Findings Of Fact The Medicaid inpatient per diem rate in effect at all times here relevant is $146.49. Warren Morris, a 55-year-old white male, was transferred from Bunnell General Hospital to HHMC on May 21, 1978, for treatment of a neurological disorder. He had suffered head injuries and upon his arrival, unconscious, at Bunnell General Hospital he was immediately transferred to HHMC in accordance with established procedures that area neurological patients be treated at HHMC. Morris was discharged July 6, 1978, having been inpatient for 46 days at HHMC. Medicaid ultimately reimbursed Petitioner at the per diem rate of $146.49 for 45 of those days, the maximum number of days per year Medicaid will cover. On or before July 20, 1978, Flagler County received from HHMC a statement of services rendered to Warren Morris during his stay at that hospital in 1978 (Stipulation Exhibit 1). On or before August 14, 1978, Flagler County received from HHMC a statement of services rendered to David Williams during his stay at that hospital following his admission of March 20, 1978 (Stipulation Exhibit 1). David Williams remained inpatient at HHMC for a period in excess of 110 days. Medicaid paid the per diem rate for 90 days of Williams' inpatient treatment. Upon receipt of the statement from HHMC of the indigents treated, Respondent adopted the tactic of "stonewalling." The propriety of the claims was not denied but no funds were authorized to pay any such claims and Respondent declined to budget any funds for those claims that could arise during the fiscal year. The evidence submitted, and particularly that contained in Exhibit 19, insofar as it conflicts with Exhibits 10 and 11 and other evidence, is interesting, if not informative. Exhibits 10 and 11 are the official minutes of the County Commission meetings on the dates indicated. Significantly, at the July 20, 1978, and August 17, 1978, meetings Exhibits 10 and 11 state: "No action taken" on indigent hospital bills. On the other hand, Exhibit 19, which was described as almost a verbatim transcript of the tapes of the meetings indicates that at the July 20 meeting: "The Commissioners stated they have no knowledge of a resident of this name [Morris] in Flagler County, and cannot pay such a bill without knowledge of resi- dency and as to whether he is indigent or not." No such determination was submitted by Flagler County to HHMC. With respect to the August 17, 1978, meeting Exhibit 19 flatly contradicts Exhibit 11 in stating, "Board denied payment" with respect to Williams, an acknowledged indigent resident. With respect to a June 15, 1978, meeting Exhibit 19 states the County Attorney advised the board that "The County Attorney has even sent letters to every hospital in the area stating that the County would not pay any bills that the County did not get notice of in accordance with the law." No copy of such letter was offered into evidence. Exhibit 9 is a letter from Flagler County to HHMC dated September 6, 1978, advising the hospital no action had been taken on their bills for the two claims here being considered. The tapes of the meetings reflected in Exhibit 19 were not presented, nor was the person who prepared Exhibit 19, to testify that Exhibit 19 was a true transcript of the tapes of the meetings described. Inasmuch as Exhibits 10 and 11 are approved by the board as the official and correct reports of the events which transpired at those meetings, Exhibit 19 is given little credence. Respondent's witness testified that he had numerous telephone conversations with HHMC in which he told HHMC the County disputed the validity of the claims submitted. Hospital telephone records, which are kept of all telephone calls regarding financial matters, contained no record of such a communication. At the time of his admission to HHMC, Warren Morris was living with his uncle, Hiram Farrell, at 29 Farragut Lane, Palm Coast, Florida, and had resided there for approximately three years. Morris was registered to vote in Flagler County in 1976 (Exhibit 15) but did not renew his registration in 1978. No evidence was presented that Morris occupied any residence after April 1976 outside of Flagler County. Respondent presented testimony that search of county records revealed no evidence that Morris owned real property, owned an automobile, held a driver's license, held an occupational license, was on the current register of qualified voters, had a telephone listed in his name, had electricity or water billed to him, ever filed a certificate of domicil in Flagler County, ever obtained a building permit, or paid personal property taxes. On the other hand, the deputy sheriff directed to determine if Morris was a legal resident of Flagler County, did not check to see if Morris had ever been registered to vote, did not inquire of his uncle how long Morris had lived in Flagler County, did not inquire if Morris ever worked in Flagler County, did not inquire as to any other place in which Morris might be domiciled, but simply reached the desired conclusion that Morris was not a resident of Flagler County on the basis of these negative determinations. Exhibit 14 indicates that Morris was unemployed and had been unemployed for 20 years. That evidence was obtained from Morris' uncle when Morris was admitted in a comatose state and is treated as hearsay. However, this source was the only source of information available to HHMC when Morris was admitted and a prudent person would rely upon such information in conducting his business affairs. It also corroborates other testimony that Morris paid no taxes, had no automobile or business and was indigent. The signature of the Supervisor of Elections on Exhibit 15 was identified by the Clerk of the Circuit Court. This exhibit clearly demonstrates that Morris was a legal resident of Flagler County in April 1976 and the statement on Exhibit 14 that Morris had been a resident of Flagler County for three years is corroborated by Exhibit 15. Official notice is taken of Article VI, Section 2 of the Florida Constitution that permanent residency in the state for one year and in the county for six months is a requirement for registering to vote.
The Issue Whether Respondent violated section 456.072(1)(v), Florida Statutes (2012-2013), as alleged in the Amended Administrative Complaint; and, if so, what penalty should be imposed for his conduct.
Findings Of Fact The Department is the state agency charged with regulating the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. The Board of Medicine is the professional licensing board charged with final agency action with respect to physicians licensed pursuant to chapter 458. At all times relevant to the instant proceedings, Respondent has been a licensed physician in the State of Florida, and holds license number ME 17784. At all times relevant to the instant proceeding, Respondent was employed by AmeriMed Diagnostic Services, Inc. (AmeriMed), 500 West Martin Luther King Jr. Boulevard, Tampa, Florida. Patient A.P. A.P., a male patient, presented to Respondent at AmeriMed on September 11, 2013, and April 8, 2014, for medical evaluation related to an ongoing workers’ compensation claim. During both appointments, A.P. complained of severe lower back pain and pain radiating down his left leg. A.P. did not complain of a hernia or pain in his genitals. Respondent performed a physical examination on A.P on September 11, 2013. During the examination, Respondent instructed A.P. to undress down to his underwear and lie on his back on an examining table. Respondent removed A.P.’s underwear while A.P. was lying on the examining table. Respondent moved A.P.’s legs back and forth and then touched the area in between A.P.’s legs underneath his testicles. While doing this, Respondent “lifted” A.P.’s penis and moved it back and forth. After several minutes of Respondent touching A.P. in this manner, A.P. ejaculated. A.P. tried to remove himself from the examining table, but Respondent pressed on A.P.’s stomach and told him to “just relax.” Respondent then cleaned the semen off of A.P. and told him to get dressed. After the appointment, A.P. felt embarrassed and ashamed and believed that what happened during the examination was his fault because he had not “been with a woman in quite some time.” On April 8, 2014, A.P. presented to Respondent for a second examination. During the examination, Respondent instructed A.P. to undress down to his underwear and lie on his back on the examining table. While A.P. was on the examining table, Respondent removed A.P.’s underwear and used his fingers to manipulate A.P.’s penis “back and forth,” which eventually caused A.P. to ejaculate. A.P. tried to remove himself from the examining table but Respondent, like before, told him to “relax,” and reminded A.P. that he needed the examination for his workers’ compensation case. After A.P. ejaculated, Respondent “cleaned up” and instructed A.P. to get off the table. Respondent then told A.P. to walk back and forth across the examination room, and A.P. complied with Respondent’s directive. A.P. was naked when he walked back and forth across the room. After the second appointment, A.P. believed that what happened to him while being examined by Respondent was not his fault, and he believed that Respondent’s examination was sexual in nature. A.P. testified that he was sexually molested as a child and knew the difference between an appropriate medical examination and molestation. As a result of these incidents with Respondent, A.P. has reservations about being examined by another physician in Florida. Respondent’s patient examination notes for the September 11, 2013, and April 8, 2014, appointments with A.P. do not document a genital or hernia examination. After leaving the appointment on April 8, 2014, A.P. was upset about what Respondent had done to him so he called his girlfriend who suggested that he report the matter to the police. A.P. subsequently went to the police department and reported Respondent’s conduct. A.P. testified that he reported the incident to the police on April 8, 2014. Respondent attempted to challenge A.P.’s credibility by presenting A.P. with a copy of the police report which identified April 14, 2014, as the date the police report was made. The police report was not admitted into evidence and there was no testimony from the author of the report; therefore, it is unclear whether the date in the report refers to when A.P. reported the incident or when the police department generated the report. Regardless, A.P. is certain that on April 8, 2014, he reported the incident to the police department and his testimony in this regard is credible. On cross-examination, Respondent attempted to further discredit A.P.’s testimony by noting that A.P. stated that he did not remember seeing any of the other physicians at AmeriMed until after his first visit with Respondent. Patient A.P.’s records document that he did see another physician before being evaluated by Respondent. However, this fact does not contradict or confuse his testimony about what occurred during his two appointments with Respondent. Additionally, in light of the fact that these appointments occurred more than three years ago, it is not unreasonable to believe that A.P. might not remember clearly which physician he initially saw at AmeriMed. Respondent also attempted to impeach A.P. by asking him about his history with pain medications. A.P. originally testified that he was taking hydrocodone at the time he first saw Respondent. After Respondent’s counsel presented A.P. an excerpt from A.P.’s medical records from AmeriMed, A.P. remembered that he was also taking morphine. Respondent suggests that A.P. concealed that he was taking morphine, and should therefore not be believed, but A.P. explained that he believed morphine was a “non-narcotic” and admitted that he is not familiar with medications. A.P. testified that his medications did not impact his ability to observe or perceive the events that happened during his appointments with Respondent. With regard to the incidents that occurred while he was being examined by Respondent, A.P.’s testimony was precise, lacking in confusion, and credible. Patient J.T. J.T., a male patient, presented to Respondent at AmeriMed for medical appointments on February 11, and March 20, 2014. At both appointments J.T. complained of lower back pain, pain radiating down his legs, and numbness and tingling in his feet. J.T. did not complain of a hernia or pain in his genitals. J.T. presented to Respondent at AmeriMed because he was told that Respondent could assist him with his federal workers’ compensation claim. During the appointment on February 11, 2014, Respondent performed a physical examination on J.T. Prior to the examination, Respondent told J.T. to remove all of his clothes, except for his underwear, and lie on his back on the examination table. J.T. complied with Respondent’s directive, and while J.T. was lying on his back, Respondent removed J.T.’s underwear and told J.T. that he needed to “check his hips.” With his hands, Respondent pushed into J.T.’s inner thigh area near his groin. Respondent then told J.T. that he was going to “check for sensation.” Respondent touched a small plastic instrument with a wheel on it to J.T.’s feet and legs. Respondent moved the instrument up to J.T.’s inner thigh and then grabbed J.T.’s penis and “pulled it up.” Respondent rolled the instrument on each side of J.T.’s penis and asked J.T. where he felt it more. Respondent also touched the instrument on the sides of J.T.’s scrotum. Respondent did this for four to five minutes. At one point, while Respondent was using the instrument on J.T.’s genitals, Respondent told J.T. that he was “checking for a hernia.” Next, Respondent instructed J.T. to stand up and walk back and forth across the exam room on his tiptoes and heels. J.T. complied while Respondent observed him. After walking back and forth, Respondent told J.T. to stand in front of him so he could again “check for a hernia.” While Respondent sat on a stool and J.T. stood naked in front of him, Respondent grabbed J.T.’s scrotum and used his hands to manipulate J.T.’s testicles. J.T. described Respondent’s touching of his scrotum as “fondling” rather than a touching that resembled a legitimate hernia examination. J.T. testified that he had been checked for a hernia previously by other physicians and described those examinations as “very different” from Respondent’s examination. According to J.T., in previous exams, he was required by other physicians to stand up as the doctor felt either side of his testicles and instructed him to turn his head and cough. J.T. explained that the “legitimate” hernia examinations lasted seconds, and the doctor did not move his testicles around in the way that Respondent had. Respondent’s patient examination note for the February 11, 2014, appointment with J.T. does not document a genital or hernia examination. J.T. testified that following his appointment with Respondent on February 11, 2014, he felt “weird” because he had never experienced an examination like the one Respondent performed. J.T. presented to Respondent for a second time on March 20, 2014, to obtain additional information requested by the office of workers’ compensation. During the appointment on March 20, 2014, Respondent told J.T. that he needed to do another examination because he needed to make sure he “didn’t miss anything.” On March 20, 2014, Respondent performed a second physical examination on J.T. Respondent instructed J.T. to undress down to his underwear, and to lie on his back on the examining table. While on the examining table, Respondent removed J.T.’s underwear and used the same plastic instrument as before on each of J.T.’s legs, penis and scrotum. Respondent then instructed J.T. to get off the table and walk back and forth across the room. J.T. complied with Respondent’s directive and did so while completely undressed. After walking back and forth, Respondent asked J.T. to stand in front of him as Respondent sat on a stool. Respondent squeezed one side of J.T.’s scrotum and then the other. Respondent took about 45 seconds squeezing each side of J.T.’s scrotum and advised J.T. that he believed he had a “slight hernia.” J.T. described the way Respondent squeezed his scrotum as “fondling.” Respondent did not document that he examined J.T.’s genitals or checked for a hernia in his patient examination note for the appointment on March 20, 2014. J.T. filed a police report against Respondent on August 26, 2014. J.T. also filed a formal complaint with the Department shortly thereafter. The incidents with Respondent have negatively affected J.T. and have caused him to be hypercautious and guarded when seeing other doctors. When questioned about his reason for waiting nearly four months to file a complaint with the Department, J.T. credibly testified that he was confused and embarrassed by the incidents. According to J.T., it was not until he found out that there were other patients with similar experiences that he knew something was inappropriate about the way that Respondent had examined him, and it was then that he decided to file a complaint. Patient J.T.’s explanation was clearly stated and is credible. When asked about communications he had with staff and patients at AmeriMed, J.T. credibly testified that he was never told to file a complaint against Respondent, and that he did not conspire with any other patients to make up false allegations against Respondent. With regard to the incidents that occurred while he was being examined by Respondent, J.T.’s testimony was precise, lacking in confusion, and is credible. Patient E.S. Between January 2013 and June 2013, E.S., a male patient, presented multiple times to Respondent for medical evaluation related to his federal workers’ compensation claim. E.S.’s complaints included pain in both feet, flattened arches of both feet, plantar fasciitis, and severe pain on standing and/or walking. E.S. did not complain of a hernia or pain in his genitals. On January 14, 2013, E.S. arrived at AmeriMed for an initial visit with Respondent. Respondent performed a physical examination of E.S. and during the course of the examination Respondent told E.S. to take off all of his clothes. During the examination, while E.S. sat on the examining table, Respondent grabbed E.S.’s penis and moved it around with his hands. Respondent then instructed E.S. to get off of the table and walk back and forth across the examination room. E.S. did so, while still completely undressed. After walking back and forth, Respondent told E.S. to stand in front of him. E.S. complied with Respondent’s directive, and while doing so Respondent held E.S.’s penis and asked him to turn his head to the left and to the right. E.S. presented to Respondent on February 15, 2013, at which time Respondent performed a physical examination. Respondent told E.S. to take off all of his clothes and to lie on the examining table. During the examination, while E.S. was on the table naked, Respondent touched and pulled on E.S.’s penis. E.S. described the touching as “stroking.” Respondent instructed E.S. to walk back and forth across the room, and E.S. complied. E.S. then stood naked in front of Respondent, and while doing so Respondent held E.S.’s penis and asked him if he felt pain. While holding E.S.’s penis, Respondent told E.S. to turn his head and cough. Respondent did not touch E.S.’s testicles or the area underneath E.S.’s testicles during the examination. E.S. testified that during each of his three subsequent visits with Respondent, he was required to completely undress, and that Respondent touched or in some way manipulated his penis. E.S. testified that the manner in which Respondent touched his penis was not the same on every appointment. For instance, during one of the visits, E.S. testified that Respondent tried to “open” his penis by pulling down on the top of it. E.S. was treated by other physicians for his feet and back pain prior to being evaluated by Respondent. While being examined by the other physicians, E.S. testified that he was not naked, and the physicians did not touch his penis. Additionally, E.S. testified that his current physician, who is also treating him for pain in his feet and back, does not ask him to undress completely and does not touch his penis during examinations. Patient E.S. has had hernia examinations by other physicians in the past, and during those examinations he had to remove his pants for a short period of time to allow the physician to push up on his testicles, while he turned his head to the right and the left and coughed. E.S. testified that Respondent’s exam was different because E.S. was naked and Respondent “held” his penis, which no other doctors have done. Respondent did not document that he examined E.S.’s genitals or checked for a hernia in any of his patient examination notes for appointments between January 2013 and June 2013. E.S. was vulnerable when he presented to Respondent for medical evaluation. E.S. had spent years dealing with his workers’ compensation claim, a process which he described as difficult. He was assured that Respondent could help him with his claim. During the first examination, E.S. “blanked” while Respondent touched him inappropriately because he assumed Respondent had to “check everything” and would “write a really good report.” After the second and third appointments, E.S. became concerned about the way that he was being examined by Respondent. Nevertheless, E.S. returned to Respondent for a fourth and fifth appointment because he needed the examinations in order to comply with the requirements for his workers’ compensation claim. With regard to the incidents that occurred while he was being examined by Respondent, E.S.’s testimony was precise, lacking in confusion, and credible. Patient L.P. L.P., a male patient, presented to Respondent at AmeriMed multiple times for medical appointments between August 2012 and April 2014. L.P.’s complaints included lower back pain, pain in his hips, and pain radiating down the right leg. L.P. did not complain of a hernia or pain in his genitals. During each appointment, L.P. was examined by Respondent and instructed to take off all his clothes, including his underwear. L.P. was also instructed by Respondent to lie on the examining table. While on the table, Respondent rubbed a plastic instrument up and down L.P.’s legs, between his legs, and on his penis. According to L.P., Respondent would also pull the foreskin back on L.P.’s penis, manipulate L.P.’s penis with his hands, and touch L.P.’s testicles. During the examinations, Respondent instructed L.P. to walk naked back and forth across the examination room. Respondent also had L.P. stand in front of him so that Respondent could purportedly “check for a hernia.” In “checking for a hernia,” Respondent held L.P.’s penis in one hand and then felt in between L.P.’s legs with the other hand. L.P. testified that Respondent did all of these things at every appointment and that Respondent spent the majority of the examination touching the instrument on L.P.’s penis. L.P. testified that he has been checked for a hernia before but Respondent’s purported hernia examination was “totally different.” Respondent did not document that he examined L.P.’s genitals or checked for a hernia in any of his patient examination notes. L.P. described a long history of back pain, which resulted from two work-related accidents, and noted that he had seen other physicians for his back pain before presenting to Respondent at AmeriMed. According to L.P., none of his other physicians required him to undress completely for an examination, touched his genitals, or had him walk back and forth while naked. Additionally, L.P.’s current physician does not require him to undress for examinations. L.P. explained why he never told anyone about the inappropriate examinations until after Respondent stopped working at AmeriMed. L.P. testified that Respondent’s examinations made him feel uncomfortable, but he continued to see Respondent because he was the only doctor he had. L.P. explained that he wanted to say something about the inappropriate examinations but he remained silent because he did not want to lose his workers’ compensation doctor. L.P. described the process of finding a doctor who treated federal workers’ compensation claim patients as difficult, which is why he drove 138 miles from Ft. Myers to Tampa for his appointments with Respondent. Respondent, in an attempt to impeach L.P., suggests that there was collusion between L.P., the staff and other patients at AmeriMed to make false accusations against Respondent. L.P. testified credibly that he was never asked by AmeriMed staff or anyone else to fabricate allegations against Respondent. With regard to the incidents that occurred while he was being examined by Respondent, L.P.’s testimony was precise, lacking in confusion, and credible. Respondent’s witnesses Respondent presented four witnesses: C.W.; S.L.; G.T.; and E.C. These individuals are all former U.S. Air Marshals and were workers’ compensation patients treated by Respondent at AmeriMed. Patients C.W., S.L., G.T. and E.C. all know each other through the U.S. Air Marshal Service. Through his witnesses’ testimony, Respondent seeks to prove that AmeriMed staff solicited complaints against him, and that the patients involved in this case had ulterior motives in making the allegations against Respondent. None of Respondent’s witnesses testified, however, that they were solicited by anyone to make a complaint against Respondent, and their testimony was based largely on rumor and speculation. Additionally, Respondent presented no evidence showing that any of the patients in this case had an incentive, financial or otherwise, to fabricate the allegations against Respondent. Expert testimony Dr. Kevin Nowicki, M.D., testified as a medical expert for Petitioner. Dr. Nowicki is a licensed medical doctor in the State of Florida and is board-certified in orthopedic surgery. Dr. Nowicki performs similar examinations on patients with orthopedic pain, including workers’ compensation patients. Dr. Nowicki testified that a physical examination, within the professional scope of practice, on a patient with complaints of lower back pain, pain radiating down the legs, or numbness and tingling in the feet, does not require the patient’s underwear to be removed. A physical examination, within the professional scope of practice, on a patient with complaints of pain in both feet, flattened arches in both feet, plantar fasciitis, and pain on standing and/or walking would be limited to the area of the body below the knee, and the patient does not need to be naked. Additionally, according to Dr. Nowicki, it is unnecessary and medically unjustified to squeeze the scrotum, pull on the penis, use an instrument to touch the sides of the penis, or require a patient to walk back and forth across the room naked for an orthopedic examination. Dr. Nowicki also testified that when checking for a hernia, there may occasionally be a need to touch the patient’s scrotum, but such touching should take five to ten seconds and does not require any touching of the patient’s penis. Dr. Nowicki’s medical opinions with regard to orthopedic examinations and hernia examinations are accepted. His testimony is found to be credible and uncontroverted. Respondent did not offer the testimony of an expert witness to counter Dr. Nowicki’s testimony. Furthermore, Respondent chose not to testify at the hearing and invoked his Fifth Amendment privilege against self-incrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine issue a final order finding that Respondent, Samy F. Bishai, M.D., violated section 456.072(1)(v) as alleged in Counts I through IV of the Amended Administrative Complaint. It is further RECOMMENDED that the Board revoke Respondent’s license to practice medicine, impose an administrative fine in the amount of $40,000, and impose costs of investigation and prosecution. DONE AND ENTERED this 5th day of May, 2017, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2017. Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Michael L. Smith, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714 (eServed) Allison M. Dudley, Esquire Florida Department of Health Prosecution Services 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed) Nichole C. Geary, General Counsel Florida Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed) Claudia Kemp, JD, Executive Director Board of Medicine Florida Department of Health 4052 Bald Cypress Way, Bin C-03 Tallahassee, Florida 32399-3253 (eServed)
The Issue Whether the Petitioner is entitled to reimbursement for charges billed to a workers' compensation insurance carrier for medical services rendered to an injured employee/claimant, pursuant to Section 440.13, Florida Statutes (2007).2
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, including the pertinent portions of the stipulations of fact contained in Section VI of the Joint Pre-Hearing Stipulation, the following findings of fact are made: The Department is the state agency responsible for resolving reimbursement disputes involving health care providers and workers' compensation insurance carriers and employers ("employer/carrier"). See §§ 440.13(7) and (11)(c), Fla. Stat.4 The dispute resolution process is initiated when a health care provider files a petition with the Department contesting the decision of an employer/carrier to disallow or adjust payment to the health care provider for services provided to an injured worker/claimant. The petition must be accompanied by documentation supporting the allegations in the petition; if the documentation is not complete, the Department is to dismiss the petition. See § 440.13(7)(a), Fla. Stat. The employer/carrier is then required to submit a response to the petition to the Department, together with all documentation supporting its decision to disallow or adjust the health care provider's reimbursement requests. See § 440.13(7)(b), Fla. Stat. After review of the documentation submitted by the provider and the employer/carrier, the Department must determine whether the employer/carrier properly disallowed or adjusted payment to the health care provider, and it must provide a written determination setting out its decision. See § 440.13(7)(c), Fla. Stat. Procedure followed by the Department in resolving reimbursement dispute at issue in this proceeding The reimbursement dispute at issue herein arose after Sedgwick CMS, a workers' compensation insurance carrier, issued through its agent an Explanation of Bill Review and a First Notice of Disallowance dated April 16, 2008, notifying Dr. Merayo of its decision to disallow reimbursement for medical services he provided to the Claimant on April 11, 2007, August 21, 2007, September 18, 2007, October 16, 2007, December 11, 2007, and January 22, 2008, on the grounds that there had been over-utilization; specifically, Sedgwick CMS stated that it had based its decision with regard to those dates on its conclusion that that the treatment Dr. Merayo had provided the Claimant on those dates was excessive and/or not medically necessary. After receiving the First Notice of Disallowance from Sedgwick CMS, Dr. Merayo initiated the dispute resolution process when he timely filed with the Department a Petition for Resolution of Reimbursement Dispute ("Reimbursement Dispute Petition") dated May 16, 2008. Dr. Merayo requested in the Reimbursement Dispute Petition that the Department resolve the dispute between him and Sedgwick CMS regarding reimbursement for psychiatric services that he rendered to the Claimant on the dates identified in the First Notice of Disallowance. Dr. Merayo attached to the Reimbursement Dispute Petition documentation including medical records for the Claimant, and Sedgwick CMS timely submitted a response to the Reimbursement Dispute Petition, together with extensive medical and other records related to the Claimant. Among the records submitted to the Department by Sedgwick CMS were reports of two psychiatric independent medical examinations of the Claimant, both conducted in 1999, and peer review reports completed by three psychiatrists in December 2007, January 2008, and February 2008. Department personnel reviewed the documents submitted by Dr. Merayo and by Sedgwick CMS, including the two independent medical examination reports and the three peer review reports. After reviewing the documentation, Department personnel determined that, because there was no consensus among the physicians conducting the peer reviews regarding the frequency, duration, or intensity of services for the medical management of the Claimant's psychiatric needs, an EMA should review the documentation and provide guidance to Department personnel in resolving the reimbursement dispute. As authorized by Section 440.13(9)(f), Florida Statutes, the Department referred the matter to Dr. Guthrie, a psychiatrist certified by the Department as an EMA pursuant to Section 440.13(9)(a), Florida Statutes, and requested that he prepare a report regarding the medical necessity for the treatment Dr. Merayo provided the Claimant on the dates for which Sedgwick CMS had denied reimbursement. The Department indicated that all documents contained in its records would be provided to Dr. Guthrie and that, if he required additional documentation, he should immediately contact the Department. Dr. Guthrie submitted his report to the Department on November 3, 2008. The Department based its Determination that there was over-utilization of Dr. Merayo's medical services on April 11, 2007, August 21, 2007, October 16, 2007, December 11, 2007, and January 22, 2008, on a review of the documentation submitted, "specifically the carrier-obtained peer review report prepared by Dr. Sinakin [sic] and response from the Expert Medical Advisor." It based its decision that there was no over- utilization by Dr. Merayo on September 18, 2007, on Dr. Guthrie's EMA Report. Claimant's relevant medical history and independent medical examination reports prior to her treatment by Dr. Merayo5 The Claimant suffered injuries to her back as a result of an employment-related accident on December 29, 1997. Sedgwick CMS authorized psychiatric evaluation and treatment for the Claimant in April 1999, which she received from the Center for Occupational Psychiatry of Florida. The Claimant was diagnosed by Dr. Noel Delgadillo in 1999 as suffering from adjustment disorder and disorder of chronic pain, and he recommended treatment, with maximum medical improvement expected within six months. The Claimant received psychiatric medical services involving group and individual therapy and medication prescriptions and management from Dr. Delgadillo's associate, Dr. Angel Diaz, and employees of the Center for Occupational Psychiatry of Florida. Sedgwick CMS ordered a psychiatric independent medical examination of the Claimant, which was conducted on July 23, 1999, by Dr. Marilu Sabas. Dr. Sabas diagnosed the Claimant as suffering from "adjustment disorder," and she opined that the Claimant's symptoms were "the direct result of the accident . . . and the subsequent physical pain and emotional stress." On October 1, 1999, Dr. Diaz determined that the Claimant reached maximum medical improvement and assigned a permanent impairment rating of five percent. Sedgwick CMS ordered a second independent medical examination, which was conducted on October 20, 1999, by Dr. Anastasio Castiello. In Dr. Castiello's opinion, the Claimant "presented the clinical picture of an individual manifesting the exaggerated elements of a personality disorder and her actual representation is tailored to the circumstances of the litigation." Dr. Castiello concluded that, "under the circumstances, a recommendation for further psychiatric intervention is not clinically warranted." Sedgwick CMS continued to authorize Dr. Diaz to provide psychiatric evaluation and treatment in the form of group and individual psychotherapy, together with medication prescriptions and management until December 2004, when Sedgwick CMS authorized Dr. Merayo to provide psychiatric treatment to the Claimant. Dr. Merayo's treatment of the Claimant Dr. Merayo is a board-certified psychiatrist who has treated patients suffering from work-related injuries for more than 10 years. In December 2004, Dr. Merayo diagnosed the Claimant as suffering from major depressive disorder, recurrent and severe, without psychotic features, and he recommended continued group and individual psychotherapy, which was authorized by Sedgwick CMS and which she received from the Merayo Medical Arts Group. Dr. Merayo initiated an aggressive medication treatment regimen for the Claimant and conducted individual psychotherapy sessions. The Claimant also attended group therapy sessions led by members of Dr. Merayo's group. On August 23, 2005, Dr. Merayo opined that the Claimant had reached maximum medical improvement, and he assigned her a permanent impairment rating of 15 percent. Dr. Merayo also opined that the Claimant was unable to work due to her compensable injury. In 2006, Dr. Merayo conducted nine individual psychotherapy sessions, approximately one every six weeks, and the Claimant also participated in 30 group therapy sessions. At the end of 2006, Dr. Merayo was notified by Sedgwick CMS that it would not authorize further group therapy sessions, and, beginning in January 2007, the Claimant received only individual psychotherapy and medication management reviews from Dr. Merayo. Dr. Merayo conducted monthly individual psychotherapy sessions with the Claimant in 2007, for a total of 12 sessions, and in January, February, and March 2008. Sedgwick CMS paid Dr. Merayo for the individual psychotherapy sessions he conducted in January, February, March, May, June, July, and November 2007 and February 2008. Sedgwick CMS did, however, advise Dr. Merayo in the April 16, 2008, First Notice of Disallowance that it considered the services provided on July 18, 2007, November 13, 2007, and February 22, 2008, to be excessive, not reasonable, and medically unnecessary. The treatment Dr. Merayo provided the Claimant on the dates at issue herein was no different from the treatment provided on the dates for which Dr. Merayo received reimbursement. On the dates at issue herein, Dr. Merayo documented his individual psychotherapy sessions with the Claimant on a form entitled "Progress Notes," which consisted primarily of a checklist of items that he completed during the sessions, including observations on such things as appearance, behavior, attitude toward examiner, speech, mood, affect, perceptions, thought process, thought content, orientation, and the type of therapy provided. The form had blank spaces for Dr. Merayo to enter the Claimant's subjective complaints, stressors, and functioning, testing done, side effects of medication, and referrals and interventions. Dr. Merayo's notes of the Claimant's individual psychotherapy sessions on the dates at issue indicate that the Claimant consistently complained of chronic pain in her back and legs, of anxiety, and of difficulty sleeping.6 The Claimant's diagnosis of major depression, recurrent and severe, remained the same throughout the time period at issue, and, at each psychotherapy session, Dr. Merayo prescribed medications for insomnia, depression, and anxiety. Specifically, Dr. Merayo prescribed Restoril, Wellbutrin, Effexor, and Klonopin at the Claimant's psychotherapy sessions on April 11, 2007, and on August 12, 2007. As discussed in more detail below, Dr. Merayo substituted Ambien and Vistaril for the Restoril on October 16, 2007,7 and he prescribed these two new medications, together with Wellbutrin, Effexor, and Klonopin, in December 2007 and January 2008.8 On December 11, 2007, Dr. Merayo increased the dosage of Wellbutrin, an antidepressant, from 150 milligrams to 300 milligrams because the Claimant was exhibiting increasing depression. In Dr. Merayo's opinion, prescribing only a month's supply of medications at each monthly visit was the safest procedure for the Claimant. If a patient is taking only one antidepressant and is otherwise doing well, it is appropriate to conduct a medication review for that patient every three months. The Claimant's case was complex, however, because she was taking four or five medications at any given time, including two benzodiazepines and two antidepressants. In Dr. Merayo's medical judgment, even though there was no indication that the Claimant misused the medications or had any side effects, it was necessary that he conduct medication management reviews for the Claimant every month and prescribe only a 30-day supply of medications because of the number and nature of the medications. Dr. Merayo noted in his Progress Notes on the dates at issue that the Claimant's ego defenses were weak and that her recent memory was not very sharp. Dr. Merayo was particularly concerned about the Claimant because her weak ego defenses indicated possible regression. At the Claimant's psychotherapy session on October 16, 2007, Dr. Merayo decided to substitute Ambien and Vistaril for Restoril because he was concerned about the possible addictive effects of Restoril and because of his concern that Restoril was related to the Claimant's declining recent memory. Dr. Merayo also noted in his Progress Notes for the October 16, 2007, psychotherapy session that the Claimant complained of pain all over her body and expressed frustration that she was not getting any better. The Claimant's treatment plan, consisting of cognitive behavior therapy, supportive therapy, coping skills, and anxiety control, remained unchanged on the dates at issue, and Dr. Merayo indicated in the Progress Notes for each of the psychotherapy sessions that the Claimant's condition was the same. On all of the dates at issue except for October 16, 2007, Dr. Merayo checked the box on the Progress Notes specifying that the Claimant's progress toward the treatment goals was between 30 percent and 40 percent; on October 16, 2007, Dr. Merayo checked the box on the Progress Notes specifying that the Claimant's progress toward the treatment goals was between 20 percent and 30 percent. There are, however, no treatment goals stated in any of the Progress Notes. Additionally, the observations Dr. Merayo recorded on the Progress Notes for almost all of the dates at issue indicated that the Claimant's appearance was casual9; her behavior was quiet and needy; her eye contact was fair; her attitude toward Dr. Merayo was cooperative; her speech was spontaneous; her mood was depressed and anxious; her affect was labile; her thought process was goal oriented; her thought content was logical10; she was not suicidal; her orientation was "OK"; her consciousness was alert; her sleep was "OK"; her appetite was "OK"; her libido was low; her concentration was poor; her attention was good; her judgment was fair; and her coping skills were fair. In Dr. Merayo's opinion, the appropriate treatment for the Claimant, or any patient with her diagnosis, is medication management and psychotherapy. Dr. Merayo described the Claimant as a person who is in need of psychotherapy because of her diagnosis and explained that she needed the 45 minutes allotted for each of her monthly psychotherapy sessions on the dates at issue. In Dr. Merayo's opinion, the Claimant was regressing during the time period covering the dates at issue and required psychotherapeutic intervention for chronic mental illness to avoid moving from major depression to exhibiting psychotic features. In his years of medical practice, Dr. Merayo has observed that patients having the Claimant's diagnosis and amount of medication often end up in the hospital if they go for too long a period without being seen. Dr. Merayo acknowledged, however, that many patients probably do not need the level of service he provided to the Claimant after reaching maximum medical improvement and that most patients could be adequately treated with 25-minute psychotherapy sessions conducted less frequently than those he conducted with the Claimant. In Dr. Merayo's opinion as a board-certified psychiatrist, the quality, quantity, and duration of medical care that he provided to the Claimant on each of the dates at issue were medically reasonable and necessary in order to prevent the Claimant from regressing and to provide her with psychotherapy that she needed and that provided her relief. He was aware of no guidelines setting forth the frequency and intensity of psychiatric services to be provided to a claimant after a declaration of maximum medical improvement except the sound medical judgment of the health care provider. Notwithstanding the reimbursement dispute at issue herein, Dr. Merayo was authorized by Sedgwick CMS to provide psychiatric treatment to the Claimant at the time of the final hearing. EMA Report Dr. Guthrie was appointed by the Department as an expert medical advisor to render an opinion as to the medical necessity/over-utilization issues presented in the reimbursement dispute between Sedgwick CMS and Dr. Merayo. In its Order Referring Matter for Expert Medical Advisor Review, the Department requested that Dr. Guthrie assist in resolving the reimbursement dispute by specifically answering the following question: Whether the type, intensity and duration of the evaluation and treatment provided on April 11, 2007, August 21, 2007, September 18, 2007, October 16, 2007, December 11, 2007, and January 22, 2008, are consistent with the medically necessary standard of care for the clinical problem(s) documented by the Petitioner in the medical record of the Injured Employee? Please identify the standard(s) of care that support the opinion provided. Dr. Guthrie submitted his EMA Report on November 3, 2008, and he listed the documents he reviewed in an appendix to the report. The documents listed by Dr. Guthrie were all those submitted to the Department by Sedgwick CMS and by Dr. Merayo regarding the medical services provided to the Claimant since the date of her injury in 1997. Dr. Guthrie did not examine the Claimant in the course of preparing his EMA Report. In his report, Dr. Guthrie opined "within a reasonable degree of medical certainty" that reimbursement for the psychotherapy sessions conducted by Dr. Merayo with the Claimant on April 11, 2007, August 21, 2007, September 18, 2007, October 16, 2007, December 11, 2007, and January 22, 2008, should be disallowed by Sedgwick CMS because these psychotherapy sessions "would not be expected to be necessary."11 Dr. Guthrie noted, however, that, in his opinion, Sedgwick CMS should reimburse Dr. Merayo for the psychotherapy session conducted September 18, 2007, because "if all three of those visits [August, September, and October] are disallowed, then there would be a four month gap from July to November without adequate follow-up."12 Dr. Guthrie stated the basis for his opinion in pertinent part as follows: Typically, following a declaration of maximum medical improvement, it is anticipated that the frequency and to some degree, the intensity of therapeutic treatments would gradually decrease with the ultimate expectation that therapeutic follow-ups (which might include simply medication management or at times, might necessarily include medication management plus individual therapy of a supportive nature) would be necessary on an every two to three month basis, requiring at most, four to six such appointments per year. * * * Given what would be considered a more typical need to treatment following a declaration of maximum medical improvement, it would be anticipated that during the year 2007, there would typically need to be four follow-up appointments unless some extraordinary situation developed. No such extraordinary situation is discernable from Dr. Merayo's records. Dr. Guthrie summarized his opinion as follows: Therefore, given the expectation of follow- up care requiring four to at most six appointments per year subsequent to an [sic] maximum medical improvement declaration, it is my opinion, within a reasonable degree of medical certainty, that Dr. Merayo's continued monthly appointments of forty-five minutes duration suggest a pattern of over- utilization of services, [13] Dr. Guthrie also observed: From the clinical status of the claimant/patient indicated in Dr. Merayo's notes, it is clear that she has continued to struggle emotionally and with chronic pain despite aggressive treatment provided by Dr. Merayo. It is quite possible that his pattern of over-utilization has been in an attempt to assist an ill patient; however, given his declaration of maximum medical improvement on August 23, 2005, we are left with no other conclusion than a pattern of over-utilization. Summary The evidence presented by Dr. Merayo is sufficient to establish with the requisite degree of certainty that he should be reimbursed for medical services he provided the Claimant on April 11, 2007; August 21, 2007; October 16, 2007; December 11, 2007; and January 22, 2008. For reasons discussed in more detail below in the Conclusions of Law, the opinions of Dr. Merayo and Dr. Guthrie are the only evidence presented on which a determination of the medical necessity of the Claimant's monthly psychotherapy and medical management sessions with Dr. Merayo can be based. After consideration of all of the creditable evidence, Dr. Merayo's opinion is accepted as more persuasive and more grounded in the medical needs of the Claimant than the opinion of Dr. Guthrie. Dr. Guthrie's opinion was not based on an articulated "medically necessary standard of care for the clinical problem(s) documented by the Petitioner in the medical record of the Injured Employee," as required by the Department when it referred the reimbursement dispute to Dr. Guthrie,14 nor did Dr. Guthrie identify an established standard of care for psychiatric treatment of a patient with problems similar to the Claimant's. Rather, Dr. Guthrie's opinion was based on the "expectation" that, after a patient is found to have reached maximum medical improvement, the number of psychotherapy and medication management sessions would decrease to a maximum of four to six sessions per year, at a frequency of once every two to three months. In reaching his opinion regarding the frequency of psychotherapy and medication management review sessions that Dr. Merayo should have provided the Claimant, Dr. Guthrie imposed a standard that reflected "a more typical need" for treatment after maximum medical improvement of four sessions annually, but he never refers to the source of this standard of "typical need." In addition, there is only one reference to the medical necessity of monthly treatments for the Claimant, given her clinical problems and the complexity of her medications, in the Conclusion and Opinion section of Dr. Guthrie's EMA report. In that reference, Dr. Guthrie acknowledged that the Claimant continued to struggle with emotional issues and chronic pain and that the frequency of Dr. Merayo's psychotherapy sessions with the Claimant may have been "in an attempt to assist an ill patient."15 Nonetheless, because of the "expectation" regarding the frequency of treatment after a declaration of maximum medical improvement to which he referred in his report, Dr. Guthrie found that, regardless of the Claimant's need for treatment, he "is left with no other conclusion than a pattern of over-utilization" based solely on Dr. Merayo's having declared that the Claimant attained maximum medical improvement in August 2005.16 In the absence of reference by Dr. Guthrie to an established practice parameter, a protocol of treatment, or a standard of care for a psychiatrist treating a patient with a diagnosis, symptoms, and medications similar to those of the Claimant to support the opinion expressed in his EMA report, the opinion expressed in Dr. Guthrie's EMA Report is rejected. Dr. Merayo's testimony that the frequency and duration of his psychotherapy and medication management review sessions with the Claimant were, in his medical judgment, medically necessary to avoid deterioration of the Claimant's mental state and her possible lapse into psychotic features is accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order requiring Sedgwick CMS to remit payment to Huberto Merayo, M.D., for medical services he provided the Claimant on April 11, 2007; August 21, 2007; September 18, 200726; October 16, 2007, December 11, 2007; and January 22, 2008, in accordance with the rates established in the applicable Health Care Provider Reimbursement Manual. DONE AND ENTERED this 17th day of June, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 17th day of June, 2009.
