Findings Of Fact The parties stipulated that the following factual allegations contained in the Administrative Complaint were admitted by the Respondent and were not at issue at the formal hearing. The following findings of fact are based on that stipulation. Petitioner is the state agency charged with regulating the practice of veterinary medicine pursuant to Section 20.165, Chapter 455, and Chapter 474, Florida Statutes. Respondent is a licensed veterinarian having been issued license number VM 0000231. Respondent's last know address is DBA (sic) Miami Veterinary Hospital, 3520 N.W. 36th Street, Miami, Florida 33142. On or about May 19, 1992, J.F. presented his kitten, aged approximately seven months, to Respondent for shots, a spay, and boarding. On or about May 19, 1992, Respondent noted in the kitten's [medical] records that all of its vital statistics were "ok" or normal. On or about May 20, 1992, Respondent spayed the kitten. 1/ On or about May 21, 1992, Respondent noted in the kitten's records that it had diarrhea and no appetite. 2/ On or about May 22-24, 1992, Respondent noted in the kitten's records that it was treated with antibiotics, fluids, vitamins, and given intensive care (sic) with hand-feeding. On or about May 25, 1992, Respondent noted in the kitten's records that its condition was greatly improved. On or about May 26, 1992, Respondent noted in the kittens's records that its condition was normal. On or about May 27, 1992, the kitten died. 3/ "Spay" is a layman's term which may refer to an ovariohysterectomy. Respondent failed to perform any lab work on the kitten when it became ill during the period after the surgery and until its death. Rule 61G18-18.002(1), Florida Administrative Code, provides that medical records shall contain all clinical information pertaining to the patient with sufficient information to justify the diagnosis or determination of health status and warrant any treatment recommended or administered. Respondent had been practicing veterinary medicine in Florida for 48 years at the time of the formal hearing. Respondent testified, credibly, that he has performed a minimum of 10,000 spays during the course of his practice. At the times pertinent to this proceeding, Respondent was the owner and sole practicing veterinarian at Miami Veterinary Hospital in Miami, Florida. On May 19, 1992, James Forney presented his cat named Cathy to Respondent's clinic to be boarded for one week. During that week, the Respondent was to spay Cathy and give her any appropriate shots. "Spay" is a layman's term that may refer to an ovariohysterectomy. The term ovariohysterectomy is generally understood by veterinarians to be a procedure during which the ovaries and both horns of the uterus are removed. On or about May 20, 1992, Respondent spayed Cathy. Respondent placed the cat under anesthesia and made a small incision, which he referred to as a "bottle hole incision". Through this small incision, he removed the ovaries and a portion of both uterine horns. He did not remove the stumps of either uterine horn and he did not remove the uterus. The cat died on May 27, 1992. Dr. James Bogdansky performed an autopsy of Cathy on May 28, 1992, during which he made contemporaneous records of his examination. Dr. Bogdansky observed that Cathy's uterus and portions of both uterine horns were present. The ovaries were not present. There was a dispute in the evidence as to whether the Respondent was negligent by failing to remove all portions of both horns of the uterus when he spayed the cat. The testimony of Dr. Ellison and that of Dr. Diluzio established that the preferred medical practice in performing an ovariohysterectomy is to completely remove through an appropriately placed and sized incision the ovaries, all portions of both horns of the uterus, and the uterus. Dr. Ellison testified that there is no medical benefit to leaving portions of both uterine horns and the uterus and that the chance of a rare, life-threatening infection (pyometritis) increases when the horns of the uterus are not removed. 4/ Dr. Ellison further testified that the portions of the uterine horns not removed may become wrapped around the bladder, causing adhesions or strictures on the bladder. 5/ Dr. Ellison was of the opinion that Respondent was negligent in failing to remove both uterine horns and the uterus. 6/ From the testimony of the Respondent and Dr. Diluzio, it is found that veterinarians in South Florida commonly make a small incision which permits the removal of the ovaries and thereby sterilizes the animal, but does not permit the removal of the two horns of the uterus in their entirety. The practitioner has to exercise clinical judgment to determine how much of the horns of the uterus will be left. The main benefit of using a smaller incision is that the animal suffers less trauma from the surgery. Dr. Diluzio agreed that the method described by Dr. Ellison was the preferred method of performing an ovariohysterectomy. Dr. Diluzio's main concern was that a subsequently treating veterinarian may assume that the Respondent had removed both uterine horns and the uterus, which could lead to a misdiagnosis in the event the cat ever had a uterine infection. Notwithstanding his concern and the concerns expressed by Dr. Ellison, Dr. Diluzio did not believe that the method used by the Respondent was below an accepted standard of care. Dr. Diluzio's opinion is buttressed by evidence as to procedures being followed by practitioners such as the Respondent. It is concluded that the Petitioner did not establish that the procedure Respondent followed in spaying Cathy was below an accepted standard of care. In reaching that conclusion, the undersigned is persuaded by the testimony of Dr. Diluzio that the procedure followed by Respondent in spaying the cat, Cathy, is not an uncommon procedure. Since there was no evidence that he used poor clinical judgment in the procedure he followed, it is found that Petitioner failed to establish that Respondent was negligent or incompetent by his spay of the cat, Cathy. Petitioner asserts that the Respondent failed to adequately look for a working diagnosis of the cause of the cat's illness following surgery. The Respondent was not asked what his diagnosis was for the postoperative illness. From Dr. Diluzio's testimony based on the antibiotics and other treatment administered, it appears that the working diagnosis was infection of unknown etiology. Respondent did not perform any lab work on the cat in the postoperative period to determine the cause of the illness. Instead, Respondent treated the cat symptomatically. The spay occurred on or about May 20, 1992. The medical records noted that the cat had no appetite on May 21, 1992. The scanty medical records note that the cat began to improve on May 25, 1992. The cat's physical condition between the onset of the improvement and the date of improvement is not reflected by the medical records. The evidence established that Respondent closely monitored the cat's condition following the surgery and that he administered treatment to the cat. Except for Dr. Ellison's question as to why the steroid prednisone was administered, Dr. Ellison and Dr. Diluzio found no fault with the treatment actually administered by Respondent. Dr. Ellison was of the opinion that Respondent was negligent in failing to perform basic blood tests, including a complete blood count, because such tests may have determined the cause of the cat's illness or indicated the proper course of treatment. Blood tests could also have helped determine whether the cat was hemorrhaging internally. Dr. Diluzio was of the opinion that it was acceptable practice to treat the cat symptomatically for the first few days after surgery without ordering lab work. Dr. Diluzio opined that since the cat appeared to improve between the onset of the illness and its death, lab work was not necessary in this case. Because of these conflicting opinions, both of which are supported by logical rationale, it is concluded that the Petitioner failed to establish that Respondent exceeded his clinical judgement or that he practiced below an accepted standard of care in his postoperative treatment of this cat by treating the cat symptomatically instead of ordering lab tests. On May 19, 1992, Respondent began a medical record for Cathy on a form that contained an area for identifying information as to the owner and as to the animal. The form also had spaces to record the findings of a physical examination, a description of any abnormal symptoms, any diagnosis made, any treatment administered, and any appropriate remarks. On May 21, 1992, continuing through May 24, 1992, Respondent noted in Cathy's records that she was treated with antibiotics, fluids, vitamins, and given intensive care with hand-feeding. The medical records should have reflected the Respondent's working diagnosis for the cat's illness so as to justify the treatment administered. The records do not contain a working diagnosis for the cat's illness and failed to justify the treatment administered. The medical records should have reflected the dosages of antibiotics given to the cat. The records do not record the dosages of antibiotics given to Cathy. The medical records should have stated the reason(s) the cat was given one cc. of the steroid prednisone (referred to in the records as "pred"). There were no medical records kept that justified the administration of this steroid. The medical records should have reflected the findings of his physical examinations following the surgery. The medical records kept by Respondent did not reflect the findings of his physical examinations of the cat during that period. He failed to document the physical examinations he made after the cat's operation. He did not record the cat's weight, its daily temperature, or the dosages of the antibiotics administered. Petitioner established that the postoperative care given the cat was not adequately documented by Respondent's medical records. Respondent had never, prior to this proceeding, been the subject of a disciplinary action by the Department. During the course of his practice, Respondent served four years on the Board of Veterinary Medicine for the State of Florida, has served as the president of the South Florida Veterinary Association and as the treasurer of the state association.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. Based on those findings and conclusions, it is recommended that Petitioner find Respondent not guilty of the violations alleged in Counts One and Four of the Administrative Complaint, and guilty of the violations alleged in Counts Two and Three of the Administrative Complaint. For the violations of Counts Two and Three, it is recommended that the Petitioner issue Respondent a formal reprimand and place his licensure on probation for a period of six months. DONE AND ENTERED this 1st day of September, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1995.
The Issue The issues in this case are whether the Respondent's request for hearing was timely filed and whether the Gold Star Quality Care Provider designation of the Respondent should be revoked.
Findings Of Fact All times material to this case, Ms. Garcia was the licensed owner and operator of the Respondent, located at 109 Meriwood Drive, Kissimmee, Florida 34743. On December 23, 2009, an employee of the Petitioner arrived at the home to conduct an inspection, but the inspector was not permitted to enter the home. Upon further inquiry, the inspector learned that Ms. Garcia was not present in the home and that an unlicensed individual had been left to supervise the children, which was a violation of licensing standards. Ms. Garcia was not present at the time of the inspection because she had traveled to visit her dying father. On March 22, 2010, the Petitioner issued an Administrative Complaint seeking to impose a penalty of $225 against the Respondent for the licensing standard violation. The Respondent did not contest the allegations in the 2010 Administrative Complaint and paid the $225 fine by a money order dated June 6, 2010, to the Petitioner. The evidence fails to establish whether the Petitioner issued a final order relative to the 2010 Administrative Complaint, but the Petitioner's Proposed Recommended Order states that upon the Respondent's payment of the fine, the 2010 Administrative Complaint "became final agency action." On or about March 31, 2011, the Petitioner issued an Amended Administrative Complaint that stated as follows: YOU ARE HEREBY NOTIFIED that the Department has imposed a Civil Penalty in the amount of $225 and is revoking the facility's Gold Seal Quality Care Designation. The payment amount of $225 was received on June 07, 2010, however the amount of the original fine should have been $150 [sic] a refund will be mail [sic] to you in the amount of $75. This Administrative Complaint is being amended to include the Gold Seal Langue [sic] as the original Administrative complaint [sic] mailed June 3, 2010. As grounds for the imposition of this penalty, the Department states the following[.] Other than indentifying the statutory authority for termination of a facility's Gold Seal Quality Care Designation, the factual allegations set forth in the 2011 Amended Administrative Complaint were identical to those that had been set forth in the 2010 Administrative Complaint. The Amended Administrative Complaint identified the Petitioner's authority for revocation of the Gold Seal Quality Care Designation as follows: Gold Seal designation. The violation described in paragraphs [sic] one constitutes a Class I violation as defined in rule [sic] 65C-20.012(3)(b), Florida Administrative Code. Section 402.281, Florida Statutes, requires that the department terminate your Gold Seal designation as a result of this Class I violation. Therefore, the department is terminating your Gold Seal designation. You will be ineligible for Gold Seal designation until you have operated for a period of two years without a Class I violation. The Amended Administrative Complaint also included the following notice of the Respondent's right to contest the action: PAYMENT OF FINE, IF NOT CONTESTED Payment of this fine can be made directly to the Department of Children and Family Services by money order or cashier's check. The mailing address is Department of Children and Families; Child Care Licensing Office; 1507 North John Young Parkway; Kissimmee, Florida 34741; Attention: Child Care Licensing. [omitted]. IF YOU BELIEVE THE DEPARTMENT'S DECISION IS IN ERROR, YOU MAY REQUEST AN ADMINISTRATIVE HEARING TO CONTEST THE DECISION. YOUR REQUEST FOR AN ADMINISTARTIVE HEARING MUST BE RECEIVED BY THE DEPARTMENT WITHIN 21 DAYS OF THE RECEIPT OF THIS NOTICE. FAILURE TO REQUEST AN ADMINISTRATIVE HEARING WITHIN THE 21 DAYS PROVIDED SHALL CONSTITUTE A WAIVER OF THE RIGHT TO A HEARING. Notwithstanding the preceding instructions on how to pay a fine, the Amended Administrative Complaint also stated that the Respondent had already overpaid the fine and that a refund would be forthcoming. The Respondent failed to request a hearing within 21 days of the Amended Administrative Complaint. By letter dated May 17, 2011, the Petitioner advised the Respondent that the facility's Gold Seal Quality Care Designation was terminated as of April 26, 2011, the expiration of the 21-day period following the issuance of the Amended Administrative Complaint. By letter filed with the Petitioner on May 26, 2011, the Respondent filed a letter appealing the termination of the Gold Seal Quality Care Designation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order DISMISSING the March 31, 2011, Amended Administrative Complaint filed against the Respondent. DONE AND ENTERED this 21st day of December, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of December, 2011. COPIES FURNISHED: Shane DeBoard, Esquire Department of Children and Families 400 West Robinson Street, Suite S-1129 Orlando, Florida 32801-1782 Maria T. Navas Y Garcia Garcia Family Day Care Home 109 Meriwood Drive Kissimmee, Florida 34743 Gregory Venz, Agency Clerk Department of Children and Families Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Drew Parker, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 David Wilkins, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner is entitled to a passing grade on the dental examination given on June 4-7, 2000.
Findings Of Fact Shahmohamady took the clinical portion of the dental licensure examination on June 4-7, 2000. He received a failing score of 2.98. The clinical portion of the dental examination consists of nine parts: a written clinical, three patient procedures, and five mannequin procedures. The five mannequin procedures consist of the endodontic, preparation for a three- unit fixed partial denture, the Class IV composite, the Class II composite, and the Class II amalgam. Shahmohamady challenges the grades that he received for the preparation for a three-unit fixed partial denture and the Class IV composite. The Department retains examiners and monitors during the examination. The examiners actually grade the clinical procedures performed by the candidates during the examination. The monitors give instructions to the candidates, preserve and secure the integrity of the examination, and act as messengers between the examiners and candidates. The procedures are blind graded independently by three examiners. The examiners do not know the name of the candidates they are grading. Each examiner grades the procedures independently of the other examiners. Discussion among the examiners is not allowed. The three examiners' grades for each procedure are averaged for the overall grade for the procedure. Each examiner must attend and successfully complete a standardization course prior to the examination. The standardization session trains each examiner to use the same grading criteria. After the examination is concluded and the final grades are given, the Department performs an analysis of the examiners' grading to determine the reliability of each examiner's grading. Candidates and examiners do not have contact during the examination. If a candidate has a problem during the examination, he is to alert a monitor. Candidates may fill out a Monitor-To-Examiner Instruction form, advising the monitor of any problem experienced during the examination. The monitor will read the comments of the candidate, and if the monitor agrees with the comments the monitor will write his monitor number on the form and circle the number. The monitor will provide the comment forms to the examiners when they are grading the procedures. Each examiner is to read the comment forms. The examiner is to acknowledge that he has read the forms on the grade sheet by either writing SMN followed by the number of comment sheets he read for all the procedures or by writing under each procedure SMN followed by the number of comment sheets that he read for that particular procedure. Shahmohamady filled out a Monitor-to-Examiner Instructions form on June 6, 2000, for the preparation for a three-unit fixed partial denture procedure and wrote the following: Doctor, As I was prepping tooth #20 on the sital aspect, the gas torch of the Candidate sitting in front of me (one row over) suddenly burst into a 3 foot flame that caused everyone to yell out. I inadvertently looked up and saw the flame without knowing where it was coming from and paniked [sic] and my bur gouged the mesial aspect of #19 (area of box [sic] There is no disagreement among the parties that the incident involving the gas burner occurred and no disagreement that points should not have been deducted for the gouge of the adjacent tooth resulting from the gas burner incident. The clinical procedures are graded on a scale of zero to five, with five being the best score. If an examiner gives a score of less than five, the examiner is to list a comment number, which corresponds to a list of comments for each procedure. The examiner may also list a comment number for things that the examiner observes during the grading, but for which no points are deducted. For procedure 7, which is the preparation of a three-unit fixed partial denture, the comment list to be used by the examiner was as follows: Outline Form Undercut Insufficient Reduction Excessive Reduction Marginal Finish Unsupported Enamel Parrallelism Mutilation of Opposing or Adjacent Teeth Management of Soft Tissue X Additional Comments - Written For procedure 7, Shahmohamady received a score of 5 from Examiner 289, a score of 4 from Examiner 315, and a score of 3 from Examiner 366. Each of the examiners was given the Monitor-to Examiner Instructions form with the note from Shahmohamady concerning the Bunsen burner incident. Shahmohamady challenges the score that he received from Examiner 366. Examiner 366 put numbers 4, 5, and 8 on the comment portion of the grading sheet for procedure 7. Those comments referred to excessive reduction, marginal finish, and mutilation of opposing or adjacent teeth. He indicated that he had read the three comment sheets that were submitted for the mannequin procedures and so indicated by writing "SMN-3" on the grading sheet for Shahmohamady. Examiner 366 did not deduct points for the mutilation of the adjacent tooth due to the Bunsen burner explosion. The grade which Shahmohamady received for procedure 7 is correct and should not be increased. After a candidate receives his grades for the dental examination, he may request an administrative hearing if he fails the examination. When the Department receives a request for an administrative hearing, the Department will regrade the procedures done by that candidate. The top three examiners from the examination based on the post-examination analysis that is done by the Department are chosen to regrade the procedures which are being contested. In addition to regrading candidates who have failed the examination, the examiners also regrade some candidates who have successfully passed the examination in order to ensure the integrity of the regrading process. Shahmohamady challenged the grade he received on procedure 7 and procedure 4; thus his examination was regraded. Each of the grading sheets had the following comment listed on the grading sheet for procedure 7 prior to the regrading: "Ignore nicked adjacent tooth bunson [sic] burner explosion." Procedure 7 was regraded by three examiners, one of whom was Examiner 366. Examiner 366 again gave Shahmohamady a score of three and included comment 4 on the comment section. Examiner 298 gave Shahmohamady a score of 2 for the procedure, included comment 4, and wrote "overtapered" on the grading sheet. Examiner 316 gave Shahmohamady a score of 3 and included comments 1, 4, and 5. Comment 1 referred to outline form. On regrading, Shahmohamady received an overall lower score for procedure 7 than he did in the original grading. Procedure 7 was graded correctly, and Shahmohamady is not entitled to additional points for that procedure. Shahmohamady challenged the score that he received for the Class IV composite restoration. He received an overall score of 2.66. The Class IV composite restoration is a procedure that involves the candidate's ability to cut a section of the tooth off the corner of the biting edge of the front tooth below the level where it contacts the adjacent tooth. The candidate is required to restore the contact and the tooth structure to proper form and function in a tooth- colored material. Based on the expert testimony of the Department's witness, Dr. Dan Bertoch, the restoration done by Shahmohamady was not done properly and would fail prematurely. Examiner 366 opined that Shahmohamady did not appropriately restore the proximal anatomy and the proximal contour. Shahmohamady did not properly perform the Class IV composite restoration procedure and should not be given a passing score for that procedure. Petitioner claims that Examiner 366 consistently graded Shahmohamady lower than the other two examiners. Based on the post-examination statistical analysis performed by the Department, Examiner 366 tied for second place in reliability for scoring. On a scale of 100, he scored 96, which is considered to be excellent. The other two examiners who were grading Shahmohamady clinical procedures scored lower on reliability than Examiner 366. Examiner 366's was a reliable grader and correctly graded Shahmohamady's examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Shahram Shahmohamady failed the clinical portion of the June 4-7, 2000, dental examination with a score of 2.98. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND 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 1st day of February, 2001. COPIES FURNISHED: Orlando Rodriquez-Rams, Esquire Lerenzo & Capua 9192 Coral Way, Suite 201 Miami, Florida 33165 Cherry Shaw, Esquire Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-0792 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether disciplinary action should be taken against Respondent's license to practice veterinary medicine, license number VM-2404, based on the violations of Section 474.214(1), Florida Statutes, as charged in three separate Administrative Complaints filed against Respondent.
Findings Of Fact At all times pertinent to the allegations in these cases, Respondent was a licensed veterinarian, having been issued license number VM-2404, by the Florida Board of Veterinary Medicine. On March 18, 2000, Respondent performed a spay on Rudy, a six-year-old cat owned by Sharon and James Leonard. Respondent discharged Rudy to Sharon and James Leonard on March 18, 2000. On the following day, when Rudy was not feeling well, the family took Rudy to the emergency clinic where she was seen and treated by Dr. Mark Erik Perreault. When seen by Dr. Perreault, Rudy was wobbly and disoriented, and had pale mucous membranes. In addition, Dr. Perreault observed hair sewn into Rudy's incision site. Because the cat was very tender, it was anesthetized, and a careful examination of the incision was made. That examination revealed the incision had been closed with very large suture material. Because of the cat's condition and his observations, Dr. Perreault recommended and received approval to re-open the incision, and conduct an exploratory operation. This surgery revealed Respondent sutured Rudy’s uterine stump leaving approximately one and a half inches of tissue below the suture. This amount of "stump" is excessive and leaves too much material to become necrotic. Respondent had closed the skin and body wall incisions with excessively large suture material. Respondent secured the body wall and skin incisions with only two throws (knots) in each closing suture. Both Dr. Perreault and Dr. Jerry Alan Greene testified regarding standard of care. It is below the standard of care to sew hair into an incision site or allow hair to become sewn into the incision site because it contaminates the surgical site. It is below the standard of care for veterinarians to use oversized suture material to close the incision site because an excessively large suture leads to excessive inflammation as the body absorbs the excessively large suture material. It is below the standard of care for veterinarians to secure the skin and body wall incisions with less than 5 to 6 throws on their sutures to ensure that the sutures do not loosen or become untied. The potential problems of not using enough throws are exacerbated by using larger suture material which is more likely to loosen. It is below the standard of care to leave an excessive amount of "stump" in the body cavity. An excess of necrotic tissue causes excessive inflammation. Pertaining to Rudy, Respondent’s records contain the notation, "0.6 Ket." Respondent testified that this indicated that he administered Ketaset. Respondent’s records do not indicate whether the administration was intravenously, intramuscularly, or subcutaneously. Respondent testified that he administered the Ketaset intramuscularly. It was below the standard of care for Respondent to fail to indicate the amount of medication administered, i.e., milligrams, cubic-centimeters, etc.; and to fail to indicate the method of administration. Respondent is the owner of V.I.P. Baseline clinic, a veterinary establishment located at 505 Northeast Baseline Road, Ocala, Florida 34470. On August 31, 2002, Teresa McCartney presented her male, white Maltese dog, Puffy, to Respondent at V.I.P. Baseline Pet Clinic for neutering. Teresa McCartney owned no other male, white Maltese dogs. Respondent performed a neuter on Puffy at V.I.P. Baseline Pet Clinic on August 31, 2002. On August 31, 2002, V.I.P. Baseline Pet Clinic was not licensed to operate as a veterinary establishment by the State of Florida Board of Veterinary Medicine. Teresa McCartney picked up Puffy from V.I.P. Baseline Pet Clinic on August 31, 2002. Puffy bled for approximately four days after the neuter was performed. On September 4, 2003, Teresa McCartney presented Puffy to Dr. Mark Hendon for treatment. Upon examination, Puffy was bleeding from the prepuce and from the site of the surgical incision. In addition, there was swelling subcutaneously and intra-dermal hemorrhage and discoloration from the prepuce to the scrotum. The animal indicated pain upon palpation of the prepuce, the incision site, and the abdomen. Dr. Hendon presented the owner with two options: to do nothing or to perform exploratory surgery to determine the cause of the hemorrhage and bleeding. The owner opted for exploratory surgery on Puffy, and Dr. Hendon anesthetized and prepared the animal for surgery. The sutures having been previously removed, upon gentle lateral pressure, the incision opened without further cutting. A blood clot was readily visible on the ventral surface of the penis, running longitudinally the length of the penis and incision area. Dr. Hendon immediately went to the lateral margins of the surgical field, where the spermatic vessels and cord were ligated, and found devitalized and necrotic tissue on both sides of the surgical field which appeared to be abnormal. He explored those areas and debrided the ligated tissues, exposing the vessels and the spermatic cord which he ligated individually. He then proceeded to examine the penis. Dr. Hendon found upon examination of the penis a deep incision into the penis which had cut the urethra, permitting urine to leak into the incision site, causing the tissue damage which he had debrided. Dr. Hendon had not used a scalpel in the area of the penis prior to discovering the incised urethra in the area of the penis, and he could not have been the cause of the injury. Dr. Hendon catheterized Puffy, and closed the incisions into the urethra and penis. Puffy recovered and was sent home the following day. Drs. Hendon and Greene testified about the standard of care in this case. It is below the standard of care to incise the penis or urethra of a male dog during a neuter because neither the penis nor the urethra should be exposed to incision during a properly performed surgery. Respondent’s medical record for Puffy did not indicate the type of gas which was administered to Puffy or that Ace Promazine was administered to Puffy. Respondent's anesthesia logs reflect the animal was administered Halothane and administered Ace Promazine, a tranquilizer. Rule 61G18-18.002(4), Florida Administrative Code, requires that a patient’s medical record contain an indication of the drugs administered to a patient. On September 13, 2002, Department Inspector Richard Ward conducted an inspection of V.I.P. Baseline Pet Clinic. The inspection revealed that Respondent failed to provide disposable towels. It was further revealed that Respondent provided insufficient lights in the surgical area of the premises. Finally it was revealed that Respondent did not have an operational sink in the examination area of the premises. Rule 61G18-15.002(2)(a)4.c., Florida Administrative Code, requires that all veterinary establishments have sinks and disposable towels in the examination area. Rule 61G18-15.002(2)(b)2.d., Florida Administrative Code, requires veterinary establishments that provide surgical services to provide surgical areas that are well lighted. On September 4, 2002, Elaine Dispoto presented her male cat Cinnamon to Respondent at V.I.P. Baseline Pet Clinic, located at 505 Northeast Baseline Road, Ocala, Florida 34470. On September 4, 2003, Respondent practiced veterinary medicine at V.I.P. Baseline Pet Clinic by providing veterinary medical services to Cinnamon. On September 4, 2003, V.I.P. Baseline Clinic was not licensed by the State of Florida to operate as a veterinary establishment. Cinnamon was presented to Respondent with complaints of vomiting and dilated eyes. The owner expressed concern that the animal had been poisoned. Respondent apparently accepted that the animal had been poisoned, and formulated a plan of treatment, because he gave the animal an IV and administered one cubic centimeter of atropine to the animal, a common antidote for organophosphate poisoning. Respondent administered subcutaneously the IV's of Ringer's lactate to the cat. The owners picked up Cinnamon from Respondent, having heard a television news report which was unfavorable about Respondent. Respondent gave the cat to Mr. James Dispoto, who observed that the cat was not doing well, although Respondent indicated that the cat was doing better. Mr. Dispoto was sufficiently concerned about the status of the cat that he took the animal immediately to Ocala Veterinarian Hospital. There the cat was examined by Dr. Fleck. Dr. Fleck found that Cinnamon was in extreme distress; lying on his side and non-responsive to stimuli. A cursory examination indicated that the animal was very dehydrated, approximately 10 percent, and passing yellow, mucousy diarrhea, uncontrollably. His pupils were pinpoint and non-responsive. Upon calling Respondent, Respondent told Dr. Fleck that on the first day he had treated Cinnamon, he had given the cat atropine, dexamethasone, and lactated Ringer's subcutaneously. On the second day, he had given the cat another injection of dexamethasone, penicillin, and lactated Ringer's subcutaneously. Based upon her assessment of the animal, Dr. Fleck wanted to get some blood work to establish what kind of state the rest of the body was in and to start an IV. The owner's consented, and blood was drawn and an IV drip started of normal saline at 25 mils per hour. While the blood work was being started, the cat had a short seizure, and within five minutes, had another bad seizure, going into cardiac arrest and died. A necropsy was performed which was unremarkable. The only significant findings were that the cat was dehydrated. There were indications the cat had received fluids along the ventral midline. The bowels were totally empty and there were no substances within the stomach, intestines, or colon. There was slight inflammation of the pancreas. Samples were taken of the pancreas, liver, kidney, and lung. Analysis of these samples was inconclusive. A cause of death could not be determined. The clinical presentation was very indicative of organic phosphate poisoning. Organophosphates are the active ingredient in certain common insect and garden poisons. However, there were no findings that pin-pointed poisoning as a cause of death. Dr. Greene testified concerning his examination of the files maintained on Cinnamon by Respondent. They reflected Respondent administered one cubic centimeter of atropine on the first day and another cubic centimeter on the second day. Dr. Greene's testimony about the administration of atropine is contradictory. He testified at one point that, based on the cat's weight, a proper dose would be about 2.5 cubic centimeters and Respondent did not give enough; however, his answer to a question on cross-examination later indicated that the amount of atropine given was more in line with what was administered. Respondent faced a bad set of alternatives in treating Cinnamon. The cat presented with poisoning symptoms and suggestions of poisoning by the owners. He could run tests and try and determine exactly what was ailing the cat. However, if he did this without treating the possible poisoning, the cat might have died from the poison before he determined what was wrong with the cat. He could begin to treat the cat for poisoning based upon the owner's representations, and perhaps miss what the cat's problem was. He cannot be faulted for treating the most potentially deadly possibility first. It is noted that a full necropsy could not pinpoint the cause of the animal's problem(s). While Respondent may have run additional tests, they would not have been any more revealing. Atropine is the antidote for organophosphate poisoning and is helpful in controlling vomiting. It is clear from the file that Respondent's working diagnosis was poisoning. He treated the cat with the appropriate drug in approximately the correct dosage. Dr. Greene testified that it was a deviation from the standard of care not to administer fluids intravenously to Cinnamon because an ill patient may not absorb fluids through subcutaneous injection. Based upon Dr. Fleck's discussion of the issues involved in administering fluids intravenously, it does not appear nearly so clear cut as Dr. Greene suggests, but is a matter of professional judgment. Dr. Greene testified it was a deviation from the standard of care to administer lactated Ringer's solution to Cinnamon instead of sodium chloride or normal saline. Again, the choice of normal saline versus lactated Ringer's is one of professional judgment and not standard of care. Dr. Greene opined that it was a deviation from the standard of care to administer only 300ml of fluids to Cinnamon because 300ml is an insufficient amount of fluids to treat for dehydration or to even sustain Cinnamon under the circumstances. Dr. Greene assumed that the all of the hydration was via "IV." The testimony was that the cat did take some water orally; therefore, Dr. Green's predicate was flawed. Respondent administered dexamethsone to Cinnamon. Respondent failed to indicate that he administered dexamethasone in Cinnamon’s record. It is a deviation from the standard of care to fail to indicate the administration of dexamethasone in a patient’s record. Respondent administered penicillin to Cinnamon. Respondent’s records for Cinnamon indicate that he administered penicillin-streptomycin to Cinnamon. Respondent's records for Cinnamon indicate that Respondent did not check on the animal frequently, which, given his condition and the multiple problems which the cat was suffering, was a failure to render the standard of care necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Board enter its final order: Finding that Respondent violated the standard of care in treating Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(r), and imposing an administrative fine upon Respondent of $2,000 for each violation; Finding that Respondent violated the requirement to keep adequate records with regard to Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(ee), and imposing an administrative fine upon Respondent of $1,000 for each violation; Finding that Respondent violated the requirement to obtain a license for a premises, contrary to Rule 61G18- 15.002(2), Florida Administrative Code, which is a violation of Section 474.214(1)(f), and imposing an administrative fine upon Respondent of $2,000; Finding that the record of Respondent's previous violations and the violations found above reflect that he is unqualified and unfit to practice veterinary medicine in the State of Florida, and revoking immediately his license, without leave to reapply; Requiring Respondent to pay costs incurred in the investigation and prosecution of these cases in the amount $5,697.96, plus the costs incurred at the final hearing; and Opposing any effort by Respondent to practice veterinary medicine while an appeal in this case is taken. 28 DONE AND ENTERED this 14th day of October, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ STEPHEN F. DEAN 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 October, 2003. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Tiffany A. Short, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Thomas V. Infantino, Esquire 180 South Knowles Avenue, Suite 7 Winter Park, Florida 32789 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 29 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 2399-2202
The Issue Whether Florida Administrative Code Rules 65C- 22.009(2)(b)1. and 3., are invalid exercises of delegated legislative authority and whether a statement in a Gold Seal Quality Care Program Fact Sheet constitutes an unadopted rule in violation of section 120.54(1)(a), Florida Statutes.
Findings Of Fact The Department of Children and Families (DCF or Department) is the agency of the State of Florida that regulates child care facilities, large family child care homes, and family day care homes within the state to protect the health and welfare of the children in care. Petitioner RCMA is a child care facility licensed by the Department and located in Arcadia, Florida. RCMA's current child care facility license #CI2DE0009, is effective January 1, 2012, through December 31, 2012. Child care facilities, large family child care homes, and family day care homes in Florida that meet criteria demonstrating that they exceed the minimum licensing requirements and promote quality child care are eligible for Gold Seal Quality Care designation by DCF. Designation indicates a facility providing a higher standard of care. Gold Seal Quality Care designation has no bearing on licensure as a child care facility, large family child care home, or family day care home. A Gold Seal Quality Care designation is an authorization required by law in order for a facility to receive certain tax benefits and enhanced school readiness program reimbursement from the Early Learning Coalition. Issuance of a Gold Seal Quality Care designation is not merely a ministerial act and it is not a license required primarily for revenue purposes. Gold Seal Quality Care designation is a license. DCF granted RCMA Gold Seal designation on March 31, 2008. On December 29, 2011, DCF issued an Administrative Complaint alleging that RCMA committed a Class I licensing violation. The Administrative Complaint sought to impose sanctions against RCMA's child care facility license and to revoke RCMA's Gold Seal designation. On or before April 27, 2012, RCMA's accrediting association, the National Association for the Education of Young Children (NAEYC), revoked RCMA's accreditation. There was no evidence at hearing as to whether its action was based solely upon DCF's allegations in the Administrative Complaint that RCMA had committed a Class I licensing violation.1/ On or about May 24, 2012, RCMA was notified of the Department's intended action to revoke its Gold Seal designation because NAEYC had revoked RCMA's accreditation. The notification letter advised RCMA of its right to request a hearing, but was not in the form of an Administrative Complaint. It was stipulated by the parties that Petitioner is substantially affected by rules 65C-22.009(2)(b)1. and 3. On August 6, 2012, Administrative Law Judge R. Bruce McKibben issued a Recommended Order on the Administrative Complaint in DOAH Case No. 12-750, concluding that DCF had failed to prove the Class I licensing violation and recommending that the Administrative Complaint and Revocation of Gold Seal Quality Care Designation be dismissed. On August 27, 2012, DCF entered a Final Order rescinding the Administrative Complaint. Ms. Sherrie Quevedo was the Child Care licensing Supervisor for the geographic area including Arcadia, Florida, at the time of the formal hearing on the Administrative Complaint against RCMA's child care facility license. Ms. Quevedo was a supervisor called by Respondent and her statements as to policies of DCF were regarding matters within the scope of her employment. Ms. Quevedo did not work in the policy-making arm of DCF, and she could not speak authoritatively as to the Department's interpretation of statutes implemented by DCF. Ms. Deborah Russo is the Director of Child Care Regulation Office at DCF, where she is responsible, in conjunction with Department leadership and the General Counsel's Office, for establishing Department policies and implementing statutes setting out legislative policies. The Department terminates the Gold Seal designation for a facility when its accreditation expires or when it is revoked by the accrediting organization. Ms. Russo testified that it is DCF's interpretation of section 402.281, Florida Statutes, that the Department does not have discretion not to terminate a child care facility's Gold Seal designation if that facility's accrediting association revokes the provider's accreditation. The Gold Seal Quality Care Program Fact Sheet contains the statement that "section 402.281(3), Florida Statutes, requires that the Department deny or revoke a child care provider's Gold Seal Quality Care designation" if the provider has a Class I violation within a two-year period (the Statement). The fact sheet was distributed to Gold Seal child care facilities throughout the State of Florida in 2009 and the Statement is of general applicability to all child care facilities designated as Gold Seal Quality Care providers. The Statement, or a substantially similar statement reflecting the Department's interpretation of the statute, has not been adopted as a rule under chapter 120, Florida Statutes. RCMA has committed no licensing violations defined by DCF rule as a Class I violation during the two years preceding the rule challenge petition in this case.
The Issue Whether the Agency for Health Care Administration (Petitioner or AHCA) is entitled to recover: certain Medicaid payments made to Respondent, Ason Maxillofacial Surgery, P.A., pursuant to section 409.913(11), Florida Statutes (2016); an amount of sanctions imposed pursuant to section 409.913(15); and the amount of any investigative, legal, and expert witness costs that AHCA incurred pursuant to section 409.913(23).
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and the entire record of this proceeding, the following factual findings are made: Petitioner is the state agency authorized to administer and make payments for medical and related services under Title XIX of the Social Security Act, the Medicaid Program, relevant to this proceeding. At all times pertinent to this case, Respondent, an oral and maxillofacial surgery practice operated by Dr. Ason, was enrolled in the Florida Medicaid Program as a Medicaid dental provider. Respondent’s Medicaid provider number was 007294600. Petitioner engaged the services of Dr. Hardeman as its expert and peer reviewer. Dr. Hardeman is a Florida-licensed medical doctor and dentist, who is board-certified in oral and maxillofacial surgery. He practices in the same specialty or subspecialty as Respondent’s provider, Dr. Ason. Respondent stipulated and agreed that Dr. Hardeman meets the requirements and qualifications of a “peer” as defined in section 409.9131, Florida Statutes. Dr. Hardeman’s testimony is credible. Petitioner offered the testimony of AHCA Administrator Olmstead to describe the process by which the audit was conducted. Administrator Olmstead has years of experience in this process, and her testimony is credible. Nurse Kinser holds a Bachelor of Science degree in nursing and is a Florida-licensed registered nurse. She is employed as a registered nurse-consultant for Petitioner. Nurse Kinser is a certified professional coder, having received her credentials from the American Academy of Professional Coders. Her testimony is credible. Respondent offered the testimony of Dr. Fonseca, of North Carolina, as an expert in the field of oral and maxillofacial surgery to opine on the medical necessity of the services provided by Respondent. Respondent offered the testimony of Mr. Dicksen as a coding expert. Mr. Dicksen holds a degree in health information management and is licensed as a registered health information administrator. Mr. Dicksen is not licensed as a medical doctor, oral surgeon or dentist in Florida, and is not trained to read a panorex, X-ray or CT scan in his scope of work. Mr. Dicksen’s lack of medical or dental training in reading medical/dental records seriously detracted from his testimony regarding the proper coding of services. Respondent’s representative, Dr. Ason is a well-educated, board-certified oral and maxillofacial surgeon. His lack of understanding in the various aspects of his coding for services rendered is a disservice to his practice, as it is apparent from his testimony that he cares for his patients. Dr. Ason does not watch the clock during a procedure, but instead he “takes care of [his] patients.” Title XIX of the Social Security Act establishes Medicaid as a collaborative federal-state program in which the state receives federal funding for services provided to Medicaid- eligible recipients in accordance with federal law. The Florida Statutes and rules relevant to this proceeding essentially incorporate federal Medicaid standards. In order to receive payment, a provider must enter a Medicaid provider agreement, which is a voluntary contract between AHCA and the provider. Respondent, as an enrolled Medicaid provider must comply fully with all state and federal laws pertaining to the Medicaid Program, including Medicaid Provider Handbooks incorporated by reference into rules which were in effect during the audit period. AHCA’s Bureau of Medicaid Program Integrity (MPI) is required to identify and recover overpayments to ensure that Medicaid funds are appropriately utilized and to reduce fraud and abuse to the Medicaid Program. Pursuant to section 409.913, MPI conducted an audit of Respondent’s paid Medicaid claims for services rendered to Medicaid recipients between January 1, 2013, and June 30, 2014. The Florida Medicaid Dental Program (Dental Program) covers all medically necessary and dental services to eligible children. The Dental Program is limited in the services and treatments available to persons over 21 years of age. These limited services include relief of pain, suffering, and trauma, and preparation for dentures. The Dental Program does not cover preventive dental care for adults. Administrator Olmstead provided the framework by which this audit was opened, investigated, reviewed and reported. The investigation followed all the required procedures and the audit was properly conducted. On July 6, 2016, AHCA issued a FAR2/ alleging that Medicaid overpaid Respondent $654,485.81 for services that were not covered, in whole or in part, by Medicaid. Additionally, pursuant to section 409.913(23), AHCA sought to assess a sanction of $118,000.00 for the alleged violations. In the FAR, the following “Findings” were set forth (and will be discussed in this Order below): The 2008 and 2012 Florida Medicaid Provider General Handbooks, page 5-4, state that when presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to present a claim for goods and services that are medically necessary. A review of your medical records by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. revealed that the medical necessity for some claims submitted was not supported by the documentation. Payments made to you for these services are considered an overpayment. (NMN) The 2008 and 2012 Florida Medicaid Provider General Handbooks, page 5-4, require that when presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to present a claim that is true and accurate and is for goods and services that have actually been furnished to the recipient. A review of your medical records revealed that some services rendered were erroneously coded on the submitted claim. The appropriate dental code was applied. These dental services are not reimbursable by Medicaid. Payments made to you for these services are considered an overpayment. (ERROR IN CODING) The 2008 Florida Medicaid Provider General Handbook, pages 2-57 and 5-8 and the 2012 Florida Medicaid Provider General Handbook, pages 2-60 and 5-9, define incomplete records as records that lack documentation that all requirements or conditions for service provision have been met. A review of your medical records revealed that the documentation for some services for which you billed and received payment was incomplete or was not provided. Payments made to you for these services are considered an overpayment. (INSUFFICIENT/NO DOC) The 2011 Dental Services Coverage and Limitations Handbook, page 2-40, states use of Evaluation and Management Services must follow guidelines set by the Physicians’ Current Procedural Terminology (CPT) for E&M code levels. A review of your medical records by a peer consultant in accordance with Sections 409.913 and 409.9131, F.S. revealed that the level of service for some claims submitted was not supported by the documentation. The appropriate code was applied and the payment adjusted. Payments made to you for these services, in excess of the adjusted amount, are considered an overpayment. (LOS) The 2011 Dental Services Coverage and Limitations Handbook, pages 2-38 and 2-39, defines a consultation as a type of service provided by an accredited dental specialist whose opinion or advice regarding the evaluation or management of the specific problem is request by another dentist. The following components must be recorded in the recipient’s dental records: a request and need for consultation from the attending or requesting provider; the consultant’s opinion and any services ordered or performed; and a written report of the findings and recommendations provided to the attending or requesting provider. If the referring provider will not participate in the on-going care of the recipient for this problem, this is not a consultation, but is instead a referral, and should be billed as an examination or appropriate evaluation and management code. The documentation you provided did not meet the criteria for a consultation service. The appropriate code was applied and the payment adjusted. Payments made to you for these services, in excess of the adjusted amount, are considered an overpayment. (NOT A CONSULT) The 2008 and 2012 Florida Medicaid Provider General Handbooks, page 1-3, define global reimbursement as a method of payment where the provider is paid one fee for a service that consists of multiple procedure codes that are rendered on the same date of service or over a span of time rather than paid individually for each procedure code. A review of your medical records revealed that some services, for which you billed and received payment, were covered under a global procedure code. Payments made to you for these services are considered an overpayment. (GLOBAL) The 2011 Dental Services Coverage and Limitations Handbook, page 2-1, states that only those services designated in the applicable provider handbook and fee schedule are reimbursed by Medicaid. You billed and received payment for services that are not covered by Medicaid after the correct code was assigned. Payments made to you for these services are considered overpayments. (NOT A COVERED SERVICE) (emphasis added). AHCA used a statistical analysis to review claims. AHCA obtained a list of claims for 35 randomly selected recipients from the cluster sample program. Petitioner then requested the medical records for those 35 recipients from Respondent. Respondent provided the medical records, and throughout the process has provided additional records when requested. Further, Respondent has not contested the process of the statistical sampling or the statistical methods utilized to establish the validity of the overpayment calculation. Following the issuance of the FAR, and after receiving and reviewing additional documentation, AHCA amended Respondent’s overpayment downward to $640,493.77 and the sanction amount to $106,000.00. Teeth are numbered 1 through 16 from right to left on the upper jaw, and 17 through 32 from left to right on the lower jaw. The wisdom teeth are numbered 1, 16, 17, and 32, and are also called the 3rd molars. Additionally, the mouth is divided into four quadrants: upper jaw left and right, and lower jaw left and right. Not Medically Necessary (NMN) Recipient 7 had seven claims labeled as NMN. Of claims 3, 4, 5, 6, 9, and 12,3/ Dr. Hardeman agreed that the bone grafts were necessary and medically appropriate; however, other causes for disallowance of the claims shall be addressed below. Recipient 23 had two claims labeled as NMN regarding lower jaw bone grafts on teeth 17 and 32. Recipient 23 was a 22-year-old male with impacted wisdom teeth. Dr. Ason extracted the wisdom teeth and then completed bone grafts on the areas. Dr. Hardeman opined that bone grafts were not indicated in this young patient as he would heal without the grafts.4/ Recipient 24 had one claim labeled as NMN regarding a lower jaw bone graft on tooth 17. Tooth 17 is the lower left wisdom tooth. Dr. Ason extracted the wisdom tooth and then completed a bone graft on the area. Dr. Hardeman opined that the graft was not medically necessary because following the extraction, the site should have granulated and healed naturally. Error in Coding CPT code “21210 Graft, bone; nasal, maxillary or malar areas (includes obtaining graft)” is explained with a coding tip as follows: The physician reconstructs the nasal, maxillary, or malar area bones with a bone graft to correct defects due to injury, infection, or tumor resection. The procedure may also be performed to augment atrophic or thin bone, or to aid in healing fractures. The physician harvests bone from the patient’s hip, rib, or skull. Incisions are made overlying the harvest site. Tissues are dissected away to the desired bone. The physician removes the bone as needed for grafting to the defect area. After the bone is harvested, the donor site is repaired in layers. Access incisions are made to the recipient site and the area of bony defect is exposed. The graft is placed to repair the defect and may be held in place with wires, plates, or screws. The access sites are irrigated and sutured closed. Harvesting of the bone graft is not reported separately. If bone graft is not harvested from the patient, modifier 52 Reduced services, should be appended. For harvest of graft by another physician, append modifier 62 Two surgeons, to the applicable bone graft code. CPT code “21215 Graft, bone; mandible (includes obtaining graft)” is explained with a coding tip as follows: The physician reconstructs the mandible with a bone graft to correct defects due to injury, infection, or tumor resection. The procedure may also be performed to augment atrophic or thin mandibles, or to aid in healing fractures. The physician harvests bone from another site on the patient’s body, most commonly the rib, hip, or skull, and repairs the surgically created wound. The physician makes facial skin incisions to expose the mandible and place the graft from the donor site. Occasionally, intraoral incisions are used. The graft is held firmly positioned with wires, plates or screws. The incisions are sutured with a layered closure. Harvesting of the bone graft is not reported separately. If bone graft is not harvested from the patient, modifier 52 Reduced services, should be appended. For harvest of graft by another physician, append modifier 62 Two surgeons, to the applicable bone graft code. For interdental wiring, see code 21497. For application, including removal of an interdental fixation device for conditions other than fracture or dislocation, see code 21110. Because this procedure may be performed for cosmetic purposes, verify coverage with insurance carrier. Supplies used when providing this procedure may be reported with appropriate HCPCS Level II code. Check with specific payer to determine coverage. CPT code 41823 is for the “Excision of osseous tuberosities, dentoalveolar structures.” CDT code D7140 is explained as follows: [E]xtraction, erupted tooth or exposed root (elevation and/or forceps removal) Includes routine removal of tooth structure, minor smoothing of socket bone, and closure, as necessary. Surgical Extractions (Includes Local Anesthesia, Suturing, If Needed, and Routine Postoperative Care) CDT code D7210 is explained as follows: [S]urgical removal of erupted tooth requiring removal of bone and/or sectioning of tooth, and including elevation of mucoperiosteal flap if indicated Includes related cutting of gingiva and bone, removal of tooth structure, minor smoothing of socket bone and closure. CDT code D7220 is explained as follows: [R]emoval of impacted tooth – soft tissue Occlusal surface of tooth covered by soft tissue; requires mucoperiosteal flap elevation. CDT code D7230 is explained as follows: [R]emoval of impacted tooth – partially bony Part of crown covered by bone; requires mucoperiosteal flap elevation and bone removal. CDT code D7240 is explained as follows: [R]emoval of impacted tooth –completely bony Most or all of crown covered by bone; requires mucoperiosteal flap elevation and bone removal. CDT code D7250 is explained as follows: Surgical removal of residual roots (cutting procedure), includes cutting of soft tissue and bone, removal of tooth structure and closure. CDT code D7310 is explained as follows: lveoloplasty in conjunction with extractions – four or more teeth or tooth spaces, per quadrant The alveoloplasty is distinct (separate procedure) from extractions and/or surgical extractions. Usually in preparation for a prosthesis or other treatments such as radiation therapy and transplant surgery. CDT code D7953 is explained as follows: one replacement graft for ridge preservation – per site Graft is placed in an extraction or implant removal site at the time of the extraction or removal to preserve ridge integrity (e.g., clinically indicated in preparation for implant reconstruction or where alveolar contour is critical to planned prosthetic reconstruction). Does not include obtaining graft material. Membrane, if used should be reported separately. Recipient 2’s claim 3, coded as 21210, related to a face bone graft for tooth 15. Following the extraction of tooth 15, Dr. Ason used a bone graft to close the opening in the sinus. Dr. Hardeman opined there was “a hole in the alveolus, the socket.” Dr. Hardeman further opined that “This fee (using code 21210) would be applicable for augmentation of an atrophic ridge, but not for a small graft used in conjunction with the treatment of a sinus exposure.” Dr. Ason testified that when he extracted the tooth “a part of the floor of the sinus . . . came with the root, leaving a defect.” He then saw the Schneiderian Membrane,5/ placed the bone graft, and closed the site. There was no break in the membrane, and a small graft closure was more appropriate. For Recipient 2’s claim at issue, the appropriate code should be D7953. Recipient 4’s claims 3 and 4, both coded as 21215, related to the lower jaw bone grafts for teeth 17 and 18. Dr. Hardeman reviewed the operative note that provided “a large periodontal defect in the area adjacent to Tooth No. 19. It was therefore grafted.” Dr. Hardeman did not find tooth 19 on the panorex, and the reasoning for a graft was “invalid.” Dr. Hardeman opined the grafting was a socket preservation. For Recipient 4’s claims at issue, the appropriate code is D7953. Dr. Ason qualified his operative note, which discussed the “area of teeth #’s 17, 18 where a sulcular incision was made. . . . There was a large defect of bone distal to tooth #19,” with a comment that when he referred to “Area 19” that does not mean that tooth 19 was there, just that he was referring to the area. Dr. Ason’s attempt to re-write the operative note to reflect his current testimony is not persuasive. Recipient 6’s claims 3, 4, 6, and 7, coded as 21215, related to lower jaw bone grafts for teeth 21, 22, 27, and 28; and claim 5, coded as 21210, related to a face bone graft for tooth 12. Recipient 6 had multiple teeth extracted from the lower jaw, and one removed from the upper jaw. Dr. Ason grafted both the bottom and the top where the extractions were completed. Dr. Hardeman opined that these “were merely socket preservation grafts,” and the appropriate code for all the claims should be D7953. Recipient 7’s claims 3, 4, 5, and 6, coded as 21210, related to face bone grafts for teeth 1, 2, 15 and 16. Recipient 7 had teeth 1, 2, 15, and 16 surgically extracted,6/ and Dr. Ason used allograft bone to preserve the alveolar ridge in all four locations. Dr. Hardeman reviewed the panorex, and teeth 1 and 16 were not present on it. Dr. Hardeman could not find a “clear-cut” clinical indication for the grafting done on Recipient 7. For Recipient 7’s claims at issue, the appropriate code should be D7953. Recipient 8’s claims 3 and 4, both coded as 21215, related to the lower jaw bone grafts for teeth 17 and 32. Recipient 8 had multiple wisdom teeth and a supernumerary wisdom tooth removed. Dr. Ason testified that there were “wide-rooted molars with chronic infection” and because of the infection, “it spreads throughout the bone and you can’t predictably take out a root and leave a socket.” Dr. Hardeman found nothing remarkable about these extractions, and opined that these were socket preservation grafts. Dr. Hardeman agreed that it was reasonable to put a graft distal to teeth 18 and 31, but did not alter his opinion that these were socket preservations. For Recipient 8’s claims at issue, the appropriate code should be D7953. Recipient 13’s claim 3, coded as 21215, related to the lower jaw bone graft for tooth 32. Recipient 13 had multiple decayed teeth which were extracted; however, only claim 3 is at issue here. Dr. Hardeman opined the bone graft was not warranted because the distal bone was at the appropriate height. For this claim, the appropriate code should be D7953. Recipient 14’s claim 2, coded as 21210, related to the face bone graft for tooth 1. Recipient 14 had one wisdom tooth extracted. Dr. Hardeman agreed there was a “good defect on the back side of” the tooth and agreed that a graft “could be medically appropriate.” Dr. Hardeman further stated that he would have “tried to do something for that,” however this involved socket preservation grafting, not the higher medical grafting code. The appropriate code should be D7953. Recipient 17’s claims 5 through 8, coded as D41823, related to excision of gum lesions for teeth 2, 3, 4, and 5. These four teeth are in the upper right quadrant; however, Dr. Ason billed for alveoloplasties in four quadrants. AHCA allowed claims 1 through 4, but denied claims 5 through 8 because that would have been double-billing for the same procedure, which is not allowed. Recipient 21’s claim 6 was coded as 21210 for a face bone graft for tooth 16, and claim 8 was coded as 21215 for a lower jaw bone graft for tooth 32. Recipient 21 had four wisdom teeth extracted, and a repair of a sinus exposure on tooth 16. Initially, there was no documentation for a peer review of the procedures billed. After receiving the documentation, Dr. Hardeman opined that these “were socket preservation grafts.” The appropriate code should be D7953. Recipient 23’s claims 3 and 4 were coded as 21215 for lower jaw bone grafts to teeth 17 and 32, and claims 7 and 8 were coded as D7230 for impacted teeth removed for teeth 1 and 16. Recipient 23 had four wisdom teeth removed. Dr. Hardeman opined that bone grafts were not indicated to preserve the integrity of the bone adjacent to the second molars in this young patient. The appropriate codes for claims 3 and 4 are D7953, and the appropriate codes for claims 7 and 8 are D7220 and D7210, respectively. Recipient 25’s claims 4 and 5 were coded as 21215 for a lower jaw bone graft for teeth 19 and 30, and claims 6 and 7 were coded as 21210 for a face bone graft for teeth 1 and 16. Recipient 25 had five teeth surgically removed (1, 16, 17, 19 and 30), and bone grafts placed at sites 1, 16, 19 and 30. Dr. Hardeman opined that some bone grafting may have been medically necessary, but that he would have coded these claims as D7953. The appropriate code for all these claims is D7953. Recipient 26’s claims 3 and 4 were coded as 21215 for a lower jaw bone graft for teeth 22 and 27, and claims 5, 6, 7, and 8 were coded as 21210 for a face bone graft for teeth 2, 3, 14, and 15. Recipient 26, a 30-year-old male had all the teeth in the maxilla removed and all the teeth present in the mandible removed. Bone grafts were placed at sites 2, 3, 14, 15, 22, and 27. Dr. Ason testified that there were a few sinus exposures (of the upper jaw) in “common locations” and he used bone graft to those areas. Dr. Ason also testified that for teeth 22 and 27, these teeth were infected, and when he extracted them, he placed bone graft at those sites. Dr. Ason did not testify that he saw infection in the vacated sites. Dr. Hardeman opined that the procedures may have been medically necessary, but were not properly coded. The appropriate code for all of these claims is D7953. Recipient 28’s claim 7 was coded as D7240 for removal of an impacted tooth 16. Dr. Hardeman reviewed the panoramic X-ray and determined that this tooth was just a partially impacted tooth, as opposed to a completely bone-impacted tooth. The appropriate code for this claim is D7230. Recipient 29’s claim 8 was coded 20680 for the removal of support for tooth 3. Dr. Hardeman candidly admitted that he made an error in determining that Dr. Ason had simply put a screwdriver on hardware in Recipient 29’s mouth to remove screws and plates. Upon an additional review of the operative report, Dr. Hardeman opined that Dr. Ason did make an incision to remove the screws and plates.7/ Recipient 31’s claims 3 and 4 were coded as 21215 for a lower jaw bone graft for teeth 22 and 27, and claims 5, 6, 7, and 8 were coded as 21210 for a face bone graft for teeth 5, 6, 11, and 12. There was no direct testimony on the bone grafts performed on this Recipient. The documentation (Exhibit 18-31: Bates-stamped pages 1031 through 1062) reflected Dr. Hardeman wrote “socket graft” at each claim. However, this is insufficient to support a finding of fact. Insufficient or No Documentation Recipient 3’s claims 2, 3 and 4 included a panoramic image, a primary closure of a sinus perforation at tooth 1, and a primary closure of a sinus perforation at tooth 16, respectively. Initially claim 2 was denied because of a lack of documentation, however, additional documentation was received and claim 2 was allowed. As to claims 3 and 4, Dr. Hardeman opined there was insufficient documentation to support the claims as he could find “no sinus exposure was noted” in the “op [operation] note.” Dr. Ason’s testified that he had “to get a primary closure for this patient on both sides,” and his operative note provides: The roots were in the radiograph close to or into the sinus. As a precaution, a primary sinus closure was performed on both sites #1 and #16 by using chromic gut 3-0 to get a watertight seal. Dr. Ason’s operative note did not document that there was sinus exposure during the operation. There is insufficient documentation to support these two claims. The claims should not be allowed. Recipient 5’s claim 3 involved insufficient documentation to support a “Repair Tooth Socket” for an unknown tooth. Dr. Hardeman agreed that an alveoloplasty was appropriate in this case; however, there was no documentation for the site at which it was performed. Dr. Ason recited four sentences from his operative note; however, he did not provide a tooth number for the procedure. There is insufficient documentation to support this claim, and the claim should not be allowed. Recipient 7’s claim 2 involved a missing panoramic image, claims 7 and 8 involved no documentation for the “Repair Tooth Socket” for unknown teeth, and claims 9 and 12 involved the removal of impacted teeth 1 and 16. During the hearing, Petitioner’s counsel affirmed that “claim 7, page 2” was paid,8/ and claims 2, 9, and 129/ were paid. No testimony was received regarding claims 7 and 8. The claims (7 and 8) are allowed. Recipient 10’s claim 4 involved the lack of documentation for the “Excision Of Gum Flap” for tooth 32. Dr. Hardeman opined there was no documentation of this procedure. The claim should be disallowed. Recipient 13’s claim 9 involved insufficient documentation to support a “Repair Tooth Socket” for an unknown tooth. The documentation (Exhibit 18-13: Bates-stamped page 600) reflected Dr. Hardeman wrote “What socket was repaired? I would allow if site was #30, that is what is in the op note. But the cover sheet does not indicate tooth#.” Dr. Hardeman adopted his written notations as his testimony. This claim should not be allowed. Recipient 22’s claim 1 involved the lack of documentation to support an office consultation claim. Dr. Hardeman did not find any documentation to support an office consultation visit. The claim should be disallowed. Recipient 29’s claim 2 involved the lack of documentation to support an inpatient consultation claim, and claim 6 involved the lack documentation of a “CT” scan of the maxillofacial region without dye. Dr. Hardeman did not find any documentation to support an in-patient consultation on the date specified, nor could he find a CT scan for this recipient in any of the records. These claims should be disallowed. Recipient 34’s claim 1 lacks documentation of a “CT” scan of the maxillofacial region without dye. Dr. Hardeman did not see a CT scan for this recipient in any of the records. This claim should be disallowed. Level of Service and Not a Consult As provided in paragraph 15.5. above, the description for an office consultation is clear. The Dental Handbook details the components of a consultation. The Dental Handbook provides guidance between a “Consultation Versus Referral” as: If a provider sends a recipient to another provider for specialized care that is not in the referring provider’s domain, and the referring provider will not participate in the on-going care of the recipient for this problem, this is not a consultation. This is a referral and should be billed as an examination or appropriate evaluation and management code. The distinguishing feature between a consultation and an established or new patient visit will depend on whether the referring provider is going to continue to care for the patient for that particular problem. If this condition can be met, then the referral should be billed as a consultation. If this condition cannot be met, then the referral should be billed as a new or established patient. Respondent billed an office consultation for the vast majority of the 35 recipients.10/ Respondent consistently billed CPT codes 99424, 99243 or 99244. AHCA adjusted the codes downward, uses CPT codes 99202, 99203, or 99204 as warranted, and AHCA seeks to recover the difference as overpayment. Respondent did not provide a written report of the findings and recommendations to the attending or requesting provider, but instead provided treatment to each of the 35 recipients in this sample. For Recipient 22, there was no documentation to support an office visit. For Recipient 29, the consultation was covered within a global surgery code, and will be discussed below. Respondent’s surgeon, Dr. Ason, mistakenly thought that he was providing a consult because the “patients were receiving care for their oral health by a general dentist. . . . So they [general dentists] sent the patient to me to consult on the area and confirm that the extraction or whatever procedure was needed, and after I was done with the procedure, I would then hand the patient right back to the dentist.” Dr. Ason’s explanation does not justify coding as a consult. Global Codes 21462, 21453, and 13132 involve the surgical procedures in the treatment of a fractured jaw with the insertion of hardware or an oral splint. Code 20680 involves the removal of support, i.e., the hardware that was used in the surgical procedure to treat a fractured jaw. The Florida Medicaid Provider General Handbook provides the following regarding global reimbursements: Global reimbursement is a method of payment where the provider is paid one fee for a service that consists of multiple procedure codes that are rendered on the same date of service or over a span of time rather than paid individually for each procedure code. If a provider bills for several individual procedure codes that are covered under a global procedure code, which is referred to as “unbundling,” Medicaid Program Integrity will audit the provider’s billing. The Florida Medicaid Dental Services Coverage and Limitations Handbook provides the following description regarding surgery services: Surgical services are manual and operative procedures for correction of deformities and defects repair of injuries, and diagnosis and cure of certain diseases. The following services are included in the payment amount for a global surgery: The preoperative visit on day one (the day of surgery); Intraoperative Services – Intraoperative services area usual and necessary part of a surgical procedure; examples are local anesthesia and topical anesthesia; Complications Following Surgery – All additional medical or surgical services required of the surgeon during the postoperative period of the surgery, because of complications that do not require additional trips to the operating room; Post Surgical Pain Management – By the surgeon; Miscellaneous Services and Supplies – Items such as dressing changes; local incisional care; removal of operative pack; removal of cutaneous sutures and staples, lines, wires, tubes, drains, splints; routing peripheral intravenous lines, nasogastric tubes; and changes and removal of tracheostomy tubes; and Postoperative Visits – Follow-up visits within the postoperative period of the surgery that are related to recovery from the surgery. Note: See the Florida Medicaid Provider Reimbursement Schedule for the number of follow-up days that are included in the surgical fee. The reimbursement schedule is available on the Medicaid fiscal agent’s Web site at: www.mymedicaid-florida.com. Select Public Information for Providers, then Provider support, then Fee Schedules. The following services are not included in the payment amount for a global surgery: Diagnostic tests and procedures, including diagnostic radiological procedures; or Treatment for postoperative complications, which requires a return trip to the operating room (OR). An OR for this purpose is defined as a place of service specifically equipped and staffed for the sole purpose of performing surgical procedures. It does not include a patient’s room, a minor treatment room, a post-anesthesia care unit, or an intensive care unit (unless the patient’s condition was so critical there would be insufficient time for transportation to an OR. The Physician Surgical Fee Schedule in the Florida Medicaid Provider Reimbursement Schedule provides the global treatment period (also known as follow-up days, FUD) for codes 21453, 21454, 21461, and 21462, as 90 days. Recipient 29 had a fractured jaw. On March 18, 2014, Dr. Ason performed a “closed reduction of bilateral condylar fracture of the mandible,” and an “open reduction and internal fixation of symphysis fracture of the mandible” on Recipient 29. On March 26, 2014, this recipient presented to Respondent’s practice for an office follow-up visit. On May 15, 2014, another surgical procedure was performed on Recipient 29 to remove the hardware that had been inserted into Recipient 29’s mouth during the March surgery. The March 26 office follow-up visit was eight days after the surgery, and within the 90 FUD. Claim 7 was coded as an office consultation on March 26, 2014. Claim 7 should not be allowed as the office visit occurred eight days after the surgery and was included with the global billing code. Recipient 29’s claims 8 through 13 involved the removal of support implants from teeth 3, 8, 14, 19, 24, and 30, dated May 15, 2014. Claims 9 through 13 were appropriately denied as occurring within the 90 FUD period, and were excluded because they were covered under the global billing code. Nurse Kinser adjusted claim 8 downward, but admitted that claim 8 should have been denied as it occurred within the 90 FUD period. Nurse Kinser testified that when an error is made to the provider’s benefit, the benefit stays. However, if an error was made that was not to the provider’s benefit, it would be appropriately adjusted. Not a Covered Service The Florida Medicaid Dental services coverage and limitations handbook provides the following overview introduction of dental services: This chapter defines the services covered by the dental services programs, the services that are limited and excluded, services that must be prior authorized, and the services that are specialty specific. Those claims that were not initially coded appropriately fall under “Not a Covered Service” finding. Now that the correct codes have been assigned, the claims are not allowed per Medicaid guidelines. Other Findings Administrative sanctions shall be imposed for failure to comply with the provision of Medicaid law. For the first offense, Florida Administrative Code Rule 59G-9.070(7)(e) authorizes AHCA to impose a penalty in the amount of $1,000.00 per violation. AHCA is seeking to impose a fine of $106,000.00 for 106 separate offenses. The sanction should be imposed for the claims that have been sustained; however, the actual sanction amount is unknown at this time due to the adjustments that must be made based on the findings of fact above. Section 409.913(23) provides that AHCA is entitled to recover all investigative, legal, and expert witness costs if the agency ultimately prevails. At this time, the total costs are unknown. Dr. Fonesca is not licensed to practice either medicine or dentistry in Florida. Dr. Fonesca testified he has an “expert witness certificate as it relates to” Florida. However, this matter is not a medical negligence litigation action, or a criminal child abuse or neglect case. This case revolves around whether Respondent coded certain services appropriately for Medicaid reimbursement. Dr. Fonseca is not a qualified Florida peer, and his testimony, while informative, is not competent in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Respondent was overpaid, and is liable for reimbursement to AHCA for the claims detailed above (AHCA shall rework the claims detailed above to determine the overpayment); finding that an administrative fine should be imposed based on each violation; and finding that Petitioner is entitled to recover all investigative, legal, and expert witness costs. Jurisdiction is retained to determine the amount of appropriate costs if the parties are unable to agree. Within 30 days after entry of the final order, either party may file a request for a hearing on the amount. Failure to request a hearing within 30 days after entry of the final order shall be deemed to indicate that the issue of costs has been resolved. DONE AND ENTERED this 23rd day of March, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 23rd day of March, 2017.
