The Issue The issue is the determination of the amount of investigative, legal, and expert witness costs that, pursuant to section 409.913(23)(a), Florida Statutes, Petitioner is entitled to recover from Respondent for ultimately prevailing in DOAH Case No. 10-9318MPI.
Findings Of Fact Respondent is a Medicaid provider. Following an audit of the period of January 1, 2007, through June 30, 2008, Petitioner issued a Final Audit Report on August 16, 2010 (FAR). In the FAR, Petitioner determined that Respondent owed $123,393.06 in overpaid reimbursements, $5000 in administrative fines for violations of Florida Administrative Code 59G-9.070(7)(c) and (e), and $5658.09 in audit costs. The overpayments were extended from an audit of 30 recipients. For these recipients, the FAR claims that Respondent had received overpayments on 59 claims of the 237 claims that it had submitted during the audit period. Respondent requested an administrative hearing, so Petitioner transmitted the file to DOAH, where the case was assigned DOAH Case No. 10-9318MPI. Following a hearing on April 4 and 5, 2011, the undersigned Administrative Law Judge entered a recommended order on May 19, 2011 (Recommended Order). The Recommended Order, which is described in more detail below, states that Petitioner may recover its investigative, legal, and expert witness costs under section 409.913(23)(a). However, the Recommended Order includes no findings on these cost items because Petitioner presented no proof of these costs at the hearing. The Final Order adopts nearly all of the findings and conclusions of the Recommended Order. The Final Order directs Respondent to repay $105,353.06 in overpayments and $4000 in administrative fines. The Final Order adds: Additionally, pursuant to § 409.913(23)(a), Fla. Stat., costs shall be assessed against the Respondent in an amount that reflects the actual investigative, legal, and expert witness costs. The parties shall attempt to stipulate to the costs related to the investigation and prosecution of this case. In the event that the parties cannot so stipulate, this issue shall be remanded to the Division of Administrative Hearings for an evidentiary hearing . . . . The Final Order was affirmed on appeal in Case 1D11-4728, which the Administrative Law Judge has officially noticed. Tobias v. Ag. for Health Care Admin., 93 So. 3d 1020 (Fla. 1st DCA 2012) (per curiam). Among the other issues raised by Respondent in its initial and reply briefs were two of relevance to the present case: whether Dr. Martin possessed the expertise to testify that Respondent erroneously coded claims arising from procedures using the Axon-II medical device and whether Petitioner could pursue costs in a subsequent proceeding after failing to prove its costs at the hearing in DOAH Case No. 10-9318MPI. Respondent's failure to prevail on these two issues on appeal precludes his reassertion of these issues in the present case. The total court reporter fees that Petitioner seeks to recover is $2604.85 (not $2602.85, as shown in the motion). These fees comprise $254.12 for services in connection with Respondent's deposition, which was transcribed; $68.25 for services in connection with the depositions of two of Respondent's expert witnesses, which were not transcribed; and $2282.48 for services at the two-day final hearing, which was transcribed. These costs are all reasonable, and Petitioner has paid these invoices. The total legal costs that Petitioner seeks to recover are travel expenses of its attorney in the amount of $1054.63. These costs comprise $546.11 for a rental car, gas, tolls, and the per diem of the attorney to take the deposition of an expert witness in Boynton Beach and $508.52 for a rental car, gas, tolls, and the per diem of the attorney to take the deposition of Respondent in Stuart. These costs are reasonable, and Petitioner has paid these costs or incurred them as part of its general administrative expenses. Petitioner has not sought to recover as costs any portion of its attorney's salary and benefits that are allocable to the prosecution of DOAH Case No. 10-9318MPI. The total investigative costs that Petitioner seeks to recover are $154 for a registered nurse consultant and $487.33 for a program analyst, both of whom were employed by Petitioner at the time in question. The registered nurse consultant worked seven hours on the case at the rate of $22 per hour. The program analyst worked 24.75 hours on the case at the rate of $19.69 per hour. These costs are reasonable, and Petitioner has incurred these costs as part of its general administrative expenses. The total investigative and expert witness costs of Dr. Martin involve his work prior to and after the transmittal of the case to DOAH. Dr. Martin is a highly experienced neurologist who assisted Petitioner during the audit and at hearing. Dr. Martin's normal hourly rates are $300 for nontrial work and an average of $450 for trial work. For Petitioner, Dr. Martin charges hourly rates of $150 for nontrial work and $300 for trial work. These rates are reasonable. The costs in dispute in this case are reflected in four invoices totaling $29,737.50 that Dr. Martin submitted to Petitioner and Petitioner has paid. These four invoices are the second through fifth invoices that Dr. Martin submitted to Petitioner, which is not seeking to assess the costs of the first of Dr. Martin's invoices. Respondent has specifically contested all of Dr. Martin's costs for which Petitioner seeks reimbursement. Typically, Petitioner submits medical records to its peer reviewer. The peer reviewer examines the records and completes worksheets allowing, denying, or adjusting each claim for the sampled recipients during the audit period. The peer reviewer then returns the records and completed worksheets to Petitioner. This process occurred three times in the present case. In November 2009, Petitioner obtained Respondent's medical records and forwarded them to Dr. Martin. In January 2010, Dr. Martin returned to Petitioner the medical records and completed worksheets. In the worksheets, Dr. Martin noted some discrepancies in the testing for which Respondent had been reimbursed. At this time, Dr. Martin submitted his first invoice in the amount of $3000 for 20 hours' work. Petitioner paid the invoice. Because Petitioner elected not to present this invoice as part of the costs in this case, the Administrative Law Judge has not assigned any of these 20 hours to Dr. Martin's work on the Axon-II test, which is described in detail below. Between January and May 2010, Petitioner obtained clarification concerning Medicaid policy for reimbursing claims arising out of the use of a device similar to the Axon-II device, if not this device itself. Petitioner submitted medical records a second time to Dr. Martin in May 2010. This submittal included some additional medical records that Petitioner had since received from Respondent, as well as a communication, in some form, of Medicaid policy prohibiting the reimbursement of claims arising out of the use of a device similar to the Axon-II device, if not this device itself. At this time, Dr. Martin examined closely the question of the reimbursability of claims arising out of the use of a device similar to the Axon-II device, if not this device itself. According to Dr. Martin, the Centers for Medicare and Medicaid Services (CMS) had determined in 2002 and 2004 that claims of this type were not eligible for reimbursement under Medicaid. Nonetheless, Dr. Martin testified that the issue was not entirely clear. Dr. Martin examined materials contemporaneous to the CMS determinations in 2002 and 2004 to understand the grounds for the ineligibility determination. He also examined materials, both provided by Respondent and available on the internet, to understand the details of the Axon- II testing. It is not entirely clear when Dr. Martin performed all of this work, but at least part of it took place in May 2010. Thus, work on the issue of the reimbursability of claims arising from the use of the Axon-II device was included in the second invoice, which is dated May 20, 2010, for $2137.50. The only item on this invoice is "Review Records." The invoice discloses 14.25 hours, but provides no dates of services. Dr. Martin's third examination of Respondent's medical records took place in late June 2010. The record does not indicate exactly what new information was available at this time, but it is likely that Respondent provided more literature on the Axon-II device. The third invoice, which is dated July 20, 2010, is for $3150. The only item on this invoice is "Review Records." The invoice discloses 21 hours in July 2010. By the time of the third invoice, Dr. Martin had concluded his research into the requirements for neural testing to be coded Current Procedural Terminology Manual (CPT) 95904, which is how Respondent coded its Axon-II procedures, and the details of Axon-II testing. Based on Dr. Martin's work, the next month, Petitioner issued the FAR, which disallowed all of the claims based on Respondent's use of the Axon-II device. The FAR cites a CMS publication that, as of June 18, 2004, discusses sensory neural conductivity threshold tests (sNCTs), which are discussed below. The cited CMS publication states that sNCTs "are different and distinct from assessment of nerve conduction velocity, amplitude and latency" and that reimbursement claims of sNCTs under CPT 95904, which is for a Sensory Nerve Conduction Test, are "erroneous and are therefore denied." This CMS publication definitively settled the main reimbursement dispute in DOAH Case No. 10-9318MPI. Prior to considering the fourth of Dr. Martin's invoices at issue in this case, it is necessary to place his valuable work in perspective. DOAH Case No. 10-9318MPI did not present the time-consuming array of factual issues typically seen in Medicaid overpayment cases. Instead, the case presented itself as essentially a one-issue case--the reimbursability of the Axon-II testing. Of the 59 claims in dispute, six claims were coded CPT 95934, which is for an H-Reflex Test. There was no dispute that these claims should not have been billed: Respondent admitted that an inexperienced employee had miscoded six claims for other procedures with the CPT for an H-Reflex Test. The sole question was whether the overpayments for these claims should be extended from the sample to the universe. Respondent claimed that they should not be because he had timely corrected the misbillings. Petitioner claimed that they should be because Respondent had not timely corrected the misbillings. The Administrative Law Judge found that the billings should be removed from the sample, but Petitioner overturned this finding in the Final Order. Notwithstanding the different treatment given these six claims by the Administrative Law Judge and Petitioner, the analysis of these claims was straightforward and involved little, if any, of Dr. Martin's time. Of the remaining 53 claims in dispute, nine were a routine assortment of typical overpayment issues, such as whether a billed procedure was upcoded or medically necessary. Although the Administrative Law Judge resolved seven of these nine disputed claims differently than their treatment in the FAR, the analysis of these nine claims was also straightforward and required little more time of Dr. Martin than the analysis of the misbilled claims for H-Reflex Tests. All of the remaining 44 claims raised the Axon-II reimbursement issue. Analysis of these 44 claims required no consideration whatsoever of individual patients. These 44 disputed claims required instead a single determination of whether Respondent was entitled to reimbursement for neural testing that he performed using an Axon-II device. Notwithstanding Dr. Martin's claim that the issue was not entirely clear, the Administrative Law Judge found, in the underlying case, that the denial of these 44 claims did not demand much analysis. Rejecting Respondent's billing of these 44 claims under CPT 95904, Petitioner properly denied all of these claims as erroneously coded because they did not meet the criteria of CPT 95904. Petitioner correctly determined that these claims were properly classified under CPT 95999, which is for unlisted neurological diagnostic procedures, or CPT G0255, which is a unique code for sNCTs. Procedures bearing either of these codes are not reimbursable under Medicaid. Although some time is required to understand the details of the neural testing provided by the Axon-II device and how it fails to meet the requirements of CPT 95904, the ultimate facts are straightforward. The Recommended Order covers these matters in only eight paragraphs of findings of fact covering three pages. These findings state that CPT 95904 requires that a device measure a nerve's response in terms of amplitude and "latency/velocity."2/ The findings explain that amplitude is a measure of size and latency is a measure of the time of travel, so that, if the travel distance is known, the velocity can be derived from the latency. These findings state that the Axon-II device measures amplitude, but not latency or velocity. These findings conclude that Respondent's procedures thus did not fall within CPT 95904, as billed, but within CPT 95999 or CPT G0255. These findings note that CMS created CPT G0255 for sNCTs to ensure that claims for such services would be denied as medically unnecessary and that, on March 19, 2004, CMS revised its National Coverage Determinations Manual to reinforce CMS's position that claims for tests measuring amplitude, latency, or velocity are not reimbursable. Dr. Martin's fourth invoice is dated January 11, 2011, for $17,925. The first item on this invoice is: "Phone call with Bill Porter," who was an attorney with Petitioner. For this item, the invoice discloses one hour on December 8, 2010. The total of this item is $150. The second item on this invoice is: "Research in prep for legal case." For this item, the invoice discloses 115 hours, but no dates of service. The total of this item is $17,250. The last item on this invoice is: "Meeting with analyst, nurse and two agency lawyers preparing for trial and depositions." For this item, the invoice discloses 3.5 hours--from 9:00 a.m to 12:30 p.m.--on January 11, 2011. The total of this item is $525. The one- and three-hour items are routine and reasonable. They require no further discussion. The 115-hour item is, in its entirety, unreasonable because it is unnecessary and excessive. As such, this item is not even causally related to the investigation or prosecution of this case, at least not in any meaningful way. The 115-hour item bears no date and hardly any description. This block of time totaling nearly three weeks occurred after the issuance of the FAR in August 2010. Not only was 35.25 hours the maximum reasonable amount of time necessary to fully dispose of all disputes, after the issuance of the FAR, there was no work remaining, except as noted below, due to the relative simplicity of the Medicaid overpayment case. The fifth and final invoice, which is undated, is for a total of $6525. The first item on this invoice is: "Trial prep: Review of Neural scan, Medicare rulings, FDA approval, patients[.]" The invoice discloses 11 hours from March 30 through April 3, 2011, for these items. The total of this item is $1650. The second item is: "Review CPT Codes[.]" The invoice discloses 3.5 hours from March 30 through April 3, 2011, for this item. The total of this item is $525. The third item is "[Prehearing] conf with Mr. Porter." For this item, the invoice discloses one hour on March 30, 2011. The total of this item is $150. The fourth item is "Conference with Jeff Duval and Monica," who were attorneys for Petitioner. For this item, the invoice discloses 3.5 hours on April 3, 2011. The total of this item is $525. The fifth item is "Pre-Depo conference with Monica." For this item, the invoice discloses 0.5 hour on March 29, 2011. The total of this item is $75. The sixth item is "Hearing." For this item, the invoice discloses 12 hours on April 4-5, 2011, so the total of this hearing time is $3600. It was not unreasonable for Dr. Martin to devote an additional--and final--11 hours from March 30 through April 3, 2011, to revisit his earlier conclusions and refamiliarize himself with his prior research. The hearing started the following day, so this work was useful for preparing direct and cross-examination. As indicated by the invoice, Dr. Martin reviewed materials on neural scans, CMS rulings, and FDA approvals. The remaining time on the fourth invoice was also reasonable. In summary, all of Dr. Martin's time shown on the second through fourth invoices, except for the 115 hours, was reasonable. Reducing the costs attributable to Dr. Martin by 115 hours times $150 per hour would yield a total of $17,250. The resulting net cost for Dr. Martin's time thus would be $12,487.50. With this adjustment, Petitioner would have proved recoverable costs of $16,788.31.
Recommendation It is RECOMMENDED that Petitioner enter a final order assessing Respondent costs of $34,036.30 or $16,788.31, if Petitioner determines that its costs must be limited to those that are reasonable or, in the alternative, causally linked to the investigation and prosecution of the underlying case. DONE AND ENTERED this 24th day of February, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2014.
Findings Of Fact The Petitioner, Darall J. Moore, graduated from the Ohio College of Podiatric Medicine in 1983 with a D.P.M. degree. T. 10. The Petitioner took the podiatry examination in July 1986, and did not receive a passing grade. On October 1, 1986, the Petitioner conducted a review of his examination. He arrived at 8:30 a.m. and left the review session at 1:30 p.m. R. Ex. 1. The review was conducted pursuant to the procedures outlined in P. Ex. 1, a copy of which was provided to the Petitioner by the Respondent before the review took place. The purpose of the review was to give the Petitioner an opportunity to examine the answer key and the questions asked on the examination, and to note in writing (on challenge sheets provided) his objections to the grading of particular questions by number. The procedure for examination review also provided that: Candidates may not copy any material provided for the review. No reference materials or electronic recording or photographic equipment may be brought into the review. No material may be taken out of the review. All reviews are subject to Departmental security requirements in order to insure the integrity of the examination. The review session on October 1, 1986, was conducted in a small room. The room was used by other people as well, and during the review there were conversations of people, phones ringing, and people coming in and out. Nonetheless, there does not appear to be any direct evidence that these distractions substantially impaired the Petitioner's ability to review his examination. During the review, the Petitioner submitted challenges to 20 examination questions by number. R. Ex. 1. Each of these written challenges identifies the examination question by number and provides a space for comments concerning the challenge. The procedure for examination review and challenge provides in part that "[a]ll objections must be submitted within sixty (60) days from the date of your request for a review. Objections will be analyzed by a committee of the Board of Podiatry and you will be notified of any decision." P. Ex. 1. (E.S. in original.) Before the review took place, the Petitioner was informed that he had a right "to appeal" from the "results" of his examination review. The "appeal" was to be initiated within thirty (30) days of his "receipt of . . . examination review results." The "appeal" was to contain specific reasons for the challenge, including why the Petitioner was "appealing," "what actions of the examiner(s) were unfair, and any objections made at your review." P. Ex. 1. (E.S. in original.) The Petitioner timely requested a formal administrative hearing. At the formal administrative hearing, the Petitioner presented evidence concerning five examination questions. T. 30. None of this evidence was by expert testimony, but the Petitioner referred to expert treatises in the field. The first question was to state the nerve located around the neck of head of the fibula. T. 30. Petitioner contends that his answer to the question, the common peroneal, is correct. Id. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The second question challenged at the hearing by the Petitioner was "what dorsal cutaneous nerve communicates with the sural nerve." T. 44, 45. The Petitioner contends that the correct answer to this question, his answer, is the lateral dorsal cutaneous nerve. Id. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The third question challenged by the Petitioner at the hearing was "what is the largest reservoir of blood in the body." T. 46. The Petitioner contends that his answer, the veins, is the correct answer. T. 47. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The fourth question challenged by the Petitioner at the hearing was what is the characteristic of metatarsus adductus. T. 48. The Petitioner contends that his answer, "styloid process, prominent styloid process, based on the concave in the concavity being reversed," is the correct answer. T. 49. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The fifth question challenged by the Petitioner at the hearing was never clearly stated by the Petitioner, but concerned "pathopneumonic of gouty arthritis." T. 49. The Petitioner never clearly identified the answer that he gave, but contended that his answer was partially right and that there was no other answer that he could have chosen. T. 49-50. It appears that this question was discussed and objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2, question 88. However, since the Petitioner never clearly demonstrated what the question was, or what the answer was, the testimony of the Petitioner was too unclear for there to be a finding that the answer he gave to the question was correct. The Petitioner admitted that during the review session (see R. Ex. 2) he did not provide the Respondent with all of the questions to which he had objections. T. 38. The Petitioner did not provide the Respondent with written objections to the first four questions discussed above within sixty (60) days of the review, and indeed, did not provide any such notice to the Respondent until the formal administrative hearing began. There is no evidence that the Petitioner would have passed the examination if the Respondent accepted his answer to the fifth question. The Petitioner testified that his ability to prepare for this hearing was impaired because he was not allowed to take anything into the review session and was not permitted to take anything out of the review session. He states that he could not adequately prepare for the hearing because he did not have references during the review session, and did not have a copy of the questions objected to in the review session or a copy of the examination for use at the hearing. The Petitioner represented himself without representation of a lawyer. There is no evidence that the Petitioner knew about the procedures for conducting discovery prior to a formal administrative hearing, and there is no evidence that prior to the hearing he sought any discovery of the written objections he made during the review session or of the examination questions.
Recommendation For these reasons, it is recommended that the Department of Professional Regulation, Board of Podiatry, enter its final order finding that the Petitioner, Darall Jerome Moore, has not proven by a preponderance of the evidence that his 1986 examination for licensure as a Podiatrist was improperly graded, that the procedures for review of his examination were unfair, or that he should be given a passing grade on the 1986 examination. DONE and ENTERED this 10th day of July, 1987. WILLIAM C. SHERRILL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 87-1725 The following are rulings upon findings of fact proposed by the parties, by number, which have been rejected. Findings of fact proposed by the Petitioner: 1. The record does not contain evidence (testimony or exhibits) to allow any conclusion as to the numerical grade received by the Petitioner. Thus, the finding proposed that the grade was 71.9 is rejected. There is insufficient evidence that the distractions during the review in fact substantially impaired the ability of the Petitioner to review the examination. The Petitioner did not testify that the noise or traffic caused him to be unable to concentrate or to fail to review the entire exam. See T. 28-29. The Petitioner completed twenty objections and left at 1:55 P.M., three hours before 5:00 P.M. The first sentence is rejected as not relevant. The Petitioner did not present any evidence to show how he was caused to be unable to prepare his case due to the scheduling of the hearing. It is officially recognized that the case was set for final hearing to commence August 10, 1987, by an order dated and entered May 1, 1987, and that the hearing date was changed to June 8, 1987, at the request of an attorney, Marc A. Tenney, received May 4, 1987. For these reasons, the second sentence is also rejected. Rejected for the reasons set forth in conclusions of law 2-4. The finding that it was very difficult to prepare for final hearing is rejected in finding of fact 19 and conclusion of law 6. Rejected in finding of fact 19 and conclusion of law 6. These findings are rejected in finding of fact 19 and conclusion of law 6. Rejected in findings of fact 11 through 14. Rejected in findings of fact 11 through 14. Findings of fact proposed by the Respondent: 2. The second sentence is rejected for lack of evidence in the record. COPIES FURNISHED: Marcelle Flanagan Executive Director Board of Podiatry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darall Jerome Moore, D.P.M. 5455 27th Street South, Apt. 87 St. Petersburg, Florida 33712 Chester G. Senf, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 70.5%, with 254 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. The Petitioner testified that as many as thirty questions in the examination booklet which she received at the exam site had misspellings. The actual question booklets used for the July, 1989, exam were introduced in evidence, but the Petitioner failed to establish, by competent substantial evidence, that there were any significant misspellings in these booklets which would in any way impair the fairness or validity of the examination results. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination was administered in an arbitrary or capricious manner. The Petitioner totally failed to introduce any evidence which would establish that there were material misspellings in the examination booklets which would impair the validity of the grading results.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades she received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2802 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. Adopted in Finding 3. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issues in this case are whether Respondent violated Subsection 458.331(1)(s), Florida Statutes (2009),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of medicine in Florida pursuant to Chapters 456 and 458 and Section 20.43, Florida Statutes. At all times material to this Administrative Complaint, Dr. Campbell was a licensed physician in the State of Florida, having been issued license number ME 34315. Dr. Campbell has suffered two motor vehicle accidents which resulted in closed-head injuries and has sustained damage to his brain resulting from hypoxia from cervical spine surgery. He has some residual effects from his injuries such as some word-finding problems, a tendency to cry easily, trouble with his dexterity, and taking longer than normal to make a point. He takes medications for his brain injuries, including Exelon and Muvigil. In or around January of 2005, Dr. Campbell self- contacted Professional Resource Network (PRN), which is the impaired practitioner’s program for the Board of Medicine pursuant to Section 456.076, Florida Statutes. PRN is a program that monitors the evaluation, care, and treatment of impaired healthcare professionals. PRN oversees random drug screens and provides for the exchange of information between treatment providers and the Department for the protection of the public. In or around November 2005, it was concluded that Dr. Campbell’s then-current cognitive abilities were sufficient to practice medicine safely based on completing the Special Purpose Examination (SPEX). The SPEX is a computerized, multiple-choice examination of current knowledge used by state medical boards to re-examine a licensed or previously-licensed physician’s ongoing level of basic medical knowledge. In or around April of 2006, Dr. Campbell entered into a licensure-long PRN contract, which included the involvement of a psychiatrist. In or around December of 2006, the Agency for Health Care Administration (AHCA) performed a site visit regarding Dr. Campbell’s participation in the LLC Medipass Program. Medipass (Medicaid Provider Access System) is a primary care case management program for Medicaid beneficiaries developed and administered by Florida Medicaid. Florida NetPass LLC provides clinical, pharmaceutical, diagnostic, and financial information for patients to their physicians. It also provides service network services, plan administration, utilization management, credentialing of members, data analysis and reporting, and preferred drug list education services. By letter dated December 5, 2006, Dr. Campbell was advised by Health Network One, Inc. (HN1), of the immediate termination of his Primary Care Services Agreement with HS1 Medical Management, Inc. The basis for the termination of the contract was the site review conducted in December 2006, which led clinical staff to conclude that Dr. Campbell was not mentally competent to practice medicine at that time and that the continuation of the agreement would have a negative effect on the patients’ care. The termination of the contract meant that Dr. Campbell could not provide services to Florida NetPass, MediPass beneficiaries. On April 10, 2007, AHCA advised Dr. Campbell that it was terminating his Medicaid Provider Agreement. In July 2009, PRN sent Dr. Campbell a letter requesting that he provide an update from his psychiatrist, Ann Tyson, M.D. (Dr. Tyson). An update was provided in October 2009 by Dr. Tyson, who concluded that Dr. Campbell’s diagnosis and/or medication at that time did not affect his ability to practice medicine. In October 2009, PRN notified Dr. Campbell that it was necessary for him to get new neuropsychological testing done. Dr. Campbell did not have the funds to get the testing done at that time. In December 2009, Dr. Campbell saw Dano A. Leli, Ph.D. (Dr. Leli), for a neuropsychological evaluation. Dr. Leli credibly concluded as follows: Based on all of the findings contained in this neuropsychological evaluation coupled with the information provided in the available records, Dr. [Campbell] does not appear to be safe to practice his profession as a physician. This conclusion is based on his above-described neuro-cognitive and motor deficits; poor impulse control, emotional lability, lack of respect for interpersonal boundaries, poor stress tolerance, impaired interpersonal reasoning, judgment, planning, and problem-solving skills; lack of insight to how his various disorders are affecting his professional behavior; and his seeming difficulty in receiving any type of constructive feedback designed to help him alter his behavior in a more adaptive fashion. In his deposition, Dr. Leli credibly testified that it was his opinion that Dr. Campbell was not safe to practice medicine at this time. Dr. Campbell has difficulty with interpersonal space. For example, he continued to unintentionally kick the test examiner under the table during his evaluation testing. He also rested his hands unusually close to the examiner’s hands to the extent that it made the examiner uncomfortable. Dr. Campbell did not recognize that he needed to keep boundaries between them. A physician needs to be able to maintain personal boundaries with his patients. Dr. Campbell’s inability to maintain appropriate personal boundaries adversely affects his ability to practice medicine. Dr. Campbell demonstrated poor impulse control and poor stress tolerance during his neuropsychological evaluation. He swore frequently during the testing and had loud verbal temper outbursts. A physician needs to be able to keep his emotions in check when he is seeing patients; otherwise, a physician cannot effectively respond to his patients. During the evaluation, Dr. Campbell told Dr. Leli that he was impulsive and that he cares for his patients too much. Dr. Campbell told Dr. Leli that if he had a patient who was experiencing a heart attack that he would take the patient to the hospital in his personal car rather than call 911 for an ambulance and paramedics. When Dr. Leli asked Dr. Campbell whether Dr. Campbell understood the liability of doing that or the danger to the patient, Dr. Campbell replied that he would still take the patient to the hospital himself. Dr. Campbell’s poor impulse control and poor judgment adversely affect his ability to practice medicine. Dr. Campbell has difficulty in judgment, planning, and problem solving. During the evaluation process, Dr. Campbell kept excusing himself to go to a nearby vending machine to get soft drinks. He went so many times, that the evaluator finally told him to go to a convenience store and purchase as many soft drinks as he needed so that they could finish the testing without the interruptions. Additionally, Dr. Campbell had difficulty in using the vending machine. He tried to put a dollar bill in the machine, but the machine would not take the bill. Dr. Campbell went back to the evaluator, got change, and went back to the vending machine. Dr. Campbell did not seem to know what to do with the coins. Finally, the evaluator told him to put the coins in the machine. A physician needs to be able to plan and problem solve in dealing with patients. Dr. Campbell’s difficulties in these areas adversely affect his ability to practice medicine. Dr. Campbell demonstrated difficulty with motor skills during the evaluation. He was given a test in which he was to tap a key similar to a telegraph key with his finger. He was unable to tap the key with his finger; instead, he placed his whole hand on the key. Dr. Campbell told Dr. Leli that he was having difficulties with his fine motor skills, particularly with his left upper extremity. Dr. Campbell also relayed that he was having tremors in both upper extremities. A physician needs to have fine motor skills in order to touch his patients and make evaluations as well as to use mechanical devices. Dr. Campbell’s difficulties with motor skills adversely affect his ability to practice medicine. Dr. Campbell does not understand how his behavior is affecting other people. During the evaluation, Dr. Campbell began to explain to the examiner a diagnosis of diabetes. After he explained the process, which included the drawing of diagrams, Dr. Campbell asked the examiner to reiterate to him what he had just explained, as if he were trying to educate the examiner. The explanation of diabetes was inappropriate in the context of an evaluation setting, and Dr. Campbell did not appear to know that it was inappropriate. The test results of the evaluation demonstrated that Dr. Campbell’s visual-motor intellectual abilities were significantly declined when compared to functioning on at least a high average level prior to his injuries. He showed a significant decline on tests of visual concentration and attention. He also had difficulties with auditory processing. Dr. Campbell was given a verbal memory test of stories. He would read a story and then would immediately relate the contents of the story. Thirty minutes after reading the story, he would be asked to relate the contents of the story again. Dr. Campbell was average on immediate retrieval, but was borderline impaired on delayed retrieval. This memory problem would adversely affect his care of patients if he cannot recall what the patient has told him within 30 minutes of the conversation with the patient. Dr. Campbell demonstrated difficulties in paying attention to fine visual detail. This impairment adversely relates to the practice of medicine because a physician has to examine a patient’s body and pay attention to fine detail in order to properly evaluate the patient. Dr. Campbell demonstrated some persecutory thinking during his evaluation, where he perceives that people, who are not out to get him, are trying to hurt him. Such thinking can adversely affect his ability to practice medicine because he could easily misperceive an interaction between him and a patient causing him to lose his clinical demeanor and clinical efficacy. In January 2010, Dr. Campbell advised Jerome Gropper, M.D., who was Dr. Campbell’s case manager at PRN, that he had had neuropsychological testing done in December 2009. This was the first time that Dr. Gropper had heard that Dr. Campbell had been tested. Dr. Gropper asked Dr. Campbell to send him a copy of the test results. During January 2010, Dr. Campbell also advised Dr. Gropper that on the way to the testing in December 2009 that he had fallen, had hurt his back, and had taken some Lyrica. The effects of the Lyrica caused him not to be able to finish the test, and he had to come back later to finish the test. On the way home from the first testing he banged up his car. Another time he had taken Lyrica and had made a left hand turn on a red light and had stopped at a green light. Dr. Campbell was required to keep PRN apprised of all the medications that he was taking, and he had failed to do so before taking the Lyrica. Dr. Gropper asked Dr. Campbell if he had a prescription for Lyrica, Dr. Campbell said that he did. When questioned about the prescription, Dr. Campbell became upset and started yelling. Dr. Campbell also told Dr. Gropper that the reason that he had been upset during the site visit in December 2006 was because he had taken Neurontin for back pain, and he had an adverse reaction to the drug. Dr. Gropper asked Dr. Campbell to send a copy of the prescription for Lyrica to PRN. When PRN received a copy of the prescription, it was learned that the medication had been prescribed in 2006. Dr. Gropper considered the taking of a three-year-old prescription to be self-medicating. By letter dated February 12, 2010, Judy S. Rivenbark, M.D., the acting medical director of PRN, notified Dr. Campbell that his monitoring contract with PRN was terminated and that his case would be referred to the Department for further action. By letter dated February 16, 2010, Dr. Rivenbark advised the Department that Dr. Campbell had failed to progress in the PRN program and that PRN was unable to say whether Dr. Campbell was able to practice with reasonable skill and safety. Dr. Tyson has been Dr. Campbell’s psychiatrist since 2007. When asked on deposition whether Dr. Campbell was competent to practice medicine, she replied: I don’t know that. I think there are problems that have been magnified by this process, and I think that, given [Dr. Campbell’s] strengths, that [he] should be given a chance to practice medicine. And I think the only way that will happen is if [he] practice [sic] under the supervision of someone. When asked if it was her opinion that Dr. Campbell could practice safely without the supervision of another physician, Dr. Tyson replied, “I don’t think that I should assume, at this point, that he could practice safely without supervision, no.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entering finding that Dr. Campbell has violated Subsection 458.331(1)(s), Florida Statutes, and suspending his license indefinitely until Dr. Campbell is able to demonstrate the ability to practice with reasonable skill and safety, followed by probation. DONE AND ENTERED this 28th day of July, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 July, 2010.
