The Issue The issues in this case are whether Petitioner received Medicaid overpayments, and, if so, what is the aggregate amount of the overpayments.
Findings Of Fact The Parties Respondent, the Agency for Health Care Administration, is the single state agency charged with administration of the Medicaid program in Florida under Section 409.907, Florida Statutes. Petitioner, The Doctor's Office, was a Florida corporation approved by the Agency to provide group Medicaid services. At all times relevant to this matter, Petitioner was owned entirely by non-physicians who employed salaried physicians to provide Medicaid services. Petitioner, at all times relevant to this matter, offered physician services to Medicaid beneficiaries pursuant to a contract with the Agency under provider number 371236P-00. Petitioner, pursuant to the specific terms in the contract with the Agency, agreed to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program, and Federal laws and regulations. Petitioner, pursuant to its contract with the Agency, agreed to only seek reimbursement from the Medicaid program for services that were "medically necessary" and "Medicaid compensable." The Audit In mid-1996, the Agency, pursuant to its statutory responsibility, advised Petitioner that it intended to audit Petitioner's paid Medicaid claims for the alleged medical services it provided between July 1, 1994 and June 30, 1996. In September 1996, the Agency conducted an initial audit site visit, and randomly selected 61 patient files for review. The complete patient files, provided by Petitioner, were reviewed by Sharon Dewey, a registered nurse consultant and Agency employee, as well as Dr. Solenberger, a physician consultant and Agency employee. In accordance with its procedure, the Agency determined that Petitioner had submitted a total of 580 claims for reimbursement relating to the 61 patient files and had received full payment from the Medicaid program for each claim. On March 3, 1997, the Agency issued a Preliminary Agency Audit Report (PAAR), and advised Petitioner that it had over-billed Medicaid and received an overpayment from the program. Shortly thereafter, the Agency auditors, Dr. Solenberger and Ms. Dewey, met with Frank Colavecchio, Petitioner's Corporate Representative, and discussed the Medicaid violations alleged in the review. During the meeting, the Agency requested Mr. Colavecchio to instruct Petitioner's staff physicians to review their records and provide a written rebuttal to the Agency's initial determinations. Within days, and prior to any further action, the Agency placed the audit on indefinite hold. The Agency decided to delay the audit until certain proposed legislation relating to peer review and the integrity of the Medicaid reimbursement program was enacted. Two years later, Section 409.9131, Florida Statutes, was enacted during the 1999 legislative session and became law. Shortly thereafter, in 1999, the Agency hired Dr. Larry Deeb, a board-certified, practicing pediatrician, to perform a peer review of Petitioner's practices and procedures. Dr. Deeb has performed similar medical records reviews for the Medicaid program since 1981 and possesses a thorough understanding of CPT coding and the EPSDT requirements. Dr. Deeb received the medical files provided by Petitioner, and reviewed each patient file in the random sample, including the medical services and Medicaid-related claim records. On November 11, 1999, Dr. Deeb completed his peer review of 564 of the 580 claims provided in the random sample and forwarded his findings to the Agency. Dr. Deeb advised the Agency that 16 reimbursement claims involved adult patients and he therefore did not review them. Utilizing Dr. Deebs findings, the Agency employed appropriate and valid auditing and statistical methods, and calculated the total Medicaid overpayment that Petitioner received during the two year audit period. On July 17, 2000, approximately four years after the original audit notification, the Agency issued its Final Agency Audit Report (FAAR). The Agency advised Petitioner that, based upon its review of the random sample of 61 patients for whom Petitioner submitted 580 claims for payment between 1994 and 1996, Petitioner received $875,261.03 in total overpayment from the Medicaid program during the audit period. Petitioner denied the overpayment and requested a formal administrative hearing. Following the initial commencement of the final hearing in this matter in December 2001, Dr. Deeb, again, reviewed the disputed claims and modified his opinion relating to 6 claims. Thereafter, the Agency recalculated the alleged overpayment and demanded Petitioner to pay $870,748.31. The Allegations The Agency alleges that specific claims submitted by Petitioner, which were paid by the Medicaid program, fail to comply with specific Medicaid requirements and therefore must be reimbursed. Since its inception, the Medicaid program has required providers to meet the Medicaid program's policies and procedures as set forth in federal, state, and local law. To qualify for payment, it is the provider's duty to ensure that all claims "[a]re provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with . . . state . . . law." Section 409.913(5)(e), Florida Statutes (1993). Medicaid manuals are available to all Providers. Petitioner, as a condition of providing Medicaid services pursuant to the Medicaid program, is bound by the requirements and restrictions specified in the manuals, and under the contract, is required to reimburse the Medicaid program for any paid claims found to be in violation of Medicaid policies and procedures. The evidence presented at hearing established that Petitioner frequently violated various Medicaid policies and procedures. First, Petitioner repeatedly failed to comply with Section 10.9 of the Medicaid Physician's Provider Handbook, (MPPH), and Sections 409.905(9), 409.913(5)(e), 409.913(7)(e), and 409.913(7)(f), (1993, 1994 Supp. 1995, and 1996), Florida Statutes, which require all medical services to be rendered by, or supervised by a physician, and attested to by the physician's signature. Medical records reflecting services for paid claims must be physician signature certified and dated, or the services are not defined as physician's services. In addition, Petitioner routinely failed to correctly document the provision of certain physician's assistant (P.A.) Medicaid services that require the personal supervision of a physician or osteopath. See Chapter 1 of the Physician Assistant Coverage and Limitations Handbook, March 1995, and Appendix D (Glossary) in the Medicaid Provider Reimbursement Handbook, HCFA-1500 (HCFA-1500). In addition, Petitioner failed to comply with Medicaid regulations that require an approved physician to be present in the facility when certain P.A. services are delivered and to attest to it by signature within twenty-four hours of service. See Section 11.1 of the MPPH, effective July 1994, and Sections 409.905, and 409.913 (1993, 1994 Supp., 1995, and 1996 Supp.), Florida Statutes. The evidence presented at hearing also demonstrates that Petitioner repeatedly violated specific record keeping requirements located in Section 10.9 of the MPPH, Sections 10.6 and 11.5 of the Medicaid EPSDT Provider Handbook (EPSDT), and Sections 409.913(5)(e), 409.913(7)(e), and 409.913(7)(f), (1993, 1994 Supp., 1995, and 1996), Florida Statutes. In addition, the Agency demonstrated that Petitioner occasionally failed to document support for the necessity of certain services or simply billed for services that were not medically necessary. As indicated, Medicaid policy limits a physician to bill only for services that are medically necessary and defines the circumstances and varying levels of care authorized. In fact, Section 11.1 of the MPPH, effective July 1994, provides in part: The physician services program pays for services performed by a licensed physician or osteopath within the scope of the practice of medicine or osteopathy as defined by state law . . . . The services in this program must be performed for medical necessity for diagnosis and treatment of an illness on an eligible Medicaid recipient. Delivery of all services in this handbook must be done by or under the personal supervision of a physician or osteopath . . . at any place of service . . . . Each service type listed has special policy requirements that apply specifically to it. These must be adhered to for payment. The manual further provides clear guidelines defining authorized services for reimbursement which Petitioner apparently overlooked. For example, the manual defines the four types of medical history exams that Medicaid providers may conduct, the nature of the problems presented, and the appropriate and authorized tests. The manual also identifies the varying degrees of medical decision-making complexity related to Medicaid services and provides instructions relating to the method of selecting the correct evaluation and management code for billing. Petitioner consistently violated coding restrictions. Moreover, the Medicaid policy manual also outlines the specific procedures and billing requirements necessary for seeking payment for medical services including the early periodic screening for diagnosis and treatment (EPSDT) services. Chapter 10 and 11 of the MPPH specifically state that services that do not include all listed components of the EPSDT are not defined as an EPSDT, and upon audit, the Agency re-calculated Petitioner's medical services at the appropriate procedure code. Stipulation Prior to the commencement of the hearing, the parties stipulated that certain paid claims were correctly determined by the Agency to be overpayments. Specifically, the parties agreed that portions of samples 1, 3, 14, 21, 28, 41, 46, 47, 51, 53, and 56 could not be claimed for reimbursement since lab services which are part of an office visit reimbursement and/or lab service fees performed by an independent outside lab are not permitted. In addition, the parties agreed that specific portions of samples 1, 13, 14, 27, 28, 33, 35, 43, 46, 47, 52, 53, and 55 could not be claimed since Modifier 26 billing, the professional component, is only appropriate when the service is rendered in a hospital and Petitioner's services were rendered in an office. Pediatric Sample With regard to the random sample of pediatric files, upon careful review, the evidence presented at hearing sufficiently demonstrates that Petitioner was overpaid the following amounts on the following paid claims for the following reasons: The prolonged physician's services billed to Medicaid were not documented as having been provided or medically necessary. Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 1 1/18/1996 99354 $ 36.64 1 5/14/1996 99354 $ 36.64 13 9/25/1995 99354 $ 36.64 19 9/28/1994 99354 $ 39.50 21 12/18/1995 99354 $ 36.64 28 3/06/1995 99354 $ 36.64 42 6/04/1996 99354 $ 36.64 43 12/19/1994 99354 $ 36.64 47 9/28/1994 99354 $ 39.50 47 10/17/1995 99354 $ 36.64 51 4/05/1995 99354 $ 36.64 53 11/02/1995 99354 $ 36.64 56 5/01/1996 99354 $ 36.64 The level of care billed to and reimbursed by Medicaid at the 99215 office visit procedure code level was improper since the level of care provided was at the 99213 office visit procedure code level. Cluster Number Date of Service Overpayment 1 9/14/1995 $ 34.14 1 1/18/1996 $ 34.14 1 5/14/1996 $ 34.14 33 9/28/1994 $ 20.00 47 10/17/1995 $ 34.14 The level of care billed and paid at the 99215 office visit procedure code level was improper since the level of care that was provided was at the 99214 office visit procedure code level. Cluster Number Date of Service Overpayment 53 5/31/1995 $ 21.69 The level of care billed and paid at the 99205 office visit procedure code level was improper since the level of care that was provided was at the 99204 office visit procedure code level. Cluster Number Date of Service Overpayment 25 7/27/1994 $ 2.00 The level of care that was billed and paid at the 99205 office visit procedure code level was improper since the level of care that was provided was at the 99203 office visit procedure code level. Cluster Number Date of Service Overpayment 35 5/11/1995 $ 37.96 51 12/08/1994 $ 15.00 55 11/21/1995 $ 37.96 58 9/22/1995 $ 37.96 The level of care that was billed and paid at the 99215 office visit procedure code level was improper since the level of care that was provided was at the 99204 office visit procedure code level. Cluster Number Date of Service Overpayment 43 12/11/1994 ($ 3.00) credit The level of care that was billed and paid at the 99205 office visit procedure code level was improper since the medical services provided and documentation supported an EPSDT visit. Cluster Number Date of Service Overpayment 53 2/06/1995 $ 16.53 The required components of the EPSDT were not documented as being performed at the office visit that had been claimed and paid as an EPSDT and therefore, the difference between the EPSDT payment received and the value of the procedure code for the documented level of office visit that occurred (i.e., 99214, 99213, 99212, 99211, or 99203), is deemed an overpayment. Cluster Number Date of Service Level of Visit Overpayment 1 7/28/1995 99213 $ 39.82 3 6/28/1995 99213 $ 39.82 5 3/03/1995 99203 $ 21.43 6 7/07/1994 99213 $ 5.00 10 8/17/1995 99212 $ 43.82 12 1/31/1996 99204 $ 0.00 14 5/31/1995 99213 $ 39.82 18 10/04/1994 99213 $ 5.00 18 1/29/1996 99214 $ 27.37 20 8/25/1994 99213 $ 5.00 21 12/11/1995 99214 $ 27.37 29 8/17/1994 99212 $ 9.00 Cluster Number Date of Service Level of Visit Overpayment 29 9/06/1995 99213 $ 39.82 40 7/25/1994 99203 $ 0.00 41 5/06/1996 99214 $ 27.37 46 9/19/1994 99213 $ 5.00 46 10/19/1995 99213 $ 39.82 47 11/02/1994 99213 $ 5.00 51 9/07/1995 99213 $ 39.82 53 7/10/1995 99213 $ 39.82 53 1/19/1995 99213 $ 39.82 59 5/02/1996 99203 $ 43.39 Adult Samples At hearing, Petitioner disputed all of the Agency's findings relating to patients over the age of 21 and objected to Dr. Deeb, a pediatrician, performing any review of their files. While Dr. Deeb is not the appropriate peer to review adult patient files, the following adult claims did not require substantive peer review and resulted in overpayment due to the stated reason: There were not any medical records in existence to indicate that any medical services were performed. Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 2 2/20/1995 99215 $ 53.00 2 7/11/1995 99215 $ 59.14 2 8/09/1995 99215 $ 57.14 2 9/07/1995 99213 $ 23.00 2 10/11/1995 99213 $ 23.00 2 1/02/1996 99213 $ 23.00 2 3/22/1996 73560/Rad.Ex. $ 16.36 2 4/01/1996 99215 $ 57.14 2 4/05/1996 99213 $ 23.00 2 4/23/1996 99213 $ 23.00 15 2/16/1996 99213 $ 23.00 15 2/19/1996 99215 $ 57.14 16 5/14/1996 Blood Count $ 8.00 Cluster Number Date of Service Procedure Code Billed and Paid Overpayment 16 5/14/1996 UA $ 3.00 16 5/14/1996 99215 $ 57.14 23 7/28/1994 99213 $ 23.00 23 5/09/1995 72069/26 Rad.Ex. $ 6.98 23 5/09/1995 72069/Rad.Ex. $ 17.45 23 10/20/1995 99213 $ 23.00 34 4/24/1996 99214 $ 35.45 57 11/17/1995 99215 $ 59.14 60 4/10/1996 99215 $ 57.14 61 5/22/1995 99213 $ 23.00 The medical records failed to contain the required physician's signature and date authenticating the fact that the services billed were performed by either P.A. Olsen or P.A. Avidon under physician supervision. The services provided by the non-physician employee were reviewed and down-coded by the Agency to the appropriate level physician's office visit code. Cluster Number Date of Service Proc. Code Pd./ P. Code Allowed Overpayment 2 6/30/1995 99215/99212 $ 36.14 2 7/20/1995 99215/99213 $ 34.14 2 7/28/1995 99215/99213 $ 34.14 2 9/05/1995 99215/99212 $ 36.14 8 4/17/1995 99205/99203 $ 35.96 17 3/27/1995 99205/99203 $ 35.96 23 5/09/1995 99215/99213 $ 32.14 23 6/09/1995 99215/99213 $ 32.14 34 4/23/1996 99205/99203 $ 35.96 The medical records failed to contain the required physician signature authenticating the fact that the services were provided by a physician. The services provided were reviewed and down-coded by the Agency to the appropriate level physician's office visit code. Procedure Code Cluster Number Date of Service Billed and Paid Overpayment 2 6/14/1995 99215/99211 $ 45.14 16 5/15/1996 99215/99211 $ 45.14 61 5/05/1995 99205/99204 $ 14.53 The provider improperly sought payment for lab services that were part of the office visit reimbursement and/or lab services performed by an independent outside lab. Cluster Number Date of Service Procedure Billed and Paid Overpayment 2 3/08/1996 UA $ 3.00 2 4/03/1996 UA $ 3.00 15 2/08/1996 UA $ 3.00 16 5/15/1996 Blood Count $ 8.50 16 5/15/1996 Blood Count $ 8.00 The provider improperly sought payment for Modifier 26 billings (professional component) which are only appropriate when the service is rendered in a hospital. Cluster Number Date of Service Procedure Billed and Paid Overpayment 2 2/17/1995 Radiologic exam $ 6.98 2 6/14/1995 Radiologic exam $ 7.20 8 4/17/1995 Tympanometry $ 9.00 16 5/13/1996 Radiologic exam $ 5.45 16 5/15/1996 Radiologic exam $ 6.98 In addition to the policy and procedural violations, Petitioner, in egregious violation of the Medicaid program, admittedly submitted Medicaid claims for the services of specialist physicians (such as an allergist, OB/GYN, podiatrist, psychologists, and ophthalmologists) not within its Provider group, collected Medicaid funds based on those claims, and reimbursed the respective specialist. While Petitioner's corporate representative, Mr. Colavecchio, was admittedly responsible for the coding and billing of the Medicaid services submitted for reimbursement, he was minimally aware of the Medicaid policy requirements and possessed limited working knowledge of CPT coding and EPSDT billing. In addition, Petitioner's employees, Dr. Keith Wintermeyer and Dr. Marcia Malcolm, were only moderately familiar with the CPT coding and EPSDT component requirements. They provided little input to Petitioner regarding CPT coding and the sufficiency of certain physician's services relating to EPSDT billing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency re-calculate the overpayment consistent with the Findings of Fact, and include only those identified violations in the cluster samples of the adult patient files, and issue a Final Order requiring Petitioner to reimburse, within 60 days, the Agency for the Medicaid overpayments plus any interest that may accrue after entry of the Final Order. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 14th day of February, 2003. COPIES FURNISHED: Susan Felker-Little, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox Building III Tallahassee, Florida 32308 Charles D. Jamieson, Esquire Ward, Damon & Posner, P.A. 4420 Beacon Circle West Palm Beach, Florida 33407 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Rhonda M. Medows, M.D., Secretary Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3116 Tallahassee, Florida 32308
Conclusions This cause came before the Agency for Health Care Administration for issuance of a Final Order. 1. On March 26, 2013, the Agency sent a letter to the Petitioner notifying the Petitioner that it owed an overpayment in the amount of $565,279.55 to the Agency based upon an adjustment in the Petitioner’s overpayment rates (Exhibit A). 2. On April 16, 2013, the Petitioner filed a Petition for Formal Hearing and the Agency Clerk referred the Petition for Formal Hearing to the Division of Administrative Hearings for further proceedings. 4. On May 13, 2013, the Administrative Law Judge assigned to the case entered an Order Closing File and Relinquishing Jurisdiction based upon a Joint Motion to Relinquish Jurisdiction filed by the parties. 5. On May 23, 2014, the Agency rescinded the overpayment letter (Exhibit B). 6. The Agency’s rescission of the overpayment letter has rendered this matter moot. Filed August 14, 2014 9:26 AM Division of Administrative Hearings Based on the foregoing, IT IS THEREFORE ORDERED AND ADJUDGED THAT: Respondent’s right to a hearing in this matter has been rendered moot and the Agency’s May 11, 2013 overpayment letter is rescinded. The parties shall govern themselves accordingly. DONE AND ORDERED this S day of Novurt , 2014 in Tallahassee, Leon County, Florida. K ELIZABETH DUDEK, SECRETARY AGENCY FOR HEALTH CARE ADMINISTRATION
The Issue The issue in this case is whether Respondent, because of intoxication, chemical dependency, or any other mental or physical condition, is unable to practice occupational therapy with reasonable skill and safety to patients.
Findings Of Fact Respondent Milton Kaufman ("Kaufman") is a Florida- licensed occupational therapist and, as such, falls under the regulatory and disciplinary jurisdiction of Petitioner Department of Health ("Department"). At the time of the final hearing, Kaufman was not actively practicing occupational therapy, because his license had been suspended pursuant to an emergency order. On May 27, 2004, Kaufman was seen for the first time by a psychiatrist named Neville Marks. The appointment had been made at the instance of the Professionals Resource Network ("PRN"), a program that serves health care practitioners who have problems arising from substance abuse or dependency. (PRN had taken an interest in Kaufman after two persons in Kaufman's office had made complaints to PRN regarding Kaufman's behavior. Neither complainant testified at the final hearing, however, and no firsthand evidence was presented concerning the events about which they had complained.1 For that mater, no firsthand evidence of any of Kaufman's work-related conduct was adduced.2) The evaluation lasted only about 15 minutes, Kaufman having arrived late for the appointment. During the initial evaluation, Kaufman told Dr. Marks that he (Kaufman) did not have problems with chemical dependency. While there is no evidence explaining what Kaufman understood the term "chemical dependency" to mean, the undersigned accepts his denial as credible insofar as, more likely than not,3 Kaufman in fact was not relying upon a chemical to function in daily life or abusing a chemical to the point that his ability to function in daily life was substantially impaired or affected.4 Dr. Marks nevertheless felt that a full evaluation was needed, and he obtained a urine sample from Kaufman for testing. Dr. Marks next saw Kaufman on June 1, 2004. During this second visit, Dr. Marks told Kaufman that his urine had tested positive for the presence of Valium, hydrocodone (a painkiller), and marijuana. (The particular test Dr. Marks had used did not detect the amounts of these substances.) Kaufman then admitted to Dr. Marks (and he later testified at hearing) that he had used these drugs, an undisputed fact which the undersigned hereby finds. Although Dr. Marks and the Department make much of this urine test, the result is not as probative of the disputed material facts as it might seem, when placed in the proper factual context. As Kaufman explained to Dr. Marks on June 1, 2004, Kaufman had been taking pain medications to alleviate the discomfort caused by kidney stones, a condition from which he had suffered for about a year before seeing Dr. Marks. The Department presented no evidence contradicting this credible explanation or demonstrating that Kaufman had not taken the hydrocodone pursuant to a licit prescription.5 Given the state of the evidential record, the undersigned is not clearly convinced that Kaufman's use of hydrocodone was for any purpose other than to palliate the effects of a painful physical condition, or was undertaken except pursuant to a legal prescription. Concerning the presence of Valium in Kaufman's urine and his admitted use of that drug, the record simply lacks sufficient evidence on which to base any pertinent findings. There is, for starters, no clear and convincing evidence as to what Valium is. While the undersigned knows that Valium is a commonly prescribed sedative often used to treat anxiety and insomnia, among other things, his knowledge is not based on evidence in this record and thus findings to this effect cannot properly be made. Even if such findings were authorized, as being, for example, matters of common knowledge, the assumed facts would be consistent with Kaufman's statement to Dr. Marks that he had been taking two pills to fall asleep at night. In short, there is no clear and convincing evidence that Kaufman's use of Valium was illicit or improper. Regarding the use of cannabis, Kaufman testified at hearing that he smoked pot from time to time——though not regularly and never at or before work——and had done so about one month before he first saw Dr. Marks. This credible, uncontradicted testimony is consistent with what Kaufman told Dr. Marks when confronted by the latter with the urine test result, and the undersigned accepts it as true. A paucity of evidence precludes additional findings regarding Kaufman's use of marijuana. No proof was adduced, for example, as to what marijuana is or how it affects the user. While these matters might be commonly known, the undersigned cannot properly make fact findings about them without evidence of record. Of greater importance is that no evidence exists as to what effects, if any, the occasional, off-duty use of marijuana would typically have on the professional performance of an occupational therapist; on this the undersigned could only speculate.6 Owing to the lack of evidence, therefore, the undersigned is not clearly convinced that Kaufman's sporadic use of marijuana ever rendered him unable to practice occupational therapy safely and skillfully, or might someday do so. Kaufman next saw Dr. Marks on June 3, 2004. During this visit, Kaufman made several admissions, according to Dr. Marks. Allegedly, Kaufman told Dr. Marks that he (Kaufman) had an "addiction problem" and feared discontinuing the medication, from which he had once attempted to withdraw, spending 15 hours in bed feeling bad. Even accepting Kaufman's out-of-court declarations as truthful statements, the admissions in question are not especially probative. First, there is no evidence establishing that Kaufman is competent to diagnose an "addiction problem" from a clinical or medical perspective; the undersigned must assume, therefore, that if Kaufman used the term "addiction problem," he used it in a nontechnical sense. As a nontechnical term, "addiction problem" is ambiguous——and Kaufman was not asked at hearing to explain what he had meant by it. Indeed, it is not even clear what Kaufman supposedly admitted being addicted to. In any event, the undersigned does not accept Kaufman's putative out-of-court statement as clear and convincing proof that Kaufman had a clinically diagnosable mental or physical condition relating to addiction or dependency. Rather, as found above, Kaufman was likely able to perform life's ordinary activities without using a chemical to make it through the day. Kaufman's alleged statements about suffering from withdrawal are simply too ambiguous to constitute clear and convincing proof of relevant facts. It is not clear, for example, what "medication" Kaufman was supposedly withdrawing from. Assuming that the medication in question was the painkiller or the sedative he had been prescribed, the fact that Kaufman had wanted to stop taking the medication (perhaps because of addiction fears) but was afraid to do so (perhaps because unpleasant symptoms would reappear) and was having a hard time quitting would seem neither unique nor alarming, at least on this record, which is devoid of any evidence demonstrating that the use of a prescription pain medication and/or sedative in accordance with a doctor's orders necessarily would render a licensee unable to practice occupational therapy safely and skillfully. Indeed, there is no evidence as to what effects, if any, the use of hydrocodone and/or Valium——even longtime or addictive use——would have on the professional performance of an occupational therapist. Dr. Marks also reported that on June 3, 2004, Kaufman had told him that his (Kaufman's) wife had said that Kaufman was "acting weirdly." This alleged statement of Kaufman's wife—— which Dr. Marks relied upon in diagnosing Kaufman——is hearsay for which no exception was shown.7 Because there is no other competent proof that Kaufman had acted "weirdly," the wife's purported hearsay statement cannot be accepted as evidence for the truth of that assertion. It is undisputed that on June 3, 2004, Kaufman filled out and signed PRN's "Chemical Dependency Advocacy Contract" (the "PRN Contract") in which, among other things, he pledged to abstain from using any mood altering substances without an appropriate prescription, agreed to receive ongoing therapy from Dr. Marks, and consented to submit to random drug tests. This PRN Contract was never signed by PRN and thus appears not to have taken effect. Indeed, Kaufman testified at hearing that he had revoked or rescinded the agreement before it became binding, although there is no evidence that he did so in writing. In any event, the fact that Kaufman executed the PRN Contract constitutes an admission that Kaufman had some sort of problem. The admission is an ambiguous one, however, because by the time Kaufman signed the PRN Contract, he clearly did have a big problem——with the Department, which could (and later did) take away his professional license if he failed to cooperate with PRN. On the instant record, it is as likely that Kaufman signed the PRN Contract as an expedient means of forestalling threatened disciplinary action as that he signed the document acknowledging that he needed help with a chemical dependency problem. Consequently, the PRN Contract does not clearly convince the undersigned that Kaufman was, in fact, dependent on a chemical. After this, Kaufman saw Dr. Marks twice more, on June 11 and June 22, 2004. During these visits, Kaufman denied having chemical dependency problems. Dr. Marks did not accept these statements as truthful, but rather concluded that Kaufman was in "denial." Dr. Marks diagnosed Kaufman as being dependent on pain medications and marijuana. Dr. Marks conceded at hearing, however, that Kaufman did not meet the diagnostic criteria specified in the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) for cannabis dependence. He did not identify the diagnostic criteria used in their place. Kaufman then stopped seeing Dr. Marks and was referred to a psychiatrist named Joseph Altieri. Dr. Altieri examined Kaufman and concluded, as he testified at hearing, that Kaufman did not meet the diagnostic criteria for chemical dependency. Instead, according to Dr. Altieri, Kaufman suffered from an adjustment disorder with mixed emotional features (i.e. anxiety and depression),8 and presented with a history of sporadic marijuana usage, and a history of prescription narcotics use for various medical conditions. Resolving a conflict in the evidence, the undersigned finds that Dr. Altieri's diagnosis is more credible than Dr. Marks's. Dr. Marks's opinions about Kaufman's condition suffer in comparison to Dr. Altieri's largely (though not exclusively) because Dr. Marks relied upon many facts for which there is no competent evidence in the record, e.g. the complaints about Kaufman that were purportedly made to PRN, and Kaufman's wife's alleged out-of-court assertion that Kaufman had been acting "weirdly."9 In contrast, Dr. Altieri's diagnosis is more consistent, the undersigned finds, with the persuasive evidence in the record.10 Accordingly, it is found that the evidence fails clearly and convincingly to prove that Kaufman has or had a diagnosable condition known as chemical dependency. Ultimate Factual Determinations There is no persuasive evidence that Kaufman, as a matter of historical fact, ever failed to practice occupational therapy with reasonable skill and safety to patients. Consequently, the undersigned is not (and could not be) clearly convinced that, at any time he was on duty, Kaufman was actually unable to practice occupational therapy with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.11 Kaufman suffered, and might continue to suffer, from a variety of illnesses and/or mental or physical conditions. These include kidney stones, insomnia, anxiety, and depression. There is no clear and convincing evidence in the record, however, that any of these conditions has rendered, or is reasonably likely to render, Kaufman unable to practice occupational therapy with reasonable skill and safety to patients. In this regard, the evidence is lacking both as to (a) the effects of these conditions, if any, on Kaufman's ability to practice occupational therapy and (b) the level of performance that constitutes "reasonable skill and safety to patients," which makes it impossible to determine whether any of Kaufman's "disabilities" might ever make him unable to meet the requisite standard of conduct.12 The evidence is undisputed that Kaufman has used legal prescription medications as well as marijuana. There is no clear and convincing evidence in the record, however, that Kaufman's use of these substances has rendered, or is reasonably likely to render, Kaufman unable to practice occupational therapy with reasonable skill and safety to patients. In this regard, the evidence is lacking as to: (a) the likelihood that Kaufman eventually would be under the influence of any such substance while on duty13; (b) the effects of these substances, if any, on Kaufman's ability to practice occupational therapy; and (c) the level of performance that constitutes "reasonable skill and safety to patients," making it impossible to determine whether the use of any of these substances might ever make Kaufman unable to meet the requisite standard of conduct. It is determined that the evidence fails clearly and convincingly to prove that Kaufman in fact meets the criteria for discipline set forth in Section 468.217(1)(t), Florida Statutes.14
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order finding Kaufman not guilty of inability to practice occupational therapy with reasonable skill and safety to patients due to intoxication, chemical dependency, or any other mental or physical condition. DONE AND ENTERED this 5th day of April, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 2005.
The Issue Whether Respondent received Medicaid overpayments that Petitioner is entitled to recoup, and whether fines should be imposed against Respondent.
Findings Of Fact AHCA is the state agency responsible for administering the Medicaid program in Florida. The Medicaid program is a federal and state partnership that provides health care services to certain qualified individuals. At all times material to this case, A+ Therapy has been a Medicaid provider rendering therapy services, pursuant to a Medicaid Provider Agreement with AHCA. A+ Therapy's Medicaid provider number is 886486100. A+ Therapy provides physical, occupational, and speech therapy to pediatric patients. A+ Therapy is required to retain Medicaid records that support services provided to Medicaid recipients, and to timely provide those records to AHCA upon request. Medicaid policy requires that all services reimbursed by Medicaid must be prescribed by the recipient's primary care provider, an advanced registered nurse practitioner (ARNP) or a designated physician assistant (PA), or a designated physician specialist. Services rendered prior to a prescription being received are not reimbursable. Medicaid policy requires that all therapy services reimbursed by Medicaid must have an individualized plan of care developed by the therapist for a recipient. The plan of care must include the elements as described in the Therapy Services Coverages and Limitations Handbook. A plan of care should be approved by the medical provider prior to services being provided. Medicaid policy requires that therapy services be recorded on a per treatment basis and that therapist rendering the services must record the time period and type of service rendered, the progress achieved and the change in the recipient's status due to treatment. Each entry must be signed and dated by the Medicaid enrolled treating provider contemporaneous to the date the service is rendered. Medicaid policy specifies that to be reimbursable, services must be medically necessary. The audit in the instant case was initiated because in running what is commonly called "time bandits", AHCA discovered that A+ Therapy was billing an unusually high number of services. When AHCA audits a possible overpayment, it "must use accepted and valid auditing, accounting, analytical, statistical, or peer-review methods, or combinations thereof. Appropriate statistical methods may include, but are not limited to, sampling and extension to the populations . . . and other generally accepted statistical methods." § 409.913(20), Fla. Stat. AHCA uses a sample cluster program in cases where it is impractical to review all claims for each recipient or all claims for a sample group of recipients. In this case, a two-stage cluster sample first identified a statistically valid random sample of recipients. Then, a statistically valid random sample of claims billed by the provider during the corresponding audit period was selected. On May 11, 2011, Tracy MacDonell, the AHCA Medical Health Care Program Analyst assigned to investigate this case, sent A+ Therapy a letter, notifying A+ Therapy that an audit was being conducted, and requesting all records for the list of recipients and dates of service that had been randomly selected from the cluster sample program. A+ Therapy collected and sent records to AHCA on May 26, 2011. After a review of all the records sent, Ms. MacDonell prepared a Preliminary Audit Report (PAR) dated October 14, 2011. The PAR gave A+ Therapy the option of providing more records, which A+ Therapy did on November 1, 2011. AHCA reviewed the additional records sent, and made adjustments to the overpayment amount. AHCA issued a FAR on January 4, 2012, after the cluster sample program took the randomly selected claims and extrapolated those claims to the universe of all claims in the audit period and generated a total overpayment amount of $152,529.46. A fine of $24,976.91 was also being imposed, and costs were incurred in the amount of $2,668.00. The parties stipulated that A+ Therapy provided all services billed through Medicaid. AHCA contends, however, that A+ Therapy has: (1) provided therapeutic services without a prescription; (2) provided services without an individualized plan of care; (3) failed to properly record the therapeutic services on a per treatment basis; and (4) as to one recipient, provided services that were not medically necessary. As to the allegation that one recipient, T.F., received services that were not medically necessary, A+ Therapy concedes that the services were not medically necessary. As to the allegation that proper documentation was not kept by A+ Therapy, the undersigned finds that A+ Therapy did comply with Medicaid policy by using two forms for each date of service, and for each treatment provided. For each recipient, A+ Therapy had narrative forms, where the therapist would list each date of service, and provide a S.O.A.P. (S=Subjective, O=Objective, A=Assessment, P=Plan) note for the dates of service. The treating therapist signed and dated each S.O.A.P. note. The second form contained a chart, with each date of service listed, each type of service documented in 15-minute intervals, and the treating therapist's initials were placed on each date of service. The records for all of the recipients that were reviewed for the audit contain proper documentation, in full compliance with Medicaid requirements. As to the allegation that physical therapy services were provided before a prescription was received, A+ Therapy concedes that prescriptions were never received for recipients R.M., A.M., S.G., Y.U., and A.G., despite efforts to acquire the prescriptions from the medical provider. Accordingly, A+ Therapy improperly billed Medicaid for physical therapy for these four recipients. As to the allegation that speech therapy services were provided before a prescription was received, A+ Therapy concedes that a prescription was never received for recipient A.M., despite efforts to acquire the prescription from the medical provider. Accordingly, A+ Therapy improperly billed Medicaid for speech therapy services provided to A.M. As to the allegation that occupational therapy services were provided before a prescription was received, A+ Therapy concedes that a prescription was never received for recipient J.S., despite efforts to acquire the prescription from the medical provider. Accordingly, A+ Therapy improperly billed Medicaid for occupational therapy services provided to J.S. Contested Overpayments Recipient A.C.: A prescription dated August 25, 2009 was followed by a plan of care that was created on September 1, 2009. It was not signed by the treating medical provider until October 9, 2009. Services were provided on September 8, 11, and 16, 2009. Since the services were provided before the plan of care was signed and approved by the medical provider, these dates of service were improperly billed to Medicaid. Recipient E.C.: The plan of care for physical therapy was signed but not dated; therefore, there is no evidence to establish that the plan of care was approved prior to the dates of service that were audited. Accordingly, A+ Therapy improperly billed Medicaid for the physical therapy services. Recipient Mat. C.: Mat. C. received speech therapy services on June 10 and 15, 2009. The plan of care for speech therapy was not signed by the medical provider until August 25, 2009. Accordingly, A+ Therapy improperly billed Medicaid for the speech therapy services. Recipient F.F.: A valid prescription for physical therapy was dated November 3, 2008, and although the plan of care is signed by the medical provider, it is not dated. Therefore, there is no evidence to establish that the plan of care was approved prior to the physical therapy services being provided. Accordingly, A+ Therapy improperly billed Medicaid for physical therapy. For occupational therapy services provided to F.F., the prescription is dated November 21, 2008, and the plan of care was signed and dated by the medical provider on November 25, 2008. All of the audited dates of service for occupational therapy are subsequent to the plan of care having been approved; therefore, they do not constitute overpayments. Recipient A.G.: As to occupational therapy, the plan of care is signed by the medical provider, but not dated. Therefore, there is no evidence to establish that the plan of care was approved prior to the treatments. Accordingly, all dates of occupational therapy services were improperly billed to Medicaid. As to the speech therapy provided to A.G., the prescription is dated May 20, 2009, and the only plan of care that is dated and signed by the medical provider is dated November 20, 2009. Occupational therapy services dated prior to that date were improperly billed to Medicaid; occupational therapy services provided after November 20, 2009, do not constitute overpayments. Recipient D.G.: A plan of care for physical therapy was never signed or approved by a medical provider; therefore, the physical therapy services were improperly billed to Medicaid. As to occupational therapy, the plan of care was dated and signed on May 26, 2009, but there is no legible evidence of a prescription for occupational therapy. Accordingly, A+ Therapy improperly billed for occupational therapy treatments. As to speech therapy, there is no legible evidence of a prescription for speech therapy; therefore, A+ Therapy improperly billed for speech therapy services. Recipient S.G.: As to occupational therapy, the prescription is dated May 20, 2009, and the plan of care was approved by the medical provider on June 17, 2009. All occupational therapy treatments prior to June 17, 2009, were improperly billed to Medicaid; any occupational therapy treatments after June 17, 2009, do not constitute overpayments. Recipient R.L.: As to speech therapy, the plan of care was signed and dated by the medical provider on August 7, 2009. All speech therapy provided on July 20 and 22, 2009, as well as on August 3, 2009, was improperly billed to Medicaid. As to occupational therapy, the plan of care was approved by the medical provider on July 23, 2009. The occupational therapy provided on July 22, 2009, was improperly billed to Medicaid. All occupational therapy provided after July 23, 2009, was properly billed to Medicaid. Recipient J.M.: As to physical therapy, the plan of care was never approved by the medical provider; therefore, all physical therapy services audited were improperly billed to Medicaid. As to occupational therapy, the plan of care was approved by the medical provider on August 25, 2009. All occupational therapy provided before August 25, 2009, was improperly billed to Medicaid. Occupational therapy provided after that date was properly billed to Medicaid. As to speech therapy, the plan of care is signed by a medical provider, but not dated. Accordingly, there is no evidence to establish when the plan of care was approved. All speech therapy services were improperly billed to Medicaid. Recipient Jo.M.: As to physical and occupational therapy, there is no dated prescription or dated plan of care approved by the medical provider; therefore, all physical and occupational therapy treatments were improperly billed to Medicaid. Recipient I.O.: As to occupational therapy, the plan of care was approved by the medical provider on September 10, 2009. All occupational therapy treatments provided prior to that date were improperly billed to Medicaid; all occupational therapy treatments provided after that date were properly billed to Medicaid. As to speech therapy, the plan of care was approved by the medical provider on August 13, 2009. Speech therapy provided on July 20, 2009, and on August 5, 2009, was improperly billed to Medicaid. Recipient K.P.: As to occupational therapy, the prescription was dated March 5, 2008, and the plan of care approved on January 12, 2009. All occupational therapy provided prior to January 12, 2009, was improperly billed to Medicaid. Any occupational therapy provided after January 12, 2009, was properly billed to Medicaid. As to physical therapy, the prescription is dated February 21, 2008, the plan of care approved on September 9, 2008. As all the audited dates of service fall in 2009, the physical therapy provided was properly billed to Medicaid. Recipient J.S.: As to physical therapy, the prescription was dated November 11, 2008, but the plan of care was never approved by the medical provider. Therefore, all physical therapy treatments were improperly billed to Medicaid. Recipient Y.U.: As to occupational therapy, the plan of care was approved by the medical provider on January 20, 2009. Any occupational therapy provided prior to that date was improperly billed to Medicaid; any occupational therapy provided after that date was properly billed to Medicaid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA issue a final order and note therein that: A+ Therapy properly documented all therapy services provided to all recipients, in full compliance with Medicaid requirements; AHCA should recalculate, using generally accepted statistical methods, the total overpayment determination to reflect that A+ Therapy was not overpaid for certain services provided to certain recipients, as set forth in the Findings of Fact; A+ Therapy was overpaid for all other services identified in the FAR and AHCA is entitled to recoup the overpayments as set forth in the Findings of Fact; AHCA is entitled to statutory interest on the overpayment; and AHCA is entitled to recover its costs in this matter; AHCA is entitled to impose against A+ Therapy an administrative fine as set forth in Florida Administrative Code Rule 59G-9.070 (7)(e) and (4)(a). DONE AND ENTERED this 18th day of July, 2012, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2012. COPIES FURNISHED: Erin M. Bengele, Esquire Nicholson and Eastin, LLP Suite 301 707 Northeast Third Avenue Fort Lauderdale, Florida 33301 erin@nicholsonlawgroup.com Rachic Avanni Wilson, Esquire Agency for Health Care Administration Fort Knox Building 3, Mail Station 3 Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 rachic.wilson@ahca.myflorida.com Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
The Issue Whether the Petitioner is entitled to reimbursement for medical treatments received by his wife for 4 manipulation treatments received in 1983?
Findings Of Fact At all times pertinent hereto, the Petitioner was an insured employee under the State of Florida Employees' Group Health Insurance Plan, as provided in Section 110.123, Florida Statutes. Nora Gomez, the Petitioner's wife, is entitled to participate in the Plan as an eligible dependent. Mrs. Gomez first visited David L. Hartz, a chiropractic physician on August 2, 1983. Dr. Hartz's office is located at 1610 West Plaza Drive, Tallahassee, Florida. Dr. Hartz treated Mrs. Gomez primarily for upper back and neck pain. Between August 2, 1983, and December 14, 1983, Dr. Hartz treated Mrs. Gomez 33 times. Initially, Mrs. Gomez received chiropractic manipulations 3 times per week. Visits were subsequently reduced to 2 times a week and from November 1, 1983, until December 14, 1983, when treatments stopped, her treatments were reduced to once a week. Twenty-nine of the 33 visits received by Mrs. Gomez have been paid by the Respondent. The Respondent is not seeking to be reimbursed for payments made to the Petitioner in excess of 26. The Respondent has refused to pay for 4 of the visits. The Petitioner was charged $18.00 per visit for Mrs. Gomez's treatments. The Respondent has refused to pay the Petitioner a total of $72.00 (4 visits x $18.00). Mrs. Gomez received her 26th treatment on November 1, 1983. Mrs. Gomez's condition at that time was, according to Dr. Hartz, as follows: I show that she had improved considerably over her initial findings but she still had some persistent pain in her neck and upper back and some inflammation, some nerve roots in her neck and some persistent muscle weakness. Deposition testimony of Dr. Hartz, page 15, lines 18-21. Dr. Hartz also indicated that he believed that Mrs. Gomez "could still improve some past that point." Deposition testimony of Dr. Hartz, page 11, lines 12-13. Based upon Dr. Hartz's testimony, Mrs. Gomez's problem was of a type which could be eventually treated on a "periodic supportive type treatment, on a periodic nature." Dr. Hartz was trying to treat Mrs. Gomez's problem, however, during 1983 to a point where she could receive such treatment. She did not, however, continue the treatments long enough to reach that point because of the Respondent's position that only 26 treatments would be reimbursed by the Petitioner's insurance. The Respondent reimburses for rehabilitative therapy but not for maintenance therapy under the State Plan. The Respondent determined that Mrs. Gomez's treatments after November 1, 1983 (her 26th visit) were for maintenance and not rehabilitative therapy because the Respondent determined that her condition stabilized. Therefore, the Respondent refused to make further payments. Dr. Hartz did indicate that Mrs. Gomez reached a point where she had persistent pain that would feel better for a while and then would return, and therefore, he "either had a choice to extend her treatment and let her hurt or treat her and keep her feeling as good as possible." This statement and the rest of Dr. Hartz's testimony is not sufficient to conclude, however, that Mrs. Gomez stabilized as of November 1, 1983, and therefore was receiving maintenance treatment only after that date. Dr. Hartz did not, however, based upon all his testimony, believe that Mrs. Gomez had reached a point during her treatment in 1983 where her treatment was in the nature of maintenance only. Dr. Hartz was still treating Mrs. Gomez through her last visit in 1983 in an effort to correct her condition sufficiently for her to receive only maintenance treatments. The 4 visits in 1983 for which reimbursement has not been made, were part of Dr. Hartz's effort to get Mrs. Gomez to a point where she would only need maintenance type treatment. The visits were in the nature of rehabilitative therapy, for which the Petitioner is entitled to reimbursement.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Respondent reimburse the Petitioner $72.00 for the 1983 treatments received by the Petitioner's wife for which reimbursement has been refused. DONE AND RECOMMENDED this 3rd day of December, 1986, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2595 The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." Paragraph Number of Petitioner's Proposed Findings of Fact: Accepted in RO 1-2. Accepted in RO 3-4. Accepted in RO 5. Accepted in RO 6. Accepted in RO 6-7. Accepted in RO 7. Accepted in RO 9-10. Accepted in RO 11 and 15. The quotation of Dr. Hartz's testimony contained in the last sentence of this proposed findings of fact is taken slightly out of context. See RO 15. Accepted in RO 14. This proposed finding of fact is rejected as contrary to the weight of the evidence. See RO 15-16. COPIES FURNISHED: Michael J. Gomez 2404 Harbor Drive Tallahassee, Florida 32303 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gilda Lambert, Secretary 435 Carlton Building Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is entitled to payment of benefits for a medical procedure.
Findings Of Fact The State Employees' Preferred Provider Organization Health Plan (PPO or "State Plan") is the self-insured health plan that is offered to State of Florida officers, employees, retirees and their dependants pursuant to Section 110.123, Florida Statutes. As provided in Section 110.123(3)(c), Florida Statutes, Respondent is responsible for contract management and day-to-day administration of the plan. As authorized in Section 110.123 (5)(c), Florida Statutes, Respondent has contracted with a third-party administrator, Blue Cross Blue Shield of Florida (BCBSFL). Section 110.123(5), Florida Statutes, also provides that final decisions concerning the existence of coverage or covered benefits under the PPO cannot be delegated by or deemed to have been delegated by Respondent. Pursuant to Section 110.123(5)(a), Florida Statutes, Respondent has determined and identified in the "Group Health Insurance Plan Booklet and Benefits Document" (Plan Booklet and Benefits Document) the benefits to be provided to members of the state health plan. In this case, the Benefit Document effective January 1, 2007, as modified January 1, 2008, is applicable. The terms and conditions of participation in the PPO are set forth in the Plan Booklet and Benefits Document. Petitioner has been a participating member in the PPO since approximately 1981. Petitioner knows that he has the responsibility to ensure that a doctor is approved to treat PPO members before seeking treatment if he expects the PPO to pay benefits. Petitioner does not know which medical procedures or treatments might require BCBSFL's pre-approval. Petitioner has always relied on his doctors or their staff to seek approval to perform procedures or treatments. Petitioner was experiencing severe back pain in the summer of 2008. Petitioner's family practitioner treated Petitioner for several weeks without any improvement. The family doctor then referred Petitioner to a pain management doctor. The pain management doctor also treated Petitioner without success. Petitioner eventually decided to return to his family practitioner, who referred Petitioner to a surgeon. Petitioner's surgeon explained that there were three different surgical procedures that could be performed. The first procedure involved the removal of portions of several vertebrae and the insertion of a steel rod. The second procedure involved the removal of bone from Petitioner's hip and placing it between his vertebrae like spacers. Both of these procedures would require significant post-operative physical therapy and months to heal. The third procedure involved the implantation of an X- Stop, an interspinous process decompression device. Petitioner understood that the X-Stop would be inserted between his vertebrae and act like a hinged spacer that allowed flexibility. Petitioner also understood that the X-Stop required limited physical therapy and rehabilitation time. Petitioner elected to have the X-Stop implanted. He did not check with Respondent or BCBSFL to determine whether the procedure was covered by the PPO. Petitioner had the surgery on July 11, 2008. He spent one night in the hospital. When Respondent refused to pay for the medical procedure, Petitioner called BCBSFL. Petitioner was told that the X-Stop was not covered because it was experimental and/or investigational and because it was not approved by the Food and Drug Administration (FDA). Petitioner subsequently learned that the FDA had given the X-Stop pre-marketing approval pending post-approval studies to obtain five-year follow-up. However, BCBSFL continued to maintain that the procedure was excluded from coverage because it was experimental and/or investigational. Section 5 of the Plan Booklet list all exclusions, including the following: Experimental or Investigational service and procedures as determined by BCBSFL and DSGI, or services and procedures not in accordance with generally accepted medical standards, including complications resulting from these non-covered services. Section 15 of the Plan Booklet defines experimental or investigational services as follows: ny evaluation, treatment, therapy or device that meets any one of the following criteria: cannot be lawfully marketed without approval of the US Food and Drug Administration or the Florida Department of Health, and approval for marketing in the United States has not been given at the time the services is provided to the covered person; or is the subject of ongoing Phase I or II clinical investigation, or the experimental or research arm of a Phase III clinical investigation, or is under study to determine the maximum dosage, toxicity, safety or efficacy or to determine the efficacy compared to standard treatment for the condition; or is generally regarded by experts in the United States as requiring more study to determine maximum dosage, toxicity, safety or efficacy or to determine the efficacy compared to standard treatment for the condition; or has not been proven safe and effective for treatment of the condition based on the most recently published medical literature of the United States, Canada, or Great Britain using generally accepted scientific, medical or public health methodologies or statistical practices; or is not accepted in consensus by practicing doctors in the United States as safe and effective for the condition; or is not regularly used by practicing doctors in the United States to treat patients with the same or a similar condition. BCBSFL and DSGI determine whether a service or supply is experimental or investigational. The applicable BCBSFL policy/medical coverage guideline on interspinous decompression implants is that they are considered experimental and investigational because there is "insufficient clinical peer-reviewed literature demonstrating the safety, efficacy, and the effects of interspinous distraction devices on long-term health conditions." This policy is based upon a review of the relevant technology assessment literature. One resource published by Winifred S. Hayes, Inc., on November 13, 2007, states as follows in pertinent part: Although the results of the available studies are promising, only one controlled trial has been performed to determine whether X Stop implantation provides better outcomes than conservative therapies[.] [T]he only study that involved long-term follow-up was small and uncontrolled, and no controlled trials have been performed to compare the X Stop IPD System with procedures such as decompressive surgery or spinal fusion. The device manufacturer sponsored the only available controlled trial of the X Stop IPD System. Another resource, published by ECRI Institute on March 9, 2009, rated the clinical evidence base for the X-Stop. The ECRI Institute found the quantity, quality, and consistency of the evidence base to be low. The greater weight of the evidence indicates that research has failed to prove the X-Stop's efficacy and safety. The device is presently the subject of on-going clinical trials, including a Phase III clinical trial with an expected date of completion in December 2011.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Management Services enter a final order denying coverage of Petitioner's claim. DONE AND ENTERED this 30th day of April, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2010. COPIES FURNISHED: Sonja P. Mathews, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Robert Skinner 256 Lake Lane DeBary, Florida 32713 John Brenneis, General Counsel Department of Management Services Office of the General Counsel 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged by statute with regulating the practice of osteopathic medicine in the State of Florida pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 459, Florida Statutes. The Respondent is and at all times material to this case was a licensed physician in the State of Florida, license #OS 0004352, last known address identified as 1232 S.W. 8th Place, Cape Coral, Florida 33991. From 1985 until 1992, the Respondent had a private general medical practice in Fort Myers. In 1991, the Respondent began to exhibit signs of emotional instability. In April 1991, the Department of Professional Regulation (DPR) received a report that the Respondent was attempting to locate injectible Demerol allegedly for his own use. This information was forwarded to the Physician's Recovery Network (PRN), but remained unverified. The PRN is a program operated by the health care professions to assist practitioners impaired by mental illness, physical or mental disability or chemical dependence. Demerol is a Schedule II Controlled Substance pursuant to Chapter 893, Florida Statutes. On July 8, 1991, the DPR again received a report that the Respondent was writing inappropriate prescriptions for patients and obtaining the medication for personal use. This information was again forwarded to the Physician's Recovery Network (PRN), but remained unverified. The PRN contacted the Respondent about the allegation. The Respondent denied the report. In 1992, the Respondent began to exhibit profuse sweating, involuntary muscle jerks, and inattentiveness to his work. Some patients expressed concern to office staff about the Respondent's condition. In 1992, a DPR investigator visited pharmacies in the Fort Myers area. She learned that the Respondent had been contacting area pharmacies in an attempt to locate injectible Demerol. She further learned that the Respondent would arrive at a pharmacy with a Demerol prescription made out to a patient and which he would obtain supposedly on the patient's behalf. She collected a number of such prescriptions which had been filled by pharmacies. Many of the prescriptions were made out for patients at Meadowbrook Manor, a nursing home at which the Respondent had patients. A review of the patient records indicated that none of the patients had been prescribed Demerol. On March 27, 1992, an member of his office staff contacted the Respondent by telephone and determined him to be incoherent. She went to the Respondent's house to ascertain his condition. After gaining entry to the home, she found a number of Demerol bottles in an open dresser drawer, at least one of which was empty. She also discovered syringes in the drawer. The Respondent's eye was blackened. Blood was visible about the bathroom in the house. The staff member determined that although the Respondent had fallen during the night, he was reluctant to seek medical attention. Several hours after the staff member had arrived at the Respondent's house, he was incoherent. She called for an ambulance. The Respondent was subsequently transported to the hospital. Examination of the Respondent clearly indicated that he had suffered a head injury. While in the hospital, the Respondent was examined by a board certified psychiatrist. According to the psychiatrist, the Respondent exhibited substantially impaired memory, was very guarded with his communication and, notwithstanding the injury, indicated his intent to leave the hospital quickly. He was unable to recall the current month and date. He denied prior consumption of alcohol despite lab tests to the contrary. He also denied having previously been chemically dependent, although he had been involved in the intervention of said problem in 1981. The psychiatrist diagnosed the Respondent as having residual organic brain syndrome as a result of his chemical intake. Based on the diagnosis, the psychiatrist recommended that the Respondent begin an inpatient drug rehabilitation program. The psychiatrist also referred the Respondent's impairment to the DPR. In March of 1992, the DPR alerted the PRN about the Respondent's condition. The PRN assigned a local representative to encourage the Respondent to seek treatment. On March 31, 1992, the Respondent entered a treatment program at Palmview Hospital. While in the program, he admitted to having self-injected Demerol. The Respondent was resistant to treatment while at Palmview Hospital. Although he acknowledged having previously received inpatient treatment at another facility, he alternately admitted and denied abusing Demerol. On April 10, 1992, the Respondent discharged himself from Palmview Hospital. The discharge was against the advise of the treating physician at Palmview. At the time of the discharge, PRN representatives discussed the matter with the Respondent. The Respondent stated that he was leaving the inpatient treatment program and was going to being outpatient treatment from the Palmview facility. The treating physician at Palmview told the PRN that the Respondent required three to four weeks of inpatient treatment. It was the opinion of the treating physician that the Respondent was not capable of safely providing medical care to patients at that time. Based on the Palmview information, the PRN instructed the Respondent that he must complete inpatient treatment and that he could not practice medicine until it was decided that he could do so safely. In April 13-16, 1992, the Respondent obtained a second opinion from another physician affiliated with the Addiction Treatment Program at Mount Sinai Medical Center in Miami Beach, Florida, where he was examined by a board certified addictionologist. According to the Mount Sinai addictionologist, the Respondent is addicted to Demerol and requires treatment. Based on the Mount Sinai information, the PRN instructed the Respondent not to practice and to seek immediate treatment for his addiction. On April 22, 1992, the Respondent reentered Palmview Hospital. Upon reentry, the Respondent denied using Demerol, but eventually acknowledged using the drug and being chemically dependent. It was determined during the second Palmview admission, that the Respondent was in need of approximately four months in a long term inpatient care treatment facility. On May 22, 1992, the Respondent was admitted to the Talbott-Marsh recovery program. He was diagnosed as having a personality disorder with antisocial, paranoid and narcissistic traits, and to being opiate dependent, On August 3, 1992, the Respondent left the Talbott-Marsh center without completing the program. The records and reports of the Respondent's condition were reviewed by Dr. Roger Goetz, M.D., the director of the PRN. Dr. Goetz, who also has personal knowledge of the Respondent's condition, is certified by the American Association of Addiction Medicine and has extensive experience as a medical doctor and in treating impaired physicians. Dr. Goetz asserted that the Respondent is suffering from a dangerous condition, that he is mentally ill and that he poses a threat to himself and to the public. Dr. Goetz opined that the Respondent is unable to practice medicine with reasonable skill and safety to patients and that his continued practice constitutes an immediate and serious danger to the public health, safety and welfare.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine, enter a Final Order determining that Benjamin D. Goldberg, D.O., has violated Section 459.015(1)(w), Florida Statutes, and revoking his license (#OS 0004352) to practice as a physician in the State of Florida. DONE and RECOMMENDED this 13th day of August, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 13th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1553 The Respondent did not file a proposed recommended order. To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the Petitioner. The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 22, 37. Rejected, unnecessary. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Francesca Plendl, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Benjamin Goldberg, D.O. 1232 South West 8th Place Cape Coral, Florida 33991
