was admitted for a one-day inpatient stay and treated for dehydration. He was given a white blood count test and once stabilized was discharged (within 24 hours) with the recommendation that the patient return to his regular provider in Tampa. The weight of persuasive evidence supports this stay. Respondent has shown the medical necessity for the treatment provided for this patient. The patient in Adventist-FL-98 claim was a 45-year-old male with a history of Chronic Obstructive Pulmonary Disease (COPD), smoking, and alcohol abuse. The patient had a history of hospitalizations related to COPD and upon admission complained of shortness of breath. At the time of admission, the patient had normal vital signs, acceptable oxygen saturation levels, no wheezing, and a chest x-ray that showed no acute abnormalities. The weight of persuasive evidence supports the finding that a level of care of observation, and not inpatient, was the correct level Respondent should have billed for this patient. The patient had no medical acuity to support a one-day inpatient stay. AHCA is entitled to recover the overpayment in the amount of $1,358.09. AHCA no longer disputes Adventist-FL-154 claim. Consequently, the overpayment associated with the audit must be reduced by $3,856.68. It is determined Respondent accurately billed for this claim. Similarly, Respondent no longer disputes claims Adventist-FL-155-156. These claims should have been billed as observation, not inpatient stays. Accordingly, Petitioner is entitled to recover the overpayment associated with these claims in the amount of $2,672.98. The patient associated with Adventist-FL-180 claim was a 53-year-old female with a history of breast cancer and metastatic disease. On the date of her admission, she had had radiation therapy. She suffered nausea and vomiting and presented to the ER. She received an IV of fluids and IV Zofran, felt better, and left the hospital against medical advice. In total, the patient was in the hospital approximately three hours or less. The claim billed her admission as inpatient. This claim should have been billed as observation. Accordingly, the weight of persuasive evidence supports that an overpayment occurred with regard to this claim. Petitioner is entitled to recover the difference between inpatient and observation for this patient. The amount of the overpayment is unknown. With regard to Adventist-FL-230 claim, this patient was a 58-year-old male complaining of shortness of breath with a history of atrial fibrillation. The patient was admitted for a five-day inpatient admission. Respondent was paid for a four-day inpatient stay because that length of stay was approved by KePro. Petitioner disputes that an inpatient stay was required. The weight of persuasive evidence supports an inpatient stay of three days. The patient had stabilized, testing had been completed, and there was no significant medical basis for an inpatient stay beyond that point. The amount of the overpayment is unknown as the audit sought reimbursement at an observation rate. Although not entitled to the four days of inpatient as billed for this patient, Respondent has established it was entitled to a three- day inpatient compensation based upon the medical necessity established for this patient. Respondent, and other providers may adjust Medicaid billings after-the-fact to conform to medical necessity for any claim filed. In this case, Respondent did not review its claims once KePro approval had been secured. That is to say, if the KePro approval was documented, Respondent did not question the claim for medical necessity once treatment was given. Billings were adjusted to conform to KePro approval, but were not questioned or re-visited as to whether the appropriate level of acuity was documented. Petitioner asserts that Respondent failed to submit the complete medical records for Adventist-FL-98 claim until after the audit was issued. Respondent’s response that it provided all medical records timely to the auditor, BAH, is accepted. It is unlikely the records of one claim would have been omitted from the hundreds of pages of records given to the auditor. BAH conducted their audit over an extensive period of time. The Interim Audit Report was issued on October 4, 2010. The overpayment at that time was alleged to be $42,848.29. That amount was also noted in the FAR dated November 16, 2010. Concurrent with the FAR, Petitioner announced its intention to impose sanctions against FHO. The July 20, 2011, audit report reduced the overpayment to $38,790.68, but again claimed Petitioner was entitled to impose sanctions. The June 12, 2012, audit report further reduced the overpayment to $38,500.78. Subsequent to the hearing, Petitioner acknowledged that the overpayment should be reduced another $3,856.68 to $34,644.10. Petitioner incurred investigative and legal costs in connection with this case in the amount of $7,635.27. Respondent has not challenged the reasonableness of that amount. Petitioner seeks sanctions against Respondent in the amount of $2,000.00. Respondent submitted records to BAH for 285 claims that had to be reviewed. Of that total, only those claims addressed above remain at issue. Ninety-four percent of the claims reviewed/audited by BAH were resolved without dispute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order adjusting the recoupment for the Medicaid overpayment as indicated in the foregoing findings of fact, imposing a sanction in the amount of $500.00, and recovering its costs in the amount of $7,635.27. DONE AND ENTERED this 4th day of September, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2013. COPIES FURNISHED: John D. Buchanan, Jr., Esquire Henry, Buchanan, Hudson, Suber, and Carter, P.A. Post Office Drawer 14079 2508 Barrington Circle (32308) Tallahassee, Florida 32317-4079 David W. Nam, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
The Issue The issue for consideration in this case is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, has been the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent was a licensed physician in Florida under license number ME 0039846. On September 23, 1988, Respondent saw Patient #1, a 55 year old female, who presented with a primary complaint of chronic pain in the neck and low back resulting from an automobile accident. The patient history taken by the Respondent revealed a head injury, a back injury and a whiplash injury, all within the previous five years. The patient also had a history of unstable blood pressure, especially in times of stress, and a history of alcohol abuse which had been in remission for the past two years. Respondent examined the patient and found she was suffering from depression but evidenced no suicidal ideations or indications of psychosis. Respondent diagnosed a major depressive reaction and myofacial syndrome of the neck and low back. Dr. Morales treated this patient from September 23, 1988 to February 1, 1990, prescribing various antidepressants and anti-anxiety medications including Limbitrol, Prozac, Valium, Halcion and Tranxene for her. He also prescribed various opiates including Percodan and Percocet. Respondent claims he made a copy of each prescription he wrote for the patient medical records of each patient so that he could keep track of the number of pills he prescribed for that patient. He claims that the quantity of a prescribed medication was kept in a separate area of the patient's chart and not with the clinical notes. Though Respondent claims this procedure was a common office practice and done consistently in every patient's chart, the evidence indicates otherwise. His method of recording medication in the clinical record was inconsistent. At some places in the record he would indicate the exact number of a specific pill prescribed. At other places in the record, he would not. Examples of this practice, as seen from the medical records of Patient #1 available, shows the following entries: October 20, 1988, Rx for Valium for patient #1 but no indication of the amount prescribed is found in the records. March 2, 1989, Rx for Percodan QID (4 times a day), but no indication in records of the amount prescribed. July 8, 1989 Rx for Percodan - 60 tabs. August 2, 1989 Respondent notes to continue with Percoset, but no notation in records as to amount. September 7, 1989 Rx for Percocet but records do not reflect amount prescribed. November 15, 1989 Rx for 60 Percocet. December 6, 1989 Rx for 30 Percocet pills. While Patient #1 was under Respondent's care, she was admitted to the hospital twice. On September 18, 1989 she was admitted to Largo Medical Center for narcotics addiction and was discharged on September 28, 1989. On September 18, 1989, while the patient was in the hospital, Dr. Farullah, a staff physician, called Respondent to discuss the patient with him. This conversation, including the Respondent's name, is itemized in the hospital records for this patient. It is appropriate practice protocol upon the admission of a patient to the hospital for the admitting physician to notify the patient's attending physician about the patient's diagnoses and condition. It would appear this was done here by Dr. Farullah. Nonetheless, Respondent claims he did not know the patient was hospitalized, contending he did not recall the conversation, and noting that the information regarding hospitalization might not have been included in it. Respondent claims he never heard of Dr. Farulla until a subsequent visit from the patient in his office on October 24, 1989. After the patient's discharge from the hospital, she came to Respondent's office for a 30 minute visit on October 4, 1989. Though this visit occurred only 6 days after her discharge from the hospital, Respondent claims the subject of her hospitalization was not discussed. Two days later, on October 6, 1989, the patient returned to Respondent's office for another 30 minute visit and again, the subject of her hospitalization did not come up. This patient was readmitted to the hospital on October 10, 1989 with a diagnosis of, among other things, drug dependency. She was discharged on October 20, 1989, but, again, Respondent claims he did not know of her hospitalization. He saw her on October 24, 1989 for another 30 minute visit during which, he claims, the subject of her hospitalization did not come up. This appears to be a conflict with his previous testimony , noted in Paragraph 8, supra, wherein he stated he never heard of Dr. Farullah until he met with the patient in his office on October 24, 1989. On April 10, 1990, in the course of filing a disability claim with the Department of Health and Rehabilitative Services, (DHRS), the patient signed a medical release form. Thereafter, HRS requested the patient's records from the Respondent, but they were not forthcoming. A second request was transmitted to the Respondent who replied that the records requested had been copied but not dispatched because no release form accompanied the request. Respondent indicated that upon receipt of the release form, the records would be forwarded, and on June 4, 1990, they were, in fact, sent by the Respondent. This was approximately 17 months before the burglary of Respondent's office to be discussed, infra. Respondent claims it was his policy, however, in responding to requests for information to the Social Security Administration, (disability claims are paid by Social Security), to provide only clinical notes, initial evaluation, and a medical summary update. Other records, including prescription records, are not sent. Respondent's office was burglarized on November 30, 1991 by one of his former employees. According to Respondent, all the medical records he had were taken during the break-in. Though they were ultimately returned, he claims they were incomplete when returned. However, comparison done by the Department's investigator, of the medical records of Patient #1 which were sent to HRS before the burglary with those taken from Respondent's office after the burglary, indicated they were the same, except for some duplicates. Nonetheless, Respondent claims that some of the records pertaining to Patient #1, including prescription records, were not recovered. This could explain the absence of prescription records in both sets of records, but that is not found to be the case here, however. According to the Board's expert, Dr. Boorstin, a Board Certified Psychiatrist who specializes in addiction psychiatry and opiastic medicine, the benzodiazepins prescribed for Patient #1 by the Respondent, were inappropriate because of her known alcoholism, and he failed to adequately monitor her for possible addiction or dependence. Even though her condition had been in remission for two years, Dr. Boorstin concluded it was below standard practice to prescribe those drugs to this patient. Dr. Boorstin also concluded that Respondent failed to keep adequate written medical records for this patient and did not justify the less than conservative prescription of anti-anxiety and pain medications to a known alcoholic. A physician must keep track of the drugs being used by a patient to be sure no abuse trends exist. The Respondent should have detailed with exactitude in his records the number of each specific medication. From September 30, 1988 to February 1, 1990, a period of 16 months, he prescribed various opiate-based pain killers to Patient #1, including Tylenol #3, Codeine, Percodan and Percocet. His prescription of the latter two, in Dr. Boorstin's opinion, fell below the appropriate standard of care. The patient's hospital records indicate she was suffering from drug addiction, and if, as the Department claims, Respondent knew of her hospitalizations and the reason therefor, his prescription of liberal amounts of opiate based drugs was inappropriate. The evidence shows the patient was admitted to the hospital on two occasions, both times for, among other problems, drug addiction. Less than one month after her second discharge, Respondent prescribed Percocet for this patient for pain relief at a rate of two tables every six hours. According to Dr. Boorstin, the usual adult dosage is one tablet every six hours. This is outlined in the Physician's Desk Reference, (PDR), a compendium of drugs and medications with manufacturer's recommendations for dosage. Though authoritative in nature, the PDR is not mandatory in application, and physicians often use it as a guide only, modifying strength and dosage as is felt appropriate for the circumstance. On at least one occasion, Respondent's medical records for this patient show he prescribed Percocet but not the amount prescribed. This is below standard. The same is true for the noted prescription for Percodan. Both Percodan and Percocet are Schedule II drugs. A notation in the records for a prescription for Valium also reveals no indication was given as to the amount prescribed. Again, this is below standard. Dr. Boorstin's opinion is contradicted by that of Dr. Wen-Hsien Wu, the Director of the Pain Management Center at the Schools of Dentistry and Medicine of New Jersey, the New Jersey Medical School, who testified by deposition for the Respondent. Dr. Wu claims he has prescribed medications in amounts and dosages far in excess of those prescribed by Respondent and for a much longer period of time. Wu is Board certified in anesthesiology and has published numerous articles on pain management. Dr. Wu contends there is no contraindication for the use of narcotic therapy in Patient #1's alcoholism. The use of narcotics is appropriate if the patient can return to function with careful monitoring. Here, it would appear that Patient #1 was monitored through her frequent visits to the Respondent's office. It is impossible to tell from the Respondent's patient records just how much medication he prescribed for his patient. Because of the failure to indicate the number of pills of each type Respondent was prescribing, it is impossible to form a conclusion as to whether the amount prescribed was appropriate or excessive. Notwithstanding Respondent's claim in his Proposed Findings of Fact that "...there is no indication of drug abuse in the prescribed drug area", the medical records show that on each admission of Patient #1, a diagnosis of drug addiction was made. To be sure, these records do not reflect the drug to which the addiction relates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein finding Respondent guilty of all allegations except prescribing in inappropriate amounts. It is also recommended that Respondent be ordered to pay an administrative fine of $3,500 within 90 days of the date of the Final Order herein, be reprimanded, and within one year of the date of the Final Order herein, attend continuing medical education courses at the University of South Florida Medical School in appropriate medical record keeping and in the prescribing of abusable drugs. RECOMMENDED this 12th day of June, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. - 5. Accepted and incorporated herein. 6. - 15. Accepted and incorporated herein. 16. - 19. Accepted and incorporated herein. & 21. Accepted as a representation by Respondent. Accepted as Respondent's position but not accepted as fact. Accepted and incorporated herein. Accepted. - 27. Accepted and incorporated herein. Rejected as unproven. & 30. Accepted but repetitive of other evidence previously admitted. 31. & 32. Accepted and incorporated herein. - 38. Not appropriate Findings of Fact but merely recitations of the contents of records. Accepted and incorporated herein. - 42. Restatement of witness testimony. FOR THE RESPONDENT: Accepted and incorporated herein. - 5. Accepted and incorporated herein. 6. & 7. Accepted as testimony of Respondent, but not as probative of any issue. 8. - 11. Accepted and incorporated herein 12. & 13. Accepted. 14. - 16. Accepted and incorporated herein. 17. Accepted. 18. & 19. Accepted. 20. Accepted. 21. Accepted. 22. - 24. Accepted. 25. - 29. Accepted and incorporated herein. 30. & 31. Accepted. 32. Accepted. & 34. Accepted as opinions of the witness, but not as the ultimate fact. Accepted as to admissions but rejected as to Respondent not being advised. Accepted and incorporated herein. COPIES FURNISHED: Steven A, Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33617 Grover C. Freeman, Esquire Freeman, Hunter & Malloy 201 E. Kennedy Boulevard Suite 1950 Tampa, Florida 33602 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue to be determined is whether Respondent, Umesh Madhav Mhatre, M.D. ("Dr. Mhatre" or "Respondent"), has violated section 458.331(1)(t), Florida Statutes (2007), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is a licensed physician within the State of Florida, having been issued license number ME 27561 on September 13, 1976. He has never been the subject of disciplinary proceedings prior to this case. Respondent's address of record is 165 S.W. Vision Glen, Lake City, Florida 32025. Respondent is board-certified in adult psychiatry and child and adolescent psychiatry. Respondent practices in Lake City, Florida, and is the only full-time psychiatrist practicing there. He has served on the Board of Directors for the Lake City Medical Center, as chief of staff twice, as well as serving as the president of the Columbia County Medical Society. Dr. Mhatre was an instructor at the University of Florida from 1979 to 1980, followed by service as an adjunct clinical professor for University of Florida for the next 20 years. He is a consultant to the State of Florida, Division of Vocational Rehabilitation within the Department of Education, and has been a court-appointed psychiatrist for the Third, Fifth, Seventh and Eighth Judicial Circuits. Dr. Mhatre accepts all types of insurance, including Medicaid. He continues to treat patients after their insurance is depleted. From approximately March of 1999 through approximately May of 2008, Respondent treated patient S.C. S.C. was a patient experiencing moderate to severe mental illness. By history, she suffered from a psychotic disorder, most likely schizophrenia; post-traumatic stress disorder ("PTSD"), with significant personality dysfunction related to the trauma; obsessive-compulsive disorder ("OCD"); traits associated with a personality disorder; and history of alcohol abuse. S.C. had a history of sexual abuse by both her mother and her mother's psychiatrist, and physical abuse from her former husband and her son. Prior to her treatment with Respondent, she had experienced over 50 hospitalizations in a 10-year period. When she presented to Respondent, S.C. was experiencing auditory hallucinations and self-injurious behavior, such as cutting herself. Auditory hallucinations are the misperception that someone is hearing voices that are not really there. Self- injurious behavior is the conscious intent to hurt one's self but without the intent to die. Beginning in the spring of 2004, Respondent prescribed the psychotropic drug Geodon for S.C. Geodon is an anti-psychotic drug that is believed to block dopamine receptors, and impacts several different receptors in the nervous system. S.C. responded very positively to Geodon, and her auditory hallucinations and cutting behavior subsided while treated with the drug. During the time that Dr. Mhatre was treating S.C., he was also a speaker for Pfizer Pharmaceuticals, giving lectures on the benefits of Geodon. He had given those lectures since approximately 2001. The lectures were presentations to a small number of other mental health providers in an informal setting. Dr. Mhatre was paid for his presentations. Beginning at the end of 2005 through approximately March 20, 2008, S.C. participated in some of the seminars with Respondent, providing her experience with the use of Geodon compared to other psychotropic drugs that had been prescribed for her over the years. S.C. participated in six seminars with Respondent during this period of time. By contrast, according to Respondent's payment ledger submitted as Respondent's Exhibit 3, Respondent participated in approximately 31 presentations. There were times that S.C. told Dr. Mhatre that she could not attend a seminar because of a scheduling conflict, and from his view, her inability to appear did not cause any problems. Dr. Mhatre agreed to speak for Pfizer in part because, as the only full-time psychiatrist in Lake City, it gave him the opportunity to interact with other physicians in his field. It also gave him the opportunity to see the data provided by the pharmaceutical companies to the Food and Drug Administration. S.C. did not testify in this proceeding. According to Respondent, S.C. was a Medicaid patient and, after taking Geodon for approximately a year with great success, she had expressed concern that Medicaid might remove the drug from its formulary and stop paying for the Geodon. Respondent suggested that she speak to a Pfizer representative who was visiting his office, because Pfizer had some programs that assisted patients who could not afford their medications. Dr. Mhatre testified that as a result of S.C.'s discussions with representatives from Pfizer, they suggested that she participate in the lectures regarding Geodon, and she agreed to do so. Dr. Mhatre's explanation is unrebutted.1/ S.C. was reimbursed by Mhatre for travel expenses, but no other payments were made to her. Dr. Mhatre's compensation as a speaker was not affected by S.C.'s participation or lack thereof. He continued to speak for Pfizer until 2011, approximately three years after his treatment of S.C. ended. The presentations took time away from his office practice, so the compensation he received from Pfizer has been replaced by seeing more patients. There has been little difference in his income as a result of no longer speaking for the company. Dr. Mhatre discussed with S.C. the potential risks and benefits of appearing in the presentations. He felt participation could possibly raise her self-esteem and give her a feeling of self-control. Telling her story would give S.C. an opportunity to help other patients. On the other hand, he warned her that she could encounter some physicians who were not supportive and could be confrontational. Dr. Mhatre stated that, in the event such an issue arose, he would intercede for her. However, there is no indication that such a negative encounter ever occurred. With respect to those presentations where S.C. participated, generally, Dr. Mhatre would begin a program with a standard presentation regarding Geodon, and would show some slides related to the drug and its use with serious mental illness, such as bipolar disorder or schizophrenia. Then, S.C. would be given an opportunity to discuss her experiences in terms of her mental health history, to a degree; her poor response to other medications; and her robust response to Geodon. S.C.'s participation in the presentation lasted approximately ten minutes. Her identity was not revealed and details regarding her mental health history were very limited. S.C.'s last two visits with Dr. Mhatre were February 11, 2008, and May 12, 2008. At the February 11, 2008, visit, Dr. Mhatre's notes reflect that S.C.'s prescription for Prozac made her sleepy, stating in his objective assessment, Patient apparently continues to have some obsessive behavior in spite of 40 mg Prozac has not changed any rather she has become increasingly more tired and thus prefers to go back to 20 and deal with her obsession by doing more physical exercise. Dr. Mhatre noted that her treatment response was "adequate for psychosis, not for OCD." Her mental status is described as "shows moderately anxious with some impulsion to clean but no psychosis not suicidal has no urge to hurt herself." The treatment plan indicates that her Geodon will remain at 80 mg 2 tablets daily, and her Prozac would be decreased to 20 mg a day, with S.C. returning in three months. S.C. participated in her last Geodon presentation on approximately March 20, 2008. Her last visit with Dr. Mhatre was May 12, 2008. Her reported subjective assessment was that "I am doing alright." Dr. Mhatre's objective assessment states: The patient continues to do very well. She has not had any relapse of her hallucination. Neither has she had any urge to cut herself. Occasionally she has low moods but they are manageable. She is definitely not suicidal. Dr. Mhatre listed her mental status as "shows no overt psychoses, hallucination or delusion. Not suicidal or homicidal." Dr. Mhatre's treatment plan for S.C. was for her to return in three months, and to maintain her treatment as is. Dr. Mhatre did not associate with S.C. outside of the office setting and the Geodon presentations. He did not socialize with her before or after the presentations. Despite her apparent stability at the May 12, 2008, visit, on July 7, 2008, S.C. was admitted to Shands at Vista, a crisis stabilization unit. She was discharged on July 11, 2008. Her Discharge Summary includes the following: This is a 44-year-old divorced white female admitted voluntarily on a referral from her therapist, Dr. Earley, after reinitiation of cutting herself superficially on her right thigh for the last five days. The patient states that she has had a history of cutting behavior for eight years in her 30s. She was started on Geodon at that time and since then her obsession and compulsion of cutting has improved until the last six months. . . She also notes that a recent stressor in the last month has been strong encouragement by her physician toward doing speeches for the Geodon pharmaceutical company. The patient states that, however, her symptoms of obsessions and compulsions have been worsened in the last six months and she has been afraid to tell her psychiatrist. At that time, it had been close to two months since S.C. had seen Dr. Mhatre and three and a half months since she had appeared at a Geodon seminar. It is unclear how the seminars became a stressor in the last month, and S.C. was not at hearing to explain this comment in the discharge summary. During this hospitalization, Abilify and Lexapro were introduced into S.C.'s medication regimen and Geodon and Prozac were discontinued. She did not see Dr. Mhatre again, and began treatment with another psychiatrist. Dr. Mhatre's patient records for S.C. indicate on July 11, 2008, that he received a telephone call from a Dr. Earley in Gainesville who informed him that S.C. had decompensated and was admitted to Vista. His notes reported the following: Notation: I received a call from Dr. Earley in Gainesville, Florida. . . . Dr. Earley reports that while I was on vacation, S.C. had decompensated and ended up in Vista. Dr. Earley, however, was concerned that she felt because of S.C.'s discussions with me on Geodon subject to the physician and nurses group had compromised our doctor/ patient relationship and that S.C. no longer felt comfortable calling me when she was not doing well, fearful that I may get upset with her or that she may let me down. I discussed with Dr. Earley in that case we need to transfer her to another physician. Vista Pavilion has already taken the steps to set her up with another physician for further management. Also, discussed in that case the daughter who is under my care for depression may need to be seen by someone else as S.C. may find it difficult to come to the office with her. I expressed to Dr. Earley my significant surprise about S.C.'s decompensation and that in the past these talks had been a tremendous boost to her self-esteem and that she had done better than ever before. I urged Dr. Earley to explore other possibilities that may have caused decompensation. I also assured Dr. Earley that since she started having talks with me, I have repeatedly discussed with her her feelings about wanting to do these talks and there was never any pressure put on S.C. and she had voluntarily did [sic] these talks. In fact, I repeatedly assured Dr. Earley that she had felt much better now that she could educate other people who had helped her self-esteem tremendousely to the point that she had even started working at domestic violence shelter and wanted to pursue an career as a counselor and that it was my belief all along that this participation in the talks was very therapeutic for S.C. and tremendously enhanced her self-esteem. I have advised Dr. Earley that I will cancel S.C.'s next appointment and should there be any contact from S.C. with me that I will notify her. The medical records for Shands Vista indicate that S.C. began seeing Dr. Earley (whom she had seen in the past) one week before her admission to Shands Vista. Dr. Earley, who filed the complaint with the Department against Dr. Mhatre, did not testify in this proceeding. The Department contends that Respondent failed to meet the relevant standard of care by engaging in a boundary violation, which was exploitative and/or resulted in harm to S.C. In support of this contention, the Department presented the testimony of Jack Abramson, M.D. Dr. Abramson is a graduate of Laval University School of Medicine in Quebec City, Canada, and served his residency at Harvard Medical School. He has been in group practice in Miami, Florida, since 1990, and is board-certified in general psychiatry, and the subspecialties of geriatric psychiatry, addiction psychiatry and forensic psychiatry. Dr. Abramson is a diplomate of the American Board of Psychiatry and Neurology and a diplomate of the National Board of Medical Examiners and the American Board of Quality Assurance. He is also licensed in Louisiana, Texas, Iowa, Massachusetts, and Arizona. Dr. Abramson has an "eclectic" practice and sees patients as a private practitioner in South Florida. He does not accept Medicaid patients. Approximately one-third of his practice is devoted to forensic psychiatry. Dr. Abramson reviewed Dr. Mhatre's medical records for S.C. Insofar as the actual conduct of Dr. Mhatre in his office, and his notes, medical prescriptions, diagnoses and evaluations for S.C., he "found no issues." However, Dr. Abramson believed that Dr. Mhatre committed a boundary violation when he recruited S.C. to present her story in commercial presentations on behalf of a drug company. According to Dr. Abramson, the standard of care is well-accepted in the psychiatric community. When one is engaged with psychiatric patients in a doctor-patient relationship, it is inherently recognized that the relationship is one of unequals, and that the doctor holds a position of superiority and power over the patient, and therefore has a responsibility to strictly observe boundaries with respect to the relationship. When asked what constituted the actual violation or departure from the standard of care, Dr. Abramson opined that "the violation was that he got his patient to agree to present her story to commercial presentations on behalf of the drug company." However, there was no evidence presented that Dr. Mhatre persuaded S.C. to participate in the presentations. The only competent evidence presented indicates that a Pfizer representative made the suggestion to S.C. Dr. Abramson also testified that if no recruitment by Dr. Mhatre took place, and S.C. indicated that participation in the programs was something she wanted to do, then it was Dr. Mhatre's responsibility to discuss with her the possible straying outside the normal therapeutic limits and ramifications for treatment. Dr. Abramson acknowledged that there is no statute or rule specifically prohibiting the kind of conduct at issue in this case, as there is with sexual misconduct. He also acknowledged that allowing the participation of a patient in a presentation such as the one described here would not necessarily be a departure from the standard of care with respect to every patient, and in some cases, a patient could derive a benefit from participation. In his view, what makes it an issue with respect to S.C. is the extent of her illness. Because of the complexity of S.C.'s history, Dr. Abramson opined that she was an extremely fragile patient with whom boundaries must be extremely firm and concrete. Dr. Abramson also acknowledged that S.C. could experience a return of symptoms at any time whether she participated in the Geodon programs or not. He did not interview S.C. or evaluate her. Respondent presented the expert testimony of Lawrence Reccoppa, M.D. Dr. Reccoppa completed his undergraduate degree at Cornell University and his medical degree at the University of Florida. His residency was also completed at the University of Florida. He is board-certified in psychiatry and licensed to practice medicine in Florida since 1987. For the last 20 years, Dr. Reccoppa has served as a courtesy clinical professor for the University of Florida, supervising approximately two residents per year in his private practice, and works with the forensic fellows at the University who work in the prison system. 41. Dr. Reccoppa's private practice generally consists of an adult outpatient private practice, with patients of both sexes from age 16 to late in life. His patients include people with mood and/or anxiety disorders, and thought disorders or psychoses and personality disorders. He treats patients with auditory hallucinations and self-injurious behaviors. Dr. Reccoppa reviewed S.C.'s patient records from Dr. Mhatre and from Shands Vista. He saw nothing in S.C.'s medical records that indicated she did not have decision-making or informed consent capacity, and does not think that the Geodon seminars were a factor in her decompensation, stating that there can be multiple factors leading to a relapse. Dr. Reccoppa also attended one of the Geodon presentations at which S.C. appeared. The presentation that Dr. Reccoppa attended occurred in Gainesville sometime in 2007. It was attended by approximately 10 mental health professionals, including Dr. Reccoppa and several other psychiatrists, including two faculty members at the University of Florida (Dr. Carlos Muniz and Dr. Ross McElroy); a psychologist; and a mental health therapist. Dr. Reccoppa's description of the program varied very little from Dr. Mhatre's, with the exception of the order in which the presentation was structured. The differences were not material in terms of S.C.'s participation. He recalled that S.C. discussed problems she had experienced with weight gain and sedation with other medications, and her experience with Geodon. It did not appear that she was uncomfortable or forced to relive any trauma from her past during the program, and she gave no indication that she was anxious about participating in the program. To the contrary, she appeared to be comfortable in front of the approximate ten attendees. According to Dr. Reccoppa, the attendees were very accepting of her participation and told her that they were grateful that she attended and shared her experience. He recalled S.C. stating that she felt comfortable doing it and that it was a positive experience for her to be able to express some of her problems with medications and the positive experience she had had with Geodon, with the hope that she could help other providers care for their patients. Dr. Reccoppa opined that it is possible for a patient like S.C. to derive a therapeutic benefit from appearing at a program like the Geodon program, as it could provide a positive effect on the patient's self-esteem to be able to speak to an empathetic group who could provide positive feedback. Such a patient could also benefit from the idea that he or she was helping others. Dr. Reccoppa compared the presentation to grand rounds, and has attended other, similar programs, both at the University of Florida and at the Department of Corrections. He described grand rounds at the university as a situation where several faculty members attend a meeting in which a presentation is given about a disease state, a medication, or where a patient is interviewed to discuss his or her history and course of treatment. While Dr. Abramson testified that there are ethics panels through which patients would be screened for participation in a grand rounds setting, Dr. Reccoppa was not aware of such a requirement. In fact, Dr. Reccoppa stated that the complexity of S.C.'s situation made her appropriate for a grand round setting, because a simple patient does not present the same educational opportunity. Dr. Reccoppa's testimony is credited. Dr. Reccoppa did not believe that allowing S.C. to participate in the Geodon presentations was a violation of the appropriate standard of care, and did not believe that Dr. Mhatre had committed a boundary violation. He knew of no peer-reviewed or authoritative literature that would indicate that it would be departure from the standard of care for a patient to participate with his or her psychiatrist in a pharmaceutical company- sponsored program. Dr. Reccoppa opined that a boundary violation that would represent a practice below the applicable standard of care would occur when a psychiatrist becomes involved with a patient in a manner that does not encompass the doctor-patient relationship, and involves co-mingling outside of the professional setting, such as dating, socializing or investing with a patient. Dr. Mhatre did not engage in this type of behavior with S.C. After careful review of the expert testimony presented, Dr. Reccoppa's opinion is more persuasive as applied to the evidence in this case. Dr. Abramson, while a fine psychiatrist, is not a reasonably prudent similar physician practicing under similar circumstances. His practice is in a metropolitan setting and he does not see Medicaid patients. Dr. Mhatre is the only full-time psychiatrist in a much more rural area and sees all types of patients, regardless of insurance. Dr. Reccoppa had actually observed S.C. and saw her behavior during one of the presentations at issue. Given the totality of the evidence, it is found that there was no violation of the relevant standard of care with respect to Dr. Mhatre's care and treatment of patient S.C.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 20th day of November, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2012.
The Issue Whether Respondent failed to comply with several requirements set forth in the Florida Medicaid Assistive Care Services Coverage and Limitations Handbook, thereby incurring a $15,000 fine according to Florida Administrative Code Rule 59G- 9.070(7)(e).
Findings Of Fact Embassy is an assisted living facility that provides assistive care services, and was enrolled as a provider in the Florida Medicaid program at all times pertinent to the instant case. AHCA is the state agency charged with the administration of the Medicaid program in Florida. Within AHCA is the Bureau of Medicaid Program Integrity (MPI), whose duty is to ensure the integrity of the Medicaid program by conducting audits of claims and by investigating providers to ensure compliance with all requirements of the Medicaid program. At all relevant times, Embassy has been subject to a Medicaid Provider Agreement. Pursuant to the agreement, Embassy agreed to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program. Embassy also agreed to comply with AHCA's Medicaid handbooks. The Medicaid Provider Agreement includes the requirement that providers keep, maintain, and make available in a systemic and orderly manner all medical and Medicaid-related records as AHCA requires. On December 6, 2011, AHCA conducted a site visit at Embassy's facility. In a letter dated February 8, 2012, Embassy was notified that a fine of $15,000 was being assessed. The letter read as follows: In accordance with Section 409.913, Florida Statutes (F.S.), and Rule 59G-9.070, Florida Administrative Code (F.A.C.), the Agency for Health Care Administration (Agency), shall apply sanctions for violations of federal and state laws, including the failure to maintain a Resident Service Plan for Assistive Care Services within fifteen (15) days of a Resident Health Assessment for Assisted Living Facilities for Medicaid consumers P.A., D.B., D.D., R.E., M.G., F.G., P.N., K.T., E.V., and G.W., the failure to maintain a complete Resident Health Assessment for Assisted Living Facilities for Medicaid consumers D.B., M.G., and F.G., the failure to maintain a physician statement indicating that employee M.J.D. is free of communicable diseases, the failure to maintain current tuberculosis skin test results for employees M.J.D., E.J., and B.R., and failure to maintain current Level II background screening results for employees E.D., M.J.D., J.R., and B.R. A review of the recipient files revealed that service plans were missing in ten files. Service plans are required for each recipient, and they must be signed or provided within 15 days of the annual health assessment, or within 15 days of an assessment that causes a significant change in the recipient's condition. Embassy admitted at the final hearing that ten recipient files did not contain service plans. The documentation provided also did not contain a Level II Background Screening for four Embassy employees; these screenings must be conducted every five years. Embassy admitted that the required background screenings were conducted on December 16, 2011-- after the site visit, and after they had expired. Lastly, the documentation provided during the site visit did not contain tuberculosis screening results for three employees. Two of those employee files also did not contain the Level II Background Screenings as noted above; one employee file was only missing the tuberculosis screening. The Agency properly imposed sanctions for each of the fifteen violations of Medicaid policy; that is: ten recipient files that did not contain service plans, four employee files that did not contain a Level II background screening and therefore were not maintained properly for inspection, and one employee file that did not contain a tuberculosis screening. There is no evidence establishing that Embassy has been previously charged with, or been determined to have committed, any violation of Medicaid law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that pursuant to Florida Administrative Code Rule 59G-9.070(7)(e), Respondent should be fined a total of $15,000 for 15 violations of Florida's Medicaid laws. DONE AND ENTERED this 31st day of January, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2013.
The Issue The issue for consideration in this case is whether Respondent’s license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the former Petitioner, Agency for Health Care Administration, Board of Medicine, was the state agency responsible for the licensing of physicians and the regulation of the practice of medicine in this state. Respondent was licensed as a physician having been issued license number ME0032973. On or about July 29, 1992, Patient S.S. came to Dr. Reilly’s office at 1201 5th Avenue North, Suite 401, in St. Petersburg, complaining of “coughing up blood.” Patient S.S., an electronics technician, claimed he had been coughing up small amounts of blood for several months on a sporadic basis. The blood did not appear every day, but when it did, it was repeated for several days in a recognizable amount. At that time, S.S. did not smoke, but had smoked at least a pack a day from 1970 to 1978, when he quit smoking. Over the years, S.S. had been exposed to chemicals on the job, a fact which concerned him, and as a result, the appearance of blood in his sputum worried him. At this point it should be noted that sputum and saliva are not the same thing. Sputum is matter brought up from the lungs or throat. Saliva, though it may be mixed with sputum in the mouth, is generated by saliva glands in the mouth. A patient history was taken on the event of the first visit which was not particularly significant. During the interview with the patient, Dr. Reilly asked him if he smoked or drank, and it would appear that at that time S.S. answered in the negative as to both. Dr. Reilly identifies the “N” notation opposite both on the form as his. Aside from the cough, nothing remarkable was discovered as a result of the interview or examination, save wax in the patient’s ears. Dr. Reilly then told S.S. that his cough was probably due to an upper respiratory infection, which would probably resolve without problem but, if the condition were something more significant, it would probably get worse. Respondent then prescribed erythromycin, an antibiotic, to be taken four times a day for ten days. He also warned S.S. that the drug had a possibility of creating gastritis. Though S.S. claims he asked Dr. Reilly to order a chest x-ray, Reilly does not recall this and indicates that, under the circumstances of this case, he would not have done so anyway. In this regard, it must be noted that Dr. Reilly cannot recall having seen the patient and does not have any direct recollection of any of the facts and circumstances surrounding this visit and the one which followed. His testimony is based on his review of his medical records regarding this patient and his conclusions of what he ordinarily would do in such a situation. He does not deny that S.S. may have asked for a chest x-ray. In his nineteen years of practice, he has treated many patients with chest coughs, and it is not unusual for them to ask for a chest x-ray. By the same token, S.S.’ recollection of the details of his visits to Respondent are also vague. He cannot recall with particularity much of what happened. However, Respondent could not have discovered some of the things which appear in the records other than from the patient. The patient’s credibility is not high. This conclusion is not based on any evidence of intentional misrepresentation, but on the patient’s inability to recall details of the visits. After the first visit, S.S. continued to cough up blood, and about a week later he again called the Respondent’s office and reported this. It was not clear whether S.S. spoke with the Respondent at that time, but he was told that it was nothing to worry about even though he was not seen by the doctor. This was repeated somewhat later when, still experiencing his complaint, he again called the doctor’s office to express his concern over a continuation of blood in his sputum. Again, Respondent told him it was nothing to worry about. S.S. went to Respondent’s office for a second visit, on August 21, 1992. There is a question of to whom he reported having blood in his sputum, and as to where the blood actually appeared. The medical records reflect S.S. reported blood in his saliva to the receptionist. He says he told the Respondent, which Respondent denies. Assuming, arguendo, that S.S. is correct and he did inform the doctor, the records also make it clear he was also experiencing bright red rectal bleeding with his bowel movements, and this condition, in the opinion of Respondent and both Dr. Herold and Dr. Harvey, is a condition of far more importance and urgency than minimal blood in the sputum. Dr. Herold and Dr. Harvey, each an experienced specialist in either internal medicine and pulmonary diseases or in family medicine, conclude that it is far more appropriate for a physician confronted with Respondent's symptoms, to treat the rectal problem before the blood in the cough. At worst, the coughing of blood can signify lung cancer while blood in the stool can signify rectal cancer. Both physicians opined that if a patient has lung cancer which causes him to cough up blood, the potential for a cure is slim, even if the condition is caught early. On the other hand, if the patient has rectal cancer, the chances for a cure if caught early are much greater. In any event, the medical chart for the August 21, 1992, visit reflects that the upper respiratory infection had resolved. Nonetheless, Respondent noted that if the bleeding continued, the patient should have an x-ray. With regard to the rectal bleeding, Respondent did a hemocult, which was negative, but he also made an appointment for the patient to have a barium enema and a proctologic examination at St. Anthony’s hospital at 10:30 a.m, on September 4, 1992. The patient did not keep that appointment nor did he ever return to the Respondent’s office for treatment. He claims he did not feel the Respondent was helping him. Other medical records indicate, however, that sometime after he saw Respondent for the second time, S.S. went to see a proctologist, Dr. Nanda, in October 1992 for treatment of the rectal fissure. At no time did he discuss the coughing up of blood with Dr. Nanda who performed surgery on the patient, nor with the anesthesiologist who assisted. S.S. recalls that a chest x-ray was taken at that time, which, he claims, showed a spot on his lung, but apparently this did not disturb Dr. Nanda, as nothing was suggested or done about it. Finally, in June 1993, when the coughing seemed to get worse, S.S. went to see Dr. Ronald Bowers, a pulmonary disease specialist, who obtained copies of S.S.’ patient records from the Respondent, and who, because he suspected tuberculosis, quarantined S.S. at home for two weeks pending a bronchoscopy. When that procedure was done, it revealed a foreign object in the patient’s bronchial tube. Bowers ruled out tuberculosis, but suggested the patient have the top section of his lung removed and referred him to a thoracic surgeon, Dr. Campbell, who agreed. S.S. was understandably not happy with that diagnosis and recommendation and saw another thoracic surgeon, Dr. Chapa. Dr. Chapa agreed that he should have the top section of his lung removed. Still not satisfied, S.S. saw Dr. Leonard Dunn, another pulmonary disease specialist, who found, dislodged, and removed a small calcified object from an intrabrachial tube in the patient’s right lung. Dr. Dunn also gave the patient a strong antibiotic and advised him to come back in a month for a follow- up x-ray to ensure the spot was gone. Though the follow-up x-ray still showed a spot on the patient’s lung, another bronchoscopy did not show anything out of the ordinary, and the patient has suffered no coughing of blood nor discomfort since that time. Dr. Carlton Vollberg, a family practice physician in practice in Punta Gorda, Florida, evaluated this case for the Board of Medicine. In his practice, he has had patients with symptoms similar to those presented by S.S. to the Respondent. His review of the file indicated that the symptoms described to Respondent by the patient could have been caused by a number of conditions for many of which erythromycin is an appropriate antibiotic. At that time, the Respondent’s diagnosis of infection was presumptive, not differential and the prescription of an antibiotic to treat the several possible conditions without an x-ray was appropriate. However, when the patient came back a second time, still complaining of coughing blood, the failure to treat the chest condition, and the election to treat the rectal fissures, was not appropriate. When the patient returned, still complaining of bloody sputum, Dr. Vollberg contends a reasonably prudent physician, in those circumstances, would have ordered a chest x-ray. Lab tests would not have been appropriate because of the regimen of antibiotics the patient had been following. Dr. Vollberg concluded that as of August 21, 1992, the Respondent had made no diagnosis as to the cause of the blood in the patient’s sputum, and there was no evidence to indicate that Respondent followed up on that issue in the treatment plan he outlined. Vollberg concluded that if the account given by S.S. was a true and accurate account of the scenario, Respondent’s treatment fell below standard. He also concluded that the Respondent’s medical record does not justify the course of treatment followed because, if the patient was coughing up blood and had a history of smoking and environmental exposure, the Respondent should have shown that in the records. Dr. Herold has lectured and written extensively on the subject of the evaluation of chronic cough in his academic and clinical role at the medical school. Much of this relates to when an x-ray should be taken and when it should not be taken. A part of this decision rests on the economics of the procedures - what to look for and when to order and not to order diagnostic measures. A cough, with or without blood, is a common complaint. Most patients have benign, self-limiting problems, and without severe distress or a history indicating another problem, refusal to order an x-ray on the first visit is not inappropriate. In addition, blood-stained sputum is not uncommon and is often related to an upper respiratory infection. The downside of x-rays is multi-faceted. First, is the potential for exposure to excessive radiation. Second, is the expense of the x-ray. Third, is the possibility of false positives resulting from the taking of the film, and fourth, is the effect on the credibility of the physician. Fifth, is the possibility of antagonizing the patient. The 1990’s standard of care requires a knowledge of when not to x-ray as well as when to x-ray, and an emphasis is placed in the medical schools on this issue. Dr. Herold, who does not know the Respondent, has reviewed the records in this case, and having done so, concluded that Respondent’s record-keeping of the first visit of S.S. was satisfactory. The reference to the antibiotic and the instruction as to when to take it indicates a prescription was given and, in his opinion, the examination Respondent gave the patient was appropriate for the first visit. Herold contends that the reference to the upper respiratory infection in the synopsis section of the record constitutes a diagnosis, and the examination and treatment given on the first visit was within the standard of care as taught at the University of South Florida Medical College. As to the second visit, as recorded in the chart, Herold opines that again the record is adequate as is the treatment rendered. The record indicates that the upper respiratory infection and the bleeding had resolved, but also notes that if the bleeding should persist, an x-ray should be done. Since the Respondent ordered some studies for the patient, even though for a different reason, a follow-up visit is implied. Medical schools teach that if a treatment plan is recorded in the doctor’s notes, it is understood that the information was also conveyed to the patient. Therefore, the examination on August 21, 1992, and the records relating to it, are, in his opinion, within the standard of care in Florida. This conclusion was concurred in by Dr. Harvey. Respondent does not like to order x-rays when not absolutely necessary because of the risk of exposure to radiation, the cost, and the low likelihood that the film will show anything or change the diagnosis or outcome. He does not recall this patient or the situation. However, based upon his review of the records, Respondent concluded that he diagnosed an upper respiratory infection for which he prescribed an antibiotic.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a Final Order dismissing the Administrative complaint filed in this case against Dr. Michael T. Reilly, M. D. DONE AND ENTERED this 13th day of August, 1997, in Tallahassee, Leon County, Florida. _ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 1997. COPIES FURNISHED: Joseph Garwood, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Donald V. Bulleit, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. Post Office Box 210 St. Petersburg, Florida 33731 Dr. Marm Harris, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, General Counsel Department of Health Building 6, Room 102-E 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
