The Issue What administrative sanction should be imposed on the participation of Robert J. Meek, D.O., (Respondent), in the Florida Medicaid program.
Findings Of Fact Petitioner is the agency of the State of Florida charged with the responsibility of administering the Florida Medicaid program. At all times relevant to this proceeding, Respondent has been a provider with the Florida Medicaid program and has had a Medicaid provider number that was issued pursuant to a Medicaid Provider Agreement with Petitioner. "Medicaid" is the medical assistance program authorized by Title XIX of the Social Security Act, 42 U.S.C. §§ 1396 et seq., and regulations thereunder. Respondent holds a doctor of osteopathic medicine degree and was licensed to practice medicine in Florida, Virginia, and Ohio. Because of his criminal conviction, which will be discussed below, his license to practice medicine in Ohio has been revoked and the licenses issued by Virginia and Florida have been suspended. At the time of the formal hearing, Respondent was incarcerated in a federal prison and his license to practice medicine in Florida was suspended. Respondent’s testimony at the formal hearing was taken by telephone. Respondent first became licensed in Florida in 2005. After completing a residency in proctologic surgery, Respondent worked at Colorectal and GI Specialists of South Florida from July 2006 until February 2007. Respondent then worked at The Hemorrhoid Relief Center from April 2007 through June 2009. Respondent practiced proctology five days a week during those periods. In addition to his regular jobs, from the fall of 2007 through the summer of 2009, Respondent worked some weekends at Physicians Immediate Care. Prior to May 2009, Respondent had no background, experience, or training in pain management. Between the middle of May 2009 until the end of February 2010, Respondent worked between one and three days a week at Executive Pain Clinic in Palm Beach County, purportedly in the practice area of pain management. Respondent’s employment at Executive Pain Clinic led to the federal grand jury indictment, dated August 12, 2011, against Respondent and 30 other defendants for multiple charges. Succinctly stated, Executive Pain Clinic was a pill mill. Among the charges brought against Respondent were a count for conspiracy to unlawfully distribute and dispense and possess with intent to distribute a controlled substance in violation of the Controlled Substance Act and a count for conspiracy to commit money laundering. The federal grand jury indictment was related to Respondent’s practice of medicine at Executive Pain Clinic.2/ Of the 31 persons named in the indictment, 13 were licensed to practice medicine in Florida. Of those 13 doctors, 11, including Respondent, entered into a plea agreement to resolve the charges. By his plea agreement, Respondent pled guilty to conspiracy to commit money laundering in exchange for the United States agreeing to dismiss the other charges against him. As part of the plea agreement, Respondent agreed to testify on behalf of the United States in its prosecution of the two medical doctors who were charged by the indictment, but who refused to enter into a plea agreement to resolve the charges. As of the formal hearing, Respondent had so testified, thereby satisfying his obligation under the plea agreement. In addition to the plea agreement, Respondent entered into a "Stipulated Statement of Facts," (Petitioner's Exhibit 4) which contained the following, which are hereby adopted by the undersigned as findings of fact: Had this case proceeded to trial, the government would have presented evidence by way of witness testimony, Court authorized wire interceptions of coconspirators and documentary evidence. The evidence would establish that the defendant was a physician licensed to practice medicine in Florida and maintained a Drug Enforcement Administration registration number which enabled him to order and purchase Schedule II-V controlled substances. The evidence would establish that from in or about 2009 through in or about April 2010, the defendant conspired and agreed with coconspirators to receive monetary compensation from Executive Pain clinic [sic] and to deposit such monetary compensation into a financial institution. The monetary compensation was the proceeds of specific unlawful activity, that is, the illegal distribution of oxycodone pills, a Schedule II controlled substance. The defendant and conspirators [sic] participated in the operation of illegal "pill mills" wherein individuals seeking controlled substances paid for examinations by the defendant and coconspirator physicians based upon alleged complaints of pain. The defendant and coconspirator physicians illegally prescribed large quantities of oxycodone, 30 mg. pills and other controlled substances without a legitimate medical purpose and outside the usual course of professional practice. The defendant and coconspirator physicians prescribed controlled substances without reviewing prior medical records, referring individuals to medical specialists, or recommending alternative treatment modalities. The defendant and coconspirator physicians prescribed a predetermined "cocktail" of controlled substances which contained oxycodone 30 mg. and 15 mg. xanax and/or soma. No individualized or particularization of treatment of care was used, other than to vary the quantity of drugs prescribed in the "cocktail." The evidence established that the pain management clinics wherein the defendant and coconspirator physicians were employed were, in fact, facilities used for the illegal distribution of controlled substances. The defendant and coconspirators engaged in the above-described criminal conduct for a profit motive. The monetary compensation received by the defendant had a value of more than $10,000. During Respondent’s tenure at Executive Pain Clinic, approximately 628,200 dosage units of oxycodone were ordered under his name. Respondent was assigned a large safe at Executive Pain Clinic, in which the dosage units were deposited. Many of the prescriptions written at Executive Pain Clinic were filled on-site. Patients paid cash for the prescriptions filled at Executive Pain Clinic. Respondent was not paid by Medicaid for his work at Executive Pain Clinic. Executive Pain Clinic was not a Medicaid provider. Respondent saw an average of 40 patients per day at Executive Pain Clinic, spending as few as five minutes with some before prescribing pain medication. A very high percentage of those patients left with a prescription for a controlled substance. Respondent prescribed large quantities of oxycodone or other controlled substances in complete disregard to whether the patient was or was not a Medicaid recipient and without knowing whether Medicaid would pay for the prescription. Respondent was not qualified to practice pain management when he practiced at Executive Pain Clinic, and he practiced beyond the scope of his expertise. Respondent testified that in the month of August 2009, he began to question the legality of what he was doing at Executive Pain Clinic. Nevertheless, he did not leave that employment until the end of the following February. As a result of his plea, Respondent was sentenced to be incarcerated for a period of 66 months. As reflected by the plea agreement, that sentence may be adjusted following Respondent’s cooperation in testifying against two of his codefendants. On April 20, 2012, the Florida Department of Health (DOH) filed an Administrative Complaint before the Board of Osteopathic Medicine against Respondent alleging certain facts pertaining to his plea in the federal proceeding. DOH designated that Administrative Complaint as Case No. 2011-15165. The Administrative Complaint alleged that Respondent pled guilty to a crime that "relates to the practice of, or the ability to practice, osteopathic medicine." Respondent did not challenge the factual allegations of the Administrative Complaint. On March 5, 2013, the Board of Osteopathic Medicine entered a Final Order in Case No. 2011-15165. The Final Order found Respondent guilty of the alleged violations, reprimanded his license, administered a fine in the amount of $5,000, restricted his practice, and suspended his license for a period of six years. The Final Order found as a mitigating factor that Respondent had provided free medical services to the underserved community. The restriction on his practice, as set forth in the Final Order under the heading "Permanent Practice Restriction," is as follows: Respondent shall not own, operate, or work in a Pain Management Clinic as defined by Section 459.0137, Florida Statutes. Further, Respondent is permanently restricted from prescribing or dispensing any schedule II controlled substance as defined by Chapter 893, Florida Statutes. The suspension of his license, as set forth in the Final Order under the heading "Suspension," is as follows: Respondent’s license to practice osteopathic medicine in the State of Florida is hereby suspended for a period of six (6) years and until such time as he appears before the Board and can demonstrate that he is clinically safe to practice osteopathic medicine by: 1) submitting evaluations by either the University of Florida CARES program; the Center for Personalized Education for Physicians (CPEP) clinical assessment, or by other Board-approved equivalent, and comply with the prerequisite recommendations of the evaluation. The Board reserves jurisdiction to set terms and conditions, including probation, at the time of reinstatement; or 2) be accepted into and practice only in a residency program and appear before the Board after successful completion of the residency program. The Board reserves jurisdiction to set terms and conditions, including probation, at the time Respondent appears before the Board. Respondent worked part-time at East West Physicians in Broward County from June 2009 to October 2010. Although Respondent prescribed pain medication while employed at East West Physicians, there was no evidence that East West Physicians was a pill mill. Respondent worked at Palm Beach Wellness and Rejuvenation after federal authorities closed Executive Pain Clinic. Respondent testified, credibly, that he worked at Palm Beach Wellness and Rejuvenation for 22 days over a period of five and one-half months. Palm Beach Wellness and Rejuvenation was a pill mill. On September 20, 2011, prior to the Administrative Complaint involving the federal proceeding, DOH filed an Administrative Complaint before the Board of Osteopathic Medicine against Respondent alleging certain facts pertaining to his practice at Palm Beach Wellness and Rejuvenation. DOH designated that Administrative Complaint as Case No. 2011-02478. Respondent did not challenge the factual allegations of the Administrative Complaint. On March 14, 2012, the Board of Osteopathic Medicine entered a Final Order that contained the following under the heading "FINDINGS OF FACT": The allegations of fact set forth in the Administrative Complaint are approved, adopted, and incorporated herein by reference as the findings of fact of the Board. There is competent, substantial evidence to support the Board’s findings and conclusions. The Final Order imposed against Respondent an administrative fine in the amount of $10,000.00; ordered him not to own, operate, or work in a pain management clinic; and suspended his license to practice for a period of one year. The Administrative Complaint in Case No. 2011-024783/ included the following factual allegations in paragraphs 5-76, which were incorporated in DOH's Final Order as findings of fact: At all times material to this Complaint, the Respondent was a dispensing practitioner. At all times material to this Complaint, the Respondent was practicing at Total Medical Express of Boca Raton, which was also known as Palm Beach Pain and Rejuvenation (clinic). The Respondent was practicing pain management while he was at the clinic. The Respondent prescribed controlled substances such as Ambien, Ativan, Flexeril, Lisinopril, oxycodone (also known as Roxicodone), Percocet, Valium and Xanax to his patients. Ambien is the brand name for zolpidem, which is prescribed to treat insomnia. According to Title 21, Section [sic] 1308.14, Code of Federal Regulations, zolpidem is a Schedule IV controlled substance. Zolpidem can cause dependence and is subject to abuse. Ativan is the brand name for lorazepam, which is a benzodiazepine, and is prescribed to treat anxiety. Lorazepam can decrease mental alertness and affect judgment. According to Section [sic] 893.03(4), Florida Statutes, lorazepam is a Schedule IV controlled substance that has a low potential for abuse relative to the substances in Schedule III and has a currently accepted medical use in treatment in the United States. Abuse of lorazepam may lead to limited physical or psychological dependence relative the substances in Schedule III. Flexeril is the brand name for cyclobenzaprine hydrochloride. Flexeril is prescribed as an adjunct to rest and physical therapy for relief of muscle spasms associated with acute, painful musculoskeletal conditions. Flexeril is not a scheduled drug. Lisinopril is the brand name for a drug of the same name. Lisinopril is prescribed to treat hypertension. Lisinopril is not a scheduled drug. Oxycodone is an opioid commonly prescribed to treat pain. According to Section [sic] 893.03(2), Florida Statutes, oxycodone is a Schedule II controlled substance that has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Abuse of oxycodone may lead to severe psychological or physical dependence. Opiate, or opioid, drugs have similar actions as the drug opium and are typically prescribed to treat pain. Opioid drugs are synthetically manufactured, while opiate drugs are naturally occurring, but the terms opioid and opiate are often used interchangeably. Opioid drugs are addictive and subject to abuse. Percocet is the brand name for a drug that contains oxycodone and is prescribed to treat pain. According to Section [sic] 893.03(2), Florida Statutes, oxycodone is a Schedule II controlled substance that has a high potential for abuse and has a currently accepted but severely restricted use in treatment in the United States. Abuse of oxycodone may lead to severe psychological or physical dependence. Roxicodone is the brand name for an immediate release formulation of oxycodone. Valium is the brand name for diazepam and is prescribed to treat anxiety. According to Section [sic] 893.03(4), Florida Statutes, diazepam is a Schedule IV controlled substance that has a low potential for abuse relative to the substances in Schedule III and has a currently accepted medical use in treatment in the United States. Abuse of diazepam may lead to limited physical or psychological dependence relative to the substances in Schedule III. Xanax is the brand name for alprazolam and is prescribed to treat anxiety. According to Section [sic] 893.03(4), Florida Statutes, alprazolam is a Schedule IV controlled substance that has a low potential for abuse relative to the substances in Schedule III and has a currently accepted medical use treatment in the United States. Abuse of alprazolam may lead to limited physical or psychological dependence relative to the substances in Schedule III. Facts Specific to Patient J.W. J.W. was a resident of Irvine, Kentucky. On or about February 24, 2010, J.W. presented to the clinic for the first time with complaints of lower back pain. On or about March 26, 2010, the Respondent saw J.W. and diagnosed him with lower back pain, lumbar spine stenosis, lumbar disk displacement, and chronic pain secondary to trauma. On or about March 26, 2010, the Respondent prescribed 180 tablets of Roxicodone 30 mg, 90 tablets of Roxicodone 15 mg, and 60 tablets of Xanax 1 mg to the patient. People who travel from out-of-state to Florida for pain management are associated with aberrant drug behavior, such as drug abuse or diversion, and are considered high risk patients. The Respondent did not evaluate the patient for drug abuse or drug diversion despite the fact that the patient was from Kentucky. The Respondent inappropriately prescribed multiple immediate release opioids to treat J.W. The Respondent placed J.W. at risk of a drug overdose by prescribing multiple release opioids in conjunction with a benzodiazepine. Facts Specific to Patient W.T. W.T. was a resident of Louisa, Kentucky. On or about January 25, 2010, W.T. presented to the clinic for the first time with complaints of lower back and left shoulder pain. On or about March 25, 2010, W.T. presented to the Respondent, who diagnosed the patient with lower back pain, lumbar disk displacement, chronic pain, and pain in the left shoulder. On or about March 25, 2010, the Respondent failed to perform an adequate physical examination of the patient, or the Respondent failed to document that he performed an adequate physical examination. On or about March 25, 2010, the Respondent failed to offer the patient pain management techniques other than stretching. On or about March 25, 2010, the Respondent prescribed 180 tablets of Roxicodone 30 mg, 90 tablets of Roxicodone 15 mg, and 60 tablets of Xanax 2 mg to the patient. The Respondent inappropriately prescribed multiple immediate release opioids to W.T. The Respondent put W.T. at risk of a drug overdose by prescribing multiple immediate release opioids in conjunction with a benzodiazepine. People who travel from out-of-state to Florida for pain management treatment are associated with aberrant drug behavior, such as drug abuse or diversion, and are considered high risk patients. The Respondent did not evaluate the patient for drug abuse or drug diversion despite the fact that the patient was from Kentucky. Facts Specific to Patient M.P M.P. was a resident of Hancock, Maine. On or about December 30, 2009, M.P. presented to the clinic for the first time with complaints of lower back pain. On or about December 30, 2009, the patient tested positive for tetrahydrocannabinols (THC). THC is the psychoactive ingredients in marijuana, or cannabis. According to Section [sic] 893.03(1), Florida Statutes, THC is a Schedule I controlled substance that has a high potential for abuse and has no currently accepted medical use in treatment in Florida. Its use under medical supervision does not meet accepted safety standards. THC is a central nervous system depressant. On or about March 26, 2010, M.P. presented to the Respondent, who diagnosed the patient with lumbar disk degeneration, chronic lower back pain, degenerative disk disease of the lumbar spine and lumbosacral root lesions. On or about March 26, 2010, the Respondent failed to perform a physical examination of the patient or the Respondent failed to document that he had performed a physical examination of the patient. On or about March 26, 2010, the Respondent prescribed 60 tablets of Valium 10 mg, 30 tablets of Lisinopril 20 mg, 30 tablets of Flexeril 10 mg, 180 tablets of Roxicodone 30 mg, and 60 tablets of Roxicodone 15 mg to the patient. The Respondent inappropriately prescribed multiple immediate release opioids to the patient. The Respondent put the patient at risk of an overdose by prescribing a benzodiazepine and opioids. The Respondent compounded the patient’s risk of an overdose by prescribing Flexeril in addition of a benzodiazepine and opioids. On or about March 26, 2010, the patient tested positive for THC again. The Respondent did not send the patient’s sample out to a laboratory for confirmation to verify that the patient had been positive for THC. The Respondent failed to address the patient’s use of illegal substances in the medical records. The Respondent put the patient at high risk for a drug overdose by prescribing 60 tablets of Valium 10 mg, 30 tablets of Lisinopril 20 mg, 30 tablets of Flexeril 10 mg, 180 tablets of Roxicodone 30 mg, and 60 tablets of Roxicodone 15 mg to the patient while the patient was taking THC. People who travel from out-of-state to Florida for pain management treatment are associated with aberrant drug behavior, such as drug abuse or diversion, and are considered high risk patients. The Respondent did not evaluate the patient for drug abuse or drug diversion despite the fact that the patient was from Maine. Facts Specific to Patient D.S.1 D.S.1 was a resident of Florida, and lived approximately 130 miles away from the clinic. D.S.1 first presented to the clinic on or about March 2, 2010, with a primary complaint of upper, middle and lower back pain and shoulder pain. On or about April 1, 2010, D.S.1 presented to the Respondent, who diagnosed the patient with cervical, thoracic and lumber disk degeneration, lumbar root lesions, chronic pain and muscle spasms. On or about April 1, 2010, the Respondent prescribed 30 tablets of Flexeril 10 mg, 180 tablets of Roxicodone 30 mg and 60 tablets of Roxicodone 15 mg to the patient. The Respondent inappropriately prescribed the patient two immediate release opioids. Facts Specific to Patient D.S.2 Patient D.S.2 was a resident of Middlesboro, Kentucky. On or about March 11, 2010, D.S.2 presented to the clinic for the first time with complaints of lower back pain. On or about April 8, 2010, D.S.2 presented to the Respondent, who diagnosed the patient with thoracic and lumbar disk displacement, chronic lower back pain, degenerative disk disease and lumbar and thoracic spinal stenosis. On or about April 8, 2010, the Respondent prescribed 30 tablets of Ativan 2 mg, 30 tablets of Ambien 10 mg, 180 tablets of Roxicodone 30 mg, and 90 tablets of Roxicodone 15 mg to the patient. The Respondent inappropriately prescribed the patient two immediate release opioids. The Respondent put the patient at risk of overdose by prescribing the patient a combination of Ambien, Ativan, and oxycodone. People who travel from out-of-state to Florida for pain management treatment are associated with aberrant drug behavior, such as drug abuse or diversion, and are considered high risk patients. The Respondent did not evaluate the patient for drug abuse or drug diversion despite the fact that the patient was from Kentucky. Facts Specific to Patient S.F. S.F. was a resident of Florida and lived approximately 24 miles from the clinic. On or about March 10, 2010, S.F. went to the clinic for the first time but his intake form does not indicate what his chief complaint was. On or about April 9, 2010, S.F. presented to the Respondent, who diagnosed the patient with chronic lower back pain, degenerative disk disease and lumbar spinal stenosis. On or about April 9, 2010, the Respondent prescribed 180 tablets of Roxicodone 30 mg and 60 tablets of Roxicodone 15 mg to the patient. On or about April 9, 2010, the Respondent wrote in the medical records that the patient drank a six pack of alcohol a day, five days a week and the patient was "drinking excessively." The Respondent prescribed high doses of opiates to S.F. despite the patient’s excessive use of alcohol. The Respondent put the patient at risk of an overdose by prescribing 180 tablets of Roxicodone 30 mg and 60 tablets of Roxicodone 15 mg when the patient was using alcohol excessively. The Respondent failed to counsel the patient about the dangers of using oxycodone with the levels of alcohol that the patient was imbibing or he failed to document that he counseled the patient. S.F.’s medical records include a magnetic resonance imaging (M.R.I.) study, dated March 20, 2010. S.F.’s M.R.I. indicated that he had an abdominal aortic aneurysm that would be adverse to hypertension. The Respondent failed to refer S.F. to an in-patient detoxification center despite the patient’s use of alcohol and abnormal M.R.I. If his license to practice osteopathic medicine is reinstated in Florida, Respondent intends to practice in South Florida in a practice area other than pain management. Section 409.913(17) contains the factors that Petitioner must consider in determining the length of time a Medicaid provider, such as Respondent, should be terminated from the Medicaid program. Mr. West considered those factors in reaching the conclusions that a termination lasting 20 years is the appropriate sanction to be imposed against Respondent. Petitioner considers the seriousness of the misconduct to be the strongest factor to be considered. Pill mills cause serious problems in the State of Florida, and have been the focus of both regulatory agencies and law enforcement agencies on the state and federal level for several years. Medicaid patients in South Florida are not underserved, and there will be little or no impact on access by recipients to Medicaid services if Respondent is terminated as a provider. The United States Department of Health and Human Services, through its Office of Inspector General, has suspended Respondent's participation in all federally funded health care programs for a period of eight years.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order adopting the findings of fact and the conclusions of law set forth in this Recommended Order. It is further RECOMMENDED that the final order terminate Robert J. Meek, D.O., as a Florida Medicaid provider for a period of ten years. DONE AND ENTERED this 28th day of February, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 28th day of February, 2014.
The Issue Whether Petitioner is entitled under Florida’s workers’ compensation laws to payment for professional services to an injured worker for the billings identified by the three notices of disallowance at issue in this consolidated proceeding.
Findings Of Fact The claimant, a male, was born July 21, 1961. On February 17, 1995, the claimant sustained a severe traumatic brain injury (TBI) and other injuries during the course of his employment with the City of Hollywood, Florida. At all times relevant to these proceedings, the claimant has been receiving benefits pursuant to the Florida workers’ compensation laws. At all times relevant to this proceeding, the carrier has been the workers’ compensation carrier for the employer. At all times relevant to this proceeding, the claimant has lived in a home purchased for him by the carrier. The claimant has a life estate in the home and the carrier has the remainder interest. The claimant lives in the home with his mother and has 24-hour attendant services paid for by the carrier. The carrier has purchased a van for the claimant, which his attendant uses to transport the claimant to therapy and other appointments. The claimant has a history of mental illness dating to his teenage years, when he was diagnosed with schizophrenia. As a result of his injury and his illness, the claimant acts out periodically and becomes physically resistive to those trying to care for him. At all times relevant to this proceeding, Petitioner has been a provider of rehabilitation services to various patients, including those with TBI. Dr. Marie DiCowden, a psychologist, is the founder and director of Petitioner. Dr. DiCowden described Petitioner as being a health care community that provides an integrated administration for a long continuum of care post acute rehabilitation through community reintegration using health promotion, prevention, and integrated primary care. Petitioner is accredited by two national accrediting organizations referred to by the acronyms CARF (Commission on Accreditation of Rehabilitation Facilities) and CORF (Commission on Outpatient Rehabilitation Facilities). Petitioner is also certified by the Florida Division of Vocational Rehabilitation (formerly housed in the Department of Labor and now housed in the Department of Education), the Florida Division of Workers’ Compensation, and by the Florida Brain and Spinal Cord Injury Program.4 As a result of his accident, the claimant was in a coma for several weeks. He was hospitalized (first in an acute care facility and subsequently in two different rehabilitation hospitals) until December 28, 1995, when he was placed in Whitehall Nursing Home. Whitehall was not an appropriate placement for the claimant because of his behavior and his need for rehabilitation services. On March 27, 1996, Yvonne Beckman, a rehabilitation nurse consultant employed by the carrier, referred the claimant to Petitioner for an evaluation. Shortly before that referral, the claimant had been evaluated by two neuropsychologists (Dr. Jorge A. Herra and Dr. Lee. H. Bukstel), who had opined that the claimant would benefit from rehabilitation services. Ms. Beckman asked Dr. DiCowden to recommend a neurologist who practiced in South Florida. In response, Dr. DiCowden gave Ms. Beckman the names of three neurologists, one of whom was Dr. Paul Wand. Ms. Beckman authorized Dr. Wand to provide services to the claimant. Dr. Wand prescribed continued rehabilitation services for the claimant at Petitioner’s facility. The services at issue in this proceeding were provided by Petitioner pursuant to prescriptions from Dr. Wand.5 Prior to accepting the claimant, Dr. DiCowden informed a representative of the carrier that Petitioner would accept the claimant as a patient in its brain injury program and estimated the annual costs to be $200,000.00. The claimant began receiving rehabilitation services from Petitioner five days a week beginning August 1, 1996. The claimant received from Petitioner’s staff physical therapy, occupational therapy, cognitive retraining, speech training, language training, psychological services, art therapy, music therapy, and yoga therapy. The claimant continued to receive those rehabilitation services from Petitioner (five days a week) from August 1996 to the date of the hearing (and presumably to date). The authorization for the provision of rehabilitation services to the claimant was periodically reviewed by the carrier. In November 1998, the carrier had the claimant examined by Dr. Richard Bailyn (a neurologist) and by Dr. Kevin Lapinski (a neuropsychologist). Those doctors opined that the claimant was not benefiting from cognitive retraining, occupational therapy, speech therapy, or language therapy at Petitioner’s facility. They further opined that the claimant required an activity program to satisfy his recreational and stimulation needs, but that such a program did not require Petitioner’s facility since the claimant’s aide could be trained to provide those services. Dr. Bailyn was of the opinion that as of November 1998 the various therapies provided by Petitioner’s facility to the claimant were not reasonable and were not medically necessary. Section 440.13(6), Florida Statutes, requires a carrier to review bills by providers of medical services as follows: (6) UTILIZATION REVIEW.--Carriers shall review all bills, invoices, and other claims for payment submitted by health care providers in order to identify overutilization and billing errors, including compliance with practice parameters and protocols of treatment established in accordance with this chapter, and may hire peer review consultants or conduct independent medical evaluations. Such consultants, including peer review organizations, are immune from liability in the execution of their functions under this subsection to the extent provided in s. 766.101. If a carrier finds that overutilization of medical services or a billing error has occurred, or there is a violation of the practice parameters and protocols of treatment established in accordance with this chapter, it must disallow or adjust payment for such services or error without order of a judge of compensation claims or the agency, if the carrier, in making its determination, has complied with this section and rules adopted by the agency. As required by Section 440.13(6), Florida Statutes, the carrier conducted a utilization review of the services provided by Petitioner to the claimant beginning in late 1999. The carrier retained Dr. Thomas G. Hoffman to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On April 10, 2000, Dr. Hoffman submitted a report that included several conclusions, including those that follow. The claimant has severe, residual deficits as a result of his accident. He requires 24-hour attendant care. There is no reasonable expectation for further improvement. The therapy he was receiving at that time (and still receives) was not reasonable or medically necessary. The therapy was excessive in frequency and duration. Dr. Hoffman’s deposition testimony was consistent with his written report. The carrier retained Dr. Victor B. Robert to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On June 19, 2000, Dr. Robert submitted a report that included several conclusions, including those that follow. The treatment rendered by Petitioner was excessive in frequency and duration. The claimant reached an improvement plateau in early 1997 and therapy was thereafter needed only for maintenance reasons. Dr. Robert’s testimony was consistent with his written report. The carrier retained International Assessment Systems, Inc. (IAS), a professional association of various medical practitioners, to conduct an independent neurological, neuropsychological, and psychological examination of the claimant. On September 22, 2000, IAS submitted a report (Intervenors’ Exhibit 8) based on the examinations of claimant and the review of his medical records by Dr. Kenneth C. Fischer, Dr. Alan J. Raphael, and Dr. Charles J. Golden. The report included several observations and conclusions, including those that follow. The testimony of Drs. Fischer, Raphael, and Golden was consistent with the written report they prepared for IAS. Pages 12-13 of the IAS report contain the following: [The claimant] was oriented to person, but not to place or time. He did not know the current day, date, month, or year. His sensorium was significantly impaired. His mood was volatile, ranging from normal to agitated. His affect was similarly labile, at times he was placid, laughing, and able to converse at a basic level, however he was also quite violent. Attention and concentration were significantly impaired. His receptive, expressive and fluency language capabilities were similarly impaired, although, as noted, he was capable of basic/functional [sic] communication. There were no direct indications of hallucinatory or delusional phenomena, however, based on his behavior, it is likely that some hallucinatory or delusional phenomena were present. His reality testing and insight were significantly impaired. During his repeated fits of anger, he often uttered suicidal and homicidal threats, however there was no evidence of actual intent or plan. He showed no ability to monitor his own safety. Page 15 of the IAS report contains the following: From a neuropsychological and psychological perspective, there were gross impairments noted in his cognitive abilities and emotional functioning. . . . He has been afforded considerable time to maximize his cognitive recovery at this point. It is clear that he has plateaued with regard to cognitive improvement. He will not benefit from continued rehabilitation efforts, although he will require continued stimulation to avoid further cognitive decline. His mood and labile affect may also be benefited by continued stimulation in terms of recreational activities to provide appropriate quality of life.6 Page 17 of the IAS report contains the following under the heading “Neurologic Impression”: . . . I [Dr. Fischer] would recommend that he be placed in a supervised residential setting which will give better protection for him and his caregivers than his present home setting. As the patient is four and a half years status post-injury, specific rehabilitative and therapeutic endeavors will have no benefit and are unwarranted. This would relate to hyperbaric oxygen and cognitive rehabilitation was well as any form of physical, occupational, or speech therapies. Page 19 of the IAS report contains the following: [The claimant] was certainly aided by initial removal from the nursing home and receiving cognitive and physical therapies at Biscayne. However, he has long since reached a plateau in his improvement and no further improvement can be expected at this time. Maximum medical improvement should have been reached within 18 to 24 months post-injury. Any treatment after that time would be palliative or maintenance-oriented (sic). Therefore, the treatment prescribed by Dr. Wand became unreasonable and medically unnecessary several years ago. Page 20 of the IAS report reflects the opinion that while the treatments at Petitioner’s facility were excessive in all respects, the claimant does require maintenance rehabilitation services. It is opined that cognitive retraining is no longer appropriate, but that cognitive tasks and games are appropriate in a recreational setting. By letter dated October 27, 2000, the carrier, through its counsel, advised Petitioner that based on its Utilization Review investigation, it had concluded that as to the identified dates of service “. . . there has been overutilization and/or misutilization since the treatment has been excessive and not medically necessary.” This Letter of Disallowance was the first of a series of letters sent by counsel for the carrier to Petitioner, and frames the issues for all of the disallowances at issue in this proceeding. Thereafter, Petitioner timely disputed the carrier’s basis for disallowing its services to the claimant and petitioned the Respondent to resolve the dispute. The total amount disallowed and at issue in this consolidated proceeding is $615,587.00. Respondent employed four Expert Medical Advisors (EMAs) to perform peer review and assist it in resolving the dispute involving the rehabilitation services provided the claimant by Petitioner. Respondent employed Dr. Fernando G. Miranda, Dr. Jorge Villalba, Dr. Gerard P. Garcia, and Dr. David McCraney to serve as EMAs.7 Each of these doctors prepared a report following his review and each sat for deposition. Dr. Miranda’s report, dated September 17, 2001, is attached to his deposition (Intervenors’ Exhibit 17). The report included several conclusions, including those that follow. The referral for intensive multi-disciplinary treatment at Petitioner’s facility is no longer medically necessary. The services provided by Petitioner are excessive in frequency and duration and he will not further improve with speech therapy, cognitive retraining, occupational therapy, or individual psychotherapy. Maintenance physical therapy is recommended. Dr. Miranda testified in his deposition that the recommended physical therapy could be performed by the claimant’s attendant. Dr. Miranda’s deposition testimony was consistent with his written report. Dr. Villalba’s report dated October 15, 2001, is attached to his deposition (Intervenors’ Exhibit 19). The report included several conclusions, including those that follow. The claimant reached maximum medical improvement between February 1996 and October 1997. Dr. Villalba described the services provided by Petitioner to claimant “clearly not medically necessary” after October 1997. He also opined that the claimant will require maintenance physical therapy, occupational therapy, and speech and language therapy on a continuing basis. Dr. Villalba’s deposition testimony was consistent with his written report. Dr. Garcia’s undated report was prepared during the second week of October, 2001, and is attached to his deposition (Intervenors’ Exhibit 16). The report included several conclusions, including those that follow. The claimant should be on a maintenance program and Petitioner’s treatment was excessive. The claimant is unlikely to make further neuropsychological improvement, but he should be treated by a psychiatrist for his schizophrenia. Dr. Garcia’s deposition testimony was consistent with his written report. Dr. McCraney’s report dated November 18, 2001, is attached to his deposition (Intervenors’ Exhibit 18). The report included several conclusions, including those that follow. While the care provided Petitioner appears to be excellent, the claimant is far beyond the point where Petitioner’s therapies would be reasonable or medically necessary. Dr. McCraney’s deposition testimony was consistent with his written report. Dr. DiCowden testified at length about the various services her facility provides the claimant and the records her staff generates as a result of those services. Dr. DiCowden testified that her staff is well-trained in assessing the functional status of rehabilitation patients using nationally recognized assessment methodologies. FIN-FAM, acronyms for “Functional Independence Measures” and “Functional Assessment Measures” is one assessment measure used by Petitioner’s staff. The FIN-FAM measure purports to quantify a patient’s progress or lack thereof and can be used by staff as a tool in developing treatment strategies. Dr. DiCowden presented a chart of the FIN-FAM scores for the claimant for the periods at issue in this proceeding. The chart, prepared for this litigation, reflects steady functional improvement of the claimant. Dr. DiCowden further testified that Petitioner’s staff uses a scale of cognitive functioning developed by a rehabilitation facility known as Rancho Los Amigos Hospital, which measures a patient’s response to stimuli on a scale of Ranch Level I (no response) to Ranch Level VII (appropriate response). She asserts that the measurement of the claimant’s status using the Rancho methodology reflect that the claimant has improved over the years. In support of its position that the claimant steadily progressed while undergoing therapy at its facility, Petitioner presented the testimony of Drs. Antonio Puente, Vernando Batas, and Richard Kishner who observed the claimant at Petitioner’s facility on June 23, 2003, September 13, 2003, and February 24, 2004, respectively. Each of these witnesses had the subjective impression that the claimant was benefiting from therapy at Petitioner’s facility. Petitioner asserts that the FIN-FAM scores, the Rancho Levels, and the testimony of its experts establish that the claimant is benefiting from therapy. That assertion is rejected as being contrary to the greater weight of the credible evidence. The FIN-FAM scoring and the Rancho scale depend on the subjective impressions of the various therapists who treat the claimant at Petitioner’s facility and the record reflects that the scoring was done on an irregular basis.8 Dr. DiCowden adamantly disagreed with the contention that the rehabilitation services provided by her facility is not reasonable or medically necessary. All evidence presented by Petitioner, including Dr. DiCowden’s testimony, has been carefully considered by the undersigned in resolving the conflicts in the evidence. At best, Petitioner established that the claimant made some unquantified amount of progress in the highly structured therapeutic setting at Petitioner’s facility. Intervenors’ experts clearly established that any progress made by the claimant in therapy did not transcend that therapeutic setting to the real world. Petitioner failed to establish by a preponderance of the evidence that the rehabilitation services it provided the claimant were appropriate and medically necessary. To the contrary, the greater weight of the credible evidence established that at all times relevant to this proceeding the rehabilitation services provided by Petitioner to the claimant have been excessive and that those excessive services have been neither reasonable nor medically necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order that sustains the disallowances at issue in this consolidated proceeding. DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2004.
