The Issue At issue in this proceeding is whether Petitioner is liable for overpayment of Medicaid claims for the period of January 1, 2000, through December 31, 2001.
Findings Of Fact Based upon the stipulations of the parties and the evidence presented at the hearing, the following relevant Findings of Fact are made: AHCA is the state agency charged with the regulation of the Medicaid program in the State of Florida, and has the authority to perform Medicaid audits and recover overpayments, pursuant to Section 409.913(2), Florida Statutes (2001). Petitioner is a Florida, not-for-profit corporation that was enrolled as a Medicaid provider during the audit period of January 1, 2000, through December 31, 2001. At all times relevant to this proceeding, Petitioner was authorized to provide medical services to Medicaid recipients. The selection of records for and the conduct of the audit was not a matter of controversy between the parties. The records in this case were requested within the five-year window for record retention and agency investigation provided by Section 409.913(8), Florida Statutes (2001). Medicaid pays a per diem rate for inpatient hospital care and treatment. This per diem payment covers all services and items furnished during a 24-hour period. The audit in this case dealt exclusively with inpatient services at Florida Hospital Orlando. Deborah Lynn, a medical health care program analyst for AHCA, reviews the agency's inpatient hospital audits. The agency selects a hospital for audit on a random basis, then selects for review, a random sample of that hospital's patients admitted during the audit period. AHCA sends a demand letter to the hospital, which then sends the relevant patient records to AHCA. Florida Hospital Orlando had to be granted a 30-day extension, but eventually provided, to AHCA, all of the requested patient records. The hospital's records were first provided to a nurse consultant, who reviewed the records and made a suggestion as to the number of days for which Medicaid reimbursement should be denied for each patient. The nurse consultant's suggestions were then calculated into an initial overpayment amount and included in the PAAR that was sent to Petitioner on January 20, 2005. Ms. Lynn acknowledged that the PAAR constituted the first notice to Petitioner that AHCA disputed the length of stay for some patients based on medical necessity. After receipt of the PAAR, Petitioner was given the opportunity to examine the days that AHCA preliminarily questioned and to provide additional information in defense of its Medicaid billings. Petitioner did, in fact, submit additional documentation. The records, the additional documentation, and the nurse consultant's recommendations were then forwarded to a peer reviewer; a physician who uses his or her medical expertise to determine the medical necessity of the services provided. In this case, AHCA employed the services of two peer reviewers. Dr. Laura Machado was the peer reviewer for the inpatient medical cases, and Dr. Rahul Mehra was the peer reviewer for the inpatient psychiatric cases. The peer reviewers prepared reports that offered their opinion as to which days of the patients' stays were medically necessary. Ms. Lynn then calculated the amount of the alleged overpayment and communicated that number to Petitioner in the FAAR on August 20, 2005. General issues regarding patient discharge Ms. Lynn emphasized that the peer reviewer's job is simply to determine medical necessity, not to base coverage decisions on the convenience of the patient or provider. She rejected the suggestion that it was any part of the peer reviewer's task to consider what medical facilities and services are actually available in Orlando, at the time that Florida Hospital Orlando is contemplating the discharge of a Medicaid patient. Ms. Lynn reiterated that hospital services under Medicaid are governed by the Hospital Services Coverage and Limitations Handbook, the January 2001 edition, of which sets forth the following "Service Requirements": Medicaid reimburses for services that are determined medically necessary, do not duplicate another provider's service, and are: individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient's needs; not experimental or investigational; reflective of the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide; furnished in a manner not primarily intended for the convenience of the recipient, the recipient's caretaker, or the provider. The fact that a provider has prescribed, recommended, or approved medical or allied care, goods, or services does not, in itself, make such care, goods or services medically necessary or a covered service. Dr. Ross Edmundson, Florida Hospital Orlando's medical director for health care management, agreed that a clinically stable patient can be sent home or to a skilled nursing facility "in the best of all worlds." However, Dr. Edmundson pointed out that a safe discharge plan is the primary consideration for the treating physician, and that a safe discharge plan may render things "medically appropriate" that might not be found "medically necessary" in purely clinical terms. For example, if the Medicaid patient has no home, and the physician knows full well that the patient will be living under a bridge if he is discharged to the street, then it would be grossly negligent to discharge that patient without a plan to get better care. If the patient requires $500.00 worth of medications for the next month, and has no way of obtaining them, it may be grossly negligent for the physician to send that patient out the hospital door. The InterQual Products Group's "ISD" (Intensity of Service, Severity of Illness Discharge Screens) is a nationally recognized set of utilization guidelines that are used by hospitals, Medicare and Medicaid. Dr. Edmundson believed that these discharge guidelines take into account factors beyond the purely clinical: You have to have a discharge treatment plan. If you have a place to follow up, if you have [an] accepting physician, if you have a plan, if you know that they can make it there in the next three days and they require follow up in three days, that is clinically appropriate. If you know that they're going to live in a box and you have no assurance that this patient is going to make it back for any follow up, then that is not a safe discharge plan, it is not medically appropriate. The criteria really has that built in. There are barriers that may prevent the hospital from discharging the patient to an alternative location. Even if the hospital has met the patient's immediate medical needs and the patient's condition is stable, the patient's financial situation may present an obstacle to placement in a skilled nursing facility or to obtaining home health care. Petitioner has access to "a very limited number" of providers who will give follow up care to Medicaid and self-pay patients. Most nursing homes in central Florida have a set number of Medicaid beds for which they will accept patients. Medicaid will not pay a sub- acute facility or a nursing home any additional money for expensive medications, such as intravenous (IV) antibiotics, which further discourages those facilities from accepting patients upon their discharge from the hospital. Florida Hospital Orlando has severe capacity problems. The hospital has about 1,800 beds on its seven campuses, and these beds are almost always full. It is not unusual for the hospital's daytime census to be above 100 percent, with patients backed up in the emergency room waiting for beds to become available. Given the hospital's capacity problems and the low reimbursement rates of Medicaid, there is no motive for Petitioner to keep Medicaid patients in the hospital any longer than is absolutely necessary. Tammy Rikansrud is Florida Hospital Orlando's director of case management, utilization management, and denial management. According to Ms. Rikansrud, the hospital begins discharge planning within 24 hours of a patient's admission, and immediately begins seeking referrals as soon as its knows the patient will be discharged to a sub-acute facility. A major problem is that many facilities limit the number of beds for Medicaid patients, if they accept Medicaid patients at all. Robert Fleener is Petitioner's director of case management. Based on Mr. Fleener's testimony, the impediments to placing a patient in a nursing home from the hospital include rejection of the patient for "payer constraints," meaning that the Medicaid system does not reimburse the nursing home enough to cover its costs. Petitioner seeks placement for its Medicaid patients throughout the state of Florida and beyond, if necessary. Aside from nursing homes, Petitioner uses Shands Teaching Hospital in Gainesville, and long-term acute care hospitals such as those operated by Kindred Healthcare. Petitioner always assesses the practicality of home care for its patients. Petitioner also seeks to place its patients at outpatient clinics when appropriate, but there are few clinics in Orlando, and they are not required to accept Petitioner's discharged patients. The usual practice with ambulatory patients is to discharge them from the hospital, then have them come back on an outpatient basis for follow up treatment. Petitioner always assesses its patients to achieve discharge to the least restrictive setting. If the patient is ambulatory, the hospital will seek to place the patient in an assisted living facility. If the patient is not ambulatory, the hospital will look to a skilled nursing facility that is able to provide the necessary level of service. As also noted by Dr. Edmundson, a patient's need for expensive medicines can make it difficult to place the patient in a nursing home because of reimbursement problems. According to Mr. Fleener, nursing homes look very closely at accepting homeless patients, because they assume that if they accept a homeless person, they will have that patient for the rest of his life. Petitioner has "unavoidable" inpatient days for its Medicaid patients, where the care could have been provided in a nursing home but the hospital was unable to place the patient, due to lack of beds, patient behavior problems, age, or the cost of clinical care. Stephen William Bailey is the clinic coordinator for Petitioner's department of psychiatry. Petitioner has a 76-bed psychiatric inpatient unit and a medical psychiatric unit for patients with a psychiatric diagnosis and co-morbid medical problems. The hospital must obtain state approval to place a psychiatric patient in a nursing home, assuming it is possible to find a nursing home that is equipped to handle psychiatric issues and is willing to take the patient. It is not uncommon for Petitioner to admit a patient with behavior disturbances from a nursing home, stabilize the patient's medications and treatment, then have the nursing home refuse to take the patient back. Petitioner has no incentive to prolong inpatient stays. Patients are waiting to be admitted on a regular basis, and there are, at times, as many as 20 psychiatric patients in the emergency room waiting for admission. Cara Lee Staples is a social worker at Florida Hospital Orlando. She attends treatment team meetings, assesses patients for discharge needs, researches placement availabilities, and meets with families to plan care after discharge. Based on Ms. Staples' testimony, many of Petitioner's Medicaid patients have chronic mental illnesses and often have no involvement with their families. As soon as a patient is admitted, Ms. Staples seeks to obtain a psychosocial history of the patient, which includes where the patient came from and whether the patient can return upon discharge. If the patient cannot return to, for example, the assisted living facility from which he was admitted to the hospital, then Ms. Staples must attempt to find an appropriate placement for the patient so that he may be safely discharged once he is stabilized. According to Ms. Staples, there is a range of alternative placements she may explore, depending on the patient's circumstances. Those persons who do not need structured care may be placed in a boarding home. Those requiring minimal care may be placed in an assisted living facility or a retirement home. The next level of care would be provided by an extended care facility, which Ms. Staples described as an intermediate facility between an assisted living facility and a skilled nursing facility. Other placement options include substance abuse rehabilitation facilities, halfway houses, 28-day programs, and shelters. The hospital faces some placement problems. Assisted living facilities tend not to accept patients with recent histories of drug abuse. Some assisted living facilities will not accept patients who are incontinent and unable to change themselves. Assisted living facilities without locked units will not accept Alzheimer's patients who tend to wander. Nursing homes will often reject young psychiatric patients in need of skilled nursing services because of their age. Nursing homes are generally reluctant to accept Medicaid patients, particularly those who are homeless, because of the difficulty they will face in placing the patient after the need for skilled nursing services has passed. Nursing homes will decline to accept a patient once they learn he is on a psychiatric unit because they "cannot meet their needs," which Ms. Staples described as a global catch-all phrase for their general desire not to accept psychiatric patients. Acute Care Inpatient Hospital Stays By the time of the hearing, the acute care inpatient hospital stays of 16 patients remained at issue. The findings below are set forth in the order that the patients were listed in AHCA Exhibit 6, the recipient spreadsheet indicating the dates of the patients' stays, the dates denied by the peer reviewers, and the amount of claimed overpayment. Patient #1 R.B. R.B. was admitted on March 30, 2001, and was discharged on April 8, 2001. Peer reviewer Dr. Machado determined that two days, April 6 through 8, should be denied due to lack of medical necessity for continued inpatient care.3 Dr. Machado's peer review report stated that R.B. was a 46-year-old female with scleroderma. She was admitted with chest tightness and found to be in near end-stage renal failure. Standard enzyme testing ruled out a heart attack. Her renal function continued to deteriorate and it became clear she would soon need dialysis. R.B. underwent placement of a Tessio catheter on April 3, and arrangements were begun for her to receive dialysis at an outpatient center in her hometown of Pensacola. Dialysis could not be arranged at the outpatient center until after she underwent dialysis at the hospital on April 4 and 5. Dr. Machado agreed that it would not have been safe to discharge her until adequate arrangements had been made for her outpatient dialysis, but that she was medically stable and ready for discharge by April 5 with an outpatient treatment plan in place. The care R.B. received in the hospital after April 5, including two blood transfusions on April 7, could have been provided on an outpatient basis. Petitioner's expert witness, Dr. Yithak Daniel Haim, testified that R.B. was not discharged as scheduled on April 6, because of changes in her mental status. She had nausea and episodes of confusion. On April 7, her medications were reviewed in light of their propensity to cause confusion in persons with poor kidney function. It was thought that her confusion could be due to OxyContin. Dr. Haim also noted that R.B.'s hemoglobin dropped on April 7, and she required a transfusion. Treating physician Dr. Daniel Tambunan confirmed that R.B. was kept in the hospital after April 6 due to her mental status, which developed into hallucinations on April 7. Dr. Tambunan also noted that R.B. had developed tachycardia on April 5 probably due to low hemaocrit, which was measured at 22.3 on April 7. Dr. Haim stated that a normal hematocrit is between 39 and 45. Dr. Haim agreed with Dr. Machado that dialysis can usually be done on an outpatient basis, but that he decided to keep her in the hospital due to the combination of the tachycardia, low hematocrit necessitating a transfusion, and the need to ascertain whether the hallucinations were caused by medications or by the dialysis. The greater weight of the evidence supports Petitioner's position that April 6 through April 8 should not have been denied. Dr. Machado's opinion was supportable regarding the ability of the patient to receive transfusions and dialysis on an outpatient basis. However, Dr. Machado's testimony ignored R.B.'s hallucinations and the reasonableness of keeping her in the hospital until the treating physician could ascertain their cause. Therefore, AHCA offered no evidence to conflict with the testimony of Dr. Haim that it was medically necessary to keep R.B. in the hospital until her discharge on April 8. Patient #2 F.C. F.C. was admitted on March 5, 2001, and was discharged on March 12, 2001. Peer reviewer Dr. Machado determined that the admission should be denied and a 23-hour observation should be approved.4 Dr. Machado's peer review report stated that F.C. was a 43-year-old female smoker with high blood pressure. She was admitted with chest pain for 3 days and by some notes was chronic over the last year. An electrocardiogram (EKG) did not show ischemia, and serial enzyme tests ruled out a heart attack. A spiral computer tomography (CT) scan was negative for a pulmonary embolism, i.e., a blood clot in the lung. Dr. Machado wrote that F.C.'s vital signs were stable, and that an outpatient work-up of her chest pain would have been appropriate. Instead, she had a stress test on March 7. The results were still "pending," according to a note on March 11. She also underwent work-up of abnormal findings on her abdominal CT/ultrasound, all of which could have been accomplished safely in the outpatient setting. Petitioner's physician expert, Dr. Haim, concurred with Dr. Machado's denial of this admission. The treating physician, Dr. Ashok Khanna, offered plausible reasons for keeping the patient in the hospital, including the fact that F.C. was a drug addict who could not be relied upon to comply with testing required to rule out coronary artery disease on an outpatient basis. However, the greater weight of the evidence supports Dr. Machado's denial of the admission. Patient #3 J.C. J.C. was admitted on July 6, 2000, and was discharged on July 12, 2000. Peer reviewer Dr. Machado determined that five days, July 8 through July 12, should be denied due to lack of medical necessity for continued care on the medical ward. Dr. Machado's peer review report stated that J.C. was a 55-year-old male initially admitted to the psychiatric unit due to depression and suicidal gesture. Psychiatric notes indicate that J.C. complained of three weeks of exertional chest pain and fatigue. On July 6, he was transferred to the medical ward for further evaluation. Serial enzyme tests ruled out a heart attack, and he was hemodynamically stable. He underwent a stress test on July 6, with no chest pain and no EKG changes. Dr. Machado concluded that a transfer back to the psychiatric unit or to home would have been appropriate, with follow-up. She believed it was not medically necessary to keep J.C. on the medical ward while awaiting the nuclear images of the stress test, as he was chest pain free and hemodynamically stable after July 7. Treating physician Dr. Luis Allen testified that he was called in on a psychiatric consultation on J.C. while he was in the medical unit. Dr. Allen found that J.C.'s depression was significant and that he would be in need of inpatient psychiatric treatment. Dr. Allen therefore followed J.C. until he was transferred to the inpatient psychiatric unit. The transfer was delayed while the cardiac workup was completed, so that the physicians could be confident that J.C. was medically stable before his transfer back to the inpatient psychiatric unit. Dr. Allen noted that J.C. had a history of depressive disorder and experiencing feelings of helplessness, hopelessness, that his level of depression was significant, and that he had been admitted for a suicidal gesture. Dr. Allen testified that J.C.'s psychiatric symptoms were too marked to be treated on an outpatient basis. Dr. Allen believed that his stay through July 12, was necessary when the combination of the patient's medical and psychiatric conditions are considered. Petitioner's medical expert, Dr. Haim, disagreed with Dr. Machado that J.C. could have been transferred from the medical ward on July 7, because the results of his cardiac stress test did not come back until July 9. Dr. Haim agreed that J.C. could have then been transferred off the medical ward on July 9. However, there was no bed available on the psychiatric floor on July 9. J.C.'s condition indicated a need for acute psychiatric hospitalization, meaning that he could not be discharged home. Thus, he remained on the medical ward until a psychiatric bed became available. Dr. Haim agreed that this was not strictly a medical reason, but contended that the lack of beds constituted a "reality reason" that justified the full admission. Petitioner's expert psychiatrist, Dr. Alan Berns, agreed with Dr. Allen and Dr. Haim that the full stay was justified. The greater weight of the evidence supports AHCA's denial of the last five days of J.C.'s admission. The record established that J.C. ceased to meet the criteria for inpatient admission in the medical unit on July 7. The reason for keeping J.C. on the medical unit after July 7 was administrative convenience, not medical necessity.5 Patient #4 P.C. P.C. was admitted on July 9, 2000, and was discharged on July 17, 2000. Peer reviewer Dr. Machado determined that six days, July 11 through July 17, should be denied due to lack of medical necessity for continued inpatient care. Dr. Machado's peer review report stated that P.C. was a 64-year-old female with a history of leg cellulitis treated with IV antibiotics. She was admitted through the emergency room with increased swelling of her lower left leg, which raised concerns about deep vein thrombosis (DVT), compartment syndrome, or progression of her cellulitis. P.C. also had chronic anemia, which had worsened. DVT was ruled out and she was continued on IV antibiotics. She had a blood transfusion due to her anemia. P.C. declined inpatient gastrointestinal (GI) work for her anemia, so the hospital planned to schedule the GI work after her discharge. Dr. Machado concluded that the remainder of her hospital stay could have been outpatient. She did have one further transfusion of packed red blood cells (PRBCs) on July 12, but she did not need to remain in the hospital for this, as she continued to refuse further workup and was asymptomatic. Dr. Machado testified that the physician's note on July 10 stated that the patient "looks and feels better, no complaints," and that P.C. was sufficiently improved to be discharged on that date. She could have been continued on IV antibiotics at home through home health care, or could have received the treatment at a skilled nursing facility. Dr. Machado acknowledged that the patient received a blood transfusion on July 12, but stated that this could have been provided on an outpatient basis. Blood could have been drawn after the transfusion for lab testing, and there would have been no need to call P.C. back in unless there was a problem with the labs. Dr. Haim testified that P.C. was diabetic, had kidney problems, peripheral vascular disease, and congestive heart failure. As of July 11, the status of her infection had improved, but she was still on IV antibiotics and her hematocrit had dropped. Because P.C. had several chronic medical problems, it was important to raise her hematocrit. She was given the transfusion on July 12, but her hematocrit continued to drop. Dr. Haim testified that this raised intense concerns as to "where is this blood going to." A CAT scan of her abdomen revealed no internal bleeding. Her release was planned for July 15, but blood testing on that date showed that her kidney function had deteriorated. It was feared that one of her IV antibiotics, Vancomycin, was affecting her kidney function. Dr. Haim concluded that her drop in hemoglobin and kidney function necessitated keeping her in the hospital until July 17. J.C.'s treating physician, Dr. Sidiab Elalaoui, testified that he could not have given the patient transfusions in his office. He disagreed with Dr. Machado that J.C. could have been seen in an outpatient setting as of July 11. Dr. Elalaoui noted that J.C. had been getting IV antibiotics at home, but that her condition nonetheless worsened to the point where she had to be brought to the emergency room on July 9. Dr. Elalaoui stated that J.C. did not have a simple infection. She had a bacteremia, a bacteria that went from the skin into the blood of a patient with diabetes and high blood pressure. Dr. Elalaoui could not be sure if her condition was life- threatening, but confidently stated that it was "severe." The greater weight of the evidence supports Petitioner's position that July 11 through July 17 should not have been denied. Dr. Machado's opinion was supportable regarding the ability of the patient to receive a transfusion and IV antibiotics on an outpatient basis. However, Dr. Elalaoui's testimony as the treating physician, in combination with Dr. Haim's expert testimony, credibly established that, whatever the patient's theoretical ability to receive transfusions and IV antibiotics on an outpatient basis, under the actual circumstances, it was medically necessary to keep J.C. in the hospital through July 17. Patient #5 A.F. A.F. was admitted on November 30, 2000, and was discharged on December 7, 2000. Peer reviewer Dr. Machado determined that four days, December 3 through December 7, should be denied due to lack of medical necessity for continued inpatient care. Dr. Machado's peer review report stated that A.F. was a 32-year-old female admitted with a severe headache and apparent new onset seizures. She underwent a CT scan, magnetic resonance imaging (MRI), and an electroencephalogram (EEG), all of which reported negative. She had undergone a lumbar puncture previously for the severe headaches, which was also negative. Dr. Machado concluded that A.F. could have been discharged with oral medications and outpatient follow-up for treatment of her apparent migraine headaches. Instead, A.F. underwent further testing for low back pain, depression, and substance abuse. Dr. Machado believed that the treating physicians allowed the patient's subjective complaints to outweigh the objective clinical findings, noting that A.F. had been seen sitting up and talking on the phone during the time when she was complaining of a severe headache. Petitioner's expert, Dr. Haim, agreed with Dr. Machado that the days denied were redundant. Thus, it is found that the greater weight of evidence supports AHCA's denial of four days of A.F.'s inpatient stay. Patient #6 C.G. C.G. was admitted on May 3, 2001, and was discharged on May 14, 2001. Peer reviewer Dr. Machado determined that eight days, May 5 through May 14, should be denied due to lack of medical necessity for continued inpatient care. Dr. Machado's peer review report stated that C.G. was a 47-year-old female admitted with increasing chest pain and numbness in her left arm. She was found to have a mass in the middle of her chest and possible early superior vena cava (SVC) syndrome. Serial enzymes and a CT scan respectively ruled out heart attack and pulmonary embolism as the cause of her chest pain. She was started on steroids and pain medication, with satisfactory pain relief. Dr. Machado concluded that the remainder of her stay focused on a workup on the mediastinal mass, which could have been done on an outpatient basis. The steroid and pain medications she was receiving through IV, could have been given orally. None of the progress notes documented sufficient evidence for inpatient workup. In her deposition, Dr. Machado explained that the SVC is the large blood vessel that returns blood from the heart to the upper portion of the body. When there is a mass in that area of the chest, it can compress the SVC and cause swelling from the backing up of the blood. Dr. Machado believed that once immediate life-threatening diagnoses such as heart attack and pulmonary embolism were ruled out, and C.G.'s pain was managed with medication, the matter of determining the nature of the mediastinal mass could have been handled on an outpatient basis. Treating physician Dr. Vajihuddin Khan, an internal medicine specialist at Florida Hospital Orlando, testified that he kept C.G. in the hospital until May 14 to complete the workup and perform all the necessary investigations of the mediastinal mass. Dr. Khan noted that C.G. could not have been released and observed daily on an outpatient basis because of transportation or financial problems. The patient lacked outside support. If she had gone out of the hospital with no place to stay and no friends to support her, the workup might never have been completed. C.G. was ultimately diagnosed with Hodgkins lymphoma. Dr. Haim testified that on May 7 the patient was ordered NPO (nothing by mouth) for a biopsy to be performed the next day. She had a swollen face, neck, and arm, with a large, undiagnosed mass in her chest. The chest pain and shortness of breath had not gone away. Dr. Haim believed it would be irresponsible to discharge C.G. in that condition without a diagnosis. The biopsy was performed on May 8 and showed cancer. The pathology report on May 9 was inconclusive, but her physicians knew it was "something bad," either lymphoma or a small cell carcinoma of long standing. Dr. Haim testified that it was important to differentiate the type of cancer because the treatments would be different for each. Therefore, it was necessary to perform surgery to obtain a larger sample of the mass. Dr. Haim noted that the surgery was not performed prior to C.G.'s discharge on May 14, due to the surgeon's unavailability. Dr. Haim agreed that reimbursement for the dates of May 10 through May 14 were "somewhat questionable" because C.G. was, in essence, sitting in the hospital waiting for a surgeon. The record did not disclose why she was forced to wait for a surgeon. The greater weight of the evidence supports AHCA's denial of the last eight days of C.G.'s admission. The record established that C.G. ceased to meet the criteria for inpatient admission in the medical unit on May 5. Patient # 7 C.G. C.G. was readmitted on May 25, 2001, and was discharged on June 3, 2001. Peer reviewer Dr. Machado determined that the last day should be denied due to lack of medical necessity for continued inpatient care. Dr. Machado's peer review report stated that C.G. was a 47-year-old female admitted for elective mediastinoscopy to diagnose a mediastinal mass. The procedure was attempted but was unsuccessful due to a large goiter. A thoroactomy was performed that diagnosed lymphoma. C.G. did fine postoperatively but her discharge was delayed after an episode of chest pain, determined to be non-cardiac. When the oncologist saw her on May 30, he felt that she had SVC syndrome and called for an urgent radiation oncology consult. She was started on IV Decadron and improved dramatically by June 2, when she received her first radiation treatment. Dr. Machado saw no reason to keep the patient in the hospital for an extra day, until June 3. Dr. Haim testified that it was reasonable to wait for hours after the radiation treatment to note any improvement or adverse reaction. The greater weight of the evidence supports Dr. Haim's opinion that it was medically necessary to keep C.G. in the hospital through June 3. Patient #8 THE. THE. was admitted on April 3, 2001, and was discharged on April 9, 2001. Peer reviewer Dr. Machado determined that three days, April 6 through April 9, should be denied due to lack of clear documentation showing medical necessity for continued inpatient care. Dr. Machado's peer review report stated that THE. was a 21-year-old pregnant patient admitted with dehydration from hyper emesis gravid arum (the nausea and vomiting commonly called "morning sickness"). She had lost 14 pounds in the week prior to admission. This was the only abnormal vital sign, as she was not hypertensive or tachycardia and her electrolytes were not abnormal. No blood urea nitrogen (BUN) or cretonne was documented, indicating normal kidney function. She had two previous admissions for hyper emesis. She received sufficient IV hydration by April 4 for a 10 pound weight gain and was documented by nursing notes as feeling better and tolerating oral medications. She did have an increase in vomiting on April 5, but by April 6 this was much less and her weight was stable. Most of her anti-emetics were switched from IV to oral, and her IV was locked off for the remainder of her hospital stay. Her vital signs remained stable throughout her hospital stay, and there were no new labs to document continuing dehydration. Dr. Machado testified that the record showed no treatment after April 6 that necessitated a hospital stay. She believed THE. could have been discharged on April 6, with outpatient oral anti-nausea medications in a trial to see how she would do. Treating physician Dr. Andre Jakubowski testified that he saw THE. in his office on April 2, for an obstetrical visit. She was about 12 weeks pregnant and complaining of nausea, vomiting and the inability to keep down fluids. At her March 26, visit, she had weighed 134 pounds. On April 2, she weighed 120 pounds, a loss of 14 pounds. Dr. Jakubowksi immediately admitted T.H. to the hospital. For the first few days of T.H.'s hospitalization, Dr. Jakubowski gave her IV hydration in order to correct her electrolytes. On April 6, the IVs were discontinued and T.H. was placed on oral medications and food. Between April 6 and 7, she lost two and one half pounds. Dr. Jakubowski testified that he could not send T.H. home because she was still vomiting and was generally "not in good shape." He started her on IV hydration again and adjusted her medications. She began to eat and was able to go home on April 9. Dr. Jakubowski testified that it is not within the standards of practice to discharge a patient who has been taken off IV hydration without observing for 24 hours to be sure the patient is taking food and/or liquids orally and keeping them down. On April 8, the IV hydration was stopped for the second time. This time, T.H. was able to keep down some oral foods and liquids. Dr. Jakubowski watched her for 24 hours, then sent her home on April 9. Dr. Haim testified that laboratory testing is not necessary to document continued dehydration when the patient continues to vomit. With a weight loss of 14 pounds in a woman who was 12 weeks pregnant, this was clearly more than ordinary morning sickness. T.H. could not be discharged when she could not keep food on her stomach. The greater weight of the evidence supports Petitioner's position that April 6 through April 9 should not have been denied. Dr. Jakubowski's testimony as the treating physician, in combination with Dr. Haim's expert testimony, credibly established that, although T.H. showed some improvement and was taken off IV fluids on April 6, it was reasonable to wait 24 hours to make sure that she could keep down oral nutrition. When she was unable to do so, the IV hydration was resumed and it was reasonable to keep her in the hospital until she was able to keep some food on her stomach. Under all the circumstances, it was medically necessary to keep T.H. in the hospital through April 9. Patient #9 J.H. J.H. was admitted on July 7, 2001, and was discharged on August 7, 2001. Peer reviewer Dr. Machado determined that 21 days, July 17 through August 7, should be denied due to lack of medical necessity for continued inpatient care. Dr. Machado's peer review report stated that J.H. was a 63-year-old female lung transplant candidate with end-stage pulmonary fibrosis. She was admitted with a cough, low-grade fever, and increased shortness of breath. She also appeared to have a postoperative wound infection from recent vascular surgery in the right groin. A CT scan was negative for pneumonia or pulmonary embolism and her respiratory symptoms stabilized and, fairly quickly, returned to their concededly poor baseline. The infected right groin area was the cause for J.H.'s extended stay. The wound was debrided on July 14, following treatment with IV antibiotics and wound care. The infectious disease consultant agreed on July 16 that home IV antibiotics would be appropriate. However, the patient declined a PICC line (peripherally inserted central catheter, a long–term catheter that is inserted into the arm and threaded into central circulation) due to a past poor experience. She therefore, continued to get IV antibiotics in the hospital until July 26, when she was changed to oral Keflex. Dr. Machado found that the reasons for her continued hospital stay were unclear, except for wound care. On August 3, J.H. left the hospital for a few hours on a day pass. During her stay, she underwent other tests that are required for lung transplant evaluation, but weren't necessary during this hospitalization. In her deposition, Dr. Machado testified that J.H.'s lung condition stabilized, but the groin became the problem. The treating physician initially thought the problem was fluid collection, but the increased white blood cell count indicated an infection. J.H. was given proper wound care, but Dr. Machado could not see anything done in the hospital during the last 21 days of J.H.'s stay that required an inpatient stay. Dr. Machado concluded that IV antibiotics and wound care could have been given in a sub-acute skilled nursing facility or with home health. Treating physician Richard Young Feibelman is board certified in internal medicine and pulmonary medicine. He is a pulmonary physician, and was J.H.'s primary physician during this admission. In his deposition, Dr. Feibelman testified that he had followed this patient for some time prior to this admission. J.H.'s primary underlying problem was severe and progressing idiopathic pulmonary fibrosis, a scarring debilitation of the lungs causing progressive shortness of breath and requiring increasing oxygen. It typically results in death within two to three years of the diagnosis. Dr. Feibelman testified that J.H. had recently been evaluated at the University of Miami for a lung transplant, which she desperately wanted despite the high risk of death associated with this surgery. J.H. had been undergoing workup in Miami, about two weeks before this admission, including a carotid artery angiogram and cerebral angiogram. After the angiogram, she developed a pseudo aneurism or partial false leak of the puncture site from the catheter insertion. She then developed a hematoma in that area, with wound infection and fever that made necessary her admission to the hospital. Dr. Feibelman testified that at the time of admission, it was difficult to tell whether the infection came from her groin, or whether it was a superimposed respiratory infection on top of her underlying pulmonary fibrosis. Dr. Feibelman testified that J.H. was extremely sick, near the end stage of chronic fibrotic lung disease. He stated that this was an important hospitalization, because J.H.'s infection had to be under control to ensure she could make it to Miami, and survive the lung transplant. Before her admission, she was on immunosuppressive therapy, which increases the risk of infection. Dr. Feibelman treated her with IV antibiotics, and he described the wound care as "aggressive," an effort to heal the wound before the lung disease killed her. The wound was debrided, and J.H. was seen by an infectious disease consultant and vascular surgery consultant. There was difficulty with her blood pressure, and an episode of arm and leg numbness that required a neurological consultation to rule out a transient ischemic attack or pulmonary embolus. Dr. Feibelman testified that J.H. was still getting IV antibiotics to almost the end of her hospitalization. She was on high flow oxygen. The pain in her wound was such that she required intravenous morphine to change her dressings. Dr. Feibelman concluded that any additional setback for J.H. would have been fatal. Her disease has a fairly rapid stair- step pattern, in which there is a drop-off, then stabilization, then a further drop-off, then stabilization. Dr. Feibelman stated that J.H. could not afford a further drop-off before her lung transplant. Dr. Feibelman testified that J.H. was allowed to leave the hospital for two hours on a day pass. He stated that this was in all likelihood her last chance to go home, and he thought it was worth letting her go. Dr. Haim disagreed that the last 21 days of J.H.'s stay should be denied, but agreed that the last week or two were debatable, depending on the support system she had at home and the possibility of giving her IV antibiotics at home. Dr. Haim stated that she could have had IV antibiotics at home with a PICC line. However, J.H. had prior poor experiences with PICC lines and told her physicians they were not going to "torture" her again. She would also have needed assistance with her oxygen tanks if she went home. Dr. Haim stated that J.H. needed help with all of her activities of daily living (ADLs), as would any patient requiring six liters of oxygen every day. The greater weight of the evidence supports AHCA's denial of the last 21 days of J.H.'s admission. Dr. Machado correctly observed that the patient could have received IV antibiotics, oxygen, and wound care in a skilled nursing facility. She conceded that it would have been correct to keep the patient in the hospital if no skilled nursing facility was available. Petitioner offered no evidence that it attempted to place J.H. in a skilled nursing facility. Dr. Feibelman's concerns about J.H.'s precarious condition are fully credited, but the record as presented established that C.G. ceased to meet the criteria for inpatient admission in the medical unit on July 16. Patient #10 C.J. C.J. was admitted on March 31, 2001, and was discharged on April 9, 2001. Peer reviewer Dr. Machado determined that six days, April 3 through April 9, should be denied due to lack of medical necessity for continued inpatient care. Dr. Machado's peer review report stated that C.J. was a 67-year-old female admitted with abdominal pain, nausea, and vomiting, two days after a colonoscopy. She also had poorly controlled diabetes. The nausea and vomiting resolved quickly after admission, and she was hemodynamically stable throughout her stay. A CT scan of the abdomen and pelvis was performed, which showed a large pelvic mass (likely the recurrence of a previous cancer) with accompanying hydronephrosis (swelling of the kidney caused by obstruction of urine flow). The gastroenterologist cleared C.J. for discharge on April 2. The remainder of her stay involved consultations with urology and oncology specialists regarding the pelvic mass, which could have been accomplished in the outpatient setting. She did not have a ureteral stent (a surgical device implanted to hold the ureter open so that urine can flow freely from the kidneys to the bladder) placed until April 6. Dr. Machado wrote that it was unclear from the notes what was keeping her in the hospital after April 6. In her deposition, Dr. Machado testified that C.J. should have been discharged on April 3 with arrangements for an outpatient workup of the pelvic mass, which was likely a recurrence of the cancer that C.J. had ten years previously. Dr. Machado testified that the placement of the stent was necessary, either during the hospitalization or as an outpatient, and noted that if it had been an emergency, the stent would have been placed sooner in C.J.'s stay. The stent was actually placed one week after C.J.'s admission. Treating physician Dr. Alan Varraux, a specialist in pulmonary medicine, testified that C.J. was weak and somewhat frail, but underwent a colonoscopy because of gastrointestinal symptoms. The procedure caused her much nausea and vomiting. Her complaints and Dr. Varraux' concerns about dehydration led to her hospitalization on March 31. On admission, she was kept NPO and IV fluids were started. She was allowed to start eating on April 1. A GI specialist saw her on April 2 and performed an upper GI endoscopy and a colonoscopy. A consulting oncologist saw the patient on April 3. Dr. Varraux stated that an X-ray showed hydronephrosis, a blockage of the ureter system causing urine to back up into and dilate the kidney. The stent could not be placed on an outpatient basis because C.J. was a debilitated, immuno-compromised cancer patient who could be killed by a urinary tract infection. She was a high risk patient and needed to be cleared by a urological specialist before discharge. The urologist planned to place the stent on April 6, after which C.J. could be discharged if all went well. Dr. Haim testified that the stent was actually placed on April 7 and that C.J. needed to stay in the hospital for an additional 24-to-48 hours to ensure that she had adequate urine output, and that her fever was going down, and that her subjective feelings were improved. After reviewing the depositions of Dr. Varraux and Dr. Haim, Dr. Machado testified that she saw no reason to change her opinion. Dr. Machado stated that the medical record showed C.J.'s cancer was 10 years prior to this admission. This led Dr. Machado to disagree with Dr. Varraux's assumption that C.J. was immuno-compromised and unable to fight infections normally. Dr. Machado also did not see anything in the medical record to support the concerns about a urinary tract infection. C.J.'s urinalysis was normal on admission. There was glucose in her urine, which was consistent with her diabetes. On April 3, her white blood count was normal, indicating that if there was an infection, it had been treated adequately. No culture or urinalysis was performed on that date. Dr. Machado opined that the patient's low grade fever throughout her stay was not a reason to keep her in the hospital, as evidenced by the fact that she was still running a low grade fever on the day she was discharged. She was treated with antibiotics that can be given orally, but that they chose to give via IV. Dr. Machado could find no notes from the primary treating physician from April 6, until his discharge note on April 9. Dr. Machado found nothing in the medical record to support the view that the stent had to be placed in the hospital. The stent certainly needed to be placed, to allow urine to drain properly from the kidney. However, this is not always an inpatient procedure. Dr. Machado noted that the urologist's post-operative orders were written as outpatient orders. The greater weight of the evidence supports AHCA's denial of the last six days of C.J.'s admission. The record as presented established that C.J. ceased to meet the criteria for inpatient admission in the medical unit on April 3. Patient #11 G.M. AHCA Exhibit 6 indicates that G.M. was admitted on July 6, 2000, and was discharged on July 20, 2000. However, Dr. Machado noted that the records provided by the hospital indicate that this patient was admitted directly to a rehabilitation facility, and was never an acute medical admission. Therefore, Dr. Machado determined that the entire 14-day stay should be denied. Dr. Haim testified that his own abbreviated notes show that the patient came into the hospital, was in respiratory failure, had shortness of breath, coded with cardiac arrest, and was intubated. However, the lack of medical records provided by the hospital to AHCA require that Dr. Machado's denial determination be sustained. Patient #12 N.P. N.P. was admitted on January 8, 2000, and was discharged on January 14, 2000. Peer reviewer Dr. Machado determined that two days, January 13 through January 14, should be denied due to lack of medical necessity for continued inpatient care. Dr. Machado's peer review report stated that N.P. was a 46-year-old male with cardiomyopathy and poorly controlled diabetes. He was admitted with increasing shortness of breath, fever, cough, and chest pain. He was started on antibiotics, diuretics, and respiratory treatments, and his symptoms improved rapidly. Serial enzyme tests ruled out a heart attack and his chest pain was not thought to be cardiac in nature. On January 11, his IV medications were changed to oral, and it was felt he was near ready for discharge. Though he felt better, his oxygen saturations were slow to improve and he was still saturating in the high 80's on room air, which was not his baseline. Dr. Machado found it reasonable to monitor him for one more day in the hospital to see if this would improve before sending him home with oxygen. The saturations stayed the same the following day, and he continued to feel better. Dr. Machado concluded that discharge would have been safe on January 12, with home oxygen and close outpatient follow-up. Dr. Haim testified that N.P. could have probably been discharged on January 13 on oxygen, with outpatient follow-up. He noted that N.P. was started on a new medication on January 12, and that it is reasonable to keep the patient for an additional 24 hours to gauge his response. However, Dr. Haim also noted that the medication was a diuretic, not an antibiotic. The greater weight of the evidence supports AHCA's denial of the last two days of N.P.'s admission. The record, as presented, established that N.P. ceased to meet the criteria for inpatient admission in the medical unit on January 13. Patient #13 T.S. T.S. was admitted on September 18, 2001, and was discharged on October 16, 2001. Peer reviewer Dr. Machado determined that 12 days, October 4 through October 16, should be denied due to lack of medical necessity for continued inpatient care. Dr. Machado's peer review report stated that T.S. was a 55-year-old man with cirrhosis and a history of drug abuse and hypertension. He was admitted for treatment of a non-healing venous ulcer that had failed outpatient therapy. T.S. was also experiencing uncontrolled pain despite oral pain medications. He was started on broad-spectrum antibiotics and underwent debridement of the wound on September 21. Plans were made to discharge him to a skilled nursing facility for several weeks of wound care and IV antibiotics. On September 22, his pain continued to be poorly controlled. On September 25, he had a fever of 101 degrees and diarrhea, which prompted further work- up. Cultures of the wound continued to show a polymicrobial infection that also had a fungal component. Oral Sporanox was added to his medications to address the fungal component. On September 27, a pain management consultation was requested due to his continued uncontrolled pain, mostly during dressing changes. T.S. was placed on a Dilaudid PCA (patient controlled analgesic) pump, which did control his pain. During this time, T.S. had waxing and waning mental status due to the pain medications. Because of T.S.' increasing lethargy, the PCA was discontinued on October 3, and T.S. was thenceforth maintained on oral medications. The patient also had chronic anemia on admission that slowly worsened during his stay. He was found not to be acutely bleeding and was transfused PRBCs with improvement in his hematocrit level. Dr. Machado agreed that it would have been difficult to discharge T.S. to a skilled nursing facility for dressing changes and IV antibiotics if he was unable to tolerate dressing changes without a PCA pump for pain. Therefore, she would allow the hospitalization through October 3, when T.S. was switched to oral pain medications and could have gone to a skilled nursing facility. Treating physician Dr. Pradeep Vangala testified that he saw T.S. in his office, prior to his hospital admission. T.S. came in with what appeared to be cellulitis in his legs, and was treated with oral antibiotics. When the condition failed to respond to treatment, Dr. Vangala admitted T.S. to the hospital. Dr. Vangala stated that T.S. was kept in the hospital after October 4 because his cellulitis had not resolved and the patient was not stable enough to be changed to oral antibiotics. Dr. Vangala testified that it was not a simple decision to send T.S. home with IV antibiotics because of complicating issues. Secondary to his cirrhosis, T.S. had significant edema in most of his body in general, and his legs in particular. Dr. Vangala stated that T.S. required close observation of his skin integrity and his cellulitis, and that his cirrhosis was the cause of the edema. Though T.S. had a lot of excess fluid, most of it was in the subcutaneous tissues rather than the blood vessels. This means that his fluid status had to be closely monitored, because of the danger that he might become intravascularly volume depleted, which could affect renal function. Dr. Vangala stated that the cirrhosis had altered T.S.'s mental status for a significant portion of his stay, and that an acutely confused patient is not a candidate for discharge because he is not able to follow discharge instructions. T.S. also had significant anemia, which meant that his hemoglobin had to be watched. Dr. Haim testified that during all 12 days denied by Dr. Machado, T.S. was still running a fever and had a depressed mental status. He was still receiving IV medications, and had a significant swelling of the abdomen that required drainage. His mental status was abnormal, and physicians were having a very difficult time titrating his pain medications. A neurologist was called in on October 4 because of T.S.'s impaired mental status. The gathering fluids in his body were causing swelling and making it difficult for him to breathe. Dr. Haim testified that the IV antibiotics that T.S. was receiving after October 4 had to be closely supervised, though he conceded that a skilled nursing facility could handle their administration. The greater weight of the evidence supports AHCA's denial of the last twelve days of T.S.'s admission. Dr. Machado's opinion that the medications administered via IV after October 4 could have been given outside of the inpatient hospital setting was uncontradicted. Dr. Vangala's concerns were genuine, but mostly consisted of monitoring actions he wished to perform as a precaution, rather than acute care needs. The record as presented established that T.S. ceased to meet the criteria for inpatient admission in the medical unit on October 4. Patient #14 & 15 (two denials) F.T. F.T. was admitted on March 27, 2000, and was discharged on May 13, 2000. Peer reviewer Dr. Machado determined that: March 27 through April 4, should be approved for treatment of coagulopahty, subdural hematoma, and evaluation of the patient's near-syncopal episode; April 14 through May 7, should be approved for chemotherapy and treatment of neutropenic fever; and that April 5 through April 13 (nine days) and May 8 through May 13, (five days) should be denied because the treatment during those periods could have been administered on an outpatient basis. Dr. Machado's peer review report stated that F.T. was a 49-year-old female with metastatic breast cancer admitted with a coagulopathy and near-syncope (almost fainting). She was found to have new subdural hematomas and a new pathologic fracture of the left femur. Her coagulopathy was reversed and she was evaluated by neurosurgery and radiation oncology. No surgery was recommended. She began palliative radiation therapy to the brain and left femur on March 29. She remained hemodynamically and neurologically stable, and neurosurgery signed off on the case on April 4. Her pain responded well to radiation. Between April 4 and April 14, F.T.'s hospital care involved continued radiation therapy and the biopsy of a left auxiliary lymph node (on April 11) to determine the receptor status of the breast cancer, which would enable the oncologist to decide if chemotherapy would be of benefit. Dr. Machado concluded that this evaluation and the radiation therapy could have been done on an outpatient basis. On April 14, F.T. began chemotherapy over two days and very soon began experiencing fever and neutropenia (an abnormally low level of neutrophils, the white blood cells produced in the bone marrow) and then respiratory distress. She was started on IV antibiotics and IV diuretics. She was also started on a feeding tube due to poor oral food intake. The fevers and neutropenia were resolved by April 25, but she continued to decline, with increased shortness of breath requiring more diuresis to clear fluid from the lungs. It became evident she was deteriorating and her feeding tube was discontinued by May 4. By May 8, comfort measures only were initiated, and evaluation for inpatient hospice care was requested. In her deposition, Dr. Machado testified that between April 4 and April 14, F.T. was receiving radiation as her main treatment, as well as further evaluation to determine whether anything more could be done for her cancer. Everything she received during this period, including the lymph node biopsy, could have been done on an outpatient basis. On April 14, she started chemotherapy, which was reasonable to perform in the hospital. By May 8, the medical chart notes indicate the initiation of "comfort only" measures. At that point, she could have been sent home with hospice care or to a hospice house. Dr. Machado conceded that some patients do receive inpatient hospice care, but she testified that this should have been done in a hospice bed, not an acute care medical bed. Dr. Haim testified that during the period of April 5 through April 13 F.T. was receiving radiation to the fractured femur and awaiting a lymph node biopsy. The initial pathology report did not have sufficient material for receptor studies, so a surgical biopsy would need to be performed. On April 5, the hospital social worker was awaiting orders to transfer F.T. back to the nursing home from which she had been admitted. However, F.T. had an episode of nausea and vomiting. Dr. Haim stated that nausea and vomiting in a patient who has metastasis is extremely serious because it could indicate more brain swelling or bleeding in the brain. She was started on IV Decadron, a steroid given to combat nausea and vomiting in chemotherapy patients. Dr. Raul Castillo, F.T.'s oncologist, met with a pathologist on April 7 to discuss the need for an open biopsy of F.T. On April 8, F.T. was receiving radiation and was started on a new chemotherapy drug, IV Aredia. She was monitored closely for side effects. Pain management was a persistent problem. On April 10, she was given the open biopsy under a local anesthetic. On April 13, an orthopedist saw her and ordered a specially fitted brace, because she had difficulty sitting due to her spinal problems. Dr. Haim concluded that, because of all the treatments F.T. was undergoing, including IV chemotherapy, it was mandatory for her to stay inpatient from April 5 through April 13. She could not get the chemotherapy in a non-acute care facility. The hospital was the only place she could get IV Aredia, the brace hadn't arrived until April 13, and she had multiple problems that required monitoring, including advanced cancer and bleeding in the brain. Dr. Haim did not believe that a skilled nursing facility had the capacity to handle F.T. As to F.T.'s second stay, Dr. Haim testified that from May 8 to May 13 F.T. was very weak. Her abdomen was markedly distended, which could have meant that her bowels weren't working well. The abdomen was X-rayed. Her platelet count was dangerously low. An oncology note dated May 9 stated that she was a full code (meaning that all resuscitative efforts must be attempted), by her own choice. Her full code status forced the doctors to plan the performance of tests on her abdomen. On May 10, F.T. voluntarily changed her instructions to DNR (do not resuscitate). Comfort measures were instituted and hospice was consulted. However, when the hospice nurse arrived, F.T. was out having an ultrasound preparatory to having the abdominal fluid drained. The hospice decided not to see her, because she was getting a procedure. The hospice nurse never saw the patient on that day. F.T. was admitted to hospice on May 13. The oncologist, Dr. Castillo, testified that his medical group first saw F.T. in March 2000. F.T. had been diagnosed with breast cancer in 1988, and treated in Puerto Rico, with a left mastectomy and chemotherapy. After she completed the chemotherapy, she had radiation. She indicated that in December 1999, she was told she had metastatic cancer in her bones. In 2000, she developed pain over her hips and legs. She had a fracture over her left femur and a prosthesis over her left leg. She had been taking Coumadin, and Dr. Castillo became involved when F.T. presented with bleeding secondary to Coumadin toxicity. Dr. Castillo described this as a very complex and emotional case in which a few strands of information had to be pieced together to determine the best case management. F.T.'s case history was incomplete because she spoke only Spanish, creating a big language barrier with most of the hospital staff. Dr. Castillo speaks Spanish, and was able to get a "full but scattered history" from F.T. F.T. had metastatic disease. Dr. Castillo testified that it is extremely important to determine if the patient has an estrogen receptor or hormonally positive tumor. Patients who are hormonally sensitive have a much higher probability of responding positively to therapy. To make things more difficult, F.T. developed a subdural hematoma, for which the medical team had to correct her coagulation. Dr. Castillo testified that they felt uncomfortable discharging F.T. while treatment planning was underway. Because of her previous exposure to chemotherapy and radiation, F.T. was at high risk for complications such as the sepsis that eventuated. Dr. Castillo emphasized that this was a complex case, and that the treatment team lacked all the information necessary to make rapid and clear decisions. One event followed another, and the team concentrated on trying to catch up and get the patient somewhat stable. Dr. Castillo stated that a problem with treating a patient this sick on an outpatient basis is the lack of supervision by a specialist. Such a patient will not have access to a site where she is going to get one-to-one care from the oncological standpoint. Dr. Castillo agreed that radiation is commonly done on an outpatient basis, but he noted that this was a patient who had bleeding on the brain and was getting radiation to the brain. If she was in a skilled nursing facility and had a subdural hematoma, she would probably have died on her way to the hospital. Dr. Castillo stated this his group's philosophy is to discharge a patient when they consider the patient stable, and not to leave a patient in the hospital for a mere workup. However, this was a patient who could become a neurosurgical emergency case at any moment. Dr. Castillo concluded that he would not have done anything different in the management of this patient. The greater weight of the evidence supports Petitioner's position that April 5 through April 13 and May 8, through 13 should not have been denied. Dr. Castillo's testimony as the treating oncologist, in combination with Dr. Haim's expert testimony, credibly established that F.T.'s condition was so precarious that her entire inpatient stay was medically necessary. Patient #16 J.Y. J.Y. was admitted on March 3, 2001, and was discharged on March 21, 2001. Peer reviewer Dr. Machado determined that five days, March 16 through March 21, should be denied due to lack of medical necessity for continued inpatient care. Dr. Machado's peer review report stated that T.S. was a 39-year-old female admitted due to swallowing a dental appliance that had become lodged in her esophagus. She underwent an endoscopy on March 3, and the foreign body was removed with some difficulty. Her esophagus was perforated due to the foreign body. She began having fever and pain. A CT scan on March 6 showed extensive edema and air tracking compatible with esophageal perforation. She was kept NPO, hyperalimentation (feeding tube) was started, and IV antibiotics were continued. Clinically, she improved and conservative treatment was continued, as the patient wished to avoid surgery. Dr. Machado believed that it was still prudent to monitor and treat the patient in the hospital, due to the possibility of serious complications from this type of injury. A barium swallow was performed on March 12, which showed that a leak persisted in the esophagus. Because she was clinically so much better, it was decided to repeat the CT scan of the neck on March 14 to check for improvement. The scan showed that soft tissue gas and swelling had decreased considerably. By March 16, her IV antibiotics were discontinued and it was decided to give her a trial of fluids by mouth. She was hemodynamically stable and afebrile. Dr. Machado concluded that she should have been discharged with home health and hyperalimentation, with an outpatient swallowing study and close follow-up, rather than waiting in the hospital until March 19. Dr. Haim testified that the March 12 barium swallow results led to J.Y.'s being kept on no food by mouth and total parenteral nutrition (TPN, another term for a feeding tube). On March 16, J.Y. was noted to be clinically stable, but her liver function tests were noted to be high. Dr. Haim noted that the TPN itself could be causing the liver problems, so there was a GI consult. The gastroenterologist recommended a change of antibiotics as a possible solution to the increase in her liver enzymes. Contrary to Dr. Machado's statement, no trial of fluids by mouth was done on March 16. As of March 17, J.Y.'s orders were still nothing by mouth and TPN, and her liver enzymes continued to rise. On March 18, there were no major interventions and J.Y. was scheduled for a swallow study. Her liver enzymes were noted to be decreasing for the first time. Her swallow study results were pending on March 19. Also on March 19, a pulmonary note indicated phlebitis in J.Y.'s arm, in the area of the IV feeding. An order to replace the PICC line was written. On March 20, J.Y. was started on an oral diet and her PICC line was replaced. The gastroenterologist recommended a liquid diet for several weeks. On March 21, the patient was discharged home on IV TPN and a liquid diet. Dr. Haim concluded that the acute care setting was required for the denied days. Treating surgeon Dr. Stephen Huber testified J.Y. came in having swallowed her partial plate, which had become lodged in her esophagus. The emergency room physicians could not get it out, and so J.Y. was taken to surgery. Dr. Huber kept her NPO because he was afraid she might have torn her esophagus. He placed her on IV antibiotics and ordered a swallow study, which revealed a small leak. Dr. Huber called in an infectious disease specialist to manage J.Y.'s antibiotics because he was worried about contamination from the leak spreading into her neck. She was started on IV feedings and the medical team watched for an abscess to develop in her neck. A few days later, another swallow study was performed, which indicated the leak was smaller but still persistent. J.Y. was kept NPO and kept on IV antibiotics. A third swallow study showed the leak had resolved, and she was started on regular food the next day. Once she was cleared by all her specialists, she was discharged from the hospital. Dr. Huber testified that he kept J.Y. in the hospital after March 16 mainly to watch her. Even after the last swallow study, there was still a small leak in the esophagus. J.Y. had not eaten for a couple of weeks, but she was getting better clinically, and Dr. Huber decided to feed her. He started with clear liquids, then advanced her diet slowly over the next few days. Dr. Huber testified that J.Y. had to be watched for fevers and neck swelling caused by her eating, and that he could not evaluate her progress if she was at home. J.Y. did not speak English, and there would have been difficulty monitoring her condition if she were not under direct observation. Seeing her on an outpatient basis might prove harmful if she developed an abscess in her neck, or sepsis. J.Y. remained on IV antibiotics until she was discharged. The greater weight of the evidence supports AHCA's denial of the last five days of J.Y.'s admission. Dr. Huber's concerns were genuine, but mostly consisted of monitoring actions he wished to perform as a precaution, rather than acute care needs. The record as presented established that J.Y. ceased to meet the criteria for inpatient admission in the medical unit on March 16. Psychiatric Inpatient Hospital Stays By the time of the hearing, the psychiatric inpatient hospital stays of 13 patients remained at issue. The findings below are set forth in the order that the patients were listed in AHCA Exhibit 6. Patient #1 H.A. H.A. was admitted on February 20, 2001, and was discharged on February 26, 2001. Peer reviewer Dr. Rahul Mehra determined that three days, February 23 through February 26, should be denied due to lack of medical necessity for continued inpatient care. Dr. Mehra's peer review report stated that H.A. was a 57-year-old female with a diagnosis of schizophrenia. She was admitted, involuntarily, under the Baker Act on February 20, for reasons unclear in the medical record. As of February 23, the patient was not actively suicidal, homicidal, manic, or in complicated withdrawal. The patient's psychotic symptoms may have persisted, but these symptoms appeared to be baseline. As of February 23, she did not need 24-hour nursing care. She was discharged on the same dose of anti-psychotic medication she was taking upon admission. Dr. Mehra concluded that, as of February 23, outpatient was the appropriate level of care. Generally the Medicaid standards for whether a patient requires an inpatient psychiatric bed are as follows: whether the patient is actively suicidal or homicidal; whether the patient is so acutely psychotic that her ability to care for herself is impaired; whether the patient is physically aggressive or manic; and whether the patient is having a "complicated withdrawal" from alcohol or drugs that might cause a seizure or other acute health problem. Dr. Mehra testified that it was appropriate to admit H.A. because of her family's concerns that she might have a handgun and was threatening self-harm. At admission, she was having some psychotic symptoms, displaying disorganized thoughts. However, as of February 23, she was no longer actively suicidal or homicidal, which was the reason she was admitted. She did have psychiatric symptoms, such as visual and auditory hallucinations, but these seemed to be her baseline level of functioning. No changes were made to her medications. Dr. Mehra's recommendation would have been to transfer H.A. to an outpatient setting or a nursing home. Petitioner's psychiatric expert, Dr. Alan S. Berns, testified that H.A. was admitted through the emergency room for increasing auditory hallucinations and religious preoccupation. She had a history of non-compliance with her outpatient treatment, mood swings, and unpredictable impulse control. She denied hallucinations, but was noted to talk to herself as a religious preoccupation. The diagnostic impression was of acute exacerbation of chronic undifferentiated schizophrenia, and rule out schizoaffective disorder. The psychosocial note on admission stated that the patient is talking to God and dead relatives. The emergency room nursing notes stated that the patient wanted to hurt an unidentified person with a handgun. She was labile, crying and laughing. H.A. had been admitted to Lifestream, a mental health center in Lake County, three times since November 2000. She had a history of "cheeking" her medications. She required assistance with her ADLs and ate poorly. The social worker reported that she did not attend group therapy sessions, and that she heard God talking to her all the time. By February 24, H.A. showed an improved mood and affect, with no overt agitation. She was observed talking to herself and appeared to be responding to internal stimuli. She also demonstrated some looseness of association. On February 25, she denied auditory or visual hallucinations and any suicidal or homicidal ideations. However, she remained seclusive, with pressured speech and a depressed, blunted affect. She refused to participate in groups. She was discharged on February 26 with improved mood and affect, no evidence of delusions, and denied hallucinations and suicidal or homicidal ideations. She was diagnosed with schizoaffective disorder and discharged with prescribed Seroquel and Paxil, the same medications she was taking on admission. Dr. Berns concluded that H.A. warranted another day or two past the February 23 discharge authorized by Dr. Mehra. The nursing notes from February 23 show the patient alert and oriented times three (time, place and person), and indicate that she was cooperative, pleasant, and denied suicidal ideation. However, H.A. also stated that God talks to her and she sees the Holy Spirit. On February 24, she was still exhibiting some looseness of association, indicating that her thinking was not organized, which could in turn affect her ability to perform her ADLs. At this point, she did not appear a danger to herself in terms of intentionally inflicting harm. Dr. Mehra agreed that the symptoms cited by Dr. Berns, such as looseness of association, loose thoughts and disorganization, can be indicative of the need for a longer inpatient stay. However, loosening of associations is a common finding in a patient with schizophrenia, which is a lifelong disorder. Looseness of association in a schizophrenic patient does not, in and of itself, invoke the Medicaid guidelines that the patient is acutely and gravely psychotic. Dr. Mehra reasoned that if her acute condition had been such a great concern, then her antipsychotic medication could have been increased to effect a change in the observed loosening of associations. Her subtherapeutic dosage was never changed during her inpatient stay. Dr. Mehra concluded that just having loosening of associations is not sufficient, under the Medicaid guidelines, to continue an inpatient level of care. The greater weight of the evidence supports AHCA's denial of the last three days of H.A.'s admission. The record as presented established that H.A. ceased to meet the criteria for inpatient admission in the psychiatric unit on February 23. Patient #2 T.E. T.E. was admitted on March 19, 2001, and was discharged on March 27, 2001. Peer reviewer Dr. Mehra determined in his report that three days, March 25 through March 27, should be denied due to lack of medical necessity for continued inpatient care. However, in his deposition, Dr. Mehra testified that he now agreed with the hospital that the entire stay should be approved.6 Patient #3 S.G. S.G. was admitted on October 25, 2001, and was discharged on November 1, 2001. Peer reviewer Dr. Mehra determined in his report that four days, October 28, through November 1, should be denied due to lack of medical necessity for continued inpatient care. Dr. Mehra's peer review report stated that S.G. was a 42-year-old male with diagnosis of schizophrenia admitted, involuntarily under the Baker Act from Orange County Jail, for psychotic symptoms and homelessness. The patient had a previous admission to Florida Hospital Orlando's psychiatric unit, having been discharged on October 8, 2001. Dr. Mehra found that as of October 28, the patient was not actively suicidal, homicidal, manic, or in complicated withdrawal. The patient's psychotic symptoms were still present but improved. The patient was cooperative, directable, and interacting with some peers. His delusions appeared to be chronic. He did not require seclusion or restraints and was not a management problem on the unit. His vital signs, appetite, mood and sleep were stable. Placement became an issue during his inpatient stay. Dr. Mehra concluded that the appropriate level of care as of October 28, was outpatient, with closely supervised living arrangements. In his deposition, Dr. Mehra testified that S.G. was admitted with auditory hallucinations and delusions, reaching the level of psychotic behavior. During his stay, S.G.'s speech and thought became more organized. His psychotic symptoms became less intrusive. By October 28, he was not a danger to himself or others and was ready to move into a sub-acute setting. Dr. Mehra conceded that S.G. was probably still delusional on October 28, but noted that his delusions were probably chronic and at this time were not interfering with his ability to perform his ADLs. Treating physician Dr. Rex A. Birkmire testified that S.G. was initially very psychotic, delusional, and disorganized. He had not been taking his prescribed medications. S.G. thought that one of the his nurses was the Queen of England. He heard voices and had a religious preoccupation about Satan, aliens and dragons. Staff at the jail believed S.G. needed a higher level of care, and therefore had him admitted to the hospital under the Baker Act. Dr. Birkmire testified that as late as October 31, S.G. was still so psychotic, he thought the medication Artane was a "gasoline pill." His conversation continued to be irrelevant and rambling. He said that "people see the smell but they don't see me." On October 31, S.G. was so disorganized that he could not identify the medications he would need to stay stable, and hospital staff felt he could not maintain his basic ADLs. Dr. Birkmire noted that by October 28, S.G. was "passively compliant" with his medications, meaning that he would take them when the nurses gave them to him. Dr. Birkmire stated that S.G. could have been managed in a skilled nursing facility with a 24-hour nursing staff. Dr. Berns testified that S.G.'s prior admission on October 8 raised questions as to the adequacy of his prior treatment, his compliance upon discharge, and his stress level during the interval between admissions. The notes for the current admission stated that S.G. was readmitted due to medication noncompliance. The admission note stated that the patient was psychotic and disorganized, with jumbled thoughts, and had ideas of reference as to the television, i.e., that it was sending him special messages. S.G. was reported to be hyper-religious, and carried a Bible. He had a history of hearing voices and was diagnosed with chronic undifferentiated schizophrenia. A note from Dr. Luis Allen stated that on October 28 the patient was still "very loose," meaning his thoughts were disorganized and psychotic. Hospital staff reported that S.G. remained delusional, and there was concern from the social worker that he might be responding to internal stimuli. On October 29, a note reported that S.G. was psychotic and manic, though starting to make more sense. On October 30, the notes stated that S.G. was still rambling and tangential, and that his ADLs were not good. Staff was concerned that S.G. was not committed to taking medication as an outpatient. Dr. Birkmire recommended the decanoate form of antipsychotic medicine, a long-acting intramuscularly administered form. Dr. Berns stated that some of these medications can be injected such that a dose can last from two- to-four weeks, which can improve patient compliance. A November 2 note from an advanced registered nurse practitioner stated that the patient seemed confused when given discharge instructions to follow up at Lakeside Alternatives. Dr. Berns testified that such confusion can be a red flag that the patient is not ready for discharge. Dr. Berns stated that S.G.'s chronic schizophrenic condition could deteriorate if he were discharged without being well stabilized and not committed to following through with his medications. Dr. Berns concluded that the length of stay was appropriate, and that he might have kept S.G. in the hospital even longer if he appeared confused on the day of discharge. In response, Dr. Mehra testified that the psychotic symptoms, including delusions that his nurse was the Queen of England, did not mean that S.G. must remain in the hospital. Dr. Mehra stated that the note in the chart that the patient believed Artane was a "gasoline pill" was not necessarily a delusion, but could have been an uneducated patient's way of saying that the pill peps him up. Dr. Mehra argued that if the medical concern was persistent psychotic symptoms so severe that he needed hospitalization, then the medical team needed to make dosage adjustments. However, no such adjustments were made after October 26. Dr. Mehra's opinion remained that S.G. did not meet Medicaid guidelines as of October 28. The patient was cooperative on the unit, not a management problem. He could live outside the hospital and still have delusions that someone was the Queen of England. Dr. Birkmire testified that S.G. was rambling, disorganized, and thought the nurse was Queen even after October 28, but that does not necessarily mean he should be in the hospital. Dr. Mehra pointed out that plenty of people walking the street have schizophrenia, are psychotic, and ramble. Dr. Mehra stated that one possible reason S.G. was kept in the hospital was concern as to where he would go upon discharge, because he came from jail and was homeless. Dr. Mehra testified that Medicaid does not cover the period of time when someone is needing placement. Dr. Mehra agreed that S.G. showed psychotic symptoms, but stated that the psychotic symptoms should affect the patient's ability to function in order to justify inpatient treatment. This patient was taking his medications, eating, participating in activities on the unit, and was directable. He did not require any means of seclusion or physical restraints and did not demonstrate aggressive behavior. Dr. Mehra agreed with Dr. Berns that it is a concern any time a patient is readmitted, because it speaks to the chronic nature of schizophrenia and psychoses, and how the symptoms persist over a period of time. "Loose" symptoms probably continued until the day he left. Dr. Mehra also agreed with Dr. Berns that schizophrenics can stabilize and have their thoughts become more organized, depending on the patient and his response to medications. One patient can be loosely organized and live on the street, and another may regain full control of his thoughts. However, Dr. Mehra saw no reason to amend his original opinion. A patient with loose thinking, who is psychotic and disorganized, may need hospitalization, if he is not taking his medicine, not eating, not sleeping appropriately, or is being aggressive. Otherwise, those symptoms may be as good as things are going to get for this patient, given that he has been in jail, has had frequent inpatient hospitalizations, and is homeless. Again, Dr. Mehra noted that S.G. remained in the hospital for several days with no changes to his medications. The greater weight of the evidence supports AHCA's denial of the last four days of S.G.'s admission. The record as presented established that S.G. ceased to meet the criteria for inpatient admission in the psychiatric unit on October 28. Patient #4 C.M. C.M. was admitted on March 2, 2001, and was discharged on March 10, 2001. Peer reviewer Dr. Mehra determined in his report that four days, March 6 through March 10, should be denied due to lack of medical necessity for continued inpatient care. Dr. Mehra's peer review report stated that C.M. was a 16-year-old male admitted, involuntarily, under the Baker Act from the Orange County jail, where he was banging his head on the wall. Hospital records indicated concerns by hospital staff that C.M. was malingering in an effort to avoid his pending legal woes. Dr. Mehra found that, as of March 6, C.M. was not actively suicidal, homicidal, grossly psychotic, manic, or in complicated withdrawal. Dr. Mehra concluded that the patient should have been discharged to the juvenile detention center, with psychiatric consultation. In his deposition, Dr. Mehra testified that the hospital had a range of diagnoses for this patient, from "malingering," meaning that he was intentionally inventing his symptoms, to a concern about schizophrenia. Dr. Mehra's review of the hospital records led him to conclude that C.M. was malingering, based primarily on C.M.'s statement to his grandmother that he would get himself placed in the psychiatric unit anytime he went to jail. The record stated that C.M. said the devil was telling him to kill himself, but the physician and staff all thought C.M. was malingering. C.M.'s statement about killing himself led to no increase in precautions, and his medications were not increased until the next day. By the end of C.M.'s hospitalization, the physician was talking about tapering the boy completely off of Respiradol, an anti- psychotic, and was convinced that C.M. was feigning his symptoms. Attending physician Scott D. Farmer7 contended that C.M. remained very dangerous on March 6, because he was still complaining of command hallucinations. "Command hallucinations" cause the patient to believe there are voices telling him to act in a dangerous way, and are recognized as a "unique risk factor" justifying inpatient care. On March 6, C.M. was hearing the voice of his grandfather reassuring him, but he was also hearing the voice of the devil telling him to kill himself. Dr. Farmer testified that patients have been known to kill themselves when they have persisting command hallucinations, and this was a patient who bangs his head against a brick wall. This was an indication that his medications had not been properly adjusted, and that they could not be so adjusted on an outpatient basis. Dr. Farmer's opinion was that it was "ludicrous" to think this patient could be placed in a more complex environment and get better. To discharge C.M. on March 6, would have constituted "abandonment." Dr. Farmer contended that it is a "glib assumption" to say that C.M. was faking his illness, and it is not within the spirit of psychiatry to prejudge that a patient is falsifying his expressed distress. The tradition in medicine is to compassionately adjust medication to remedy the symptom complex, which in this case pointed toward schizophrenia. Dr. Farmer stated that the faking allegation is "a reflection of the lowest form of psychiatric practice. It is a departure from the Hippocratic oath to do no harm. It is an assumption that you can climb inside of somebody else's head and then make conclusions that are a distinct departure from what the patient is saying." Dr. Farmer pointed out that C.M. had been treated at least once for a prior suicide attempt. He also pointed out that a "first break" psychotic episode is the best opportunity for treatment to have a favorable impact in the case of a patient with command hallucinations. Subsequent episodes require more aggressive treatment and higher doses of medications. C.M. was being treated with antipsychotic and antidepressant medications. On March 6, he was taking Wellbutrin, an antidepressant that has the lowest likelihood of triggering manic-type symptoms, and Risperdal. His medications were increased on March 6 and March 7. On March 8, C.M. was still responding to internal stimuli, carrying on a conversation with an internal voice. Dr. Farmer agreed that C.M. was stabilized by March 9 and should have been discharged on that date rather than on March 10. Dr. Berns noted the suspicions of malingering, but also considered that jail staff could not handle C.M., that he appeared to be in imminent danger of harming himself, and he had been treated for at least one suicide attempt in the past. These factors raised concerns as to how much of C.M.'s behavior was malingering and how much indicated genuine illness. Dr. Berns was influenced by the fact that C.M. requested an increase in his dosage of Risperdal, which is not a medication that can be abused or used for intoxication. Dr. Berns acknowledged that C.M. lost some credibility with his statement that he would continue getting Baker Acted if incarcerated. He also acknowledged that C.M.'s age and impulsiveness made it harder to determine the extent of his malingering, but that there was undoubtedly some malingering present in this case. Dr. Berns concluded, as did Dr. Farmer, that C.M. could have been discharged a day or two earlier than March 10. Dr. Mehra replied that it was the treating physician, Dr. Birkmire, who concluded that C.M. was malingering. The auditory hallucinations on March 6 were not sufficient to keep him in the hospital where the treating physician and the medical team believed he was making up the symptoms. Nothing in the testimony of Dr. Farmer or Dr. Berns caused Dr. Mehra to change his opinion. Both doctors referred to this patient's having a diagnosis of schizophrenia. Dr. Mehra called this a "serious and unusual diagnosis" for a 16-year-old, similar to a diagnosis of cancer in that the patient will have to live with it for the rest of his life. Dr. Mehra would expect that such a diagnosis would have led the treatment team to meet with C.M.'s family to offer the appropriate treatment planning and education regarding schizophrenia, but the record indicated that no such meeting occurred. Dr. Mehra believed that there was cause to admit C.M. for evaluation, because he was only 16 years old. Even if it turned out he was malingering, it was prudent to admit him for four days to evaluate him. The greater weight of the evidence supports AHCA's denial of the last four days of C.M.'s admission. The record as presented established that C.M. ceased to meet the criteria for inpatient admission in the psychiatric unit on March 6. Patient #5 L.M. L.M. was admitted on May 16, 2001, and was discharged on May 22, 2001. Peer reviewer Dr. Mehra determined in his report that three days, May 20 through May 22, should be denied due to lack of medical necessity for continued inpatient care. Florida Hospital Orlando did not contest Dr. Mehra's denial of three days for this admission. Patient #6 H.P. H.P. was admitted on March 7, 2001, and was discharged on March 14, 2001. Peer reviewer Dr. Mehra determined in his report that four days, March 10 through March 14, should be denied due to lack of medical necessity for continued inpatient care. Dr. Mehra's peer review report stated that H.P. was a 34-year-old female admitted, involuntarily, under the Baker Act for "suicidal ideation and auditory hallucinations." As of March 10, H.P. was not actively suicidal, homicidal, psychotic, manic, or in complicated withdrawal. Her sleep, vital signs, and appetite were stable. Dr. Mehra concluded that the patient no longer needed 24-hour psychiatric nursing care and could have gone back to the skilled nursing facility on March 10. Outpatient was the appropriate level of care. In his deposition, Dr. Mehra testified that H.P.'s improvement was such that she could have been discharged on March 10. There was no deterioration in her condition after March 10. She denied suicidal or homicidal ideations, hallucinations, and delusions throughout the day. Dr. Mehra noted that H.P. was HIV-positive and obese, and would therefore chronically be at risk for suicidal ideation. She had been hospitalized many times for suicidal ideation and auditory hallucinations. H.P. claimed to have jumped from a five-story building when she was 18 years old. Dr. Mehra did not think H.P. was schizophrenic, though her attending physician was concerned about major depression with psychotic features. Attending physician Dr. Luis Allen testified that H.P. was admitted from a skilled nursing facility. She had had multiple psychiatric hospitalizations, and on this admission was presenting with psychotic symptoms, hearing voices and having suicidal thoughts. Dr. Allen conceded that there was one day during her stay when H.P. reported not having suicidal thoughts, but he added that these thoughts resumed the next day. Given that H.P.'s history made her a higher risk for suicide, Dr. Allen felt that he had to ensure she was stable psychiatrically before she could return to the skilled nursing facility. Dr. Berns testified that the March 7 admission note indicated that H.P. had a history of depressive disorder and multiple psychiatric admissions to Florida Hospital Orlando. H.P. reported insomnia and auditory hallucinations, which were mostly command and derogatory hallucinations, voices calling the patient "stupid" and a "dummy" and saying that she should kill herself. H.P. had a history of several suicide attempts and had been taking Risperdal, Prozac, and Remeron. She reported suicidal thoughts, but no plan, and was alert times three. The admitting diagnosis was major depressive disorder, recurrent with psychotic features, and rule out mood disorder secondary to medical condition with depressive-like features. Dr. Berns agreed that the March 10 notes showed that H.P. was depressed with blunted affect, and that she denied suicidal ideation. On March 11, the notes indicated that H.P.'s mood was improved, that she slept better during the night, that her suicidal thoughts were significantly decreased, and that she was compliant with her medications and reported no auditory hallucinations or delusions. However, the attending physician continued to note that she was depressed and hopeless, and the social worker reported that H.P. discussed having no desire to live any more and be a burden to her children. On March 13, her behavior was improved, she had a very good appetite, and she had no hallucinations, delusions, or suicidal thoughts. On March 14, she denied suicidal ideation and hallucinations and was discharged back to the skilled nursing facility. Dr. Berns testified that H.P.'s stay was necessary, and disagreed that she could have been discharged to a skilled nursing facility on March 10. She had a previous suicide attempt, and she had suicidal thoughts and heard voices telling her to harm herself. Dr. Berns agreed that many people express thoughts such as those H.P. expressed to the social worker on March 11, but Dr. Berns pointed out that many people do not also have previous attempts or voices telling them to kill themselves. H.P. was showing improvement by March 11, but her symptoms were still present. Dr. Berns did not agree with Dr. Mehra that suicidal ideation, without the means to carry out a plan, is never sufficient to keep a patient in the hospital. Dr. Berns stated that if the patient is having thoughts of suicide and staff is documenting that the patient is helpless and hopeless, the suicide risk may be sufficient to hospitalize the patient, particularly where there have been previous hospitalizations and suicide attempts. After reviewing the testimony of Dr. Allen and Dr. Berns, Dr. Mehra maintained his opinion that H.P. should have been discharged on March 10. Dr. Mehra pointed out that no physician saw the patient on March 10, probably because it was a Saturday.8 Regardless of the day of the week, if the patient's condition is so acute that it is necessary to hospitalize her with a risk factor of attempted suicide, then she should be seen by a doctor. The unit notes for March 10 indicate she was showing no evidence of psychoses or suicidal ideation. Dr. Mehra noted that even H.P.'s mental status exam at the time of admission showed no active suicidal plan. If the patient is sick enough to be in the hospital, then she should have been seen by a physician. Dr. Mehra concluded that there appeared no need for H.P. to be seen by a doctor on March 10. The greater weight of the evidence supports AHCA's denial of the last four days of H.P.'s admission. The record as presented established that H.P. ceased to meet the criteria for inpatient admission in the psychiatric unit on March 10. Patient #7 J.R. J.R. was admitted on March 2, 2001, and was discharged on March 15, 2001. Peer reviewer Dr. Mehra determined in his report that ten days, March 5 through March 15, should be denied due to lack of medical necessity for continued inpatient care. Dr. Mehra's peer review report stated that J.R. was a 46-year-old female admitted from a skilled nursing facility under the Baker Act for being "suicidal." As of March 5, the patient was not actively suicidal, homicidal, psychotic, manic, or in complicated withdrawal. She needed intensive outpatient treatment to address her depressive symptoms, eating issues, and possible addiction to narcotics. J.R. refused to see a chronic pain specialist while in the hospital. Dr. Mehra's report also raised a "serious quality of care concern" in the fact that the patient was immediately referred for electroconvulsive therapy ("ECT") treatment based on "unclear, poorly documented reasons." The physician's decision to use ECT was based purely on the patient's report, without documentation, of failed past treatments. The patient reported that she had not had psychotherapy in years. In his deposition, Dr. Mehra testified that the admitting concern was that the patient was suicidal in her skilled nursing facility, and Dr. Allen had her Baker Acted into the hospital. Dr. Farmer performed the psychiatric evaluation on admission and stated that the patient was not actively suicidal, not psychotic, and was angry with Dr. Allen for Baker Acting her. Dr. Farmer diagnosed J.R. with major depression and anorexia nervosa. Dr. Mehra concluded that J.R. should have been discharged on March 3, because the initial admission evaluation did not establish medical necessity for an inpatient psychiatric hospitalization. Dr. Mehra testified that it was difficult to determine why the patient was at this level of care because Dr. Farmer found that J.R. was not suicidal, actively suicidal with a plan, or psychotic, had no form of auditory or visual hallucinations, and was not manic or involved in a complicated withdrawal. Dr. Mehra stated that, while he did not come out and say that J.R. should not have been Baker Acted, Dr. Farmer did repeatedly note the patient's anger at being Baker Acted, which is highly unusual in a psychiatric evaluation report. Dr. Mehra also observed that the Baker Act documents were not dated, and, thus, there was no way of saying they were completed on the day of J.R.'s admission. A Baker Act is an involuntary commitment of a patient, and it involves a patient's rights. Dr. Mehra stated that because the papers must be completed within a specified period of time of having face-to- face contact with the patient, they must note the date and time. The failure to fill out the papers completely causes a concern about the appropriateness of the patient's admission. Dr. Mehra believed that the indication for ECT was not clear. There are specific criteria to initiate a patient on ECT, and the medical record here did not support it. One of the ECT criteria is that the patient must have failed a minimum of three antidepressants at adequate doses for an adequate length of time. The only documentation in the record was the patient's own report that medications had not worked. There was no objective data in the record regarding her medication history. Dr. Mehra found it very significant that J.R. had no prior psychiatric hospitalizations, especially in the context of her being given ECT. There was not adequate medical confirmation that she had failed previous antidepressant therapy. Dr. Mehra noted that J.R. had a history of a cervical spinal fusion and issues of lumbar back pain, which should have raised concerns about inducing a grand mal seizure by way of ECT. Dr. Mehra saw no MRI or CAT scan of the brain, which is usually done prior to the administration of ECT in order to rule out a mass in the brain. Dr. Allen testified that J.R. had a history of recurrent depression with psychotic features and an eating disorder. During her initial visit to the skilled nursing facility, she was found to be anxious, depressed, and experiencing some suicidal thoughts, and was referred for inpatient treatment. She had experienced significant weight loss and had issues of untreated depression. ECT was initiated and performed three times a week. Dr. Allen conceded that ECT may sometimes be done on an outpatient basis, but stated that J.R.'s history of psychiatric symptoms and the low level of support she had in the community necessitated inpatient placement. She was at a nursing home and would have had to be transported at 5:30 every morning for the treatment. There was no transportation available for her to come in as an outpatient. Dr. Allen also felt that she needed to remain inpatient because of the confusion and disorientation that she was developing with each treatment. Dr. Allen stated that the primary reason for keeping J.R. as an inpatient was to give the ECT treatment. He decided to complete the course of ECT treatment and discharge her back to the nursing home. Dr. Farmer was the second opinion doctor who actually performed the ECT treatment. Dr. Allen stated that ECT is usually reserved for patients who are considered treatment intolerant or "refractory" to treatment, with a history of failing different trials of medications or having developed side effects, or patients who had a very high risk of suicide. With J.R., it was not clear how much the eating disorder was playing into her depression, but Dr. Allen believed that her inner functions were clearly deteriorating, as evidenced by the fact that she was in a nursing home at age 45. The ECT was to address her primary mood symptoms and appetite. At the nursing home, she was only eating percent of her meals. She was eating 50 percent of her meals when she left the hospital, and she continued to show improvement at the nursing home. Dr. Berns testified that J.R. showed a history of cervical spinal cord injury. J.R. was a nurse, and an aggressive patient had caused her injuries when she worked in the emergency room. She had a history of anorexia, depression, and alcohol abuse. She was agitated in the emergency room during admission. J.R. claimed she had had trials on all available antidepressants, which were only partially helpful or failed. She had insomnia and took Klonopin for restless legs. On admission, she was also taking OxyContin, Wellbutrin, Flomax, Trazedone, and Zofran. Her mental status examination indicated lethargy and monotone speech. She was depressed, helpless, and hopeless, but denied suicidal ideation. J.R. stated that she had an overdose of medications at age 16. On March 5, she was withdrawn, depressed, and complained of anergia (lack of energy) and anhedonia (inability to experience pleasure). She also complained of dizziness. She showed the same symptoms on March 6, hopeless and helpless but denying suicidal thoughts. She again complained of feeling weak and dizzy, and she had low blood pressure, 73 over 53. Because of concerns that her medications may have been the cause of her medical complaints, the treatment team decided to withhold all psychiatric medicines and initiate ECT. J.R.'s first ECT treatment was on March 7. On that date, she was depressed, withdrawn, had anergia, but no suicidal thoughts. Her dose of Klonopin was lowered. On March 8, her mood was depressed and she showed anergia, anhedonia, and a variable appetite. A trial of a new anti-depressant, Remeron, was commenced, and J.R. was given an Ambien sleeping pill at bedtime. Her blood pressure was still low, 70 over 50, and the treatment team decided to withhold the OxyContin. J.R. refused to see the psychiatrist and stayed secluded in her room. By the second ECT treatment on March 9, J.R.'s mood was improving and her blood pressure was up to 90 over 57. ECT was scheduled for three days during the next week. On March 10, J.R. complained of depression and suicidal thoughts, and stayed alone in her room most of the day. On March 11, she again stayed secluded in her room, depressed and with flat affect. On March 12, she slept fairly well and ate 75 percent of her meals. Her mood was improving and suicidal thoughts decreased. She had ECT in the morning then rested in bed most of the day. She was depressed and anxious, with poor insight and judgment. On March 13, her mood was improving and she denied suicidal ideation. J.R. was more goal oriented and showed less psycho- motor retardation. She was scheduled for discharge on March 14, after her ECT treatment. She had the treatment, but her discharge was placed on hold because the skilled nursing facility did not want to accept her. Dr. Berns was not sure why the facility did not want to take J.R. back, unless they considered her a problem patient or didn't want to handle a depressed patient. Such problems can hold up discharge. Dr. Berns testified that it would not be acceptable to discharge this patient to the street, and that the length of stay was medically necessary. Dr. Mehra countered that feeling depressed, helpless and hopeless is not enough to justify an inpatient admission. On J.R.'s mental status exam upon admission, Dr. Farmer documented no suicidal ideation, no psychotic symptoms, and patient anger at being Baker Acted. She was given ECT for reasons that Dr. Mehra thought were not very well documented in the medical record. Dr. Mehra stated that it is a complex question as to whether giving her the ECT treatment is reason enough for an inpatient admission. J.R. was taking a heavy narcotic medication, OxyContin, which can make one depressed, withdrawn, and isolative. Dr. Mehra could find in the medical record no real theory as to why J.R. was still taking these medications. For reasons unclear to Dr. Mehra, there seemed to be an immediate desire to give her ECT. Dr. Mehra believed that March 2, should be authorized just to see what was going on with her, given that she had been Baker Acted by a physician. However, as far as the record indicated, J.R. had no history of inpatient psychiatric treatments. Dr. Mehra found it very unusual that ECT treatments would be given on a patient's first inpatient stay. ECT is routinely performed on an outpatient basis. Dr. Mehra acknowledged that where patient compliance is a problem, it may be proper to keep the patient in the hospital. However, this did not seem to be the case with J.R. One of the cornerstones of the decision process leading to ECT is a documented failure of past antidepressant therapy, and Dr. Mehra found no such documentation in the medical record. Lack of support in the community or transportation problems are not reason enough, standing alone, to keep someone in the hospital. The greater weight of the evidence supports AHCA's denial of the last ten days of J.R.'s admission. The record as presented established that J.R. ceased to meet the criteria for inpatient admission in the psychiatric unit on March 3. Patient #8 J.R. J.R. was admitted on March 16, 2001, and was discharged on March 27, 2001. Peer reviewer Dr. Mehra determined in his report that six days, March 21 through March 27, should be denied due to lack of medical necessity for continued inpatient care. Dr. Mehra's peer review report stated that J.R. was a 24-year-old male with a diagnosis of schizoaffective disorder, who was admitted for symptoms of agitated, psychotic behavior. As of March 21, the patient was not actively suicidal, homicidal, manic, or in complicated withdrawal. J.R. may have still been psychotic, but the symptoms had improved. The patient's vital signs, sleep, and appetite had stabilized. He no longer needed 24-hour psychiatric nursing care. Dr. Mehra concluded that sub-acute treatment was the appropriate level of care as of March 21. In his deposition, Dr. Mehra testified that J.R. met discharge criteria on March 21, and could have gone into a sub- acute setting such as a skilled nursing facility or group home. Dr. Mehra could not recall whether there was a problem with bed availability in the skilled nursing facility, but added that after a patient meets discharge criteria, it is not Medicaid's responsibility to pay for a longer hospital stay while the patient awaits placement. Once the schizophrenic's acute crisis is resolved, he no longer meets the criteria for medical necessity. Dr. Birkmire was the treating physician, and his notes indicated compliance and improvement on March 20, and 21. J.R. was having some religious preoccupation, which was probably a baseline issue for him. Religious preoccupations in people with schizophrenia are sometimes chronic and never go away. Dr. Mehra testified that being psychotic and having auditory hallucinations do not alone establish grounds for remaining inpatient. Such symptoms are consistent with a diagnosis of schizophrenia, which is chronic. Dr. Mehra stated that J.R. would probably display these symptoms no matter how long he was kept in the hospital. Dr. Mehra testified that there is a vast difference between J.R.'s having an auditory hallucination and his having a command auditory hallucination to harm himself or someone else. Treating physician Dr. Birkmire testified that J.R. was very disorganized on admission, with a grandiose religious preoccupation that indicated he was in a manic stage. J.R. was also sexually inappropriate with some of the other patients and staff. On March 21, he was inappropriate, grandiose, and sexually preoccupied. On March 22, he was still very psychotic, hearing the voice of Britney Spears, with whom he had delusions of being married. He had sexually explicit conversations with other patients and staff. On March 23, he was severely agitated, requiring staff intervention. He was illogical and bizarre, talking to himself in the hallway, reporting that he heard voices and remaining delusional. He was hearing the voice of the devil and having paranoid thoughts about people around him. On March 24, he was unchanged, still delusional and still hearing voices, though they were becoming less intense and he was becoming less manic. Dr. Berns testified that schizoaffective disorder is an illness with symptoms of psychosis in the absence of symptoms of a mood disorder such as mania or depression. It is a chronic mental illness. Dr. Berns agreed with Dr. Mehra that the presence of a chronic illness is not grounds for hospitalization. It is only when the condition becomes acute, where the patient presents a danger to himself or others, that an inpatient psychiatric hospital may be the option. J.R.'s admission note stated that he was previously hospitalized in January 2001, for agitation, bizarre delusions, and concerns about violent behavior. He stated dead people were talking to him. On March 17, the psychiatrist noted marked auditory hallucinations, grandiosity, paranoid delusions, and tangential thought processes. The plan was to keep him on Risperdal, an antipsychotic, and Lithium, which is a mood stabilizing, anti-manic medication. Dr. Berns testified that the usual practice with these medications is to start with a low dose and build it up slowly and gradually. If the patient is in the hospital, the physician can be more aggressive because he can closely monitor blood work and vital signs. Lithium takes seven to ten days to build up to a therapeutic level. The medical notes from March 22 showed that J.R. remained psychotic, had auditory hallucinations, had delusional thoughts regarding Britney Spears and Judy Garland, was responding to internal stimuli, and was sexually preoccupied. On March 23, he was agitated and illogical with bizarre ideation. On March 24, he continued to report auditory hallucinations and was labile and agitated about his upcoming discharge. On March 25, he was still having auditory hallucinations, but less of the manic behavior. On March 26, there was some improvement in his mood and his auditory hallucinations were resolving, but he was still having problems in a group situation. Dr. Berns noted that on March 17, J.R. tried to kiss a nurse, then called her a "bitch with an attitude." There were concerns about his impulse control and potential for committing a sexual offense if released before he was fully stabilized. Dr. Berns agreed with the length of hospitalization, because J.R. had shown poor impulse control and sexually inappropriate behavior on admission, had been admitted two months earlier, and there were concerns about psychosis and violent behavior. The greater weight of the evidence supports AHCA's denial of the last six days of J.R.'s admission. The record as presented established that J.R. ceased to meet the criteria for inpatient admission in the psychiatric unit on March 3. Patient #9 N.R. N.R. was admitted on March 4, 2001, and was discharged on March 16, 2001. Peer reviewer Dr. Mehra determined in his report that three days, March 13 through March 16, should be denied due to lack of medical necessity for continued inpatient care. Dr. Mehra's peer review report stated that N.R. was a 21-year-old female admitted, involuntarily, under the Baker Act for psychotic agitation and delusions. The authorization was based on the patient's presenting symptoms, diagnosis of intrauterine pregnancy, and a positive test for syphilis. As of March 13, the patient was not actively suicidal, homicidal, manic, or in complicated withdrawal. Her vital signs, sleep, and appetite were stable. She was taking prescribed medications and following unit rules. Her psychosis had decreased and she was not an immediate danger to herself or others. She appeared to have support from her mother. Dr. Mehra concluded that outpatient was the appropriate level of care. In his deposition, Dr. Mehra testified that the physician's note of March 13 stated that N.R. had no recent episodes of bizarre behavior, and no episodes of agitation or aggressive behavior. The physician progress notes for March 14 say the same thing. N.R.'s initial evaluation was for a psychotic disorder, and she was diagnosed with schizophrenia, a chronic condition. Dr. Mehra noted that the hospital did not obtain N.R.'s previous psychiatric history and that her mother could have been contacted about N.R.'s medical records. The treating physician, Dr. Allen, testified that N.R. was psychotic and grandiose on admission, and was noted at the jail to be head-banging, smearing feces, and playing in the toilet. She was pregnant with an unknown gestational age, and had a positive Rapid Plasma Reagin ("RPR") test for syphilis. She needed a lumbar puncture to determine if she had some form of neurosyphilis or another disorder that could influence her psychiatric behavior. Dr. Allen testified that she lacked the social network for the lumbar puncture to be done on an outpatient basis. He conceded that on March 13 she was compliant with her medication, but stated that she was still disorganized. The initial RPR was performed on March 4, but it took an additional ten days for the lumbar puncture to be successfully performed. One puncture was performed on March 10, but the specimen was not good, so another puncture was performed on March 14. Dr. Allen testified that the lumbar puncture requires the patient to remain very quiet in a hunched position as the needle is going through her back. An agitated, restless patient could cause problems. N.R. needed to be stabilized before the puncture could be performed. N.R. was found positive for syphilis and was discharged to her mother's home rather than to the jail. A visiting nurse went to the home to give the treatments. Dr. Allen explained that N.R. was not released to her mother between lumbar punctures because the mother had a history of depression, according to the history provided by N.R., which Dr. Allen conceded may not have been accurate. Dr. Allen also noted that N.R.'s mother was very difficult to contact. Dr. Berns testified that N.R. was psychotic on admission. At the jail, she was stripping off her clothing and hearing voices telling her that her husband was messing around with other women. She was hitting her head against the wall to get rid of the voices. Dr. Berns concluded that the length of stay was medically necessary and reasonable. N.R. was a pregnant female from the jail, psychotic, with self-destructive behavior. Her physician wanted to be extra careful in view of N.R.'s being pregnant. She was placed on antipsychotic medication. N.R. was eventually going back to the jail, and they wanted to stabilize her condition as much as possible, because the jail is a very stressful place to be. Dr. Berns agreed that, as of March 13, N.R.'s psychosis had decreased and she was not an immediate danger to herself or others. The greater weight of the evidence supports AHCA's denial of the last three days of N.R.'s admission. The record as presented established that N.R. ceased to meet the criteria for inpatient admission in the psychiatric unit on March 13. Patient #10 R.S. R.S. was admitted on May 19, 2001, and was discharged on May 30, 2001. Peer reviewer Dr. Mehra determined in his report that nine days, May 22 through May 30, should be denied due to lack of medical necessity for continued inpatient care. Dr. Mehra's peer review report stated that R.S. was a 38-year-old female diagnosed with schizophrenia who was admitted, involuntarily, under the Baker Act for worsening of her psychotic symptoms. As of May 22, the patient was not actively suicidal, homicidal, manic, or in complicated withdrawal. The patient was still psychotic but the symptoms were not worsening and appeared to be at baseline, given that they remained unchanged even at discharge. After May 22, the record disclosed no evidence that R.S. required seclusion or emergency treatment orders to force her to take medications. She voluntarily took medications and followed unit rules, and no longer needed 24-hour nursing care. Dr. Mehra concluded that sub-acute treatment was the appropriate level of care as of May 22. Dr. Mehra testified that his main concern with the length of R.S.'s stay was that she persisted with active psychotic symptoms even up to the day of discharge. There was not much difference in her symptoms between May 22 and May 30. After May 22, she received no medication on an "as needed" ("PRN") basis and required no seclusion or restraints. Despite her other noted symptoms, if she was not having command hallucinations telling her to hurt herself, she could have been treated as an outpatient. Dr. Mehra agreed that if she expressed a desire to hurt herself after May 22, then any such days should be authorized. Dr. Mehra did not have the benefit of R.S.'s past medical records and stated this made it difficult to determine if R.S. was a patient whose baseline level of functioning is so low that she could never care for herself. He agreed that the attending physician had the advantage of having seen the patient in person. Attending physician Dr. Birkmire testified that R.S. had just been discharged from a medical psychiatric unit but had to be readmitted on a Baker Act because she was not taking her medications and was psychotic again, hearing and responding to voices and unable to communicate in a meaningful manner to staff. On May 22, she was noted as unchanged from admission, still psychotic, disorganized, hearing voices, depressed, and oriented only to person and place, not date and time. She was secluded in her room, not going to any treatment groups. Dr. Birkmire testified that his greatest concern was that R.S. was so psychotic and disorganized that she would probably not take her medications and would not be not able to care for herself. On May 23, she remained regressed, bizarre and psychotic. She was "dirty and careless" in her ADLs, and was complaining of suicidal command ideations, voices telling her to hurt herself by taking an overdose. On May 24, she was showing mild signs of improvement and was a little less reclusive and bizarre. She was still hearing voices and claimed they were telling her to be a friend to everybody, but she also admitted to suicidal ideations. On May 25, R.S. was still psychotic with suicidal ideations, disorganized, and paranoid. By this time, the voices were telling her to do more good things than bad, but she needed more time to stabilize on her medications. She was still dirty and careless in her appearance, and depressed with a flat affect. On May 26, she showed further mild improvement, was less paranoid, and reported that the voices were less intense. She remained in her room most of the time, and her ADLs were still careless. On May 27, R.S. was now oriented to person, place and time. The treatment team still thought she would stop taking medications on release, and made, further, two more medication changes. On May 28, the hallucinations had resolved. She was more logical and organized and less paranoid, though her ADLs were still poor. By May 29, she was safe to go home, but her appearance was still disheveled, she had poor concentration and hygiene, still heard voices, and was depressed and anxious. She went to group therapy, but was distracted by auditory hallucinations. Dr. Birkmire believed that May 29 or May 30, would be an appropriate discharge date. Dr. Berns testified that R.S.'s diagnosis was schizophrenia. He acknowledged that R.S.'s suicidal ideations on May 22 did not indicate a plan. However, in the hospital setting, a patient may not always reveal her plans for fear of prolonging the hospitalization. On May 23, she was having command auditory hallucinations to hurt herself with a plan to overdose. Dr. Berns found this very serious, because patients have been known to hoard medications in the hospital in order to take an overdose. After reciting the same day-by-day review conducted by Dr. Birkmire, Dr. Berns concluded that he concurred with the length of stay. Noting that she was still psychotic, mumbling and hallucinatory at the time of discharge, Dr. Berns testified that he did not necessarily agree that R.S. should have been released even on May 30. In response, Dr. Mehra testified that he agreed with many of the concerns expressed by Dr. Birkmire, but did not see them evidenced in the medical record. Dr. Birkmire testified that as of May 22, R.S. was so psychotic and disorganized that she would probably not take her medications after discharge. Dr. Mehra agreed this is grounds for keeping someone in the hospital, but did not see this concern noted in the medical record. Dr. Mehra also found nothing in the medical record to indicate she was having command auditory hallucinations to hurt herself with a plan to overdose. Dr. Mehra stated that the record did show that on May 23 she was regressed, bizarre and psychotic, but he noted that those symptoms were also present at the time of R.S.'s discharge. However, the psychiatry unit patient notes do indicate that R.S. told a student nurse on May 23, that "she was having suicidal ideations and a plan to overdose." The other notations cited by Dr. Birkmire, with the exception of the May 22 notation regarding staff's suspicions regarding R.S. medication compliance, were all found in the psychiatry unit patient notes. It must be concluded that Dr. Mehra simply overlooked this section of the record, and that if he had seen that the record supported Dr. Birkmire's concerns, Dr. Mehra would have authorized the full stay for R.S. The greater weight of the evidence supports Petitioner's position that May 22 through May 30, should not have been denied. Dr. Mehra's reason for denying these days was not that he disagreed with Dr. Birkmire's concerns regarding the patient, but that he could not find those concerns reflected in the record. In fact, the record supported Dr. Birkmire's concerns and rendered R.S.'s entire inpatient stay medically necessary. Patient #11 D.T. D.T. was admitted on May 9, 2001, and was discharged on May 21, 2001. Peer reviewer Dr. Mehra determined in his report that nine days, May 12, through May 21, should be denied due to lack of medical necessity for continued inpatient care.9 Dr. Mehra's peer review report stated that R.S. was a 14-year-old female with an extensive psychiatric history who was voluntarily admitted from a community mental health center for mood swings, violent tendencies, and a report of auditory hallucinations. As of May 12, the patient was not actively suicidal, homicidal, grossly psychotic, manic, or in complicated withdrawal. The patient was taking her medications, following unit rules, and participating in activities. The patient's sleep, vital signs, and appetite were stable. Dr. Mehra concluded that she did not require 24-hour nursing care as of May 12 and that outpatient was the appropriate level of care. Dr. Mehra testified that D.T. was admitted for mood swings, a history of violence, and some personality issues. She was diagnosed as bipolar, though Dr. Mehra was not clear as to what features led to that diagnosis. She was also diagnosed with post traumatic stress disorder. Further, she was diagnosed under Axis II of the DSM-IV, which includes personality disorders. Dr. Mehra found this significant because personality disorder symptoms are treated differently than bipolar disorder. Dr. Mehra found no indication in the record that D.T.'s history records were ordered or reviewed for purposes of continuity of care and current treatment. She was admitted and served on the inpatient unit, and her medications were continued: such as Wellbutrin, Topamax, and Risperdal. She was started on Geodan, an antipsychotic, which was then changed to Seroquel, and then back to Risperdal. Dr. Mehra concluded that D.T. met discharge criteria as of May 12. Nothing remarkable happened between May 12, and the date of her discharge. She continued to have some difficulties on the unit, but nothing that warranted inpatient care. She could have been sent to outpatient and returned to foster care. Given her documented history, return to a stable group home or foster home would be appropriate to help her engage with her symptoms. For someone with a personality condition to be on an inpatient psychiatric unit can worsen the symptoms. Dr. Mehra believed that D.T. needed an environment with a lot less stimulation and less potential for her to become agitated and act out. Dr. Mehra acknowledged that the records do show serious medication side effects on May 15, such as akathisia, but he stated that people have these symptoms frequently as outpatients. Dr. Mehra was curious as to why D.T. was on three different antipsychotic drugs. Three different psychotropic medications is a concern because there is insufficient clinical and medical data to use them in children when the diagnosis is not clear. They have potential long-lasting side effects, such as tardive dyskinesia, where the patient develops permanent tic- like movements of the lips, mouth and jaw. Cogentin is a medication for side effects from antipsychotics, and its use caused Dr. Mehra to question whether research was done as to whether this child had been on such medications before. Dr. Mehra stated that such research is essential, especially when the patient starts showing side effects. Treating physician Dr. Scott Farmer testified that all of the denied dates represented necessary periods of care to stabilize D.T. and make her discharge safe. On May 15, she was still experiencing severe mood swings and dissociative symptoms, which Dr. Farmer described as "a watershed between normal and neurotic." In a spectrum moving toward psychosis, dissociative thinking has features of both psychotic and neurotic thinking. Dr. Farmer explained that if a physician has a patient in his office who is disassociating, the physician must watch the patient until the patient has demonstrated several hours of improved functioning. If a patient drifts into a dissociative state during psychotherapy and becomes agitated, the patient requires hospitalization. Dr. Farmer stated that D.T. could not have been released on May 15. She was still requiring Haldol due to episodes of anger, and due to her inability to recognize people who are caring for her and distinguish them from threats. Her agitation was so extreme that Dr. Farmer had to change the dose of Haldol. This was complicated by the fact she was having side effects of the antipsychotic medication. Akathisia is an acute dystonia, a side effect of these powerful medications. It is a restlessness, an inability to sit still. The patient wants to stretch her legs and flex her muscles to relieve tension that feels like an unrelenting, very slowly developing cramp. Dr. Farmer testified that akathisia is not as dramatic as other side effects because it looks like the disease itself: the patient is restless, can't sit still, and wants to walk around. There is a ramping up in the intensity of treatment for akathisia, culminating in Propranolol, which itself causes 40 percent of users to have a new onset of major depression within a year. Dr. Farmer stated that D.T. was so resistant to taking medications that at times intramuscular medications were required. Geodon was the medicine initially chosen to treat D.T.'s psychotic features because it has the least likelihood of causing weight gain. By May 15, Dr. Farmer had deemed it a failure and was in the process of replacing it with Seroquel. On May 16, D.T. remained actively psychotic with visual and auditory hallucinations, side effects of the medication. Dr. Farmer testified that the dosages of medicine that could possibly make the hallucinations go away, had the side effect of incapacitating her. D.T. could not sit in group and match her mood and comments to the group process. She was too lethargic to function. Dr. Farmer believed that as of May 16, D.T. could not be anywhere but an acute care setting, with nurses and physicians monitoring her response to medications. On May 17, D.T. reported seeing what she described as flashing lights. She moved out of her lethargy into accelerated speech. She was irritable and paranoid, different from the day before when she appeared overdrugged and lethargic. On May 18, she had a severe reaction to the Seroquel, active symptoms of delusional, confused and agitated behavior. Seroquel was discontinued and a new antipsychotic, Restoril, was introduced. On that day, D.T. was noted to be crying and hallucinating. She saw a man in her room and held so fast to the idea of being in danger that she required additional medication, Ativan PRN, to make her relax. On May 19, her Risperdal had to be further adjusted because she was overly sedated. She was disheveled, easily agitated, and still required PRN medications in addition to her standard medicines. On May 20, she remained labile, easily upset and crying. Dr. Farmer concluded, by stating, that this case involved a very complex juggling of medications to get control of auditory hallucinations with other medications striving to compensate for side effects. Dr. Berns testified that D.T. had an extensive psychiatric history and was admitted for mood swings, violent tendencies, and report of auditory hallucinations. The admissions note stated that D.T. was depressed and angry, "ready to kill everybody." She was having problems with flashbacks regarding her history of fights with her father, and was fearful that her mood changes and lability would cause her to lose her foster placement. She had been in foster care since January 2001. D.T. had a history of arrests for fighting, breaking and entering, grand theft auto, and battery. She had a decrease in appetite with a four-pound-weight-loss in the past week. She said that she felt paranoid a lot, and she overreacted to intrusions into her physical space. She heard voices with command features telling her to cut her arms instead of battering her father, and admitted to some prior plans of killing her father. The May 15 notes showed severe mood swings and unspecified dissociative symptoms. She received Haldol for anger episodes. Dr. Farmer discontinued Geodon and began Seroquel, another antipsychotic also used in the treatment of bipolar disorder. She was also given Cogentin intramuscularly, because she had tremors and akathasia. On May 16, D.T. was anxious with sleep disturbance, undescribed auditory and visual hallucinations, and said she was lethargic. On May 17, she was reporting flashbacks about "angel trumpet," which may have been a psychedelic drug. She was observed to have accelerated speech, irritable, perseverant and loquacious. Dr. Farmer raised the level of the Seroquel. D.T. was incoherent from midnight to 6:30 a.m., with auditory and visual hallucinations. She was seeing people, carrying on conversations, making and unmaking her bed, trying to open a window, and mumbling. At times she was manic, hyper-verbal, crying and laughing. She said she was high on her medications. The Cogentin was discontinued. They raised the Seroquel and put her on intramuscular injection of Ativan. On May 18, she had a severe reaction to Seroquel. She was delusional, confused and agitated, but showed no aggression. Dr. Farmer stopped the Seroquel and started Risperdal. She hallucinated seeing a man in her room. On May 19, she was anxious and irritable, having non-command hallucinations. Her Risperdal dosage was increased. On May 20, she was upset and emotional. She requested Haldol and Ativan to calm herself down. On May 21, she was organized, with no flight of ideas or loose associations, and was discharged. Dr. Berns noted that Dr. Mehra found that by May 12, D.T.'s sleep, vital signs and appetite were stable, that she was following unit rules of participating in activities, and that she was not actively suicidal, homicidal, psychotic, manic or in withdrawal. Dr. Berns disagreed with this assessment. On May 16, D.T. still had active psychotic symptoms. On May 17, she was paranoid and irritable, carrying on conversations with unseen people. On May 18, she had visual hallucinations. On May 19, she was disheveled and easily agitated. On May 20, she was labile, and very easily upset. Dr. Berns agreed with Dr. Farmer that the entire stay was medically necessary. In response, Dr. Mehra testified that he was aware of Dr. Farmer's statement that on May 15 D.T. was still experiencing severe mood swings and disassociative symptoms, "which are a watershed between normal and neurotic." Dr. Mehra did not know what that means in terms of the issues in this case, because disassociation is not sufficient to warrant keeping her in the hospital. Visual and auditory hallucinations, in and of themselves, are not sufficient to keep her in the hospital unless they are command hallucinations. Dr. Mehra pointed out that the treating physician's own discharge summary stated that D.T. has personality issues of concern. "Personality issue" means that a lot of the symptoms do not necessarily indicate a major, Axis I diagnosis such as schizophrenia or major depression, but are more about the patient's character and how she relates to people. Dr. Farmer noted on May 16 that, due to side effects of medication, D.T. was lethargic and could not function. Dr. Mehra stated that this might be sufficient to keep her in the hospital, though, again, the treating physician must keep the treatment options in mind and distinguish between someone with a personality disorder who is experiencing hallucinatory symptoms and someone who is schizophrenic. Dr. Mehra was concerned that the physicians were injecting this 14-year-old child with potent anti-psychotic medications and that she was having an adverse reaction. He was further concerned that she was not having much of a response to the medications, which Dr. Mehra found would not be unusual if the diagnosis were inaccurate. Based on the documentation in the record, Dr. Mehra could not be sure that D.T. had a true psychotic disorder that would respond to anti-psychotic medications. Because D.T. was in the custody of the Department of Children and Family Services, Dr. Mehra believed there was "a great likelihood" that she had been physically and/or sexually abused. Many of her symptoms would be easier to understand in the context of past abuse rather than as a diagnosis of schizophrenia. Dr. Mehra found the record confusing as to the rationale for this hospitalization. In the admission mental status exam, the physician documented no well formulated plan for the patient to harm herself. No psychotic symptoms were noted in the admission mental status exam. However, because the patient was presenting with symptoms such as auditory hallucinations, Dr. Mehra authorized and approved a three-day evaluation period. Dr. Mehra stated that he would authorize less time for an adult, but with a child it is important to take sufficient time to obtain a good history. What confused Dr. Mehra was that the medical record showed no clear documentation of collateral information regarding D.T.'s past to understand why she may be disassociating or having mood swings. The greater weight of the evidence supports AHCA's denial of the last six days of D.T.'s admission. The record as presented established that D.T. ceased to meet the criteria for inpatient admission in the psychiatric unit on May 12. However, as stated in note 10, AHCA's recovery is limited to May 14 through May 21. Patient #12 S.T. S.T. was admitted on March 7, 2001, and was discharged on March 17, 2001. Peer reviewer Dr. Mehra determined in his report that eight days, March 9 through March 17, should be denied due to lack of medical necessity for continued inpatient care. Dr. Mehra's peer review report stated that S.T. was a 34-year-old female admitted, involuntarily, under the Baker Act for violent, agitated, self-harming behavior in a community services van. The patient had a history of moderate mental retardation, cerebral palsy, seizure disorder, and abnormal EEGs. The patient was prescribed Haldol PRN, but required none on March 9, 10, or 11. As of March 10, the patient was not actively suicidal, homicidal, grossly psychotic, or manic. Later in her hospitalization, the patient did require Haldol/Ativan PRN on several days, though no adjustments were made to her routine antipsychotic doses. Dr. Mehra noted that the only adjustment made to S.T.'s psychotropic dosing was on March 8, when her Depakote was increased. Dr. Mehra also noted that the patient was allowed to sign a voluntary consent for treatment, when her legal guardian should have been involved in the consent process. Dr. Mehra found in the record no informed consent for psychotropic medications. Dr. Mehra found that the diagnostic studies performed on S.T. could have been done on an outpatient basis. Dr. Mehra concluded that, as of March 10, outpatient treatment with a return to the group home setting was the appropriate level of care. Dr. Mehra testified that S.T. was admitted through the emergency room under the Baker Act when she became violent and agitated in a van operated by Spectrum Community Services, the group home where S.T. lived. Her admitting diagnosis was mental retardation in the moderate range, as well as organic mood disorder. Dr. Mehra found no physician's notes in the record for March 8 or 9, which indicated that S.T. must not have many problems. The nurse's notes for March 9 indicated that S.T. was sleeping through the night. The unit notes from three different shifts on March 9 indicated that her behavior was under control and that she denied hallucinations. All of the above findings in the record, coupled with a lack of physician notes, led Dr. Mehra to conclude that S.T. should be discharged. Dr. Mehra stated that everything relative to making a medical decision must be documented in the record. If something is not in the record, then a peer reviewer must assume it did not happen. In this connection, Dr. Mehra noted there was no indication in the record that the hospital contacted S.T.'s group home for a treatment history and status before initiating invasive diagnostic procedures. On March 8, S.T. had a fall on the unit, hitting and cutting her head on the cinderblock wall. Dr. Mehra stated that a patient with cerebral palsy and mental retardation, who is having acute psychological problems and has fallen, is a grave concern, yet he could find no record that she was seen by a physician on March 9. He did find a March 9, note calling for a consultation with Dr. Henry Comiter regarding S.T.'s fall, but no actual physician's visit on that date. The record indicated that S.T. was placed in restraints on March 13 and engaged in threatening behavior on March 14. However, Dr. Mehra noted there had been no such incidents on March 11 through 12. He testified that, if a patient with these underlying medical and psychiatric conditions is kept long enough, she will probably act out. The incident on March 13, alone, was not enough to keep her without getting a legal guardian involved to continue her voluntary legal status in the hospital. This was a great concern to Dr. Mehra because the hospital appeared to be relying on a voluntary consent form signed by S.T. on March 10. S.T. was mentally retarded and possibly incompetent to admit herself to the hospital. Treating physician Dr. Farmer described S.T. as a 34- year-old mild-to-moderately retarded woman living in a group home. The incident that led to her admission was her deteriorated impulse control, agitation, and aggression directed toward the van and toward the staff and other peers during a van ride on an outing. She struck at her peers and the van driver, bit herself on the hands and arms, and stated that she wanted to hurt herself. S.T. was already scheduled to have an outpatient neurology consultation in late March with Dr. Comiter, out of concern for a seizure disorder that was not adequately managed. Because of her agitation, S.T. was sent to the psychiatric unit, which began the process of adjusting her medications. The adjustments were ongoing on March 8. She was seen by Dr. Comiter on March 8, as indicated by a consultation note in the record.10 Dr. Comiter ordered an EEG and CT scan of the head. The CT brain scan was scheduled for March 9, but S.T. was too agitated to undergo the procedure. On March 10, S.T. remained agitated. She refused a shower and was generally careless with regard to her ADLs. On March 11, Dr. Farmer reduced S.T.'s dosage of Ativan in order to calm her and make her more manageable for the CT scan. On March 12, she was less agitated, but not calm enough for the CT and EEG to be completed. She was too agitated to go for the CT study, but too fatigued from the medications to be functional on the psychiatric unit. The reduction in her Ativan dosage did enable her to respond more promptly to questions. On March 13, staff attempted to transport S.T. in the van for her EEG, but she began swinging her arms and had to be placed in seclusion and restraints. On March 14, Dr. Farmer characterized S.T. as naïve regarding her manic grandiosity, unable to recognize that her reactions are disproportionate to the circumstances. Her vocal volume was threatening and her intrusiveness was with ominous import, but she believed she was justified in her reactions. She was paranoid and misreading the likelihood of danger and pain, and so was attempting to intimidate people away from her. By this time, Dr. Farmer believed that she was reacting well to the adjusted medications. However, when the medications got her to the point at which she was not threatening others, she began having balance problems and falling again. On March 15, the medications had slowed S.T.'s psychomotor skills, and she was not assaultive. She was taking her medicines by mouth. S.T. was beginning to return to baseline and Dr. Farmer began considering discharging her back to the group home. She was denying any suicidal or homicidal ideation and denying hallucinations. She was able to be redirected from biting her hand, which was a continuing problem for S.T. She was able to participate in group therapy without disruption, though her ADLs remained careless. On March 16, she remained restless, distractable, impulsive, and aggressive, though the hospital did manage to complete the EEG on that date. The EEG showed no evidence of a seizure disorder. On March 17, S.T. was discharged back to the group home. Dr. Farmer concluded that it was in the best interest of S.T.'s care to keep her through March 17. It was best to accomplish all the needed adjustments to her anticonvulsant medications on an inpatient basis, especially since there were no EEG results until March 16. Those results could have required further adjustments, and Dr. Farmer believed that relying on the group home to make the changes in her medications might not work and could result in her readmission. Dr. Berns agreed with the length of stay because the attending physicians were not only trying to make sure that S.T. was no longer suicidal, they were trying to decrease her agitation and aggression while completing important diagnostic tests. Dr. Berns thought that authorizing her stay only through March 10 would be premature. The greater weight of the evidence supports Petitioner's position that March 10 through March 17, should not have been denied. Dr. Mehra's opinion in this instance was at least partly based on a misreading of the record, i.e., that S.T. was not seen by a physician on March 8 or 9. Dr. Mehra's concerns regarding S.T.'s consent to treatment are serious, but cannot be resolved on this record and do not appear relevant to the question of the medical necessity of S.T.'s hospital stay. Dr. Farmer's testimony as the treating psychiatrist credibly established that S.T.'s entire inpatient stay was medically necessary. Patient #13 W.W. W.W. was admitted on June 17, 2001, and was discharged on June 28, 2001. Peer reviewer Dr. Mehra determined in his report that five days, June 23 through June 28, should be denied due to lack of medical necessity for continued inpatient care. Dr. Mehra's peer review report stated that W.W. was a 43-year-old female admitted to the psychiatric unit after an intentional overdose of psychotropic medications. Dr. Mehra wrote that his authorization was based on continued documentation of the patient's having command auditory hallucinations to hurt herself. As of June 23, the patient was not actively suicidal, homicidal, psychotic, manic, or in complicated withdrawal. Her sleep, appetite, and vital signs were stable. She was not a management problem on the unit. Dr. Mehra concluded that, as of June 23, the patient no longer required 24-hour nursing care and that outpatient treatment was the appropriate level of care. In his deposition, Dr. Mehra testified that W.W. was on the medical floor, then transferred to the psychiatric floor after two days. On discharge, her Axis I diagnosis was alcohol abuse, history of cocaine abuse, and rule-out schizoaffective disorder. The hospital's discharge summary stated that the reason for admission was severe depression, no psychotic features, and having suicidal thoughts. She was integrated into the milieu of the inpatient psychiatric unit and prescribed antidepressant medication. Dr. Mehra believed W.W. should have been discharged on June 23. He stated that, even on the psychiatric unit's admission mental status exam, dated June 17, Dr. Allen noted that W.W. was slightly more cooperative than on the previous day's consult, meaning that Dr. Allen probably saw her on the medical floor after her overdose. Dr. Allen noted there was no active suicidal ideation with a plan. Dr. Mehra testified that this admission psychiatric exam, standing alone, would indicate that W.W. did not need to be admitted at all. However, the totality of her presentation and history showed numerous overdoses on psychotropic medications. Based on her history and the mental status exam showing her mood was still depressed, her admission through June 22 was approved. Attending physician Dr. Birkmire testified that, in the weeks before the overdose, W.W. described becoming increasingly depressed with feelings of helplessness and hopelessness. Her history showed at least eight or nine other psychiatric hospitalizations. She indicated a history of being sexually abused by her father at age 12. Her admitting diagnosis was schizoaffective disorder, depressed, subtype provisional, depressive disorder not otherwise specified, alcohol abuse and history of cocaine abuse. W.W.'s global assessment of functioning ("GAF") upon admission was 35. Dr. Birkmire testified that a GAF below 50 indicates that a patient should be in a residential program, at least, and that a GAF below 40-to-45 indicates the patient should be on an inpatient unit. On June 23, the medical notes show she was still somewhat confused. Her mood had improved but she still had suicidal ideations. The hospital was holding her in part to see if the blood test for syphilis was negative. She felt better but complained about mood swings. On June 24, a Sunday, there were no notes. Dr. Birkmire explained that the physicians who take rounds on the weekends are required to see each patient on either Saturday or Sunday, but not both days. On June 25, W.W. was less psychotic. Her auditory hallucinations were present but decreased, and she was taking her medications. On June 26, she continued to have auditory hallucinations. She was disorganized, paranoid, and isolating herself. She reported fear in being released because she might make another suicide attempt. She was given Ativan PRN to treat reported anxiety. On June 27, her mood was euthymic (normal, neither depressed nor highly elevated in mood). She showed no psychotic symptoms, denied suicidal ideations, and felt safe for discharge. However, hospital staff said that W.W. still seemed to be responding to voices. Dr. Birkmire stated that he had reservations about releasing W.W. on June 27 because she seemed to be telling the staff she was doing better than she really was. The voices had played a role in her suicide attempt, and, thus, the knowledge that she was still hearing them would be a strong factor in deciding to keep W.W. hospitalized. In Dr. Birkmire's opinion, W.W.'s problems could not be addressed in a skilled nursing facility. Dr. Birkmire testified that, with the exception of psychiatrists who perform peer reviews and medical authorizations, there is not one psychiatrist in the country who would say that a patient should not be in an acute care setting unless she has a definite plan for suicide or the means to complete the plan. Dr. Birkmire stated that no doctor is going to risk his license in that fashion. Whole books are written on how to perform a suicide assessment, and the assessment is based on much more than what the patient tells the physician. It is based on the patient's history, her degree of hopelessness, degree of disorganization, degrees of psychosis, and her access to the means of doing the suicide. Dr. Birkmire stated that one of the best predictors of suicidality is past attempts. Dr. Berns testified that W.W.'s history of multiple psychiatric hospitalizations indicated a probability of chronic illness. He stated that the number of prior hospitalizations automatically raises the question of past suicide attempts, and noted that her history indicated three attempts prior to this one. She was diagnosed with "depressive disorder" but not otherwise specified, as well as alcohol and cocaine abuse. She took an overdose of Haldol, Cogentin, and Sinequan. Dr. Berns explained that Sinequan is an older antidepressant, a tricyclic, with which a higher number of suicides occur. Thus, an overdose of this medication is more serious than overdoses of other medicines. There were concerns about neurosyphilis because she had a positive RPR. Her physicians were concerned that inadequate treatment for this condition would complicate her psychiatric course as well as cause physical complications leading to dementia and death. Dr. Berns concluded that W.W.'s stay was medically necessary. Her physicians were trying to stabilize her condition and treat a gradual illness that can become fatal. In response, Dr. Mehra testified that the evaluation for neurosyphilis on June 23 and 24, was not, standing alone, a ground for keeping the patient in the hospital. Dr. Mehra also stated that the suicidal thoughts, hallucinations, and psychotic disorganized paranoia are not grounds to keep the patient in the hospital, unless she was actively suicidal with a plan and unless her psychoses were causing imminent danger to herself or others, or she was aggressive or noncompliant. W.W. was taking her medications, eating, and sleeping and was not requiring seclusion or restraints on the unit, which meant that she was, at some level, functioning. Dr. Mehra was adamant that Medicaid and InterQual guidelines require more than a suicidal ideation; they require a plan. The greater weight of the evidence supports Petitioner's position that June 23 through June 28, should not have been denied. Dr. Birkmire's testimony as the treating psychiatrist, as well as Dr. Berns' expert testimony, credibly established that W.W.'s entire inpatient stay was medically necessary. Summary of Findings At the time of the hearing, AHCA sought from Petitioner overpayments in the amount of $198,582.54 for 29 patients who stayed at Florida Hospital Orlando between January 1, 2000, through December 31, 2001. The findings of fact above upheld AHCA's denial of days for the following: Acute Care Inpatient Hospital patients 2, 3, 5, 6, 9, 10, 11, 12, 13, and 16; and Psychiatric Inpatient Hospital patients 1, 3, 4, 5, 6, 7, 8, 9, and 11. The findings of fact above found that the greater weight of the evidence supported Petitioner's position that AHCA should not have denied the days for the following: Acute Care Inpatient Hospital patients 1 (2 days x reimbursement rate of $1,168.38 = $2,336.76), 4 (6 days x $1,206.42 = $7,238.52), 7 (1 day at $1,168.38), 8 (3 days x $1,168.38 = $3,505.14), 14 (9 days x $919.27 = $8,273.43), and 15 (5 days x $919.27 = $4,596.35); and Psychiatric Inpatient Hospital patients 10 (9 days x $1,168.38 = $10,515.42), 12 (8 days x $1,168.38 = $9,347.04), and 13 (5 days x $1,168.38 = $5,841.90). The total dollar figure for days that should not have been denied is $52,822.94, reducing the total overpayment due AHCA from Petitioner to $145,759.60.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that: Respondent, Agency for Health Care Administration, enter a final order revising its Final Agency Audit Report as directed herein. DONE AND ENTERED this 5th day of March, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2007.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, Florida Statutes. Respondent is a licensed physician in the State of Florida and holds license number ME 0043566. Respondent has never been the subject of a previous complaint from the Department of Professional Regulation (now the Department of Business and Professional Regulation). No patient involved in this proceeding incurred injury as a result of any procedure performed by Respondent or as a result of any medical record kept by Respondent, nor did any patient claim injury or make a complaint against Respondent. Respondent derived no financial gain from any act or omission alleged in the administrative complaint. All events pertaining to this proceeding occurred in 1987 or 1988. Prior to February 8, 1988, the effective date of Chapter 88-1, Laws of Florida, Section 458.331(1), Florida Statutes provided, in pertinent part, as follows: The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken. * * * (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results. * * * (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances", shall not be construed to require more than one instance, event, or act. Section 25 of Chapter 88-1, Florida Statutes, became effective February 8, 1988, and amended the pertinent provisions of Section 458.311(1), Florida Statutes, to read as follows: The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken. * * * (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, test results, records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations. * * * (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances", shall not be construed to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph. At the times pertinent to this proceeding, Petitioner had adopted no rules pertaining to the keeping of records by a licensed physician. Imperial Point Medical Center (Imperial Point) is a hospital located in Broward County, Florida. Unless otherwise indicated, all hospital records referred to in this matter are from Imperial Point. PATIENT #1 (C.S.) On August 8, 1988, Respondent performed an upper endoscopy on Patient #1, a male, who was 44 years old at the time of the procedure. This procedure was performed at Imperial Point on an outpatient basis. An upper endoscopy is the viewing of the mouth, the pharynx, the esophagus, the stomach and portions of the duodenum with a fiber optic instrument that allows direct visualization of the lining of these structures and allows therapeutic maneuvers. The records kept of this procedure performed on Patient #1 on August 8, 1988, include an outpatient hospital record entitled "Operative Report". The description of the procedure portion of this report includes the following: ". . . The gastric portion was infiltrated with 1:1,000 adrenaline . . ." Adrenaline, also known as epinephrine, is a vasoconstrictor that can be used to control minor bleeding and oozing. It is used regularly in gastroenterology to treat actively bleeding lesions or ulcers with evidence of recent bleeding prior to performing a more permanent type of hemostasis. Dr. Goldberg testified that epinephrine was usually injected into these areas by a needle. Dr. Goldberg was of the opinion that epinephrine should not be used in cases of trivial bleeding or oozing or after routine biopsies unless there is an imminent danger of a significant arterial bleed. The testimony of Dr. Cerda and Dr. Singh established that spraying epinephrine over an area that is subject to bleeding is a precautionary technique some gastroenterologists follow. Dr. Singh and Dr. Cerda have both either used this technique, or have observed its use by other physicians. The expert witnesses agreed that the injection by needle of epinephrine into the gastric wall would be a procedure that falls below an established standard of care. There was a dispute among the expert witnesses as to how the term "infiltrated" should be interpreted. Petitioner contends that the term "infiltrated" is synonymous with the term "injected", and that the medical records should be construed to mean that Respondent injected the gastric wall with a needle, and therefore practiced below the standard of care. This contention is consistent with the testimony of Dr. Goldberg. Respondent asserts that the medical record should be construed to mean that Respondent sprayed the gastric wall as a precautionary measure. This contention is consistent with the testimony of the expert witnesses who testified on behalf of the Respondent. This dispute is resolved by finding that the term "infiltrated" does not have the same meaning as the term "injected" and does not prove that Respondent injected Patient #1's gastric wall with a needle. This conclusion is based, in part, on the definition of the term "infiltrate" and on the context in which epinephrine is sometimes administered by gastroenterologists during this type procedure. According to The American Heritage Dictionary of the English Language, the term "infiltrate" means to pass a liquid or a gas into something through its interstices or to permeate with a liquid or gas passed through interstices. Dorland's Illustrated Medical Dictionary, Twenty Sixth Edition (Dorland) has a similar definition of the term "infiltrate". According to Dorland, an "interstice" is small interval, space, or gap in a tissue or structure. According to Dorland, the term permeate means to penetrate or pass through, as through a filter. Also according to Dorland, the term inject means the act of forcing a liquid into a part, as into the subcutaneous, the vascular tree, or an organ. Based on these definitions, it is found that the use of the term "infiltrate" is more consistent with the practice of spraying epinephrine onto the gastric wall, and that the use of the term "infiltrate" does not prove that Respondent injected the epinephrine into the gastric wall with a needle. It is found that Petitioner failed to prove that the use of epinephrine was improper or that the manner in which Respondent used the epinephrine during the subject procedure was improper. Since Petitioner failed to prove that Respondent injected Patient #1 with epinephrine, its charge that Respondent failed to document his reasons for doing so must also fail. A pathology report dated August 8, 1988 contained in the medical file provided a pathological diagnosis as follows: "esophageal brushings: no evidence of malignancy." Brushings are the result of passing a small brush through the biopsy channel of an endoscope, rubbing it over an area of concern that might have either a malignancy or a fungal infection, taking the brush out of the scope, wiping it on a microscopic slide, and sending the slide to the pathologist for cytological examination. The reference to the "esophageal brushings" in the pathology report was error. The brushings taken from Patient #1 during the procedure on August 8, 1988, came from the stomach, a fact obvious to all of the expert witnesses in light of the operative report and operative drawing made by Respondent. Because Petitioner failed to prove that Respondent took esophageal brushings from Patient #1, its charge that he failed to properly document his reasons for doing so must also fail. 1/ Petitioner proved that Respondent's medical records, including his office notes as to Patient #1 failed to contain an adequate medical history for Patient #1 and failed to reflect the findings of any physical examination of Patient #1 by Respondent. Petitioner further proved that such failures fall below an established standard of care as alleged in Count Two of the Amended Administrative Complaint. PATIENT #2 (R.B.) Patient #2 was a 70 year old male seen by Respondent for a consultation because of the patient's history of hematemesis, which is the vomiting of blood. Respondent prepared a formal consultation note dated September 25, 1988. The consultation note contains a description of the patient's condition, references a rectal exam, which was positive for blood, and indicates that a physical examination of the patient was made. Respondent again saw the patient on September 27, 1988 and performed an upper endoscopy. Dr. Goldberg was critical of the medical records kept by Respondent as to this procedure and was of the opinion that the medical records were inadequate. Other, equally credible expert witnesses were of the opinion that the medical records provided sufficient information to document the procedure. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records pertaining to this patient were inadequate. It is further found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. The records kept of this procedure reflect that Respondent "infiltrated" Patient #2 with epinephrine. This is the identical dispute over the meaning of the term "infiltrated" that pertained to Patient #1 as discussed above. For the reasons given in resolving the dispute as it pertains to Patient #1, it is found that the term "infiltrated" does not have the same meaning as the term "injected" and that the use of the term does not prove that Respondent administered the epinephrine by injecting Patient #2 with a needle. It is found that Petitioner failed to prove that the use of epinephrine was improper or that the manner in which Respondent used the epinephrine during the subject procedure was improper. Since Petitioner failed to prove that Respondent injected Patient #2 with epinephrine, its charge that Respondent failed to document his reasons for doing so must also fail. PATIENT #3 (B.B.) Patient #3, a 65 year old female was admitted to Imperial Point with chest pains by her physician, a Dr. Fanfan. Patient #3 had a history of cancer which included the prior surgical removal of a tumor. On October 3, 1988, Respondent performed a colonoscopy of Patient #3. A colonoscopy is an examination of the colon from the anus to the ileocecal valve using a fiber optic instrument. A colonoscopy is indicated to evaluate abnormal X-rays, changes in bowel habits, evidence of bleeding, suspicions of inflammation, tumors, or polyps. Respondent adequately performed the procedure on Patient #3. The colonoscopy detected that Patient #3 had polyps. Subsequent laboratory results established that these were hyperplastic polyps that required no follow-up. Had the polyp been an adenomatous polyp, which is a true neoplasm with malignant potential, a follow-up for recolonoscopy would have been appropriate in one year. Prior to receiving the pathology reports, on the polyp, Respondent recommended a six month follow-up for the patient. This follow-up recommendation was appropriate at the time it was made. Petitioner failed to prove that the recommendation that a follow-up be performed was below an established standard of care. Petitioner failed to prove that the recommendation that the follow-up for this patient with a history of cancer be in six months as opposed to one year fell below an established standard of care. The barium enema for this patient was originally scheduled by the attending physician, Dr. Fanfan. Dr. Fanfan clearly wrote a note on the same day following Respondent's report of the colonoscopy that the barium enema was pending, yet the attending physician did not cancel the barium enema. There is no disagreement among the experts that the barium enema was unnecessary in light of the findings of the colonoscopy. It is medically unnecessary and inappropriate for both tests to be performed on the same day. Dr. Goldberg was of the opinion that Respondent was responsible for the patient once he began his consultation and that Respondent should have canceled the barium enema. Dr. Cerda, Dr. Eberly and Dr. Singh were of the opinion that the attending physician was responsible for scheduling the barium enema and that the attending physician or the radiologist should have canceled the barium enema. Dr. Eberly testified that as the primary care physician, the admitting physician is the "captain of the ship" and has the responsibility to make final determinations with respect to tests of this nature. Because of the conflicting testimony from equally credible expert witnesses, it is found that Petitioner failed to prove that Respondent violated an established standard of care by not cancelling Patient #3's enema. Dr. Goldberg was of the opinion that Respondent's medical records pertaining to Patient #3 were inadequate. He had several criticisms of the records. Dr. Goldberg opined that there should have been a formal consultation note on Patient #3's chart that included past history, present illness, review of systems, allergies, pertinent laboratories, a thorough organ specific or system examination, an impression, an adequate discussion of the consultant's impression and the consultant's plans. He opined that the indications for Patient #3's procedure were inadequately dictated on the procedure notes and that Respondent's history pertaining to Patient #3 was inadequate because there was no pertinent review of systems or past history, no mention of the previous tumor, no mention of allergies, and an extremely scant examination. Other, equally credible expert witnesses were of the opinion that the medical records were adequate. It is found that Petitioner failed to prove the standard by which the adequacy of this patient's medical records are to be judged, other than the pertinent statutory standards set forth above. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records fell below an established standard of acceptability. PATIENT #4 (E.K.) On October 4, 1988, Patient #4, a 92 year-old female, was admitted to the hospital with an acute onset of vomiting, dehydration, and abdominal pain. Respondent was asked by Patient #4's attending physician to evaluate Patient #4 for a potential small bowel obstruction following an X-ray that was consistent with a small bowel obstruction. Respondent performed an upper endoscopy on Patient #4 on October 7, 1988. An obstruction of the intestines is a blockage in the large or small intestine. The bowel behind the blockage may become inflated with fluid or air and may be seen on X-ray. The obstruction may result from a variety of abnormalities. Dr. Goldberg was of the opinion that the upper endoscopy was contra- indicated and potentially dangerous to the patient because of the X-ray indicating a complete bowel obstruction. Dr. Goldberg was also of the opinion that an upper endoscopy should be used only under compelling circumstances if there is a partial bowel obstruction. Dr. Goldberg was of the opinion that Respondent did the right tests on Patient #4, but in the wrong order since he did not first rule out an obstruction. Prior to performing the upper endoscopy Respondent monitored the patient for several days. During that time period, examinations indicated that the patient was having bowel movements. Both the attending physician's notes, Respondent's notes, and the nurse's notes indicate positive bowel signs on October 5 and 6, indicating that there was not a complete bowel obstruction. Respondent ordered a Golytely preparation administered to the patient, which usually consists of one or two liters of non-absorbable solution that basically washes the bowel out. That preparation would have been improper with a complete bowel obstruction. Dr. Goldberg was of the opinion that the use of a Golytely prep in this patient was a gross judgment error. Dr. Singh was of the opinion that there was no contra-indication for using the preparation in this situation. Petitioner failed to prove that Patient #4 had a complete bowel obstruction or that the procedure, including the use of the Golytely preparation, violated an established standard of care. It is found that Respondent was acting within the scope of his discretion as the consulting physician to order the administration of the Golytely preparation and to perform the upper endoscopy. On October 11, 1988, Respondent performed a colonoscopy on Patient #4. Respondent stated on the operative report that the colonoscopy was indicated because of diverticulitis. Diverticulitis was not mentioned in any of Respondent's notes concerning Patient #4, and there was no notation as to the reasons Respondent thought the patient had diverticulitis. Although Respondent failed to document why he felt that diverticulitis was an appropriate indication for the colonoscope, there is no dispute that a colonoscope was, in fact, indicated. Further, the colonoscope established that the pretest diagnosis of possible diverticulitis was not incorrect. The colonoscopy revealed areas of colitis, and the pathology report noted an ulcer with acute and chronic inflammation. Respondent's experts testified that they were of the opinion that Respondent violated no established standard by listing diverticulitis as an indication for the colonoscopy. It is found that Petitioner failed to prove that Respondent practiced below an established level in listing diverticulitis as an indication for the colonoscope. During the colonoscopy, Respondent found several mildly bleeding areas and infiltrated Patient #4 with epinephrine. For the reasons discussed pertaining to Patient #4, it is found that Petitioner failed to prove that Respondent violated an established standard of care in administering epinephrine to Patient #4. Dr. Goldberg was of the opinion that Respondent's handwritten consultation report was inadequate. Dr. Goldberg bases his conclusion on the following observations. The report was difficult to read and failed to include any significant historical events concerning Patient #4. In his consultation report, the Respondent failed to note anything about having done a rectal examination on this patient, whether or not the abdomen was distended, and whether there were active or inactive bowel sounds. Dr. Goldberg was of the opinion that these findings would help to distinguish between an obstruction and an ileus or paralysis of the bowel. Dr. Goldberg was also of the opinion that the patient's records of the upper endoscopy performed October 7, 1998, fail to reveal any significant findings. Other, equally credible expert witnesses were of the opinion that the medical records were adequate. It is found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. While it may be concluded that Respondent's medical records could be improved, Petitioner failed to prove that the medical records fell below an established standard of acceptability. PATIENT #5 (J.T.) Patient #5, an 89 year-old male, was admitted to Imperial Point with a history of peptic ulcer disease and arthritis. This patient was seen by Respondent on a consulting basis. The patient was vomiting blood and Respondent was asked to see the patient to determine the source of the bleeding. Respondent performed an upper endoscopy on October 13, 1988, and found a significant outlet obstruction. On October 17, 1988, a G.I. series was performed and a repeat upper endoscopy and pyloric dilatation was performed. The procedures performed by Respondent were properly indicated and had a beneficial result to the patient. Back-to-back pyloric dilatations were appropriate and clinical judgment was properly exercised. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to the upper endoscopy of October 13, 1988, in that Respondent's operative report failed to document Respondent's findings in detail. Dr. Goldberg testified that an essential endoscopy report that physicians are trained to do should include the following: indications for the procedure, medication used to sedate the patient, identification of instrument used, description of the anatomical landmarks and their condition as visualized by the physician passing the endoscope, the removal of the scope, the physician's impressions and what the physician plans to do about those impressions, how the patient tolerated the procedure and what the patient's condition was after the procedure, and that the patient was sent to the recovery area. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to the procedures performed on this patient on October 17, 1988, in that Respondent's operative report did not document Respondent's findings in detail and did not indicate if the scope was passed through Patient #5's dilated pylorus into the duodenum. In Respondent's impressions on the second endoscopy, he noted pyloric stenosis and duodenal ulcer. In his procedure note Respondent does not mention whether he passed the scope into the duodenum or how he knew there was a duodenal ulcer. Dr. Goldberg was of the opinion that Respondent did not properly document what he did. On October 18, 1988, Respondent performed a repeat pyloric dilation on Patient #5. Dr. Goldberg was of the opinion that Respondent failed to record the reasons for the second procedure and to document his findings. Dr. Goldberg was of the opinion that the third endoscopy note did not adequately detail the examinations of the esophagus and stomach. Dr. Goldberg was of the opinion that every procedure note stands alone, and that if a physician does an endoscopy on day one and repeats it on day two, the physician still must make that report complete because it is not always going to be part of a document. Dr. Goldberg was of the opinion that Respondent's records did not stand alone. Dr. Goldberg was of the opinion that Respondent's handwritten consultation note was sketchy and should have contained a history of allergies because of the need to give the patient medications for sedation. Dr. Goldberg's criticisms of Respondent's medical records do not prove that the medical records kept by Respondent were inadequate as measured by an established standard. Other, equally credible expert witnesses were of the opinion that the medical records provided sufficient information to document the procedures and that the records were adequate. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records were inadequate. It is further found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. PATIENT #6 (D.Y.) From October 19, 1988, until October 22, 1988, Respondent was consulting physician to Patient #6, a 72 year-old male, who was admitted to Imperial Point with rectal bleeding. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to Patient #6 because a formal consultation note was lacking. The medical records which were reviewed by Dr. Goldberg were incomplete when reviewed by him. A specific reference is made to a consultation note that is not contained in the hospital records. Respondent established that other medical records were missing from the hospital records. In light of the specific reference to the consultation note, it is found that the absence of this consultation note from the hospital records is insufficient to prove that there existed no consultation note. On October 20, 1988, Respondent performed an colonoscopy on this patient and a biopsy was taken in the segmental descending colon area. The colonoscopy could not be completed because the colonoscopy could not pass to the patient's cecum. The following recommendation was made by Respondent (the original is in all capital letters): IN VIEW OF NOT REACHING TO THE CECUM, THE PATIENT WOULD NEED BE (this is an abbreviation for barium enema) AND ALSO IF EVERYTHING IS NEGATIVE, RECOLONOSCOPY IN ONE YEAR AND IF THERE ARE ANY CHANGES IN THE BIOPSY OF THE POLYP, THEN ACCORDINGLY WILL PLAN. On October 21, 1988, the follow-up barium enema was performed by Dr. Nicholas M. Arfaras, a radiologist. The radiology report reflected the following finding: "Also in the sigmoid there is an approximately 1 cm. rounded filling defect identified near the junction with the descending colon. This is felt to be secondary to a polyp." The possible polyp detected by the barium enema should have been followed up. However, it was not established that Respondent was consulted by the attending physician about the results of the barium enema. Dr. Lipton, as the attending physician, would have had the responsibility for following up the recommendations made by Respondent and for bringing Respondent or another gastroenterologist in for further consultations following the barium enema if Dr. Lipton had believed it necessary to do so. This patient was discharged from Imperial Point by Dr. Lipton on October 22, 1988. The final page of the discharge summary for this patient reflected the following notation: "Condition was improved. The patient is to have a follow up in one week in the office with Dr. Lipton and with Dr. Gupta in two weeks." The evidence presented in this proceeding, including Respondent's office notes, does not reflect that Respondent had any involvement with this patient after October 21, 1988, until 1990, when he performed on the patient at North Broward Medical Center a procedure described as a "multiple colonoscopy with multiple biopsies and cauterization." This procedure in 1990 revealed multiple polyps. The polyp removed on colonoscopy in 1988 was an adenomatous polyp, a polyp with significant malignant potential. This patient needed a follow-up colonoscopy in one year. Respondent was the consulting physician and recommended reevaluation of the patient in one year. Follow-up care was not the responsibility of Respondent, but of the treating physician. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records in that Respondent failed to adequately document the indications for the colonoscopy performed on Patient #6 and why the colonoscope could not be passed to Patient #6's cecum. Dr. Goldberg opined that a physician doing a colonoscopy needs to tell why he did not get to the cecum so that the next physician colonoscoping this patient can take appropriate precautions. Other, equally credible expert witnesses were of the opinion that the medical records were adequate and provided sufficient information to document the procedures that were performed. Petitioner failed to prove that the medical records were inadequate. Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. PATIENT #7 (C.R.) Respondent was a consulting physician to Patient #7, a 64 year old male who was hospitalized with rectal bleeding. Respondent saw this patient because of a possible colonic fistula, which is a connection with any piece of the intestine and some other structure. Respondent recommended a barium small bowel X-ray and a barium enema, both appropriate clinical recommendations. On November 11, 1987, Respondent performed a colonoscopy on Patient #7. Petitioner contends that Respondent failed to keep adequate written medical records pertaining to the aforementioned procedure in that Respondent failed to document an adequate history as an indication of Patient #7's colonoscopy. This contention is rejected based on the testimony of Dr. Singh. The medical records provide adequate justification for the procedure. Dr. Goldberg was critical of Respondent's records pertaining to this patient and considered the records inadequate. He was of the opinion that the records should have better detailed his findings and should have recorded any follow-up plans for a repeat colonoscopy on the patient. Other, equally credible expert witnesses were of the opinion that the medical records were adequate and provided sufficient information to document the procedures that were performed. Petitioner failed to prove that the medical records were inadequate. Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which finds that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, by failing to provide a history or physical examination for Patient #1 as alleged in Count Two, which reprimands Respondent for that violation, and which imposes an administrative fine in the amount of $250.00 against the Respondent for that violation. It is further recommended that all other charges against Respondent contained in the Amended Administrative Complaint be dismissed. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 October, 1993.
The Issue The issues in these three consolidated cases are whether Respondent, Jerome F. Waters, M.D., committed the violations alleged in three Administrative Complaints filed by Petitioner, the Department of Health, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties Petitioner, the Department of Health (hereinafter referred to as “Petitioner” or “Department”), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. Respondent, Jerome F. Waters, M.D. (hereinafter referred to as “Respondent”) is, and has been at all times material to these consolidated cases, a physician licensed to practice medicine in Florida, having been issued license number ME 7236. Respondent graduated from New York University Medical school 48 years ago and did four years of a general surgical residency. He is not board-certified although he is board eligible in general surgery. Respondent had only one medical malpractice lawsuit against him and that was in 1964. The Administrative Complaints in these consolidated cases are the first license discipline cases against Respondent. Respondent has had a long and distinguished medical career. He has been in private practice in Miami, Florida, since 1961 and he has been at the same location for the last 23 years. He currently has a general medical practice, although he also still practices surgery. Twenty-five percent of his practice comprises Medicaid patients and 30 percent comprises Medicare patients. Respondent had about 125 AIDS patients at the time of the emergency restriction of his practice. Respondent became interested in treating patients with pain as a result of his surgical practice. Approximately twenty-five percent of his practice is devoted to pain management. Respondent's pain practice grew as a result of a few patients from Broward County in 1996 who recommended other "pain patients" to Respondent. Respondent admits that because of his “compassion for his patients” he was probably more indulgent than he should have been with his pain patients. Respondent acknowledges that his medical record documentation was poor. He concedes that he relied too much on his memory and had a tendency to write down only special negatives or positives in his findings. Respondent also often omitted information in his medical records that he thought might be stigmatizing or embarrassing to the patient. He tried to rely on his memory regarding such matters. Respondent often has been reluctant to refer his patients to consultants because of their economic constraints. Applicable rules The Board of Medicine has adopted rules that contain standards for the use of controlled substances for the treatment of pain. Those standards include Florida Administrative Code Rule 64B8-9.013(3), which read as follows at all times material to these consolidated cases: Guidelines. The Board has adopted the following guidelines when evaluating the use of controlled substances for pain control: Evaluation of the Patient. A complete medical history and physical examination must be conducted and documented in the medical record. The medical record should document the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and history of substance abuse. The medical record also should document the presence of one or more recognized medical indications for the use of a controlled substance. Treatment Plan. The written treatment plan should state objectives that will be used to determine treatment success, such as pain relief and improved physical and psychosocial function, and should indicate if any further diagnostic evaluations or other treatments are planned. After treatment begins, the physician should adjust drug therapy to the individual medical needs of each patient. Other treatment modalities or a rehabilitation program may be necessary depending on the etiology of the pain and the extent to which the pain is associated with physical and psychosocial impairment. Informed Consent and Agreement for Treatment. The physician should discuss the risks and benefits of the use of controlled substances with the patient, persons designated by the patient, or with the patient’s surrogate or guardian if the patient is incompetent. The patient should receive prescriptions from one physician and one pharmacy where possible. If the patient is determined to be at high risk for medication abuse or have a history of substance abuse, the physician may employ the use of a written agreement between physician and patient outlining patient responsibilities, including, but not limited to: Urine/serum medication levels screening when requested; Number and frequency of all prescription refills; and Reasons for which drug therapy may be discontinued (i.e., violation of agreement). Periodic Review. At reasonable intervals based on the individual circumstances of the patient, the physician should review the course of treatment and any new information about the etiology of the pain. Continuation or modification of therapy should depend on the physician’s evaluation of progress toward stated treatment objectives such as improvement in patient’s pain intensity and improved physical and/or psychosocial function, i.e., ability to work, need of health care resources, activities of daily living, and quality of social life. If treatment goals are not being achieved, despite medication adjustments, the physician should reevaluate the appropriateness of continued treatment. The physician should monitor patient compliance in medication usage and related treatment plans. Consultation. The physician should be willing to refer the patient as necessary for additional evaluation and treatment in order to achieve treatment objectives. Special attention should be given to those pain patients who are at risk for misusing their medications and those whose living arrangements pose a risk for medication misuse or diversion. The management of pain in patients with a history of substance abuse or with a comorbid psychiatric disorder may require extra care, monitoring, documentation, and consultation with or referral to an expert in the management of such patients. Medical Records. The physician is required to keep accurate and complete records to include, but not be limited to: The medical history and physical examination; Diagnostic, therapeutic, and laboratory results; Evaluations and consultations; Treatment objectives; Discussion of risks and benefits; Treatments; Medications (including date, type, dosage, and quantity prescribed); Instructions and agreements; and Periodic reviews. Records must remain current and be maintained in an accessible manner and readily available for review. Compliance with Controlled Substances Laws and Regulations. To prescribe, dispense, or administer controlled substances, the physician must be licensed in the state and comply with applicable federal and state regulations. Physicians are referred to the Physicians Manual: An Informational Outline of the Controlled Substances Act of 1970, published by the U.S. Drug Enforcement Agency, for specific rules governing controlled substances as well as applicable state regulations. Florida Administrative Code Rule 64B8-9.003, on the subject of the adequacy of medical records, read, in pertinent part, as follows at all times material to these consolidated cases: Medical records are maintained for the following purposes: To serve as a basis for planning patient care and for continuity in the evaluation of the patient’s condition and treatment. To furnish documentary evidence of the course of the patient’s medical evaluation, treatment, and change in condition. To document communication between the practitioner responsible for the patient and any other health care professional who contributes to the patient’s care. To assist in protecting the legal interest of the patient, the hospital, and the practitioner responsible for the patient. A licensed physician shall maintain patient medical records in a legible manner and with sufficient detail to clearly demonstrate why the course of treatment was undertaken or why an apparently indicated course of treatment was not undertaken. The medical record shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient. All entries made into the medical records shall be accurately dated and timed. Late entries are permitted, but must be clearly and accurately noted as late entries and dated and timed accurately when they are entered into the record. However, office records do not need to be timed, just dated. Relevant Drugs Methadone is a legend drug and is a Schedule II controlled substance listed in Chapter 893, Florida Statutes.1 Methadone is indicated for the relief of severe pain, for detoxification treatment in cases of narcotic addiction, and for the temporary maintenance treatment of narcotic addiction. Methadone can produce drug dependence of the morphine type. Psychological dependence, physical dependence, and tolerance may develop upon repeated administration of methadone. Xanax is a legend drug and it contains Alprazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Alprazolam is a Benzodiazepine Anxiolytic, and the abuse of Alprazolam can lead to physical and psychological dependence. Xanax is indicated for the short-term relief of symptoms of anxiety. It produces additive CNS (Central Nervous System) depressant effects when co-administered with other CNS depressants. Oxycontin is a legend drug and it contains Oxycodone, a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Oxycodone is a narcotic analgesic indicated for the relief of moderate to moderately severe pain, and carries a high potential for abuse which may lead to severe physical and psychological dependence. Dilaudid is a legend drug and it contains Hydromorphone, a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Hydromorphone is a powerful narcotic analgesic indicated for the relief of moderate to severe pain, and carries a high potential for abuse and dependence. Abuse of hydromorphone may lead to severe physical and psychological dependence. Soma (Carisoprodol) is a legend drug and it is a muscle relaxant used as an adjunct to rest, physical therapy, and other measures for the relief of discomfort associated with acute, painful musculoskeletal conditions. The effects of Carisoprodol and other drugs that depress the CNS may be additive, and Soma should be prescribed with caution to patients taking other CNS depressant medications, such as narcotics, benzodiazepine anxiolytics and tranquilizers, and barbiturates. Fiorinal with Codeine is a legend drug and it contains Codeine and Butalbital, both Schedule III controlled substances listed in Chapter 893, Florida Statutes. Codeine is a narcotic analgesic indicated for the relief of moderate to severe pain, and carries a significant potential for abuse and dependence. Butalbital is a barbiturate sedative which also carries a significant potential for abuse and dependence. Fiorinal with Codeine is indicated for the treatment of tension headaches. Keflex (Cephalexin) is a semi-synthetic cephalosporin antibiotic intended for oral administration. MS Contin is a legend drug and it contains Morphine Sulfate USP, a Schedule II controlled substance listed in Chapter 893, Florida Statutes, which is indicated for the relief of moderate to severe pain. Morphine has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Abuse of Morphine may lead to severe psychological or physical dependence. Restoril contains Temazepam, a schedule IV controlled substance indicated for the relief of insomnia. The abuse of Temazepam can lead to physical or psychological dependence. Vicodin is a legend drug and it contains Hydrocodone Bitartrate, a Schedule III controlled substance listed in Chapter 893, Florida Statutes. Hydrocodone is a narcotic analgesic indicated for the relief of moderate to severe pain, and is also used as an antitussive (cough suppressant). Hydrocodone carries a high potential for abuse and dependence. General facts about Respondent's medical records Respondent's medical records for each of the patients whose treatment forms the basis for the administrative complaints in these consolidated cases included an office cover sheet with a patient name. However, the individual records following the cover sheet contained no patient names. The patient's name should be on each page of medical records for that patient. Physicians are taught in medical school to use a variation of the S.O.A.P. method for creating medical records. S.O.A.P. is an acronym standing for Subjective, Objective, Assessment, and Plan. The basic elements of the S.O.A.P. method should be present in the records of each patient visit. In the medical records prepared by Respondent during the course of his treatment of the six patients at issue in these consolidated cases, more often than not some elements of the S.O.A.P. method were omitted. Many of Respondent's entries in these records are insufficient because they omit information required by the S.O.A.P. method. Admitted Facts regarding Patient S.T. (Case No. 2002-26343) On or about December 5, 2000, Patient S.T., a 46-year- old female, first presented to Respondent with complaints of back and neck pain, bronchitis, chronic hepatitis B, bipolar illness, lupus discoid and seizure disorder. According to Patient S.T.’s medical records, Patient S.T. had a history of being treated with controlled substances, including Dilaudid. Based on his impression that Patient S.T. was suffering from severe asthmatic bronchitis, seizures, and lupus and needed immediate care, Respondent directed Patient S.T. to the local emergency room, where she remained in the hospital until December 9, 2000. Various tests were performed on Patient S.T. including a complete blood count (CBC) and an electrocardiogram (EKG). On or about December 11, 2000, Patient S.T. presented to Respondent and Respondent prescribed Albuterol and a Nebulizer for her bronchitis. On or about January 15, 2001, Patient S.T. returned to Respondent’s’ office. During the course of that visit, Respondent prescribed the following drugs to Patient S.T.: 90 Dilaudid, 4 mg 60 Xanax, 2 mg 180 Fiorinal #3 On or about February 13, 2001, Respondent saw Patient S.T. Patient S.T.’s records, for the February 13, 2001 visit, do not indicate the reason for the Keflex. During the course of that visit, Respondent prescribed Soma and Fiorinal #3 to Patient S.T. without documenting the presence of one or more recognized medical indications for the use of controlled substances, and without documenting a treatment plan for Patient S.T. On or about February 26, 2001, Patient S.T. presented to Respondent. On or about March 13, 2001, Patient S.T. visited Respondent and complained of urinary incontinence and heartburn. During the course of that visit, Respondent prescribed the following drugs to Patient S.T.: 90 Soma, 350 mg Dilantin Fiorinal #3 90 Dilaudid, 4 mg On or about April 12, 2001, Respondent prescribed the following drugs to Patient S.T.: 90 Soma, 350 mg 60 Xanax, 2 mg 120 Fiorinal #3 120 Methadone, 10 mg On or about April 12, 2001, Respondent initially prescribed 90 Dilaudid, 4 mg, but then crossed this prescription out and substituted Methadone instead. On or about May 10, 2001, Patient S.T. returned to Respondent’ office. During the course of that visit Respondent prescribed the following drugs to Patient S.T.: 60 Soma, 350 mg 60 Xanax, 2 mg 100 Firoinal #3 120 Methadone, 10 mg On or about May 10, 2001, Respondent also prescribed Cipro and Prednisone, 10 mg, for an apparent skin condition affecting Patient S.T.’s legs. On or about June 7, 2001, Respondent saw Patient S.T. again. During this visit, Respondent noted that Patient S.T. suffered from edema (excess fluid in cells and tissues). Respondent failed to document any other physical examination of Patient S.T. during the course of the June 7, 2001, visit. On or about June 7, 2001, Respondent treated Patient S.T.’s edema. On or about June 7, 2001, Respondent failed to document any explanation or adequate medical justification for prescribing 60 Xanax, 2 mg, 100 Fiorinal #3 and 120 Methadone, 10 mg to Patient S.T. On or about July 6, 2001, Patient S.T. returned to Respondent at which time he prescribed the following drugs to Patient S.T.: 60 Xanax, 2 mg 100 Firoinal #3 150 Dilantin, 100 mg 120 Methadone, 10 mg On or about August 3, 2001, Patient S.T. returned to Respondent. Respondent's medical records regarding S.T.'s August 3, 2001, visit do not reflect that there was a discussion of risks and benefits of using controlled substances. During the course of that visit, Respondent prescribed the following drugs to Patient S.T.: 60 Xanax, 2 mg 100 Fiorinal #3 180 Dilantin, 100 mg 120 Methadone 10 mg On or about September 12, 2001, Respondent prescribed the following drugs to Patient S.T.: 60 Xanax, 2 mg 100 Fiorinal #3 120 Methadone 10 mg On or about September 17, 2001, Patient S.T. presented to Respondent for a final time. During the September 17, 2001, visit, Patient S.T. complained of cellulitis (inflammation of tissue) to her abdomen. During the September 17, 2001 visit, Respondent treated Patient S.T.’s cellulitis with ointment and Tequin (an antibacterial agent). Additional Facts regarding Patient S.T. (Case No. 2002-26343) During her hospitalization, Patient S.T.'s treatment included Atrovent with Ventolin. Patient S.T. remained in the hospital until December 9, 2000, when she was discharged with directions to follow up with Respondent. Contained within the medical file for Respondent are copies of magnetic resonance imaging (MRIs) for the lumbar spine (dated January 17, 2000), the brain (dated January 12, 2000) and the neck (dated January 17, 2000). The MRI of the brain was normal but the MRIs of the neck and low back showed disc herniations, among other changes. An echocardiogram was also performed on January 12, 2000 that stated “if a significant valvular lesion is still being considered, correlation with a cardiac Doppler examination is recommended.” There is no medical record concerning Patient S.T.'s visit to Respondent's office on December 11, 2000. There is only a copy of the prescription written that day with some notes written on the bottom of the prescription. Respondent's record for the January 15, 2001, visit with Patient S.T. consists basically of a list of prescription drugs. There is no documented subjective complaint, objective result, assessment, or treatment plan. There are also no notes concerning the treatment in the hospital or concerning the test results from January 2000. On January 15, 2001, Respondent prescribed 90 Dilaudid 4 mg, 60 Xanax 2 mg, 180 Fiorinal #3, Dilantin, Soma and Phenergen to Patient S.T. Respondent failed to document why any of these medications were prescribed. On February 13, 2001, Patient S.T. presented to Respondent. Respondent noted that the patient was getting Keflex (an antibiotic) on her own. Respondent’s records do not indicate any inquiry concerning how she was obtaining Keflex on her own or the reason for the Keflex. On the February 13, 2001 visit, Respondent noted pharynx infected and no evidence of thrush. Respondent then prescribed Soma 350 (now three times per day), Cipro 500, an inhaler and Fiorinal #3 to Patient S.T. Presumably, the Cipro (an antibiotic) was prescribed for some infection, but there are no notes indicating this. On February 13, 2001, Respondent prescribed Soma, Cipro, and Fiorinal #3 to Patient S.T. without documenting an assessment or treatment plan for Patient S.T. Respondent prescribed Soma and Fiorinal #3 to Patient S.T. without documenting the presence of one or more recognized medical indications for the use of controlled substances. Respondent does not indicate why he increased the Soma. On February 13, 2001, Respondent noted that he wrote a prescription for Neurontin 400 but then put a note over that that says “hold.” There is no explanation in the record for this change in treatment nor is there a reason why the Neurontin was prescribed initially. On February 26, 2001, Patient S.T. presented to Respondent. Respondent noted that Patient S.T.’s Dilantin level was low, noted a recent seizure, and noted that there were extreme sores with two arrows pointing downward. Respondent then switched the patient to Tequinn (another antibiotic) without any explanation for the switch. There were no other subjective or objective complaints listed. Respondent failed to record an assessment or treatment plan other than to “do Dilantin level.” Respondent failed to document any medical reasons for doing a Dilantin level check if Respondent already knew the Dilantin level was low. On March 13, 2001, Respondent prescribed #90 Soma 350 mg, Dilantin, Paxil, Xanax 2.0 mg, 90 Dilaudid 4 mg, Fiorinal #3, Phenergen, a Nebulizer and Neurontin to Patient S.T. There are no explanations for the prescribing of these drugs. There is no assessment, other than of the skin condition, and no written plan concerning the prescriptions given. On March 13, 2001, Respondent also prescribed a trial of Lithium 450. There were no subjective or objective complaints concerning the reason Respondent prescribed this drug. There is no assessment or plan concerning the prescription of this drug. Lithium can be prescribed for psychiatric diagnoses but there are no notes indicating why Respondent is prescribing this drug. On April 12, 2001, Patient S.T. returned to Respondent. Respondent noted in Patient S.T.’s records that the DEA (Drug Enforcement Agency) “confiscated some of her meds” which were in a friend’s house. Respondent did not note any follow-up, plan, or inquiry concerning the note that the DEA confiscated Patient S.T.’s medications. Respondent noted that Patient S.T. should try to take the Lithium and that she needed a right ankle brace. There are no subjective or objective complaints in this note. There is also no assessment or plan, other than to try to take Lithium. The medical records for the visit on April 12, 2001, do not contain any explanation as to why Respondent prescribed any of the controlled substances he prescribed during that visit. It is clearly a “red flag” when a patient informs a doctor that the DEA has confiscated her medications. When this type of event occurs, it is inappropriate and egregious for the physician to prescribe controlled substances like the ones Respondent prescribed on April 12, 2001, without inquiry and investigation into the circumstances. On May 10, 2001, Patient S.T. returned to Respondent’s office. Respondent noted that Patient S.T. was non-diabetic. Respondent then prescribed Cipro and Prednisone 10 mg for the sores on the lower limbs. There is no explanation why Respondent switched the patient back to Cipro. There are no documented subjective or objective complaints concerning the legs other than that there were sores. There was no adequate assessment of the legs. The rest of Respondent’s medical record for May 10, 2001, is basically a list of prescriptions. There is no written explanation for the prescriptions, no assessment, and no plan concerning their use. On July 6, 2001, Patient S.T. returned to Respondent. Respondent listed Patient S.T.’s conditions on the side of his record. These conditions were: lupus, hepatitis, bronchitis, herpes simplex, proven non-diabetic, edema and seizure disorder. Respondent notes a plan to do a complete blood count (CBC) and Dilantin level. The rest of the record is a list of prescriptions. During the visit on July 6, 2001, Respondent prescribed controlled substances without documenting any medical complaints by the patient. There are no subjective or objective complaints. There is no assessment or plan concerning the drugs prescribed. Respondent prescribed controlled substances to Patient S.T. without documenting that he discussed the patient’s chronic pain with her (if she had any). Respondent's medical records for Patient S.T.'s visit on August 3, 2001, do not contain any subjective or objective complaints. Also there is no assessment or plan concerning the drugs prescribed that day. On September 12, 2001, Patient S.T. returned to Respondent. Respondent wrote in Patient S.T.’s record abbreviations for Glucosamine and Chondroitin. There is no other note other than a weight recorded for this visit. However, contained within Respondent’s medical file are copies of some of his prescriptions. These copies indicate that Respondent prescribed 60 Xanax 2 mg, 100 Fiorinal #3, Methadone 10 mg on this visit. On the prescription form itself, Respondent indicated that the Fiorinal was for headaches and the Methadone for pain. There are no notes at all in the medical record about these prescriptions or why they were prescribed. Further, Respondent’s medical records for September 12, 2001, fail to indicate why the Xanax was prescribed. The medical records do not contain any subjective or objective complaints. There is no assessment or plan. It is not sufficient to write instructions and the rationale for prescribing a drug on the prescription form only. A physician should document in the medical record the prescription, the dosing, and the reason why the drug is being prescribed. Respondent failed to do this on September 12, 2001. On September 20, 2001, Patient S.T. died. An autopsy was performed and the cause of death was determined to be acute polydrug toxicity (Fentanyl, Codeine, Methadone, Oxycodone, Butalbital, and Alprazolam or Xanax). Butalbital is a component of Fiorinal. The Miami-Dade County medical examiner’s report indicated that Patient S.T. had a history of drug abuse since aged 20. The toxicology report indicated that Patient S.T. had fatal doses of Fentanyl, Oxycodone and Codeine in her system. Respondent violated the statutory standard of care2 by failing to adequately address the etiology of Patient S.T.’s pain, by prescribing controlled substances without adequate medical justification, and by failing to set up a treatment plan concerning the prescribing of controlled substances. Respondent’s actions were particularly egregious following the DEA seizure of the patient’s medication. Respondent also violated the statutory standard of care by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control.3 Respondent failed to keep adequate medical records justifying the course of treatment by failing to document an appropriate plan concerning the controlled substances and by failing to document the justification for the controlled substances he prescribed. Respondent failed to keep adequate medical records documenting the source of any alleged pain and failed to document adequate progress notes. Respondent inappropriately prescribed controlled substances to Patient S.T. Respondent inappropriately increased the Soma without noting any reason or discussion concerning this increase. Respondent also inappropriately prescribed medications by discontinuing the Dilaudid and prescribing the Methadone without justification or explanation. Finally, Respondent inappropriately prescribed controlled substances to Patient S.T. after learning that the DEA had seized her medications.4 Admitted Facts regarding Patient C.C. (Case No. 2002-26342) On or about August 2, 2001, Patient C.C., a 45-year- old male, first presented to Respondent with a history of several injuries including a left and right hip replacement, a left ankle fusion, and a right ankle compound break. According to Patient C.C.’s medical records for this visit, Respondent verified the injuries reported by Patient C.C. by only examining the surgical scars on Patient C.C.’s body. At the conclusion of this visit, Respondent instructed Patient C.C. to return with copies of his X-rays and to undergo “blood work”. During the course of this visit, Respondent prescribed 90 Dilaudid, 4 mg, and 60 Oxycontin, 80 mg, to Patient C.C. On or about August 6, 2001, Respondent prescribed 15 Xanax, 2 mg, to Patient C.C. Patient C.C.’s medical records for the August 6, 2001, visit do not contain examination results or subjective or objective complaints. On or about August 23, 2001, Patient C.C. returned to Respondent’s office, whereupon, Respondent prescribed 90 Dilaudid, 4 mg, and 30 MS Contin, 100 mg, to Patient C.C. Patient C.C.’s records for the August 23, 2001, visit reflect that the only physical examination results recorded are weight and blood pressure. Patient C.C.’s records for the August 23, 2001, visit reflect that Patient C.C. did not provide Respondent with copies of his X-rays. Patient C.C.’s records for the August 23, 2001, visit also reflect that Patient C.C. did not provide Respondent with verification of completion of the “blood work” that Respondent requested during Patient C.C.’s visit of August 2, 2001. On or about September 19, 2001, Patient C.C. returned to Respondent’s office complaining of an upper respiratory infection. Respondent renewed Patient C.C.’s prescriptions for 90 Dilaudid, 4 mg, and 30 MS Contin, 100 mg. On or about September 20, 2001, Respondent prescribed 30 Xanax, 2 mg, to Patient C.C. by telephonic order. On September 26, 2001, Patient C.C. presented to Respondent. Patient C.C.’s medical records for the September 26, 2001, visit indicate that Patient C.C. complained of a gastrointestinal disorder. Patient C.C.’s medical records for the September 26, 2001 visit indicate that Respondent again noted: “must do lab work.” Patient C.C.’s medical records contain what appears to be an entry for September 29, 2001, which simply states “Restoril 30 — trial.” On or about October 11, 2001, Respondent prescribed 30 Vicodin ES by telephonic order for Patient C.C. Patient C.C.’s final visit to Respondent occurred on or about October 19, 2001. During the course of that visit, Patient C.C. complained of a contusion that resulted from a fall. Patient C.C.’s medical records for the October 19, 2001, visit fail to document which part of Patient C.C.’s body was contused. Patient C.C.’s records for the October 19, 2001, visit do not contain any documentation that Respondent performed a physical examination of Patient C.C. During the course of the October 19, 2001, visit, Respondent prescribed the following drugs to Patient C.C.: 90 Dilaudid, 4 mg 90 Soma, 350 mg 60 MS Contin, 100 mg Additional Facts regarding Patient C.C. (Case No. 2002-26342) In the medical record of the August 2, 2001, visit there are no notations as to when the injuries occurred or which injury was causing a complaint that day, if any. Respondent noted that the patient was disabled and on Medicare. On August 2, 2001, in addition to the Dilaudid and Oxycontin, Respondent also prescribed Fiorinal with Codeine and Tuinal (a short-acting barbiturate). Respondent’s medical records for Patient C.C.’s August 2, 2001, visit do not contain examination results or subjective or objective complaints. The record has no assessment of Patient C.C.’s hips or ankles. Respondent requested copies of the X-rays from the patient, presumably to confirm the prior injuries to the hips and ankles. There is no indication in the record that Respondent ever tried to obtain the X-rays himself. In the medical record for the August 23, 2001, visit, Respondent did not document any indication why he switched Patient C.C. from Oxycontin to MS Contin. The Dilaudid was prescribed apparently for “breakthrough pain.” However, there are no notes concerning the severity of any pain or the source of any pain. Respondent also noted on this visit that the patient had GERD (gastroesophogeal reflux disease) or irritable bowel syndrome. No subjective complaints or symptoms are recorded. He questioned whether it was due to diet and thought he might be a candidate for Librax (a medication used for irritable bowel disease). Respondent then gave Patient C.C. a sample of Prevacid (a medication that can treat GERD). In the medical record for the September 19, 2001, visit there are no notations concerning the patient's respiration or whether he was wheezing. No other symptoms are recorded. Respondent did not record any objective results, failed to record any assessment and did not record an adequate plan. Respondent gave the patient a Zithromax sample for the respiratory infection. Respondent then renewed Patient C.C.’s prescriptions for #90 Dilaudid 4 mg and #30 MS Contin 100 mg. There are no records indicating why these medications were prescribed. The medical record for Patient C.C. does not document why Respondent prescribed Xanax to the patient by telephone on September 20, 2001. The medical records for the October 11, 2001, visit contains no notations as to why Respondent prescribed Vicodin ES, nor are there any subjective or objective complaints noted. In the medical record for the October 19, 2001, visit, there is no chief complaint recorded, other than the contusion. There is no assessment and no plan other than prescribing narcotics. There are no indications in the record as to why prescriptions for Dilaudid, Soma, and MS Contin were written, or what chief complaint required these medications. On October 29, 2001, Patient C.C. died. The medical examiner’s report stated that the cause of death was acute morphine toxicity. The toxicology report indicated the following drugs were detected in Patient C.C.’s body: Alprazolam or Xanax, Benzodiazepines, Meprobamate, Corisoprodol or Soma and Morphine. The medical examiner's report also detailed a history of a motor vehicle accident at aged 17 (approximately 28 years before Respondent first saw the patient). The medical history indicated that Patient C.C. broke his legs during this accident and that the legs never healed properly. The medical examiner’s report also indicated a social history of drug abuse, both illegal and prescription, as well as prior suicidal attempts years ago by cutting his wrists. There were also the typical track or needle marks on the arms that would have been visible a month or longer before death. Respondent did not record the detailed medical history from the motor vehicle accident nor the past suicide attempts. Even if the patient was not candid with Respondent, an examination of Patient C.C.’s arms would have revealed the prior track or needle marks as well as the prior marks from the suicide attempts. However, Respondent’s records do not contain any such details. Respondent failed to practice medicine within the statutory standard of care by failing to adequately assess Patient C.C.’s pain, failing to create an adequate treatment plan and by failing to obtain prior medical records to review past drug use. Respondent also violated the statutory standard of care by inappropriately prescribing controlled substances without adequate medical justification and by refilling controlled substances without identifying a chief complaint, without performing a review of systems, without performing adequate physical exams and assessments, and without preparing adequate plans. Respondent also failed to meet the statutory standard of care by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Respondent failed to keep adequate medical records that justify the course of treatment by failing to document a complete medical history as well as a history of Patient C.C.’s present complaint, and by failing to document adequate physical exams, adequate treatment plans and assessments of the etiology of Patient C.C.’s pain. Respondent also failed to keep medical records that justify the course of treatment by failing to document a discussion of risks and benefits of using controlled substances, and the medical justification for the continued treatment with controlled substances. Respondent inappropriately prescribed controlled substances to Patient C.C. Respondent continued to inappropriately prescribe controlled substances to this patient without a definitive diagnosis and without verifying the patient’s medical history and past drug use. Admitted Facts regarding Patient B.F. (Case No. 2002-26340) On or about October 15, 2001, Patient B.F., a 55-year- old female, presented to Respondent with complaints of lower back pain, polyneuropathy, bronchitis, a history of HIV (human immunodeficiency virus), AIDS (acquired immunodeficiency syndrome), heroin addiction, and hepatitis C. No other physical exam results are documented. During the course of this visit, Respondent prescribed the following drugs to Patient B.F.: 90 Oxycontin, 80 mg 60 Xanax, 2 mg On or about November 15, 2001, Patient B.F. returned to Respondent’s office. Patient B.F.’s medical records for the November 15, 2001, visit do not document that Respondent performed a review of systems. Patient B.F.’s medical records for the November 15, 2001, visit do not document that Respondent performed an adequate physical examination of Patient B.F. during this visit. Respondent then noted that “Pt to bring in all her HIV meds for renewal.” During the course of the November 15, 2001, visit, Respondent prescribed the following drugs to Patient B.F.: 90 Oxycontin, 80 mg 60 Xanax, 2 mg There is no documentation in Patient B.F.’s medical record for the December 17, 2001, visit that Respondent received the prior HIV medical records. There is no documentation in Patient B.F.’s medical record for the December 17, 2001, visit that Respondent addressed the nature or intensity of Patient B.F.’s pain. On or about January 14, 2002, Patient B.F. returned to Respondent with complaints of severe asthmatic bronchitis. Patient B.F.’s records for the January 14, 2002, visit reflect that Respondent treated Patient B.F.’s bronchitis with medication. Patient B.F.’s records for the January 14, 2002, visit reflect that Respondent renewed Patient B.F.’s prescription for 90 Oxycontin, 80 mg, and for 60 Xanax, 2 mg. Patient B.F.’s medical records of February 12, 2002, indicate that Respondent needs lab work at the next visit. On or about March 15, 2002, Patient B.F. returned to Respondent’s office. Patient B.F.’s medical records for the March 15, 2002, visit reflect that Patient B.F.’s pain was fluctuating and that her anxiety was high. On the March 15, 2002, visit Respondent briefly listened to Patient B.F.’s lungs and noted her blood pressure and pulse. On the March 15, 2002, visit, Respondent renewed Patient B.F.’s prescriptions for 90 Oxycontin, 80 mg, and for 60 Xanax, 2 mg. Additional Facts regarding Patient B.F. (Case No. 2002-26340) During the visit on October 15, 2001, Respondent documented a painful lumbar region. However, Respondent did not document results of other physical exams, including the level of pain for the lower back, the location of the polyneuropathy in the body, and the rate of respiration. Lab tests were ordered. There is no clear indication from the medical records of the first visit what Respondent’s treatment plan was for this patient. At Patient B.F.'s visit on November 15, 2001, Respondent wanted to see if the patient qualified for Neupogen. He also recommended Glucosomine and Chondroitin with water exercises. He also noted that the liver studies reflected hepatitis C. Respondent’s recommendation to try Neupogen is unexplained. Because Neupogen stimulates white blood cells and Patient B.F.’s white blood count was normal, there was no justification for Respondent’s consideration of Neupogen. Respondent’s medical record for his December 17, 2001, visit with Patient B.F. is very brief. He wrote a blood pressure reading and the word “pulse” but with no reading next to it. He also drew an arrow pointing up next to the words “bronchitis; smoking !!”. There are no subjective complaints documented, no assessment, and no treatment plan documented. During the December 17, 2001, visit, Respondent prescribed #60 Xanax 2.0 mg and #90 Oxycontin 80 mg for Patient B.F. Respondent failed to document a reason for prescribing these two controlled substances. There is also no documented plan concerning treatment for the notation about the increased bronchitis or smoking. Regarding the January 14, 2002, visit, there are no subjective complaints listed other than the one about severe asthmatic bronchitis. There is no documented physical exam or review of systems for this visit. The record does not contain any details of the patient’s respirations or diagnosis as to whether this was an acute bronchial attack or chronic bronchitis. In the medical records for the January 14, 2002, visit, Respondent noted that he had a discussion about Oxycontin with Patient B.F. However the record does not reflect why the drug was prescribed. On February 5, 2002, Patient B.F. returned to Respondent. Respondent’s note on this date is also brief. It contains a blood pressure, a pulse and a weight. Respondent also notes “GERD - ? to meds or anx.?” and gives the patient a sample of Prevacid for this problem. GERD means gastro- esophageal reflux disease. Respondent once again prescribed #90 Oxycontin 80 mg and #60 Xanax 2.0 mg. Respondent also prescribed some drugs for Patient B.F.’s HIV condition. However, there are no notes explaining why the Oxycontin and Xanax were prescribed. There is no assessment of the prior bronchial problems, the prior back problems, or any new complaints. On February 12, 2002, Patient B.F. returned to Respondent’s office. Respondent’s medical record indicated that Patient B.F. needs lab work at the next visit and contained a list of prescriptions. Respondent provides no indication why the various drugs were prescribed, no assessment of the patient, no subjective complaints detailed and no plan for treating the patient. Respondent saw Patient B.F. again on March 15, 2002. At that time he noted decreased breath signs, and at some later time he recorded the lab results. On the March 15, 2002 visit, Respondent also questioned the patient’s “compliance.” There was no explanation given as to what type of compliance issues were of concern to Respondent. Respondent then renewed Patient B.F.’s prescription for #90 Oxycontin 80 mg and #60 Xanax 20 mg. On March 25, 2002, Patient B.F. died. According to the initial Miami-Dade County Medical Examiner’s report, the cause of Patient B.F.’s death was accidental heroin and Xanax intoxication. The contributing causes were AIDS and Hepatitis C. A toxicology report was issued on October 1, 2004, by the Miami Dade County Medical Examiner’s office. This report was positive for Oxycodone, Methadone, Morphine, Codeine, and Alprazolam or Xanax. The Miami-Dade County Medical Examiner’s office issued an amended report on November 2, 2004, indicating that Patient B.F.’s cause of death was polydrug intoxication (Heroin, Oxycodone, Methadone, and Alprazolam or Xanax). The contributing causes were AIDS and Hepatitis C. The report added Oxycodone and Methadone as contributing to the death. Both the original and the amended Medical Examiner reports contain a social history indicating that Patient B.F. was a known IV drug abuser and had received treatment at a local Methadone clinic. None of Respondent’s medical records for Patient B.F. contain a past or current history of treatment at a Methadone clinic. The records also fail to identify whether Respondent inquired about any current drug abuse. Respondent should have inquired about, and should have documented, any Methadone treatment Patient B.F. was involved in before Respondent instituted his own treatment in order to prescribe narcotics properly. This patient was a complicated case and would have benefited from a multi-disciplinary team approach.5 In his treatment of Patient B.F., Respondent failed to practice medicine within the statutory standard of care by inappropriately prescribing controlled substances without adequate medical justification and by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Respondent also violated the statutory standard of care by failing to sufficiently assess the bronchial asthmatic condition by noting the patient’s respiratory rate and degree of wheezing. Respondent failed to keep adequate medical records that justify the course of treatment by failing to document adequate physical exams, by failing to document an adequate review of systems, by failing to document a treatment plan, and by failing to document the respiratory rate and degree of wheezing related to B.F.’s bronchial asthmatic condition. Respondent failed to keep adequate medical records to justify the course of treatment by failing to document adequate justification for prescribing Oxycontin on the first visit and for continuing to prescribe Oxycontin and Xanax in a patient with a history of heroin abuse. Respondent inappropriately prescribed Oxycontin to Patient B.F. on the first visit and inappropriately prescribed Oxycontin and Xanax to her on subsequent visits without adequate medical justification. Many of Respondent’s medical records are merely a list of the drugs prescribed without any rationale or reason stated for the prescriptions. Respondent inappropriately prescribed controlled substances without documenting a physical exam, a review of systems, assessments, or any plans for the patient and without inquiring about the patient's Methadone clinic treatment. Admitted Facts regarding Patient D.P. (Case No. 2002-12858) On or about February 2, 2002, Patient D.P., a 25-year old male, presented to Respondent’s office with complaints of severe lower lumbar pain with radiation into both thighs, left greater than right. The medical record for this visit contains a brief family history, social history, and notation of no allergies in the medical records. The medical record for this visit has no adequate review of symptoms. Respondent documented that the patient is to furnish the X-rays of his lumbar spine, and pending this review, Respondent elected to hold off on ordering an MRI (magnetic resonance imaging). Blood work was deferred to the next visit. Further instructions included glucosamine and chondroitin and water exercises. During the course of the February 2, 2002, visit, Respondent prescribed the following drugs to Patient D.P.: 240 Methadone, 10 mg 120 Dilaudid, 4 mg 90 Xanax, 2 mg On or about March 1, 2002, Patient D.P. returned to Respondent with a complaint of an area of baldness in the upper right occipital area, secondary to striking his head. Patient D.P. also had complaints concerning his left great toe. Respondent again requested that Patient D.P. supply him with his lumbar X-rays. During the course of this visit, Respondent prescribed the following drugs to Patient D.P.: 60 Soma, 350 mg 90 Xanax, 2 mg 120 Dilaudid, 4 mg Respondent’s medical records indicate that on or about March 30, 2002, a Saturday, Patient D.P. appeared for an office visit. The medical records indicate that some type of final warning was given. The record indicates that on or about March 30, 2002, Respondent prescribed the following drugs to Patient D.P.: 60 Soma, 350 mg 90 Xanax, 2 mg 105 Dilaudid, 4 mg On the record of the March 30, 2002, visit, after the Dilaudid, Respondent wrote, “start to lower.” There is also an entry that Patient D.P. paid $75.00 for this visit. Respondent did not see Patient D.P. on the March 30, 2002, visit because the patient was late. Respondent sent Petitioner a letter on or about August 29, 2002, indicating that Respondent did not see Patient D.P. on the March 30, 2002, visit because the patient was late. Respondent’s secretary waited for the patient in order to give him the prescriptions written by Respondent. Additional Facts regarding Patient D.P. (Case No. 2002-12858) Patient D.P. presented to Respondent with a history of prescriptions for Methadone, Dilaudid, Xanax, and Oxycontin. Although Respondent wrote refill prescriptions for Methadone, Dilaudid, and Xanax, he did not write a refill prescription for Oxycontin. There is no explanation in the medical record for the Respondent's decision not to refill the Oxycontin. Respondent failed to document an explanation for continuing some of the pain medications and discontinuing the Oxycontin. It is not safe to discontinue Oxycontin abruptly. Respondent also failed to document the name of the physician who previously prescribed the above-described pain medications and failed to document any need to obtain the medical records from the prior physician. Patient D.P. presented to Respondent with several “red flags.” Among the “red flags” were: a young man with a list of previously used pain medications, no X-rays, and a request to refill the pain medications based on unverified back pain. The medical record for Patient D.P.'s visit on March 1, 2002, does not indicate what medical conditions the pain medications that were prescribed on that date were supposed to treat. Two body parts (the head and large toe) were identified with subjective complaints. An appropriate objective note was not made. The medications prescribed on March 1, 2002, were essentially the same as those prescribed during the February 2, 2002, visit but with no mention of back problems in the record of the March 1, 2002 visit. In a patient such as D.P., pain is a vital sign and should be documented. Pain is usually documented on a scale of one to ten. There is no record of pain for any of the three body parts (head, back or great toe). Soma was also prescribed on this visit. There is no documented justification for the prescription of Soma. On April 1, 2002, Patient D.P. died of a combined drug overdose (Methadone, Xanax, Alprazolam, Soma, Carisoprodol, and Meprobamate). A toxicology exam was done, with a follow-up confirming report. The report was positive for Xanax, Soma, Methadone, and the metabolites for Cocaine. The report showed fatal or lethal levels of Methadone and Xanax in Patient D.P.’s body. Respondent violated the statutory standard of care by prescribing controlled substances to Patient D.P. without even seeing or examining him. Respondent also violated the statutory standard of care by prescribing the controlled substances inappropriately without adequate justification. Respondent also violated the statutory standard of care by his inadequate physical exams, especially on the visits after February 2, 2002. Respondent’s medical records for this patient fail to justify the course of treatment for all of the visits. There is an inadequate history of any prior back problem or drug abuse problem. The records concerning any physical exam are inadequate. Respondent’s records for this patient fail to contain an adequate history documenting any prior diagnostic testing or diagnosis that would have been the basis for his previously prescribed drugs. The medical record of March 30, 2002, fails to accurately describe what actually happened that day. Further, the medical record for that date is written in such a way as to suggest that Respondent had seen and treated the patient on that date, when, in fact, Respondent did not see Patient D.P. on March 30, 2002. Respondent inappropriately prescribed Soma, Methadone, Xanax, and Dilaudid to Patient D.P. In addition, he inappropriately prescribed the Soma, Xanax, Methadone and Dilaudid when he left them with his secretary for Patient D.P. to pick up without examining Patient D.P. or discerning a need for these drugs. Respondent left the prescriptions "out of compassion" for D.P. In hindsight, Respondent admits that it was a mistake to do so. He had never done such before and has not done it since. During the course of his treatment of Patient D.P., Respondent failed to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Admitted Facts regarding Patient F.K. (Case No. 2002-26339) On or about January 31, 2002, Patient F.K., a 46- year-old male, first presented to Respondent with complaints of back pain, with pain radiating to both sides, insomnia, and depression. According to Patient F.K.’s medical records, Patient F.K., had a history of heroin addiction in the past. According to Patient F.K.’s medical records, Patient F.K. has a documented history of hepatitis 30 years ago, most likely from a needle. According to Patient F.K.’s medical records, Patient F.K.’s current medications included Methadone, 80 mg/day, Oxycontin, 80 mg qid (4 times daily), and Xanax, 2.0 mg, “3, 4, or 5”. On or about January 31, 2002, Respondent ordered lab work for Patient F.K. On or about January 31, 2002, Respondent noted in Patient F.K.’s medical records that the X-ray reports were “on the way.” On or about January 31, 2002, Respondent also recommended Glucosamine and Chondroitin for Patient F.K., both to be taken twice daily. During the course of the visit on January 31, 2002, Respondent prescribed the following drugs to Patient F.K.: 120 Xanax, qid 240 Methadone (8 pills/day) 180 Dilaudid (6 per day) On or about March 4, 2002, Patient F.K. returned to Respondent’s office. On or about March 4, 2002, Respondent noted that Patient F.K. was stabilizing. On or about March 4, 2002, Respondent noted that Patient F.K.’s X-ray reports were pending at the prison. On or about March 4, 2002, Respondent did not record an adequate examination or a range of system review for Patient F.K. On or about March 4, 2002, the lab data was reviewed and a notation that Patient F.K. was a non-diabetic was made. On or about March 4, 2002, Respondent recommended water exercises and Glucosamine/Chondroitin for Patient F.K. On or about March 4, 2002, Respondent failed to document in Patient F.K.’s medical record that he had performed a physical examination. On or about March 4, 2002, there is an entry in Patient F.K.’s medical record that states the pain is a combination of pathology and depression. On or about March 4, 2002, the Respondent failed to document in Patient F.K.’s medical records that he discussed the risks and benefits of the use of controlled substances with Patient F.K. During the course of the visit on March 4, 2002, Respondent prescribed the following drugs to Patient F.K.: 180 Dilaudid, 4 mg 240 Methadone 120 Xanax, 2 mg On or about April 1, 2002, it was noted that Patient F.K. was doing water exercises. On or about April 1, 2002, Respondent failed to document in his medical records a physical examination or review of Patient F.K.’s systems. During the course of the April 1, 2002 visit, Respondent prescribed the following drugs to Patient F.K.: 90 Xanax, 2 mg 240 Methadone, 10 mg, 2 q6h (every six hours) 180 Dilaudid, $ mg, 2 q8h (every eight hours) On or about April 1, 2002, there is also an entry in Patient F.K.’s medical records that a pharmacist called to discuss and confirm the medications prescribed. On or about April 29, 2002, Patient F.K. presented to Respondent’s office. On or about April 29, 2002, an entry in Patient F.K.’s medical record indicates that the patient will try to get his X-ray report that was done while in prison, apparently in early 2000. On or about April 29, 2002, Respondent did not document in Patient F.K.’s medical record that he performed a physical examination of Patient F.K. during this visit or that he identified the nature and intensity of Patient F.K.’s pain. During the course of the April 29, 2002, visit, Respondent prescribed the following drugs to Patient F.K.: 90 Xanax, 2 mg 240 Methadone, 10 mg 180 Dilaudid, 4 mg On or about May 25, 2002 (a Saturday), Patient F.K. returned to Respondent’s office. On or about May 25, 2002, Respondent noted that the patient was recently incarcerated and could not persist in his efforts to get the X-rays from prison. On or about May 25, 2002, there is no documented physical examination or review of systems in Patient F.K.’s medical records. On or about May 25, 2002, Respondent recommended that Patient F.K. continue water exercises with Glucosomine and Chrondroiton. During the course of the visit on May 25, 2002, Respondent prescribed the following drugs to Patient F.K.: 90 Xanax, 2 mg 240 Methadone, 10 mg 180 Dilaudid, 4 mg On or about May 25, 2002, Respondent ordered X-rays for Patient F.K.’s right knee and back ASAP. On or about May 26, 2002, Patient F.K. died. According to the Broward County Medical Examiner’s report, the cause of Patient F.K.’s death was acute bronchopneumonia due to combined drug toxicity (cocaine and methadone). Additional Facts regarding Patient F.K. (Case No. 2002-26339) In his medical records for the visit on January 31, 2002, Respondent indicates “severe low back syndrome,” but does not indicate how he reached this diagnosis. On April 1, 2002, Patient F.K. presented to Respondent’s office for polyarthritis. There is no other note concerning the polyarthritis such as its location, duration or severity. On April 1, 2002, Respondent also failed to document an assessment of any problems or a treatment plan, other than prescribing Xanax, Methadone, and Dilaudid. A telephone call from a pharmacist about prescriptions for narcotic drugs is often perceived as a “red flag.” This phone call, combined with the patient’s heroin history, should have alerted Respondent that Patient F.K. was a drug seeker or drug user with a history of abuse. Respondent's records for the April 29, 2002, visit do not indicate why Respondent prescribed Xanax, Methadone, and Dilaudid to Patient F.K. Patient F.K.’s history of incarceration is another “red flag” which should have been taken into account before prescribing controlled substances to this patient. Respondent's records for the May 25, 2002, visit do not indicate why Respondent prescribed Xanax, Methadone, and Dilaudid to Patient F.K. Prior to May 25, 2002, Respondent should have himself either obtained Patient F.K.'s X-rays from the prison or he should have ordered X-rays for the back and right knee sooner and before prescribing controlled substances over an extended period of time. At the time of his death, Patient F.K.’s level of Methadone recorded from the toxicology screen was in the toxic or lethal range. The level of Cocaine was at a low level. Patient F.K. would have benefited from a multi- disciplinary team approach. The multi-disciplinary approach could have dealt with his addiction problems, as well as his physical ailments.6 Respondent violated the statutory standard of care by failing to perform adequate physical exams, failing to identify or recommend a treatment plan, and by failing to adequately assess any pain the patient had. Respondent also violated the statutory standard of care by prescribing controlled substances to this patient without adequate medical justification, and prescribing controlled substances for pain before ordering or obtaining X-rays. Respondent also violated the statutory standard of care by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Respondent failed to keep adequate medical records justifying the course and scope of treatment for Patient F.K. Respondent failed to adequately document justification for the controlled medications, failed to document adequate physical examinations, and failed to document an appropriate treatment plan for this patient. Respondent inappropriately prescribed controlled substances without adequate medical justification to Patient F.K. Admitted Facts regarding Patient A.C. (Case No. 2002-26341) On or about March 13, 2001, Patient A.C., a 43-year- old male, first presented to Respondent. The medical record for that visit notes that Respondent questioned a loss of Patient A.C.’s medications and that the patient is to return with X- rays. On or about March 19, 2001, Patient A.C. returned to Respondent’s office with his X-rays. On or about March 19, 2001, Respondent noted that the X-rays were indicative of significant advanced lumbar disc disease. On or about March 19, 2001, the recorded history also noted that Patient A.C. was involved in a motor vehicle accident on February 3, 2000. On or about March 19, 2001, Respondent noted a complaint of pain in the lumbar region radiating to both of Patient A.C.’s thighs, left greater than right. On or about March 19, 2001, Respondent ordered laboratory studies for Patient A.C. Respondent’s medical record of March 19, 2001, also contains a note that a pharmacy advised Respondent that Patient A.C. was “on Oxycontin 40 mg before.” Respondent notes in Patient A.C.’s record of March 19, 2001, the names of two doctors. On or about March 19, 2001, Respondent gave Patient A.C. samples of HCTZ (hydrochlorothiazide), an anti- hypertensive. On or about March 19, 2001, Respondent started Patient A.C. on Tevetan, an anti-hypertensive, 600 mg daily. During the course of the visit on March 19, 2001, Respondent also prescribed the following drugs to Patient A.C.: 60 Oxycontin, 80 mg Xanax, 2 mg, bid (twice daily) On or about March 21, 2001, Patient A.C. returned to Respondent’s office. On or about March 21, 2001, there are no notes in Patient A.C.’s medical records concerning a physical examination or review of systems. On or about March 21, 2001, there is also a note in Patient A.C.'s medical records about a pending evaluation with no details concerning the proposed evaluation. On or about March 21, 2001, Patient A.C.’s record also contains a note that his next appointment was April 4, 2001. On or about March 21, 2001, Respondent’s medical records also contain a dated entry of March 19, 2001, that lists Patient A.C.’s medications on this date as HCTZ 25 mg daily; Tevetan 600 mg daily; Norvasc 5 mg, 2 daily; Xanax 2 mg bid; and Oxycontin 80 mg bid. On or about March 21, 2001, Patient A.C.’s record does not reflect that the Respondent attempted to obtain Patient A.C.’s past medical records in order to verify Patient A.C.’s reported injuries and medical history. On or about March 21, 2001, Respondent did not document a treatment plan for Patient A.C. other than to order or request lab work. On or about April 1, 2001, Patient A.C. was transported to Broward General Hospital where he was pronounced dead at 9:06 a.m. The medical examiner ruled that the cause of Patient A.C.’s death was accidental Cocaine excited delirium and Oxycodone toxicity. The toxicology report indicated that the following drugs were detected in Patient A.C.'s body: Benzoylecgonine, Cocaine, Ecgonine, Methylester, and Oxycodone. Additional Facts regarding Patient A.C. (Case No. 2002-26341) Respondent also noted in the medical record for March 19, 2001, two doctors’ names (“Roonig” and”Washman”). Next to these names Respondent noted “ pt. given Oxycontin 160 #116 on 3/14” and under that “Oxycontin 40 + 20 Sig T.I.D. on 2/17.” There is no indication in the medical record that Respondent attempted to contact either of the doctors mentioned in his note or to obtain any of the medical records from either doctor. There are no notes about counseling the patient about the consequences of taking controlled substances. There is no indication in the medical records as to why Respondent prescribed Xanax and Oxycontin to this patient on March 19, 2001. Although the medical records for March 19, 2001, contain some subjective and objective results, there is no assessment or treatment plan for this patient. Respondent failed to document how he was managing the pain medication prescribed for this patient, particularly since the patient was obtaining Oxycontin from two other doctors. Respondent knew or should have known that Patient A.C. was a doctor shopper (an individual going to numerous doctors in order to obtain a number of controlled medications). Patient A.C. would have benefited from a multi-disciplinary team approach.7 Patient A.C. obviously had an addiction problem and that should have been apparent to Respondent. Respondent violated the statutory standard of care by failing to perform adequate physical exams, by failing to identify or recommend a treatment plan, and by failing to obtain past medical records. Respondent also violated the standard of care by prescribing controlled substances to this patient without adequate medical justification and by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control.8 Respondent failed to keep adequate medical records justifying the course and scope of treatment for Patient A.C. Respondent failed to adequately document justification for the controlled medications, failed to document adequate physical examinations, failed to document a complete history and failed to document an appropriate treatment plan for this patient. Respondent also failed to keep adequate progress notes. Respondent inappropriately prescribed controlled substances to Patient A.C. without adequate medical justification.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in these cases to the following effect: Adopting all of the foregoing findings of fact and conclusions of law; Dismissing the six counts in the Administrative Complaints alleging violations of Section 458.331(1)(q), Florida Statutes; Finding Respondent guilty of the six counts of violations of Section 458.331(1)(m), Florida Statutes, alleged in the Administrative Complaints; Finding Respondent guilty of the six counts of violations of Section 458.331(1)(t), Florida Statutes, alleged in the Administrative Complaints; and Imposing a penalty consisting of the revocation of Respondent's license to practice medicine in the State of Florida. DONE AND ENTERED this 30th day of August, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 30th day of August, 2005.
The Issue The issues in these consolidated cases are whether Respondent committed the violations charged in four Administrative Complaints and, if so, what is the appropriate discipline.
Findings Of Fact The Department has regulatory jurisdiction over licensed chiropractic physicians pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. In particular, the Department is authorized to file and prosecute an administrative complaint against a chiropractic physician after a probable cause panel (PCP) of the Board determines there is probable cause to suspect a licensee has committed a disciplinable offense, and provides direction to the Department on the filing of an administrative complaint. At all times material to the allegations in the Administrative Complaints, Dr. Aderholdt has been licensed to practice chiropractic medicine in Florida, having been issued license number CH 7814. He was first licensed on January 6, 2000. He practices in an office in Bradenton, Florida. Vax-D Therapy Three of the four Administrative Complaints involve patients of Dr. Aderholdt who received Vax-D therapy. The complaints are not directed to the provision of Vax-D therapy itself, or to any other treatments provided by Dr. Aderholdt. In all four cases, the patients generally spoke well of the chiropractic care they received from Dr. Aderholdt and the manner in which they were treated by him and his office staff. Vax-D therapy is a modality using the Vax-D model for decompression of the spinal discs and spinal structure. It is used to treat a range of issues associated with low back pain, including herniated, degenerated, and bulging discs. The Vax-D model is the originator of this technology; it was the first spinal decompression device. It is a large computerized moving table. It can be programmed to provide specific axial or distractive loading. The table moves in and out, pumping nutrients at the discs. Some research shows that it can actually pull discs away from where they are causing irritation on nerves and the spinal cord. The Vax-D model is FDA-cleared for use, and the literature supports its efficacy. The Vax-D model is an expensive piece of equipment. The price range for the initial purchase is between $100,000 and $150,000, with ongoing expense thereafter for maintenance and updates. Vax-D therapy is one of the most expensive forms of therapy, if not the most expensive, in the chiropractic profession. Other models coming out after Vax-D, as well as other tools, arguably can be used for similar purposes. However, as Petitioner’s expert readily acknowledged, Vax-D is the “Rolls Royce. It’s a really nice tool.” Vax-D spinal decompression is not covered by Medicare. In fact, when it comes to chiropractic care, Medicare has never covered anything besides spinal adjustments. Coverage for Vax-D treatment by private insurance companies is rare. In 2012, Dr. Salvatore LaRusso presented a study on spinal decompression to the profession, before the Federation of Chiropractic Licensing Boards, to inform state regulators of issues associated with Vax-D therapy. The one regulatory concern he reported was that some physicians were improperly billing Vax-D as a surgical decompression procedure, when it is plainly not surgery; it is an alternative to surgery, properly billed as a non-surgical decompressive tool or traction device. Dr. LaRusso’s study also made findings on the common methods of packaging and selling the service, and the range of charges observed. He found that most practitioners providing Vax-D therapy were selling the service as a cash item in their practice, with payment up front often required. The common model was to sell a package with a certain number of visits, with or without additional services included. Dr. LaRusso found that the per-visit charges ranged from $150 to $450, depending on the ancillary services added to the decompression. Dr. Shreeve does not have any issue with the use of or charges for Vax-D therapy. Dr. Aderholdt offers Vax-D therapy pursuant to a Vax-D Therapy Payment Plan agreement (Vax-D Agreement), which is comparable to the multi-visit packages that Dr. LaRusso’s study found to be common. After initial consultation, with intake forms, patient history, x-rays, evaluation, and examination, if a patient is determined to be appropriate for Vax-D therapy, Dr. Aderholdt will give his treatment recommendations and then turn the patient over to his office staff to address the financial aspects. If the patient wants to proceed with Vax-D therapy, the Vax-D Agreement will be reviewed and signed. Patients A.M., R.O., and P.D. each received Vax-D therapy, pursuant to signed Vax-D Agreements. The terms of the Vax-D Agreements for the three patients were the same. Patient B.O. wanted Vax-D therapy, but she was determined to not be an appropriate candidate for it. The Vax-D Agreements in evidence for Patients A.M., R.O., and P.D. provided that the named patient committed to 25 to 28 Vax-D therapy sessions, for $250.00 per session. The total amount that the named patient agreed to pay Dr. Aderholdt for 25 to 28 sessions was $5,500.00, which computes to an actual per-session cost of between $196.43 (for 28 sessions) and $220.00 (for 25 sessions). For the agreed price for 25 to 28 sessions, the Vax-D Agreement provided the following treatment package: at each session, the patient would receive 30 minutes of Vax-D therapy, 30 minutes of full range interferential electrical muscle stimulation (EMS), 15 minutes of hydro-massage therapy, and manipulation (adjustments) by the doctor if needed. The first set of x-rays was also included. Dr. Aderholdt requires an up-front payment for the Vax-D therapy package. For patients who want Vax-D therapy but need help coming up with the funds, Respondent’s office staff has put the patients in touch with Care Credit, which is a medical credit program. If a patient applies and is accepted, Care Credit will finance the cost without charging interest to the patient if the loan is repaid within one year. Care Credit apparently charges a fee to Respondent when credit is extended, similar to the fees charged to merchants by credit card companies for credit card purchases. No evidence was presented regarding Care Credit’s approval criteria or how widely this method is used. All that is known about Care Credit from the record evidence is that two patients who received Vax-D therapy applied for Care Credit and were approved. The other Vax-D patient charged half of the agreed price on a Visa credit card the first day of treatment, and charged the other half after 15 treatment sessions. Patient A.M. From the end of July 2013 to early February 2014, Dr. Aderholdt treated Patient A.M., then a 66-year-old female, for lower back pain and hip pain. Patient A.M. had tried other treatments and had seen chiropractors before, but reported that her pain kept getting worse. As shown by A.M.’s medical records, A.M. was first seen by Respondent on July 29, 2013. That day, A.M.’s intake form, patient history, and x-rays were taken and evaluated, and A.M. was examined by Respondent. Respondent then formulated A.M.’s initial treatment plan. Respondent recommended Vax-D therapy, along with chiropractic adjustments, EMS, and hydrotherapy. The initial treatment plan specified a two- session per day protocol for the first two to three weeks. On July 30, 2013, A.M.’s husband, J.M., signed the Vax-D Agreement (in the space for Patient Signature). J.M. did not remember signing the Vax-D Agreement, but both he and A.M. identified his signature on the Vax-D Agreement. A.M. was named in the agreement as the patient who committed to 25 to 28 Vax-D therapy sessions and agreed to pay $5,500.00 for those sessions. Respondent did not require full payment of the agreed price prior to treatment. Instead, he accepted payment of one- half ($2,750.00) of the Vax-D therapy package price, which was charged on A.M.’s or J.M.’s Visa credit card on July 30, 2013. In accordance with the initial treatment plan, Patient A.M. received two treatment sessions per day beginning July 30, 2013, in the morning and afternoon, for nearly three weeks. After 15 treatment sessions--more than half of the 25 to 28 sessions covered for $5,500.00--the balance of $2,750.00 was charged on A.M.’s or J.M’s Visa credit card. Between July 30, 2013, and February 3, 2014, Patient A.M. had more than 60 Vax-D therapy sessions--approximately 64 total sessions. A.M. initially testified with a fair degree of confidence that she thought she had about 30 treatment sessions, until she reviewed her prior statement made to Petitioner. A.M. testified that at every session, she received Vax-D decompression therapy, hydrotherapy, adjustments “up and down” her spine, and ice packs. She left every session feeling better, with relief from her pain. The relief was temporary, however; she said the pain would come back after a few hours. After 29 sessions, having received all of the treatment sessions covered by the Vax-D Agreement, A.M. started paying additional amounts for more Vax-D therapy and the other ancillary services that she continued to receive. For approximately 35 additional treatment sessions beyond those covered by the Vax-D Agreement, A.M. made seven additional payments in the total amount of $2,226.00. In all, A.M. paid $7,726.00 for approximately 64 Vax-D therapy sessions. Rounding down to an even 60 sessions, she paid an average of $128.77 per session. A.M. was covered by Medicare at the time of her treatment. She did not have any private “Medicare supplement” health insurance. At some point, the subject of Medicare coverage came up. The details of what was said, when, and to whom were not clearly established. The only fact clearly established was that Dr. Aderholdt did not bring up the subject. Patient A.M. testified that Dr. Aderholdt did not talk to her about payment when she first visited, but that she and J.M. asked him, “Does Medicare cover this,” and he said, “Yes.” J.M. said that Dr. Aderholdt did talk to them about payment, saying “we need to do so many treatments and we should pay so much money.” J.M. said that they asked, “Will Medicare take care of it?” Dr. Aderholdt answered, “Yes, we will bill Medicare.” J.M could not say whether he asked about billing Medicare before or after he signed the Vax-D Agreement, since J.M. did not remember signing the Vax-D Agreement. When Dr. Aderholdt was asked if he told A.M. her treatments would be covered by Medicare, he answered, “No, I don’t believe I did, no.” As an interesting contrast, Patient R.O. testified that Dr. Aderholdt told him Medicare would not cover treatment under the same Vax-D Agreement; Dr. Aderholdt does not believe he made that statement, either. In the middle of the spectrum, Patient P.D. testified that Respondent never said anything to her about insurance coverage or financial arrangements. He would only talk about treatment, turning P.D. over to the office manager or billing person to address the financial issues. This version is consistent with Respondent’s testimony that he does not address “the money thing” with patients. Instead, he said he assesses x-rays, takes patient histories, performs the evaluation and examination, and ultimately formulates the recommended treatment plans, whether Vax-D or something else. Then he turns the treatment plans over to his staff to address the financial issues with the patients. A.M. and J.M. did not demonstrate a clear and certain recollection of what they asked Dr. Aderholdt or exactly what he answered. Indeed, both J.M. and A.M. could not remember most every other detail about A.M.’s treatments, often confidently stating details that were shown to be wrong by more than a little, including how many treatment sessions, and how much was paid. For example, Patient A.M. initially reported that she had paid $13,179.00 to Dr. Aderholdt, when the total was $7,726.00. The undersigned cannot find--without hesitancy--that Dr. Aderholdt made any representation to J.M. and A.M. regarding Medicare coverage before J.M. signed the Vax-D Agreement by which A.M. committed to the Vax-D therapy package. Dr. Shreeve made the point well that it is difficult to resolve this kind of he said-she said conflict, although he made the point while confusing Patient A.M. (who claimed Respondent said there would be Medicare coverage) with Patient R.O. (who claimed Respondent said there would not be Medicare coverage), in the following exchange: Q: With Patient RO, what’s your understanding of what Dr. Aderholdt told him regarding Medicare reimbursements? A: Counselor, I’m going to tell you that the investigative record shows that the patient stated that Aderholdt told him that they would be paid, is what my recollection is. And, yet, that’s not something that weighs heavily on my mind because I wasn’t there. This becomes a “he said, she said.” He said he didn’t; he said he did. I can’t get into that fight. That’s not an issue for me. (Jt. Ex. 12 at 35). (emphasis added). Respondent (or his staff) may have told A.M. and J.M., when they asked about Medicare, that the office would complete and submit the Medicare claim forms. Respondent (or his staff) may have told A.M. and J.M., when they asked, that Medicare proceeds paid on the Vax-D therapy package would be refunded. But it would be unreasonable, on this record, to find that Respondent misrepresented that Medicare would provide full coverage, or that Respondent schemed to induce A.M. and J.M. to sign up for Vax-D by guaranteeing that Medicare would pay back everything, when Respondent did not even bring up the subject.8/ The Administrative Complaint alleges that on one or more occasions, Respondent did not submit Medicare claims for Patient A.M.’s treatment. Petitioner has apparently abandoned this allegation; its PRO has no proposed finding identifying any dates of service for which claims were not submitted. The Medicare claim forms for Patient A.M. were compiled by Petitioner’s counsel for use in taking Respondent’s deposition, and are attached as deposition exhibit 2. The evidence is difficult to cull through, as there are 84 separate pages of claims and they are not in chronological order; they start out in chronological order, but then jump forward two months, then continue jumping around on dates, back and forth and back again. As best can be determined, all service dates shown in Patient A.M.’s medical records appear to be accounted for by corresponding claim forms. It appears that one claim form may have a clerical mistake, identifying the date of service as August 3, 2013, when there was no treatment session that day; the actual service date may instead be September 4, 2013, which is the date the claim form was submitted. The Medicare claim forms in evidence demonstrate that claim forms for A.M.’s treatments were regularly submitted, either on or very shortly after the dates of service. The evidence is insufficient to prove that Respondent did not submit Medicare claims for Patient A.M.’s treatment.9/ The Administrative Complaint contains no allegations regarding the disposition of the Medicare claims, although it does allege that Patient A.M. received no reimbursement from Respondent for Medicare payments. Petitioner’s expert seemed to be under the impression that Respondent received Medicare payments, because he criticized Respondent for not providing reimbursement to Patient A.M. Respondent testified that he has received no payments from Medicare for A.M.’s treatments, and Petitioner acknowledges in its PRO that Medicare has not made payments to Respondent. Acknowledging that the Administrative Complaint allegation has not been established, Petitioner instead proposed a finding (not alleged in the Administrative Complaint) that all of A.M.’s Medicare claims submitted by Respondent were rejected and payment was denied. No evidence was offered to prove the actual disposition of the 84 pages of Medicare claims submitted for A.M.’s treatments. Instead, the only record evidence of Medicare adjudications on any claims for A.M. is a group of explanation of benefits forms (EOBs) attached to a March 6, 2014, letter from Patient A.M. to Petitioner’s investigator, which is a deposition exhibit. Patient A.M. identified the small handful of EOBs attached to the March 6, 2014, letter as EOBs she had at that time, reporting on the disposition of Medicare claims submitted by other providers during the same time period as her treatments with Respondent. The EOBs reported, as to each claim, whether the claim was covered in whole or in part; and, if covered, what amount was paid, or, if not, why not. There were no EOBs for claims submitted by Respondent’s office. Patient A.M. was not asked for, and did not offer, any additional EOBs at her deposition. If, in fact, all of the Medicare claims submitted by Respondent were rejected and payment denied, then there would be a stack of EOBs explaining why each claim was denied. On this record, the evidence is insufficient to make any finding as to the outcome of the Medicare claims submitted for Patient A.M.’s treatment. There is no evidence proving whether the claims were denied, approved, or simply never acted on by Medicare. A separate allegation in the Administrative Complaint is that Patient A.M. requested copies of the Medicare claim forms submitted by Respondent’s office for her treatment. Patient A.M. said that she made verbal requests to Respondent’s office staff for the Medicare claims on more than one occasion, and the parties stipulated that Patient A.M. made these requests. Respondent’s office should have responded by giving Patient A.M. copies of the Medicare claims. Dr. Aderholdt said that he was not aware that Patient A.M. had requested copies of her Medicare claim. But it is his responsibility to ensure that his staff promptly responds to requests by patients for insurance claim forms. In the course of Petitioner’s investigation, the Medicare claim forms for Patient A.M. were provided to Petitioner (according to the investigator’s report, on May 16, 2014). It is unknown whether a set of the claim forms was provided to A.M. at that time. She is entitled to a copy of the claim forms if she has not already been given a set. Respondent should have verified that Patient A.M. has received the claim forms she requested, or, if not, provided them to her. Finally, the Administrative Complaint alleges that on the Medicare claim forms for A.M.’s treatments on August 6, 2013, and December 11, 2013, Respondent utilized Current Procedural Terminology (CPT) code 98941, which is the code for adjustments to three or four regions of the spine. However, Respondent’s Subjective, Objective, Assessment and Plan notes (referred to as SOAP notes) for those dates identify spinal adjustments to L3, L4, and L5, which are in a single region--the lumbar region. Beyond the SOAP notes, however, Dr. Aderholdt’s notes for Patient A.M.’s morning session on August 6, 2013 (there were two sessions that day), show multiple adjustments, not only to the lumbar region, but also, to the sacrum and ilium. Dr. Aderholdt’s notes for December 11, 2013, show multiple adjustments to the thoracic, lumbar, and sacrum regions. At hearing, Dr. Shreeve identified the five spinal regions as follows: “a region would be considered cervical, thoracic, lumbar, sacrum, ilium.” (Tr. 106, lines 21-22). Based on his testimony, and considering all of Patient A.M.’s medical records, there were multiple adjustments to three spinal regions on both days identified in the Administrative Complaint.10/ The Administrative Complaint has no other factual allegations regarding CPT code issues in connection with Patient A.M.’s treatment. The complaint pointedly identified one specific CPT code that was used on two specific dates, but was allegedly not supported by SOAP notes for either date. At hearing, Dr. Shreeve attempted to expand the factual allegations regarding CPT coding issues by questioning other CPT codes shown on A.M.’s patient ledger. Dr. Shreeve’s criticism was improper, not only because he strayed beyond the allegations in the Administrative Complaint, but also, because the criticism was based on his misunderstanding of what Dr. Aderholdt’s patient ledgers portray. In particular, Dr. Shreeve was critical of CPT code 99212 entries (for focused patient examinations) on A.M.’s patient ledger, without use of modifier code -25. He said that these repeated entries of CPT code 99212 were inappropriate without use of modifier code –25, to indicate they should not be considered for payment, because they are redundant with other CPT treatment codes that include examination. Dr. Shreeve should have reviewed the actual Medicare claim forms to look for the modifier codes, because the CPT code 99212 entries do, in fact, add a modifier of -25. The modifier code conveys information to the third-party payor, as Dr. Shreeve acknowledged, regarding whether or how payment should be made. The modifier codes need to be used, when appropriate, on the Medicare claim forms, and they were used just as Dr. Shreeve said was appropriate. The modifier codes do not appear on Dr. Aderholdt’s patient ledgers because they are not claim forms sent to third- party payors, nor are they bills sent to patients. Instead, a patient ledger, as used in Respondent’s practice, is an internal practice management tool to account for and track everything associated with treating patients: how many examinations, how many adjustments, how many Vax-D treatments, how many ice packs, and so on. Dr. LaRusso explained that this is a perfectly reasonable use of patient ledgers, and is a common practice among physicians. The usage statistics are analyzed for practice management, for such purposes as making changes in the services or treatments and stocking supplies. Dr. Shreeve admitted that he assumed Respondent’s patient ledgers reflected the exact CPT coding used on insurance claims and bills sent to patients. The evidence refuted that assumption. Modifier codes were used on the Medicare claims. And Dr. Shreeve admitted he saw no evidence that Respondent’s patient ledger for A.M. was ever sent to her as a bill, or that any patient ledgers were ever sent to any patients as bills. Dr. Shreeve also admitted that there is no standard for patient ledgers, much less a regulation mandating the contents and use of patient ledgers. As he put it, he could go to 1,000 chiropractic offices and find 1,000 different variations in what is called a patient ledger. Dr. Shreeve would like to see a standard adopted for “patient ledgers,” but his aspiration simply underscores that there is no standard now; Respondent’s practices cannot be judged against or held to conform to a non-standard, non-regulation.11/ In somewhat stream-of-consciousness fashion, untethered from the Administrative Complaint, Dr. Shreeve interjected a number of other comments about Dr. Aderholdt’s practices related to Patient A.M., such as the adequacy and legibility of his medical records and the quality of x-rays. He raised questions about Dr. Aderholdt’s compliance with trust accounting requirements in connection with payments for A.M.’s Vax-D therapy, and Dr. Aderholdt’s compliance with obligations in connection with Petitioner’s investigation. None of these factual matters were alleged in the Administrative Complaint, and none of the corresponding statutory or rule provisions implicated by Dr. Shreeve’s open-ended commentary were charged in the Administrative Complaint. No findings can be made on matters not alleged, and violations not charged, in the Administrative Complaint. Moreover, there is no competent evidence fleshing out any of these matters, because they were not alleged, charged, or identified in the Joint Pre-hearing Stipulation as issues of fact or law to be litigated. Patient B.O. Between April and June 2013, Respondent treated B.O., then a 78-year-old female, for back and neck pain. B.O. is married to R.O. They both went to Respondent’s office on the same day for their initial consultation. B.O. completed intake forms, had x-rays and patient history taken, and was examined by Respondent, similar to R.O. Whereas R.O. was determined to be a candidate for Vax-D therapy, B.O. was not. Unlike for the Vax-D therapy plan, there was no protocol calling for a certain range of sessions needed and no set payment correlated to a planned number of sessions for B.O.’s recommended treatment plan that called for adjustments, hydrotherapy, and ice packs. At the time of her treatment, B.O. had Medicare coverage and a “Medicare supplement” insurance policy through Horizon Blue Cross and Blue Shield of New Jersey (Horizon). As was his practice, Respondent had B.O. address the financial aspects of the treatment he recommended with his office staff. Upon review of B.O.’s insurance coverage, B.O. was informed by Respondent’s staff that Horizon would probably cover the cost of her treatment that exceeded her copay. The staff determined that, although it was possible Horizon would apply its lower in-network copay of $15.00 per visit, there was no guarantee that Horizon would not consider Respondent out-of- network, with a copay of $25.00 per visit. Therefore, B.O. was charged $25.00 per visit. She paid that amount per visit, although sometimes she did not pay at all on one or more visits, and would catch up at a subsequent visit. B.O. received treatments on 23 occasions. B.O. experienced some relief from her pain as a result of those treatments.12/ For those 23 visits, B.O. paid a total of $575.00 in copays. After B.O. had stopped going to Dr. Aderholdt for treatment, Horizon determined that its lower in-network copay of $15.00 per visit applied. The total copay amount should have been $345.00 for 23 visits. The difference is $230.00. The Administrative Complaint alleges that Respondent “overcharged” B.O., misrepresenting that her copay was the out- of-network charge, to exploit her for financial gain. This allegation was not proven. Respondent made no representation. The representations of his staff, as described by B.O., were not shown to be the product of anything other than a good faith attempt to determine the undeterminable details of insurance coverage. There is no evidence to support the allegation that B.O. was intentionally charged more than she should have been charged, based on the information available at the time. On this point, the expert testimony was in lockstep: figuring out insurance coverage details is a “nightmare.” It is virtually impossible, according to both experts, to obtain sufficient information to make a correct determination for a new patient on such issues as in-network versus out-of-network, because, as they agreed, the insurance coverage details keep changing. “Now, you can be in network today and they can decide you’re out of network tomorrow. And then you can be out of network and then they decide you’re in network, and they don’t tell you.” That’s--that makes no sense.” (Dr. Shreeve, Tr. 131). In fact, when asked how he determines if a patient is out-of-network, Dr. Shreeve responded: “Counselor, I don’t. I leave that to the patient. I run a cash practice. I give them a bill. We’ll help them fill out a health insurance claim form, if they need it. But they pay us when they receive the service.” (Tr. 130). The Administrative Complaint also alleges that Respondent billed Horizon for medical visits by Patient B.O. that did not occur. There is no credible evidence of this allegation; the evidence is to the contrary. Petitioner contends in its PRO that Respondent billed B.O. for treatments received on June 3, 7, 11, and 14, 2013, when B.O.’s appointments were cancelled on those days. The record citations offered by Petitioner fail to support this proposed finding. Instead, B.O.’s bank records directly refute the proposed finding, and corroborate Dr. Aderholdt’s treatment notes and the SOAP notes that detail B.O.’s treatment on those four days.13/ In addition to B.O.’s bank records, B.O.’s patient records include the “merchant copy” receipt for a debit card payment on June 14, 2013. The receipt shows that a $50.00 payment was made at Dr. Aderholdt’s office on June 14, 2013, and it bears the clear signature of B.O. B.O.’s accusation that she did not go to Respondent’s office for treatment on these four days is belied by the documentation that she personally went there and paid the copay charges for her treatments on those four days ($50.00 check on June 7 for two copays; $50.00 debit card payment on June 14 for two copays). Petitioner’s own expert, Dr. Shreeve, conceded that this evidence refutes B.O.’s accusation that her insurer was billed for treatment on four days when she did not go to Respondent’s office for treatment. A separate problem proving this allegation (besides B.O.’s false accusation) is that there is no evidence to prove what was billed to Horizon for B.O.’s treatments. There is no evidence in the record of claims submitted by Respondent’s office to bill Horizon for B.O.’s treatment. In pre-hearing discovery proceedings, shortly before hearing, Petitioner sought to compel production of Medicare claim forms or Horizon claim forms submitted by Respondent’s office. However, Petitioner declined an Order compelling production that was offered along with additional time to pursue this evidence. Instead, Petitioner chose to go forward with the hearing on the basis that there were no such records (as Respondent represented). Another allegation in the Administrative Complaint is that B.O. was not given a copy of her medical records upon request. B.O. testified that she made several verbal requests to two staff persons at Respondent’s office, Lisa14/ and Amanda, for her medical records. She said she was given a copy of her patient ledger, but nothing more. B.O. and R.O. then mailed a letter addressed to Respondent that they jointly wrote on December 31, 2013, requesting their medical records and updated patient ledgers. Respondent said that he was never informed of any verbal requests for records, nor did he believe he ever saw the letter that was mailed to him. Indeed, B.O. handwrote on her file copy of the letter, provided to Petitioner’s investigator: “Letter to Dr. who probably didn’t see – no response to date.” The evidence is clear and convincing that Respondent has failed in his obligation to promptly respond to B.O.’s requests for medical records. However, there is no evidence that Respondent was aware of the requests before the investigation and intentionally refused to comply, or that he ever instructed his office staff to ignore such requests. But even though the evidence only establishes that Dr. Aderholdt’s staff failed to promptly respond to requests for medical records, the obligation to ensure these patient requests are promptly addressed remains Dr. Aderholt’s responsibility. It is clear that his office procedures require serious overhauling, as both Dr. Aderholdt and his expert acknowledged. It is unknown if B.O.’s medical records were provided to her when they were produced by Respondent’s counsel during the investigation.15/ In her deposition, when B.O. was asked if she had gotten the records from Respondent’s office yet, she said “not from them.” Among other remedial steps in the aftermath of this proceeding, if B.O. and R.O. do not already have copies of their medical records and updated patient ledgers as they requested long ago, Respondent must provide them. It is concerning that he did not come to this hearing with proof that he had provided B.O. and R.O. with the records they had requested or confirmed that they already had a copy. Lastly, the Administrative Complaint alleges that Respondent received payment from Horizon for B.O.’s treatment, but has not provided a refund. There is insufficient evidence to determine whether B.O. is entitled to a refund. The only information regarding the extent to which Horizon covered B.O.’s treatment is the information in the EOBs issued by Horizon after B.O.’s treatment ended, identifying amounts that would be covered and reporting payments to Respondent. For B.O.’s treatments, Horizon paid $1,770.00 to Respondent. What is unknown is whether B.O. owed more for her treatments than what Horizon paid. Dr. LaRusso reasonably opined that the receipt of an insurance payment would not generate an obligation for a patient refund if the payment is applied to a balance due by the patient. No evidence, methodology, or calculation was offered to prove that after Horizon’s payment was applied, a refund was owed to B.O. As noted previously, Respondent’s “patient ledger” is an internal practice management tool that does not function as an accounting of what a patient or insurance company owes. However, the patient ledger for B.O. reflects a total amount of $5,575.00 in services provided to B.O. Application of the Horizon payments of $1,770.00 and B.O.’s payments of $575.00 would reduce the patient ledger amount by less than half. Again, this is not to say that Patient B.O. owes the remaining patient ledger amount, but it is at least a point of reference suggesting the possibility that the Horizon payment did not cover all of B.O.’s treatment costs. Viewed another way, all B.O. paid for 23 treatment sessions was $25.00 per visit. B.O. was informed at the outset that she would not be charged for the full treatments she would be getting, because Horizon would “probably” cover her treatment except for the copay. Although she paid $230.00 more than the amount Horizon ultimately applied as copays, if B.O. owed $230.00 or more for treatment provided that was not covered by Horizon’s payment, then no refund would be due. Patient R.O. As noted previously, Patient R.O. is Patient B.O.’s husband. Like B.O., R.O. was treated by Respondent from April through June 2013. R.O., then a 64-year-old male, sought treatment for severe back pain. R.O. completed the intake form, had x-rays and patient history taken, provided detailed records of recent treatments and surgeries (including back surgery), and was evaluated and examined by Dr. Aderholdt. Dr. Aderholdt determined that R.O. was a candidate for Vax-D therapy. Respondent’s then-office manager, Lisa, took over to address the financial aspects of the recommended treatment. R.O. informed Respondent’s staff that he could not afford to pay $5,500.00 up front. R.O. was given contact information for Care Credit. He called Care Credit, then submitted an application. R.O.’s application was approved, and Care Credit agreed to finance the cost of Vax-D therapy without charging interest if the amount was paid off within one year. R.O. accepted the loan, and the result was that Care Credit paid Respondent $5,500.00 minus a fee absorbed by Respondent, similar to fees by credit card companies charged to merchants for sales using their credit cards. R.O. testified that he has paid off the Care Credit loan. R.O. signed the Vax-D Agreement, by which he committed to 25 to 28 Vax-D therapy sessions at $250.00 per session, for a total payment amount of $5,500.00. His Vax-D Agreement included the treatment package detailed in paragraph 13 above. R.O. testified that during the time of his treatment by Respondent, he had health insurance coverage with Medicare and Horizon (the private Medicare supplement insurance coverage that B.O. also had). He also had Tricare for Life, but said that that coverage would not have been applicable. R.O. recalled that Respondent told him that none of his insurance plans would cover the Vax-D therapy. As previously noted, Respondent does not believe he discussed insurance coverage with R.O., as that is not his standard practice. Regardless, R.O. had no expectation of insurance coverage. R.O. found the Vax-D therapy helpful in relieving his pain. He felt better after every treatment and wanted to continue. Rather than stopping after the 25 to 28 sessions included in the Vax-D Agreement, R.O. had a total of 40 treatment sessions. However, at some point, Respondent’s office manager informed R.O. that he needed to pay for additional sessions. R.O. said he could not afford to pay more, and discontinued treatment. After R.O. discontinued his treatments, he received an EOB from Horizon, stating that Horizon had paid a total of $5,465.84 in claims for both R.O. and B.O. According to the EOB summary, as noted above, $1,770.00 was paid to Respondent for treatments to B.O. The rest--$3,335.84--was paid to two providers for services to R.O. (A minor discrepancy is noted, in that Petitioner’s PRO stated that $3,335.00 was paid to Respondent for treatments to R.O.; however, the EOB reports that $10.84 was paid to a different provider (“Ga Emergency Phys”) for services provided to R.O. Thus, the actual total payment to Respondent for R.O.’s treatment was $3,325.00). The total amount paid to Dr. Aderholdt for R.O.’s 40 Vax-D therapy sessions, including Horizon’s payments, was $8,825.00, an average of $220.63 per session. R.O. believes the insurance payment should be paid to him as reimbursement for part of the $5,500.00 he paid. But that payment was for 25 to 28 sessions. The insurance payment was reasonably applied to the additional amounts due for R.O.’s sessions that were not covered by the $5,500.00 payment. No reason was offered as to why Dr. Aderholdt should not have applied the insurance payment to charges owed for the 12 sessions that were not covered by the Vax-D Agreement. Chiropractic physicians are not required to provide free care. Dr. Shreeve admitted that he does not provide chiropractic care to patients for free. As found above with respect to Patient B.O., R.O. joined B.O. in submitting a written request to Respondent for their medical records and updated patient ledgers by letter dated December 31, 2013, although Respondent said that he did not see the letter that was mailed to him. The findings above with respect to B.O., as one party to the joint written request, apply with equal force to R.O. as the other party to the joint written request. The Administrative Complaint also included an allegation that Respondent failed to practice chiropractic medicine at an acceptable level of skill, care, and treatment, charged as a violation under section 460.413(1)(r). This was the only charge in any of the Administrative Complaints that was based on the care provided by Dr. Aderholdt. The allegation was that adjustments indicated as having been performed on R.O. were physically impossible. However, at hearing, Petitioner’s expert retreated from the allegation, agreeing that the procedure in question was plausible. As a result of his concession, Petitioner’s PRO abandoned the charge, stating, “Petitioner is no longer pursuing discipline for the alleged violation of section 460.413(1)(r).” Pet. PRO at 4. Patient P.D. In March and April 2013, Respondent treated Patient P.D., then a 62-year-old female, for back pain. After completing intake forms and patient history, Patient P.D. was x-rayed, then examined and evaluated by Dr. Aderholdt, who determined that P.D. was a candidate for Vax-D therapy. Dr. Aderholdt turned P.D. over to his then-office manager, Lisa, to address the financial aspects of his recommended treatment plan. P.D. confirmed that Dr. Aderholdt never discussed financial issues or insurance with her. P.D. signed the Vax-D Agreement on March 8, 2013, the same day that she completed a Care Credit application that was approved for $5,500.00. P.D. paid off the Care Credit loan in 11 months, at $500.00 per month, so the loan was interest-free. At the time of the treatments, P.D. was not yet eligible for Medicare. She had insurance coverage through Blue Cross Blue Shield of Michigan (Blue Cross). P.D. said that Lisa, the office manager, told her that she would file claims with Blue Cross. Thereafter, P.D. had 33 Vax-D therapy sessions. P.D. was pleased with the Vax-D therapy. She found it effective in relieving her pain. P.D. learned at some point from Blue Cross that several months after her treatment ended, Blue Cross paid Respondent for a portion of P.D.’s treatment. No evidence was offered to prove the details of the Blue Cross coverage, such as EOBs explaining what was covered and what was not. P.D. said that she contacted Respondent’s office and spoke with staff multiple times before Respondent provided her reimbursement in the full amount of the Blue Cross payment. Respondent refunded $946.45 on April 8, 2015, and $1,046.45 on April 10, 2015, for a total of $1,992.90. P.D. acknowledged that she has been fully reimbursed and is owed nothing further. The Administrative Complaint includes an allegation that Respondent improperly utilized CPT “billing codes” 99204 and 99212 for P.D.’s first session on March 6, 2013. Dr. Aderholdt admitted that for March 6, 2013, P.D.’s patient ledger incorrectly lists both CPT code 99204 (for a comprehensive examination for a new patient), and CPT code 99212 (for a focused examination for an established patient). The first CPT code should have been the only one entered on this day. The second code was entered by mistake. Although Dr. Aderholdt admitted the error made in the patient ledger, there is no evidence that the erroneous CPT code was “utilized” for billing purposes. No evidence was presented that both CPT codes were submitted by Respondent in a claim for payment to Blue Cross (and Petitioner did not charge Respondent with having submitted a claim to P.D.’s insurer for a service or treatment not provided). No evidence was presented of the actual claims submitted to Blue Cross. No evidence was presented to show that P.D. was ever sent a bill utilizing the referenced CPT codes. The error recording an extra CPT code on P.D.’s patient ledger might throw off Respondent’s internal practice management statistics, but there is no evidence that the admitted CPT coding mistake on the patient ledger was repeated in any claim or bill submitted to anyone. Expert Opinions Considering All Four Cases Both Dr. Shreeve and Dr. LaRusso offered their overall opinions, taking the four cases as a whole. Dr. Shreeve’s Oinions Dr. Shreeve testified that, while he might be more understanding of issues he saw in each individual case, “I’ve got four cases that I reviewed together. I received them all at once. So my view on each individual case might be seen as a little more tolerant of something I saw. But when it becomes repeated, it becomes less understanding [sic].” (Tr. 109). In forming his opinions, Dr. Shreeve relied on allegations that have not been proven, his own extension of the Administrative Complaint allegations to add other concerns about use of CPT codes (which were also shown not to be valid concerns), and his observations about a litany of matters nowhere mentioned or charged in the Administrative Complaints. Dr. Shreeve made clear that he elevated his opinion from concerns about sloppy office practices to fraud, misrepresentation, and patient exploitation, because of matters that were either unproven, not alleged or charged, or both. For example, he injected the concern, shown to be based solely on patient ledgers, that CPT code 99212 appeared many times without the -25 modifier when used in conjunction with an adjustment CPT code. Starting with A.M.’s case, he complained of the repeated use of CPT code 99212 without a -25 modifier, when CPT code 98941 (adjustments) was used for the same office visit. He said, “If we were going to bill 99212, an E/M code with that, we would use a modifier of -25.” (Tr. 110). As previously found, however, Dr. Aderholdt did use the -25 modifier with every entry of CPT code 99212 in the Medicare claim forms. In explaining how his opinion was affected by his misimpression from the patient ledgers that CPT code 99212 was not used with the -25 modifier, he said: This is repeated over and over during the record. If it were one off, it occurred in one place in the ledger or on a form, you know, everybody is human. They can make a mistake. If it is the trend, that becomes not a mistake. That becomes, I’m doing the wrong thing. And if I’m doing it over and over again, and I’m then billing for one service two times, two different ways, and I’m – I hope to get paid for it. Then that’s where I start to see the trend of exploiting the patient for financial gain. (Tr. 111). Dr. Shreeve further elevated the significance of not seeing modifiers with the evaluation codes in the patient ledgers, when he spoke about R.O.’s case: If [Dr. Aderholdt] did both codes [for evaluation and adjustments] every visit, if he did, which is not normal, we would have to have a modifier, the -25, to tell us it’s a reduced service because it’s duplicative. A modifier was never present in any record I saw on this patient or any other patient of the records of Dr. Aderholdt. So misusing the codes. This is not standard of care that we expect, and this appears to me exercising influence on the patient to exploit them for financial gain. That’s what it looks like to me. By the time we’re through with the third case that’s what I see. (Tr. 148). Not only was this CPT coding issue not alleged in any of the four Administrative Complaints, but it is a false accusation. If Dr. Shreeve did not see a single use of CPT code 99212 with the -25 modifier in any record he saw, then he did not look at the records very carefully. As found above, the only evidence of actual claims submitted to any third-party payor--the Medicare claim forms for Patient A.M.--shows that CPT code 99212 was never used without the -25 modifier. But Dr. Shreeve only looked at the patient ledgers for modifiers. As also found above, the only two CPT coding issues that were alleged (improper use on two specified dates of CPT code 98941 for adjusting three or four spinal regions for Patient A.M.; and improper use on Patient P.D.’s first day of service of two patient examination CPT codes for billing purposes) were not proven. Dr. Shreeve also relied on the allegation that Patient B.O.’s insurance carrier was billed for treatment that was not provided. He pointed to “notes” written (by B.O.) on the patient ledger stating that the patient cancelled, but CPT codes were entered for treatments that day. He concluded: That’s blatant. I don’t have a way to explain that away. To me that absolutely says, I billed for something that I didn’t do. That’s fraud. Because that’s with intent. That’s not an accident. (Tr. 137). When Dr. Shreeve was shown the $50.00 debit card receipt signed by Patient B.O. on June 14, 2014, he quickly retreated: “That would indicate that they were there, even though they said they were not. So my apologies for that. It’s good to clear that up.” (Tr. 183). Later, he added that the June 14, 2013, payment of $50.00 was for that visit and the prior visit on June 11, 2013. He explained that this was consistent with Respondent’s daily notes, which identified treatments for each visit and also logged the copay charges by visit and B.O.’s periodic payments. Dr. Shreeve did not explain how he would alter his overall opinion after conceding that what he characterized as blatant fraud by Dr. Aderholdt was actually a false accusation by the patient. In formulating his overall opinion that what otherwise might be viewed as mistakes or sloppy office practice were elevated in his mind to fraud and exploitation, Dr. Shreeve also relied heavily on matters that were neither alleged nor charged in the Administrative Complaints, and, as a result, were not fleshed out with competent evidence in the record. Dr. Shreeve repeatedly alluded to issues regarding trust accounting requirements in statute and rule. The four Administrative Complaints that were issued as directed by the PCP on June 19, 2018 (as noted on the Administrative Complaints), contain no allegations related to trust accounting practices. The PCP-authorized Administrative Complaints do not charge Dr. Aderholdt under the trust accounting statute, section 460.413(1)(y), or the trust accounting rule, Board rule 64B2- 14.001. To the extent Dr. Shreeve’s perception of trust accounting issues contributed to his opinion that these four cases rise to the level of fraud and patient exploitation, that was error, and his opinion must be discounted accordingly. Likewise, Dr. Shreeve gratuitously offered critiques of Dr. Aderholdt’s medical records, including complaints about the handwriting, complaints about x-ray quality, questions about the adequacy of justifications for the course of treatment, and suggestions regarding how he would rewrite SOAP notes. Again, the Administrative Complaints are devoid of allegations directed to the quality or adequacy of Respondent’s medical records, and they are devoid of charges under the medical records provision in section 460.413(1)(m) and the corresponding medical records rule, Board rule 64B2-17.0065. To the extent these critiques contributed to Dr. Shreeve’s opinion that these four cases rise to the level of fraud and patient exploitation, that, too, was error, and his opinion must be discounted accordingly. Dr. Shreeve also relied on what he characterized as Respondent’s failure to respond, or failure to respond quickly enough, to investigative subpoenas. He made it clear that his opinion was greatly influenced by his perception that Respondent intentionally failed to meet his obligations in responding to the investigations: I think this is absolute fraud. The doctor is not wanting to do the right thing, has flagrant disregard for the law, and the statutes and the rules for the profession, for the Department of Health by not responding. (Tr. 153). Despite Dr. Shreeve’s view that he thinks it is “very clear” that Dr. Aderholdt did not respond timely during the investigation, the timeline and details of the investigation were not established by competent evidence; there is only hearsay evidence addressing bits and pieces of that history, with huge gaps and many questions about the reasons for those gaps (if the reasons why investigations were so protracted was relevant). But the details of the investigations are not laid out in the evidentiary record because the Administrative Complaints do not contain factual allegations related to Dr. Aderholdt’s actions or inactions during the investigation process, nor are there any charges predicated on what was or was not done during the investigation process. Either these matters were not presented to the PCP in June 2018 for inclusion in the Administrative Complaints, or they were presented and not included. Either way, Dr. Shreeve’s perception regarding whether Dr. Aderholdt met his legal obligations in responding to the investigations cannot be injected now. It was improper for Dr. Shreeve to consider, and give great weight to, circumstances that were neither alleged nor charged in the PCP-authorized Administrative Complaints. As found above, the proven allegations are that Respondent failed to provide Patient A.M. copies of the claims submitted to Medicare for her treatment (although she may have them now); and Respondent failed to provide copies of the medical records of Patients R.O. and B.O. upon their joint written request (although they may have them now). Only by considering allegations that were not proven and by injecting matters not alleged or charged was Dr. Shreeve able to characterize these four cases as involving the same problems again and again. In terms of the proven allegations, however, the only duplicative finding is with respect to the husband and wife team, in that Respondent did not meet his obligation to promptly respond to their joint request for medical records and updated patient ledgers. The matters considered by Dr. Shreeve beyond the allegations and charges in the Administrative Complaints were also improperly used by Dr. Shreeve to buttress his view that two disciplinary actions against Dr. Aderholdt based on facts arising in 2005 and 2006, raised “the same or similar” issues. Dr. Shreeve’s attempt to draw parallels between the prior actions and these four cases was unpersuasive. Dr. LaRusso disagreed with the characterization of the two prior actions as similar to the issues presented here. Dr. LaRusso’s opinion is credited. A comparison of the allegations, ultimately resolved by stipulated agreement in two 2008 Final Orders, confirms Dr. LaRusso’s view in this regard. The first disciplinary action was based on Respondent’s treatment of one patient in February 2005. An administrative complaint alleged that Respondent failed to complete intake forms, take the patient’s history, and conduct a sufficient examination to support the diagnosis. Respondent was charged with violating section 460.413(1)(m) by not having adequate medical records. The same facts gave rise to a second count of violating section 460.413(1)(ff) (violating any provision of chapters 456 or 460, or any rules adopted pursuant to those chapters), through a violation of rule 64B2-17.0065, which elaborates on the requirements for adequate medical records. There is no repetition of these statutory and rule violations charged in any of the four Administrative Complaints at issue here. The prior administrative complaint also alleged that Respondent billed the patient he saw in 2005 for neuromuscular reeducation and therapeutic exercises, when neither Respondent’s notes nor the SOAP notes reflected those services. In these cases, the only allegation regarding discrepancies between billing records and physician/SOAP notes is the allegation as to Patient A.M. that on two dates, Respondent used the CPT code for adjustments to three or four spinal regions, whereas the SOAP notes reflected adjustments to only one region. The prior disciplinary action supports the findings above that Respondent’s notes must also be considered, in addition to the SOAP notes, to determine what services A.M. received on those two days. A different kind of billing discrepancy allegation in Case No. 18-4485 is the claim that Respondent billed B.O.’s insurer for treatment on days on which services were allegedly never provided. This allegation was not proven, as found above. B.O.’s accusation that Respondent falsely charged for treatment on several days when no treatment was provided was itself proven to be a false charge. Perhaps Dr. Shreeve was thinking of this allegation, based on B.O.’s false charge, when he characterized the 2005 incident as involving the same or similar problems that he saw here. The allegation in the prior complaint was that the patient was actually billed for services not provided, and a refunded was ordered. At first, Dr. Shreeve believed the same was true in B.O.’s case. However, he later retreated and acknowledged that B.O. had not been truthful in her accusation. The only other allegation of a billing discrepancy in any of the four cases at issue was not a billing discrepancy at all, but rather, a CPT coding error on P.D.’s patient ledger that was not billed to anyone. As Dr. Shreeve noted, in the prior disciplinary action, Respondent agreed to be put on probation with a requirement that he practice with a monitor. Dr. Shreeve explained that the monitor would have worked with Respondent “to help this doctor not do the same behaviors that got them into trouble.” In his view, these four cases show that Dr. Aderholdt did not learn his lesson from the monitor “not to do the same problems again.” As he put it, “That really flips me rather quickly to think there’s a question of fraud.” (Tr. 152-153). To the contrary, whereas Respondent was faulted for not having intake records, patient histories, and appropriate examinations to support his diagnosis and recommended treatment plan in February 2005, no such issues were raised in these Administrative Complaints. Dr. Aderholdt did learn his lesson. The medical records for the four patients at issue include patient intake forms, patient histories, evaluations, and examinations that were not alleged to be inadequate. Nor was there any repetition of the problem with billing a patient for treatment or services that were not documented in the medical records taken as a whole, including Dr. Aderholt’s notes. The other disciplinary action resolved by settlement in a 2008 Final Order involved an advertising issue. The Department alleged that Respondent improperly advertised as a specialist in Vax-D disc therapy when the Board does not recognize any such specialty. The Department also found fault in the failure of the advertising to disclose the usual fee. The Department also critiqued an advertisement for identifying a different practice location than Respondent’s practice address of record. The charges were under section 460.413(1)(d), (cc), and (ff); rule 64B2-15.001(2)(e) and (i); and rule 64B2-10.0055. Quite plainly, this prior action bears no similarity to the four Administrative Complaints at issue here. No such allegations or charges were raised here. Dr. Shreeve did not contend that this prior action bears any similarity to the four cases here. Dr. Shreeve was never asked for his opinion as to the type or level of discipline he believes is warranted in these cases. However, his “flip” to “fraud,” due to the perceived repetitive nature of the issues in the four cases (whether charged or not)--which he characterized as the “same problems” in 2005 that resulted in discipline--was the basis for Petitioner proposing the most severe penalty available: license revocation, plus substantial fines and assessments of fees and costs. Dr. LaRusso’s Opinions Dr. LaRusso served as a Board member for multiple terms, and is a past-chair. After leaving the Board, he continued to serve on probable cause panels as recently as 2017. Having reviewed and been involved in thousands of disciplinary matters, he was of the strong opinion that nothing in the four Administrative Complaints warrant discipline at the level being sought here. Imposing a severe penalty in these four cases would be out of line with the Board’s prior practice in disciplinary matters. Dr. LaRusso’s studied review of all of the depositions and records in this case led him to opine that there is no evidence that Dr. Aderholdt deceived his patients, committed fraud, or engaged in double-billing or overbilling. Instead, Dr. LaRusso saw evidence of sloppy office practices, which he attributed to Dr. Aderholdt’s poor management skills. He has seen many doctors like Dr. Aderholdt over the years who just want to deal with taking care of patients. They do not want to have anything to do with administrative and clerical responsibilities. Instead, they leave everything besides patient care to their office manager and staff. In Dr. LaRusso’s view, Dr. Aderholdt’s office protocols and procedures require serious fine-tuning. He believes that Dr. Aderholdt would benefit from re-education in billing and collection practices, as well as laws and rules. He needs to ensure that procedures are in place, and followed, for prompt responses to patient requests for medical records or for claims sent to third-party payors. At the same time, however, Dr. LaRusso reasonably characterized the four cases as involving billing, clerical, communication, and correspondence issues. It bears emphasis that Dr. Aderholdt’s patient care is not in question. There are no issues of endangering the public, where a doctor is doing things that will hurt people, doing something dangerous or sexually inappropriate. Those are the cases where it is appropriate to go after someone’s livelihood, when the person does not belong in the profession. Dr. LaRusso observed that, rather than endangering the public, Dr. Aderholdt was helping his patients by relieving their pain, according to their own testimony. Dr. LaRusso agreed to become involved in this case because he found it so incongruous that the Department would be pursuing this action apparently to try to take Dr. Aderholdt’s license. Dr. LaRusso noted that the four investigations against Dr. Aderholdt were originally being spearheaded by a prior prosecutor for the Department (to whom Respondent’s counsel mailed CDs of patient records in 2014), and that the cases were assigned to Dr. Willis, who was a favored expert witness for the Department. Dr. LaRusso alluded to “inappropriate issues” with the prosecutor and expert that led to the Board having to pay a large award of attorneys’ fees and costs for pursuing discipline against Dr. Christian. According to Dr. LaRusso, those issues ultimately led to the prosecutor and expert being discharged from these cases. There is no evidence as to when or why Dr. Willis was replaced with Dr. Shreeve. Dr. Willis apparently was involved long enough to prepare an expert report. But then, according to Dr. LaRusso, the cases went dormant for a long period of time. The bits and pieces of hearsay evidence in the file comport with this understanding: there were four investigations that began upon complaints in 2014 by the four patients about billing and records issues; documents were collected from Respondent and from the patients; and Investigative Reports were issued, all before 2014 was over. It is unknown when Dr. Willis was involved, when he prepared his expert report, or when he was discharged from the cases. It is unknown when Dr. Shreeve was retained, but there was plainly some duplication of work, in that Dr. Shreeve prepared his own expert report. Neither expert report is in evidence. There is no evidence of any additional investigation or follow-up documentation from the patients or otherwise. There is no evidence of what was presented to the PCP--just that the panel met on June 19, 2018, and authorized the four Administrative Complaints issued on June 20, 2018. While this background is a bit of a curiosity, without impermissible speculation, the most that can be said about this history is that the protracted period of time from investigation to the PCP submission that resulted in issuance of the Administrative Complaints is apparently due, at least in large part, to the turnover in the prosecution-expert witness team assignments. Dr. LaRusso did not persuasively demonstrate grounds to cast nefarious aspersions on the Department for continuing forward with its investigation. One might reasonably question whether the Department dropped the ball, so to speak, in not updating its investigation, given the extended period of dormancy. For example, the Administrative Complaint in Case No. 18-4487 incorrectly alleged that P.D. was not reimbursed, when any cursory check with P.D. would have revealed the “news” that she had been repaid in April 2015, more than three years before the Administrative Complaint was authorized by the PCP. Dr. LaRusso may reasonably debate, as he did, whether the charges lodged against Respondent are inappropriate. And Dr. LaRusso may certainly question, as he did in convincing fashion, whether the discipline apparently being sought is unduly harsh, uncalled for, and way out of line with Board practice. But there is no basis in this record for attributing bad motives to the Department for prosecuting the Administrative Complaints. Dr. LaRusso’s opinions regarding the nature of the violations proven and the appropriate discipline in scale with those violations were more persuasive that Dr. Shreeve’s opinions. Dr. LaRusso’s opinions are credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Chiropractic Medicine: In Case No. 18-4484PL: Dismissing Counts I, II, and IV; and Finding that Respondent violated section 460.413(1)(aa), as charged in Count III; In Case No. 18-4485PL: Dismissing Counts I, III, and IV; and Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II; In Case No. 18-4486PL: Dismissing Counts II, III, and IV; and Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II; In Case No. 18-4487PL, dismissing Counts I and II; Placing Respondent on probation for a period of three years, with conditions deemed appropriate by the Board; Imposing a fine of $3,000.00; Requiring continuing education deemed appropriate by the Board; and Requiring payment of the costs of investigation and prosecution of the charges on which violations were found. DONE AND ENTERED this 15th day of February, 2018, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2018.
The Issue The issues in this case are set forth in 11 separate counts within the four consolidated cases: Case No. 09-5360 Count I--Whether Respondent failed to properly monitor and care for a patient in restraints. Count II--Whether Respondent failed to ensure the physician's plan of care for patient was implemented. Case No. 09-5363 Count I--Whether Respondent failed to properly implement the physician's plan of care for patient. Case No. 09-5364 Count I--Whether Respondent failed to ensure a patients' right to privacy. Count II--Whether Respondent failed to ensure that food was served in the prescribed safe temperature zone. Count III--Whether Respondent failed to ensure that only authorized personnel had access to locked areas where medications were stored. Count IV--Whether Respondent failed to perform proper nursing assessments of a patient. Count V--Dismissed. Count VI--Whether Respondent failed to maintain patient care equipment in a safe operating condition. Case No. 09-5365 Count I--Whether Respondent failed to triage a patient with stroke-like symptoms in a timely fashion. Count II--Whether Respondent's nursing staff failed to assess and intervene for patients or ensure implementation of the physician's plan of care.
Findings Of Fact Petitioner is the state agency responsible for, inter alia, monitoring health care facilities in the state to ensure compliance with all governing statutes, rules and regulations. It is the responsibility of AHCA to regularly inspect facilities upon unannounced visits. Often AHCA will inspect facilities for the purpose of licensure renewal, certification, or in conjunction with federal surveys. AHCA will also inspect facilities on the basis of complaints filed by members of the general public. Respondent, Gulf Coast Medical Center ("Gulf Coast" or "GCH") is a hospital within the Lee Memorial Health System. South West Florida Regional Medical Center ("SWF") was another hospital within the Lee Memorial Health System. SWF closed in March 2009, when it was consolidated with Gulf Coast. On October 15, 2008, the Agency conducted a complaint investigation at SWF; a follow-up complaint investigation was done on November 13, 2008. SWF filed and implemented a plan of correction for the issues raised in each of the investigations. The November investigation resulted in an Administrative Complaint containing two counts. On December 16, 2008, AHCA performed another complaint investigation at Gulf Coast. Gulf Coast filed and implemented a plan of correction for the issues raised in the investigation. The investigation resulted in an Administrative Complaint containing one count. On January 5 through 9, 2009, AHCA conducted a routine licensure survey at Gulf Coast. The hospital filed and implemented a plan of correction for the issues raised in the survey. The survey resulted in an Administrative Complaint containing six counts (although Count V was dismissed during the course of the final hearing). On February 18, 2009, AHCA did its follow-up survey to the previous licensure survey. Gulf Coast filed and implemented a plan of correction for the issues raised in the survey. The survey resulted in an Administrative Complaint containing two counts. Case 09-5360 The complaint investigation at SWF on November 13, 2008, was conducted under the supervision of Charlene Fisher. Count I in this case addresses findings by the Agency concerning a patient who was placed in restraints at the hospital on August 28, 2008. The patient, A.D., came into the hospital emergency department under the Baker Act seeking medical clearance to a facility. The patient presented at approximately 4:00 p.m., with back pain. He had a history of drug abuse, so there was concern by the hospital regarding the use of narcotics or certain other medications to treat the patient. The patient engaged in some scuffling with police. A physician signed and dated a four-point restraint (one on each limb) order, resulting in the patient being physically restrained. The restraint was deemed a medical/surgical restraint, rather than a behavioral restraint. AHCA had concerns about the restraint, specifically whether there was a notation for Q 15 (or every 15 minutes) monitoring of the restrained patient. However, medical/surgical restraints only require monitoring every two hours. The restraint worksheet for the patient confirms monitoring every two hours. The patient was ultimately admitted to the hospital at 9:37 p.m., and, thereafter, began complaining of left shoulder pain. The hospital responded to the patient's complaints about back pain and began treating the pain with analgesics. However, the patient continued to complain about the pain. An X-ray of the patient's shoulder was finally done the next morning. Shoulder dislocation was confirmed by the X-ray, and the hospital (four hours later) began a more substantive regimen of treatment for pain. Surgery occurred the following morning, and the shoulder problem was resolved. It is clear the patient had a shoulder injury, but it is unclear as to when that injury became more painful than the back injury with which the patient had initially presented. The evidence is unclear whether or when the shoulder injury became obvious to hospital staff. During its course of treating this patient, the hospital provided Motrin, Tylenol, Morphine, Percocet and other medications to treat the patient's pain. Count II in this case also involved a restrained patient, M.D., who had presented to the emergency department under the Baker Act. The patient was released from handcuffs upon arrival at the hospital. After subsequently fighting with a deputy, this patient was also placed in a medical/surgical restraint pursuant to a physician's order. The doctor signed and dated, but did not put a time on, the restraint order. A time is important because there are monitoring requirements for patients in restraints. However, the time of 0050 (12:50 a.m.) appears on the patient's chart and is the approximate time the restraints were initiated. The proper procedure is to monitor a restrained patient every two hours. This patient, however, was removed from his restraints prior to the end of the first two-hour period. Thus, there are no records of monitoring for the patient (nor would any be necessary). The evidence presented by AHCA was insufficient to establish definitively whether the hospital nursing staff failed to properly respond to the aforementioned patients' needs. It is clear the patients could have received more care, but there is not enough evidence to prove the care provided was inadequate. Case No. 09-5363 On December 16, 2008, AHCA conducted a complaint investigation at SWF. The Agency had received a complaint that the hospital did not properly implement a physician's plan of care. Count I in this complaint addresses alleged errors relating to two of four patients reviewed by the surveyors. Both of the patients came to the hospital from a nursing home. One patient, I.A., had presented to the emergency department complaining of chest pains. The medication list sent to the hospital by the nursing home for I.A. actually belonged to someone other than I.A. I.A.'s name was not on the medication list. The drugs listed on the patient chart were different than the drugs I.A. had been taking at the skilled nursing facility from which she came. The skilled nursing facility actually sent I.A.'s roommate's medication list. The erroneous medications were then ordered by the admitting physician and administered to the patient. The hospital is supposed to review the medication list it receives and then enter the medications into the hospital system. The person reviewing the medication list does not necessarily have to be a nurse, and there is no evidence that the person making the error in this case was a nurse or was some other employee. It is clear, however, that the person reviewing the medication list did not properly ascertain that the list belonged to patient I.A. The other patient from the nursing home had been admitted for surgery at SWF. Again, the nursing home from whence she came sent a medication list that was incorrect. The medications on the incorrect list were entered into the system by a SWF employee. The erroneous medications were ultimately ordered by the attending physician for the patient, but there is no evidence the patient was ever administered those medications. Neither of the residents was harmed by the incorrect medications as far as could be determined. Case 09-5364 From January 5 through 8, 2009, AHCA conducted a licensure survey at Gulf Coast and SWF in conjunction with a federal certification survey. Count I of the complaint resulting from this survey addressed the right of privacy for two residents. In one instance, a patient was observed in her bed with her breasts exposed to plain view. In the other instance, a patient's personal records were found in a "public" place, i.e., hanging on the rail of a hallway in the hospital. AHCA's surveyor, Nancy Furdell, saw a female patient who was apparently asleep lying in her bed. The patient's breasts were exposed as she slept. Furdell observed this fact at approximately 1:15 p.m., on January 7, 2009. Furdell did not see a Posey vest on the patient. She did not know if anyone else saw the exposed breasts. Furdell continued with her survey duties, and at approximately 5:00 p.m., notified a staff member as to what she had seen. Furdell did not attempt to cover the patient or wake the patient to tell her to cover up. The female patient with exposed breasts was in the intensive care unit (ICU) of the hospital. Visiting hours in ICU at that time were 10:00 to 10:30 a.m., and again from 2:00 till 2:30 p.m. Thus, at the time Furdell was present, no outside visitors would have been in the ICU. ICU patients are checked on by nursing staff every half-hour to an hour, depending on their needs. This particular patient would be visited more frequently due to her medical condition. On the day in question, the patient was supposed to be wearing a Posey vest in an effort to stop the patient from removing her tubing. The patient had been agitated and very restless earlier, necessitating the Posey vest. Also on January 7, 2009, a surveyor observed some "papers" rolled up and stuffed inside a hand-rail in the hospital corridor. This occurred at 1:15 p.m., on the fourth floor of the south wing of the hospital. A review of the papers revealed them to be patient records for a patient on that floor. The surveyor could not state at final hearing whether there were hospital personnel in the vicinity of the handrail where she found the patient records, nor could she say how long the patient records had been in the handrail. Rather, the evidence is simply that the records were seen in the handrail and were not in anyone's possession at that moment in time. Count II of the complaint was concerned with the temperature of certain foods being prepared for distribution to patients. Foods for patients are supposed to be kept at certain required temperatures. There is a "danger zone" for foods which starts at 40 degrees Fahrenheit and ends at 141 degrees Fahrenheit. Temperature, along with time, food and environment, is an important factor in preventing contamination of food and the development of bacteria. Surveyor Mary Ruth Pinto took part in the survey. As part of her duties, she asked hospital staff to measure the temperature of foods on the serving line. She found some peaches at 44 degrees, yogurt at 50 degrees, and cranberry juice at 66 degrees Fahrenheit. According to Pinto, the hospital's refrigerator temperatures were appropriate, so it was only food out on the line that was at issue. Pinto remembers talking to the hospital dietary manager and remembers the dietary manager agreeing to destroy the aforementioned food items. The hospital policies and procedures in place on the date of the survey were consistent with the U.S. Food and Drug Administration Food Code concerning the storage, handling and serving of food. The policies acknowledge the danger zone for foods, but allow foods to stay within the danger zone for up to four hours. In the case of the peaches and yogurt, neither had been in the danger zone for very long (not more than two hours). The cranberry juice was "shelf stable," meaning that it could be stored at room temperature. The food services director for the hospital remembers the peaches and yogurt being re-chilled in a chill blaster. She does not believe any of the food was destroyed. Count III of the complaint addressed whether an unauthorized person had access to a room where medications were being stored. A state surveyor, Gary Furdell, was part of the survey team on January 5, 2009. Furdell was touring the second floor of the hospital when he noticed a locked door. Furdell asked a hospital medical technician who was standing nearby about the door. The medical technician gave Furdell the code to unlock the door. Furdell peeked inside and noticed bottles that he presumed were medications. It would be a violation for a medical technician to have access to medications, because medical technicians cannot distribute drugs. The room Furdell looked into is a "mixed use" room located behind a nursing station. A mixed use room is used to store medical supplies, including medications, as long as there is a locked cabinet in the room for that purpose. This particular mixed use room had a locked cabinet. The room is used for the preparation of medications and for other purposes. No narcotics were stored in this particular mixed use room. The room contained locked cabinets used to store other medications. The evidence presented was insufficient to determine what "medications" Furdell may have seen in the room. Count IV of the complaint concerned the nursing assessment of a patient, and whether the assessment was properly and timely performed. A patient, M.S., had been admitted to the hospital on June 18, 2008, for lung surgery. Following the surgery, Amiodarone (a very toxic drug which can cause clots and other complications) was administered to treat M.S. for heart arrhythmia. The Amiodarone was administered intravenously and M.S. developed blisters and irritation at the intravenous site. That is not an uncommon complication with Amiodarone. M.S.'s attending physician was notified about the irritation and prescribed a treatment. He also ordered a consult with an infectious disease specialist who ultimately changed M.S.'s antibiotics. Although M.S. was seen daily by her physicians, the nursing notes do not reflect the assessment and treatment of her blisters. It appears that proper care was rendered, but the care was not documented properly. Another patient was admitted to the hospital on December 15, 2008, with End Stage Renal Disease and diabetes mellitus for which she began dialysis treatment. The patient was not weighed before and after a particular dialysis treatment on January 5, 2009. However, the patient had been moved to an air mattress bed on that date for comfort. The air mattress bed did not allow for a weight to be taken as it could be on a regular bed. There is an allegation in the Administrative Complaint concerning the discontinuation of the calorie count for a patient. This issue was not discussed in AHCA's Proposed Recommended Order, nor was sufficient evidence of any wrong- doing concerning this matter presented at final hearing. During the survey, the hospital was found to be storing the medication Mannitol in blanket warmers, rather than in warmers specifically designed for the drug. The blanket warmers maintained the Mannitol at 100-to-110 degrees Fahrenheit. The manufacturer's label on the drug calls for it to be dispensed (injected) at between 86 and 98.5 degrees Fahrenheit. In order to meet this requirement, the hospital takes the drug out of the blanket warmer in time for it to cool sufficiently before it is injected. There is nothing inherently wrong with using a blanket warmer to store Mannitol. On January 5, 2009, a surveyor found two vials of Thrombin, one vial of half-percent Lidocaine and Epi, and one vial of Bacitracin in operating room No. 4. The operating room is within the secured and locked suite of surgical rooms on the second floor. Two of the vials had syringes stuck in them and one of them was spiked. Whoever had mixed the medications was not attending to them at the time the surveyor made her observation. There were two unlicensed technicians in the room preparing for the next surgery. A registered nurse anesthetist was present as well. There was no identifying patient information on the medications. The hospital's policies and procedures do not require the patient's name to be on the label of medications prepared for impending surgery. That is because the procedures for the operating room include a process for ensuring that only the correct patient can be in the designated operating room. There is a fail-safe process for ensuring that only the proper patient can receive the medications that are set out. At around 2:45 p.m. on January 5, 2009, there were patient records in the emergency department showing that several drugs had been administered to a patient. The surveyor did not see a written order signed by a physician authorizing the drugs. When the surveyor returned the next morning, the order had been signed by the physician. The hospital policy is that such orders may be carried out in the emergency department without a doctor's signature, but that a physician must sign the order before the end of their shift. AHCA cannot say whether the physician signed the order at the end of his shift or early the next day. Count V of the complaint was voluntarily dismissed by the Agency. Count VI of the complaint concerned the status of certain patient care equipment, and whether such equipment was being maintained in a safe operating condition. A patient was weighed at the hospital upon admission on December 27, 2008, and found to weigh 130 pounds using a bed scale. Six days later, on January 2, 2009, the patient's weight was recorded as 134 pounds. Two days later, in the same unit, the patient weighed 147 pounds and the next day was recorded as weighing 166 pounds. During the survey process, the patient was weighed and recorded at 123 pounds on a chair scale. The hospital does not dispute the weights which were recorded, but suggests there are many factors other than calibration of the equipment that could explain the discrepant weights. For example, the AHCA surveyor could not say whether the patient sometimes had necessary medical equipment on his bed while being weighed, whether different beds were involved, or whether any other factors existed. AHCA relies solely on the weight records of this single patient to conclude that the hospital scales were inaccurate. Case No. 09-5365 On February 18, 2009, AHCA conducted a licensure survey at Gulf Coast. Count I of the complaint from this survey concerned the timeliness of triage for a patient who presented at the hospital emergency department with stroke-like symptoms. AHCA surveyors witnessed two patients on stretchers in the ambulance entrance hallway leading to the emergency department. Each of the two patients had been brought in by a separate emergency medical service (EMS) team and was awaiting triage. One patient was taken to an emergency department room (ER room) 50 minutes after his/her arrival at the hospital. The other patient waited 45 minutes after arrival before being admitted to an ER room. Meanwhile, a third patient arrived at 2:20 p.m., and was awaiting triage 25 minutes later. During their observation, the surveyors saw several nursing staff in the desk area of the emergency department, i.e., they did not appear to be performing triage duties. The emergency department on that date was quite busy. That is not unusual during February, as census tends to rise during the winter months due to the influx of seasonal residents. A summary of the action within the emergency department from 1:00 p.m. to 3:00 p.m., on the day of the survey shows the following: Patient L.G., 74 years old with stable vital signs, was radioed in by her EMS team at 1:08; L.G. was processed into the ER at 1:21 (which is not an unreasonable time; EMS teams call in when they arrive at or near the hospital. By the time they gain access, wait their turn if multiple ambulances are present, and get the patient inside, several minutes may lapse). L.G. was stabilized and quickly reviewed by ER staff, then officially triaged at 2:04. Patient H.M., an 89-year-old male residing in a nursing home, arrived at 1:20 and was processed in at 1:59. He was triaged at 2:01, but ultimately signed out of the hospital against medical advice. Patient E.M. arrived at 2:18 and was processed at 2:25. Triage occurred one minute later. This patient presented as a stroke alert, and hospital protocol for that type patient was followed. Patient C.J. arrived at 1:08 and was processed at 2:38. Triage occurred immediately after C.J. was processed. This patient was not stroke alert, but had some stroke-like symptoms.1 C.J. had not been transported to the hospital as emergent, because the symptoms had been going on for 24 hours. Patient W.M., an auto accident victim, arrived at 1:40 and was processed at 1:49. Triage occurred within six minutes. Patient M.M., W.M.'s wife (who had been with M.M. in the automobile accident, but was placed in a separate ambulance), arrived at 2:06 and was triaged at 2:34. There is no record of when M.M. was processed. Patient L.M. came to the hospital from a nursing home. She arrived at 1:43 and was processed at 2:35. L.M. was triaged at 2:37. Patient K.M. arrived at 2:45 and was processed within three minutes. Triage occurred at 2:52. Her triage was done very quickly due to the condition in which she arrived, i.e., shortness of breath and low oxygen saturation. Patient R.S. arrived at 1:00 and was triaged at 1:15. The aforementioned patients represent the patients presenting to the emergency department by ambulance during a two-hour period on a very busy day. It is the customary procedure for ER staff to make a quick visual review (rapid triage) of patients as they come into the hospital. Those with obvious distress or life-threatening conditions are officially triaged first. Others, as long as they are stable, are allowed to wait until staff is available for them. As part of their duties, nurses necessarily have to be in the desk area (nursing station) in order to field phone calls from physicians concerning treatment of the patients who present. It is not unusual or improper for nurses to be in the nursing station while residents are waiting in the processing area. It is clear that some patients waited a much longer time for triage than others. However, without a complete record of all patients who presented that day and a complete review of each of their conditions, it is impossible to say whether the hospital was dilatory in triaging any of them. Count II of the complaint addressed the nursing staff and whether it failed to assess and intervene in the care of a patient or failed to implement a physician's plan of care for the patient. Patient D.W. was a 67-year-old female who was morbidly obese, diabetic, debilitated, had end stage renal disease, and was receiving dialysis. Upon admission, D.W. had a Stage 3 pressure ulcer to her sacrum and a Stage 4 ulcer on her left calf. A wound care protocol was initiated immediately, and a Clinitron bed was obtained for her on the day of admission. Due to the seriousness of her condition, the wound care physician declined to accept her case at first. He later ordered Panafil, and it became part of the protocol for treating the patient. The nursing documentation for D.W. was only minimally sufficient, but it does indicate that care was provided. Patient R.H. was an 83-year-old male who presented on February 10, 2009, in critical condition. R.H. was suffering from congestive heart failure, pneumonia, and respiratory failure. Due to the critical nature of his respiratory problems, R.H. was placed on a ventilator. As a ventilator patient, he did not fit the profile for obtaining wound care. Nonetheless, the hospital implemented various other measures to deal with R.H.'s pressure wounds.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Agency for Health Care Administration, imposing a fine in the amount of $500.00 in DOAH Case No. 09-5363 and a fine in the amount of $500.00 in DOAH Case No. 09-5364, Count VI. DONE AND ENTERED this 30th day of April, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2010.
The Issue The issue for consideration was whether the Respondent's license as a physician in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Moheb Ishad Girgis El-Far was licensed as a physician in Florida under license number ME 0026895, and the Board of Medicine was the state agency responsible for the licensing and monitoring of physicians in this state. At all times pertinent to the issues herein, Respondent practiced medicine with a specialty in obstetrics at his clinic located a 401 East Olympic Avenue, Punta Gorda, Florida. Patient 2, C.L., first went to see Respondent at his office in Punta Gorda in January, 1989 because she was pregnant and had heard he was delivering babies in his office. She was referred to the Respondent by the Sarasota Health Department when she indicated she wanted to have her child in a birthing center. During that first visit, the doctor and patient agreed on a treatment plan which would culminate with the baby's being delivered in his office and C.L. paid for this pursuant to their agreement. During the period of the patient's prenatal care with the Respondent, he told her her baby was due on August 30, 1987, and when labor began, she was to come to his office and bring her own sheets. On August 24, 1987, C.L. began her labor and went to Respondent's office as agreed. By the time she got there, she was about ready to deliver and a few minutes after her arrival, she did so in a birthing room with her husband present. At the time of the delivery, both Respondent's wife and Ms. L.'s boss, neither of whom played any part in the proceedings, were standing in the doorway to the birthing room. No nurse was present and C.L. cannot recall seeing any sterilization or resuscitation equipment in the room. C.L. experienced little pain during the delivery, which appeared to go smoothly. Afterwards however, Respondent told her she had sustained an inverted uterus and when Respondent attempted to remove the afterbirth, she started to hemorrhage. When this happened, Respondent gave her a shot and towels with which she was to try to stem the bleeding while he tried to correct the uterine problem. He was unsuccessful and thereafter called the paramedics who came to his office and took C.L. to St. Joseph's Hospital in Punta Gorda for treatment. Respondent did not treat her at the hospital because he had no hospital privileges. While there she required 6 units of blood and 2 units of plasma. At no time during the course of her prenatal care did Respondent advise her to go to the hospital. She fully recovered. C.L. was shown pictures of Respondent's office taken by Department investigators at some time subsequent to her delivery. With the exception of the fetal monitor which she had seen in his office, the pictures she saw bore little similarity to the condition of the office whenever she was there. Though the office was not as messy as the pictures show, she was, nonetheless concerned about its condition at the time of her delivery. The carpet was dirty and so was the aquarium. She could not do anything about it at that time, however, and it was not so bad as to cause her to feel unsafe. S.K., Patient 1, first went to the Respondent for her pregnancy care in November, 1987 on a referral from a friend. They agreed on a fee of $1600.00 for prenatal care and delivery in his office. During these initial discussions, Respondent did not discuss in detail with the patient the possibility of complications. He stated only that if there were complications, they could probably be treated in the office. S.K. went to Respondent's office about 6 times after that initial visit. During this period, on an early visit, Respondent gave her some medicine samples and a prescription for vitamins. When she asked about the cost, he said he would include the cost of the samples when he billed her insurance company. During these visits, she also saw his personal office, an examining room, and a small room where the patient's blood pressure was taken. She noted that the office was not as clean and orderly as others she had seen, and in fact, was usually in a state of disarray. On one occasion when Respondent examined her, he was wearing a wrinkled shirt with a blood spot on it. The next time she went for a visit, Respondent was wearing the same shirt. S.K. was shown pictures of Respondent's office taken by investigators and several were similar to conditions she observed there. His personal office was not well organized and there was clutter about but not as aggravated as appears in the photos. Based on her experience with other doctors, Respondent's office was far more untidy and in disarray but not necessarily nonsterile or unsafe. On February 5, 1988, S.K. went to Respondent's office because she was having pains and thought she was in labor. When she called him and explained her symptoms, he told her to come in and he examined her when she did. He gave her something to calm her and to try to stop her labor in an attempt to save her baby. He gave her a shot of demerol and put her in an examining room to lie down. She slept there for quite a while with her husband present. When she awoke she again began to have pains but Respondent would not give her any more medicine. After a while, the baby spontaneously delivered while Respondent was sleeping in another room. He was called but by the time he came in, the baby was dead. He asked S.K. if she wanted to see the fetus but she declined. After a period of recovery, she was released to return home. When this patient came into the office that day and it appeared she was going to deliver, her husband asked Respondent if he thought she should be in the hospital. Respondent replied that it was up to her because the baby, if delivered, was too premature to survive. The decision not to go to the hospital was hers. Respondent did not try to dissuade her from going. In fact, in most ways she considered Respondent's treatment of her to have been satisfactory. During the period she was in his office Respondent was in and out of the room checking on her. The only complaint she has relates to his handling of the fetus she delivered. About 2 weeks after delivery she again went to see Respondent at his office where he showed her her baby which he had preserved in a jar of formaldehyde. This was a strange and sad experience for her. Mr. K. basically confirms that testified to by his wife. While she was in labor or sleeping prior to the delivery, he wandered about the building into other parts of the clinic. He also rested in one of the examining or birthing rooms and observed the general state of cleanliness of the facility was poor. For example, the floor and rugs were spotted throughout with a dark stain and the examining table also had a dark stain on it. These stains looked to him like blood. In addition, the hallway carpets were dirty, there were bags off debris laying out, spare pieces of wood were stacked in the halls, and medical instruments were left out in the birthing and examining rooms. In his opinion, many of the pictures shown to him displayed scenes similar to what he saw when he was there with his wife. Both Dr. Borris and Dr. Marley agreed that Respondent's treatment of Ms. K. had no relationship to her miscarriage. By the same token, neither claims that his treatment of Ms. L.'s inverted uterus was inappropriate. Both agree, however, that other factors in Dr. El Far's operation of his practice as regards both patients failed to conform to generally accepted standards of care in providing obstetrical services. Specifically, he failed to have a nurse present during the delivery; he failed to have emergency equipment in the form of resuscitative and lifesaving equipment available to handle potential surgical complications which might have arisen; he had no emergency backup care available; and he had no hospital privileges in Punta Gorda, the area in which he was engaged in an obstetrical practice. Without those privileges, it was not prudent for him to undertake a delivery in the office. While the prenatal care of patient 1 was within standards, the balance of Respondent's practice was below standards because: the patient was not monitored while in the office; if the conditions as appearing in the pictures existed at the time he was seeing patients, he did not meet sanitation standards because of the general disarray.; he attempted a delivery in his office when a hospital was only 1.5 miles away, (not prudent in light of the patient's condition when there was no emergency to justify it); and his records were not complete. The standard of a reasonably prudent physician is the same regardless of the locality. Acceding to the wishes of a patient, when to do so is not in the patient's best interests, is not necessarily acceptable medical care. Mr. Cook, the Department's investigator, inspected Respondent's office on September 16, 1988, in the company of investigator Clyne, as a result of a call he received from an agent of the Florida Department of Law Enforcement who was then on the premises. When they arrived, they observed a female sitting on the couch in the waiting room changing a baby's diaper. From conversation he had with Respondent at the time, Mr. Cook inferred the lady was a patient. In addition to the previously mentioned lady and the state investigative personnel, Cook also noticed two children, who Respondent indicated were his, running freely about throughout the building. Cook examined the patient log maintained by Respondent for that day and noted that two patients were scheduled. Nonetheless, while he was there, there were no nurses, receptionists or office staff present. Though Respondent claims he did not have any patients that day, and though Cook did not see any other than the lady aforementioned, from the patient log and the fact that at least one patient was there, it is found that Respondent was engaged in at least a minimum practice and was available to see patients. Mr. Cook observed conditions in Respondent's office on the day in question that were inconsistent with a proper medical practice. Trash was not contained, food was left open, and dust and dirt were in evidence, all in the area where medical services were or would be rendered. Mr. Cook took photos and a video tape of the condition of Respondent's office. The photos were those shown to the two patients who testified herein and to Mr. K. Though he looked throughout the office, Mr. Cook could find no sterilization equipment, no general anesthesia equipment, no blood transfusion equipment, and no emergency resuscitation equipment. When asked about his sterilization capability, Respondent stated his "heater" was broken and in for repairs. When during a visit to Respondent in October, 1988, Ms. Clyne told him he needed sterilizer equipment, he indicated it had recently been purchased. On that visit, Respondent had a patient in the office. Ms. Clyne again went to Respondent's office on February 15, 1989 and observed it to be still in a state of disarray. Ms. Hampton, another Department investigator, visited with Respondent in his office on January 11, 1989 and found it to be unsatisfactory. The waiting area was cluttered, the carpet was dirty, the walls stained, and magazines were laying around. The clinic area was piled up with mail leaving no counter space. Respondent took Ms. Hampton on a tour through the office during which she observed the computer, patient records, and the typewriter to be unclean. Her examination of the halls, examining rooms, birthing rooms, and the like revealed that in one room, a sink had an unclean speculum in it and others were lying about. The paper on one examining table was soiled and when Respondent saw that, he quickly tore it off. The spread in one of the birthing rooms was soiled and the floor needed sweeping. Trash cans were not lined and needed cleaning. The covering on the baby examining table was soiled and there were bloody cotton balls on a table in the room. She, too, saw no evidence of any sterilization, anesthesia, or emergency resuscitation equipment. On this visit, Respondent indicated he was not seeing any new patients; only those former patients who were still pregnant. Respondent indicates that during the period from July 4 through September 16, 1988 he had closed up his office for an extensive vacation and was living in his office on that latter date. He does not deny that his office was in the condition as depicted in the photos when they were made but contends he has since cleaned it up and put new carpet down. During the period his office was closed, he referred his patients to other doctors and has not been actively practicing while waiting for his malpractice insurance to come through. Respondent also does not deny that the Certificate of Education form he signed and submitted to the Board was in error. He contends, however, that at the time he signed it he believed it to be a certificate of regular continuing education hours, not a certification used for approval for dispensing drugs. He also claims that at no time did he intend to defraud the Board, and when Ms. Clyne brought the error to his attention, he wrote to the Board explaining what had happened. He contends that when he affirmed the statement that he had the appropriate hours, he considered the "a" in "affirm" to be a negative prefix indicating he did not have the required hours. This contention is both ingenuous and unbelievable. It is found that Respondent well knew the meaning and effect of the certification he signed and his affixing his signature thereto was both false and with intent to mislead.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice medicine in Florida be suspended for two years and that he thereafter be placed on probation for an additional period of three years under such terms and conditions as are imposed by the Board of Medicine. RECOMMENDED this 30th day of October, 1989, 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 30th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1507 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Fact submitted by the parties to this case. For the Petitioner: 1.- 3. Accepted and incorporated herein. Accepted and incorporated herein. Rejected in so far as it editorializes on the condition of the clinic. While below standard, there was no evidence of health hazard to patients. 6.-8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein Accepted and incorporated herein. Accepted. & 18. Accepted and incorporated herein. 19. Accepted. For the Respondent: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of expert testimony. Rejected as contra to the weight of the evidence. Accepted in so far as it finds that Respondent's performance of medical procedures was within standard. Rejected as to the finding that overall care and practice was within standards. Accepted. COPIES FURNISHED: Larry G. McPherson, Jr., Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 David K. Oaks, Esquire The Professional Center 201 West Marion Avenue Suite 205, Box 3288 Punta Gorda, Florida 33950 Kenneth E. Easley General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine DPRB 1940 North Monroe Street Tallahassee, Florida 32399-0792
