Findings Of Fact Findings of fact set forth in the Recommended Order are approved and adopted and incorporated herein. There is competent substantial evidence to support the findings of fact.
Conclusions The Administrative Complaint has charged, concerning patient No. 1, that the Respondent failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Respondent failed to perform the procedure to which the patient consented, a bilateral salpingo- oophorectomy. He did not document in the record that he informed or explained to her that the procedure was not performed and why. His records do not show why the procedure was or was not medically necessary. Additionally, he performed a D&C procedure which was not authorized by the patient; and the records contain no documentation of the fact that he informed her of performing that procedure nor the medical reasons why it was indicated, if it was. Because of this and because he failed to perform the procedure to which the patient had consented, the BS&O, without explanation in his records, it has been proven by clear and convincing evidence that the Respondent is guilty as charged in Count I of violating Section 458.331(1)(t), Florida Statutes, by departing from the medical practice standard mentioned in the paragraph above. It was not established, however, that he failed to inform the patient that the procedure which she consented to was not performed, the records merely do not show that she was informed. Moreover, although her eventual death from ovarian cancer stemmed from the organs which he failed to remove surgically when the patient had authorized them to be removed, it was not shown that they were in a cancerous or pre- cancerous condition at the time he performed the surgery or otherwise that the lethal cancer condition resulted directly from his failure to remove the organs at the time of the surgery some five years prior to the patient's death. It was not shown that he should, for some reason, have foreseen that the organs might become cancerous and ignored the risk or that their removal was then medically necessary. In light of the above Findings of Fact, which are supported by the clear and convincing evidence of record, it has been established that Section 458.331(1)(n), Florida Statutes (1979), now substantially reenacted as Section 458.331(1)(m), Florida Statutes, has been violated by the Respondent's failure to keep written medical records justifying his course of treatment of patient No. 1 by failing to document any reasons for his plan to perform the BS&O procedure, to document any symptoms or complaints by the patient, or to document why he changed his plans and did not perform the planned procedure authorized by the patient. This situation is distinguished from that of Breesman v. Department of Professional Regulations, 567 So.2d 469 (1st DCA 1990), which held that the above statutory section was not violated where a physician failed to document other courses of treatment which he elected not to employ. Here, the Respondent planned the BS&O procedure and then changed his plan during surgery. The basis for the change was unexplained in his records. He did not keep written records containing any description of the patient's fallopian tubes or ovaries, as observed during the operation, nor why he performed a D&C to which the patient had not consented, or why the procedures performed were not discussed with the patient. Concerning Count III, the Petitioner has shown by clear and convincing evidence, which culminated in the above Findings of Fact, describing in detail the Respondent's practice and treatment related to patient No. 2, that the Respondent is guilty of violating Section 458.331(1)(q), Florida Statutes, by administering the legend drug, marcaine, to patient No. 2 other than in the course of his professional practice. The administering of a legend drug inappropriately (here, by epidural catheter) or in excessive or inappropriate quantities (12 milliliters of a 0.75% solution in a patient described as, and under the circumstances of, the above Findings of Fact) was not in the best interest of patient No. 2 and was thus not within the proper course of the Respondent's professional practice. The inappropriate administration and the excessive concentration and volume of marcaine for patient No. 2 prescribed and administered under the circumstances delineated in the above Findings of Fact constitutes a violation of Section 458.331(1)(t), Florida Statutes, as charged in Count IV, because the Respondent has been proven by clear and convincing evidence to have failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under those conditions and circumstances in light of the above factual findings pertaining to this patient. Count V of the complaint involves the charge that the Respondent failed to keep written medical records justifying his course of treatment of patient No. 2. This is a violation of former Section 458.331(1)(n), Florida Statutes (1983), now substantially reenacted as Section 458.331(1)(m), Florida Statutes. The above Findings of Fact, supported by clear and convincing evidence of record, demonstrate that the Respondent failed to document any justification for using a highly-concentrated and dangerous agent, such as marcaine, in a volume which was excessive under the circumstances with which the patient presented (regardless of the allowable maximum dose indicated in a general fashion in the PDR). It was an excessive volume for a patient of this size and weight and medical circumstance, including the circumstance that she gave every indication of being able to accomplish a routine vaginal delivery and thus clearly did not need such an excessive volume and concentration of this drug, given the attendant risks, delineated in the above Findings of Fact, which, indeed, came to pass. The Respondent additionally failed to keep any anesthetic record concerning his evaluation of the patient, a description of his anesthetic technique, nor any justification for his anesthetic plan. Unrefuted testimony from an expert anesthesiologist (Dr. Cross) establishes that an obstetrician who prescribes, dispenses, and administers the anesthetic during a surgical, obstetrical procedure is held to the same standard with regard to anesthetizing patients, caring for patients, and documenting the anesthesia portion of his practice with regard to a patient, as is an anesthesiologist. In Count VI, the Respondent is charged with a violation of Section 458.331(1)(t), Florida Statutes, concerning patient No. 3. As delineated in more detail in the above Findings of Fact, the Respondent failed to take an adequate history and to document the performance of an adequate physical examination of this patient. He failed to correctly assess the patient's laboratory results, to obtain appropriate diagnostic studies and failed to adequately assess, monitor, or treat the patient's pregnancy-induced hypertension, as elaborated in greater detail in the above Findings of Fact. He failed to obtain an adequate or complete history and failed to perform an adequate physical examination. He did not adequately assess or monitor the pregnancy-induced hypertension, failed to adequately treat that condition, failed to order appropriate diagnostic studies to accurately determine fetal status prior to initiating therapy to prolong the patient's pregnancy, failed to adequately assess the patient's laboratory test results, and when there was evidence that the baby was in distress, failed to deliver the pregnancy immediately. The above Findings of Fact show, based upon clear and convincing evidence, that the Respondent prescribed, dispensed, administered, mixed or otherwise prepared legend drugs inappropriately or in excessive or inappropriate quantities, not in the best interest of the patient, by prescribing aldomet for the patient. This may have decreased placental perfusion or blood flow. Prescribing lasix for the patient also can decrease placental blood flow and create electrolyte imbalances. It was also inappropriate to prescribe yutopar to prolong the high-risk pregnancy and to prescribe a corticosteriod cream for the patient as treatment for her condition (swelling), which the Respondent had never diagnosed nor assessed. This amounts to prescribing, dispensing, administering, etc. legend drugs not in the course of the Respondent's professional practice, in violation of Section 458.331(1)(q), Florida Statutes. Concerning Count VIII of the complaint, clear and convincing evidence, supportive of the above Findings of Fact, established that the Respondent's written medical records do not justify the course of his treatment of patient No. 3, including, but not limited to, the patient's history, examination test results, and the failure to document any justification for the Respondent's failure to adequately assess, monitor and treat the PIH. They do not contain justification for the failure to order appropriate diagnostic studies to accurately determine fetal status prior to initiating therapy to prolong pregnancy; the failure to assess and diagnose the swelling and the failure to adequately treat the patient during the C-section. They contain inaccurate documentation to the effect that the patient had a "saddleblock" anesthesia, when other medical records reveal that it was an epidural anesthesia. The records do not document that the patient's laboratory test results were adequately assessed; and there is no documentation of either an initial assessment of the infant or his resuscitation efforts shortly after delivery. This recordkeeping deficit amounts to a violation of Section 458.331(1)(n), Florida Statutes (1981) (now Section 458.331(1)(m), Florida Statutes). Concerning Count IX of the complaint, for all of the reasons delineated in the above Findings of Fact with regard to patient No. 4, it has been demonstrated that the Respondent failed to practice medicine with that level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. This is shown by the failure to obtain an adequate or complete history, to perform an adequate physical examination on the various dates delineated above, to adequately assess, diagnose and treat the patient by failing to attempt a vaginal delivery, and the failure to obtain informed consent from the patient for sterilization prior to C-section. Additionally, the Respondent failed to adequately assess, diagnose and treat the lacerated cervix, and failed to adequately treat the patient during her postoperative recovery period. Thus, a violation of Section 458.331(1)(t), Florida Statutes, has been established by clear and convincing evidence in these particulars. It has also been so demonstrated that by prescribing the antibiotic, garamycin, without ordering attendant renal function studies (because of the potential for kidney damage) and by changing the route of that medication to a less effective means (oral), even though the patient remained febrile, amounts to prescribing, dispensing, administering, etc. a legend drug, other than in the course of his professional practice and inappropriately, for purposes of Section 458.331(1) (q), Florida Statutes (Count X). Concerning Count XI, it was established, as shown by the above Findings of Fact, that the Respondent failed to keep written medical records justifying the course of treatment of patient No. 4. He failed to document a complete history of the patient and failed to make an adequate or complete physical examination. He recorded no justification for the failure to attempt to deliver the patient vaginally; to document any justification for continued use of the nasogastric tube after the patient began eating; to document any justification for not ordering renal function studies with the use of the above- named antibiotic and failed to document any justification for changing the route of administration of that antibiotic in a febrile patient. He recorded statements in the discharge summary which are directly contradicted by the Respondent's statements in the medical records; and failed to document any explanation for the contradictory statements contained in these records. This constitutes a violation of Section 458.331(1)(m), Florida Statutes. Concerning Count XII of the complaint, the Petitioner has demonstrated by clear and convincing evidence, culminating in the above Findings of Fact, that the Respondent is guilty of unprofessional conduct, incompetence, and negligence, in violation of Section 458.1201(1)(m), Florida Statutes (1977), now incorporated into Section 458.331(1)(t), Florida Statutes (1989). Unprofessional conduct shall include any departure from or the failure to conform to the standards of acceptable and prevailing medical practice within a physician's area of expertise, as determined by the Board, in which proceeding actual injury to a patient need not be established when the same is committed in the course of a physician's practice. There is no question, given the above Findings of Fact, that the Respondent did not conform to standards of acceptable and prevailing medical practice within his area of expertise in his conduct of the care and treatment of patient No. 5. Thus, he has committed a violation of Section 458.331(1)(t), Florida Statutes.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, as well as the disciplinary guidelines and the consideration of aggravating and mitigating circumstances as provided for in Rule 21M-20, Florida Administrative Code, official recognition of which was taken; to wit, the exposure of the patient to injury or potential injury, the number of counts of separate offenses proven, and the disciplinary history of the licensee, it is therefore, RECOMMENDED that the Respondent be found guilty of violating Subsection 458.331(1)(g), Florida Statutes, as concluded hereinabove, with regard to Case No. 90-2680, but, in consideration of the above-referenced circumstances, that no penalty be imposed. With regard to Case No. 89-6489, it is RECOMMENDED that the Respondent be found guilty of violating the above enumerated subsections of Section 458.331(1), Florida Statutes, as concluded above, and that the Respondent's license to practice medicine in the State of Florida be revoked. DONE AND ENTERED this 9th day of September, 1991, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 89-6489 and 90-2680 Petitioner's Proposed Findings of Fact Case No. 90-2680 1-5. Accepted. 6. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 7-8. Accepted. Rejected, as not in accordance with clear and convincing evidence. Accepted. 11-12. Accepted. 13. Rejected, as not in accordance with clear and convincing evidence. 14-20. Accepted. Case No. 89-6489 1-7. Accepted. 8. Rejected, as it was not established with clear and convincing evidence what the patient believed. 9-13. Accepted. 14. Rejected, as not entirely supported by the evidence and as subordinate to the Hearing Officer's findings of fact. 15-28. Accepted. 29-69. Accepted. 70-83. Accepted. 84-95. Accepted. 96. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 97-103. Accepted. 104-120. Accepted. Respondent's Proposed Findings of Fact Case No. 89-6489 Accepted, except as to time period noted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence. Case No. 90-2680 Accepted, in part, but subordinate to the Hearing Officer's findings of fact. Accepted. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Mary B. Radkins, Esq. Senior Attorney Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Elliott F. Monroe, M.D. 2709 Arden Panama City, FL 32401
Findings Of Fact STIPULATED FACTS The facts set forth below in paragraphs 1.-20. are stipulated to by the parties. The initial notarized application of Petitioner, Henry Calas, for licensure by endorsement was filed on September 29, 1993, and is known as the "September 29 Application." A second notarized application submitted by Dr. Calas on or about January 27, 1994, is known as the "January 27 Application." A third notarized applcation was submitted by Dr. Calas on or April 25, 1994, and is identified as the "April 25 Application." This third application was filed at the direction of the Credentials Committee during its March 25, 1994 meeting. On March 25, 1994, Petitioner appeared before the Credentials Committee of the Board of Medicine. At the time, the Credentials Committee had two applications before it, the September 29 Application and the January 27 Application. On May 13, 1994, Dr. Calas appeared before the Credentials Committee of the Board of Medicine. At that time, the Credentials Committee had before it all materials dated prior to that time that are presently contained in the parties' joint exhibit 1. This exhibit consists of all materials in Petitioner's application file. By order filed August 10, 1994, the Board of Medicine approved Dr. Calas' application for licensure: . . .contingent upon applicant being on probation for 2 years, 6 months of said probation shall be under indirect supervision by a licensed physician who shall review 50 percent of patient records including billing. The Board hereby states as the basis for this decision that you misrepresented your qualifi- cations on your application for licensure. See Section 458.331(1)(gg). Petitioner timely filed his Petition for Formal Hearing disputing the Board's finding that he had misrepresented his qualifications on his application and requested that he be granted an unrestricted Florida medical license. Dr. Calas obtained his Doctor of Medicine degree from Universidad Central Del Este in the Dominican Republic on February 3, 1984. Dr. Calas participated in a residency in Internal Medicine at Northwestern Ohio College of Medicine from May 15, 1989, until December 30, 1990. Throughout that time, the program director was Dr. Andre J. Ognibene, Professor of Medicine and Chairman of the Department of Medicine. Dr. Callas successfully completed a three year residency in Neurology at Albany Medical College, Albany Medical Center Hospital, Albany, New York from January 1, 1991 to December 31, 1993. During his third year, Petitioner served as Chief Resident. Dr. Calas meets all statutory educational and training qualifications required of him for licensure as a physician in Florida. THE ELLIS HOSPITAL ISSUE In his September 29, 1993 application on page 3, Dr. Calas represented that he currently had privileges at Ellis Hospital stating "Ellis Hospital 1101 Nott St. Schenectady NY 12308 I just obtained privieleges (sic), and I have not begun to work there yet." Dr. Michael SS. Jakubowski, Vice President, Medical Affairs, Ellis Hospital, wrote the Florida Board of Medicine regarding Petitioner on April 6, 1994. THE NORTHEASTERN OHIO COLLEGE OF MEDICINE ISSUE On October 18, 1990, Dr. Calas and Dr. Ognibene met regarding the Petitioner's record and performance in his Internal Medicine Residency. That meeting was memorialized by Dr. Ognibene in a document entitled, "Counseling Session/Longitudinal Evaluation" and signed by Dr. Ognibene and placed in Petitioner's file at Northeastern College of Medicine. On October 18, 1993, Dr. Andre J. Ognibene wrote the Florida Board of Medicine to return a training and evaulation form of the Board regarding Petitioner. On October 28, 1993, the Medical Board staff wrote Dr. Ognibene inquiring, in part, "Accordingly, please clarify why [Calas] left prior to completion, or if he was given credit for a complete year, on what basis(es); indicate whether he left in good standing and specify if he was (or would have been) offered a contract to continue to complete the program." On November 4, 1993, Dr. Ognibene responded by letter to the Board staff's letter of October 28, 1993. On February 11, 1994, the Medical Board staff wrote Dr. Ognibene, acknowledged receipt of his November 4, 1993 letter and inquired as follows: Please specify if he was (or would have been) offered a contract to continue to complete your program? On February 14, 1994, Dr. Ognibene responded by letter to Board staff's letter of February 11, 1994. At the request of Dr. Calas, Dr. Ognibene wrote a letter to the Board of Medicine dated April 25, 1994, which was received by the Board in time for the Credentials Committee meeting of May 13, 1994. OTHER FACTS By letter dated January 12, 1994, Petitioner represented to the Board of Medicine that he "completed PGY-1 [Post Graduate Year 1] in good standing" and "chose not to remain in medicine despite the offer of a PGY-2 contract" in the residency program at Northeastern Ohio College of Medicine's internal medicine program. By letter dated January 15, 1994, to an administrative assistant to the Board, Petitioner stated he "declined" the contract for a second year. In actuality, Petitioner had completed PGY-1 in good standing, but was counseled by Dr. Andre J. Ognibene, the program director, to seek another specialty. Petitioner was perceived as deficient in organizational skills necessary to meet the complexities of internal medicine. Petitioner elected neurology. Ognibene concurred with Petitioner's choice "because he could then focus on one organ system and not 17 organ systems which were rather difficult for him [Petitioner] to assimilate." If Petitioner were unable to secure a PGY- 2 position in neurology, Ognibene agreed that Petitioner would be permitted to stay for another year in internal medicine, although there was no expectation by Ognibene that Petitioner could complete the internal medicine residency. Petitioner, in effect, was promised a safety net in the event he did not secure a neurology position, but he was not "offered" a position for the subsequent year in internal medicine which he could have immediately accepted or declined. Petitioner's statement on the September 29 application that he currently had privileges at Ellis Hospital was also artfully inaccurate. Petitioner possessed no documentary evidence confirming any grant of privileges from the hospital to himself at the time he completed the application. Instead, if his testimony is credited, he relied upon the representation of a clerical worker at the hospital made to him in the course of a telephone conversation which he instigated wherein he was allegedly told that "all approvals had been received and he was ready to begin." This recital by Petitioner of a statement made to him on the telephone by an individual known only as "Nancy" is not corroborated by other direct evidence and is further complicated by Petitioner's almost hypertonic demeanor and behavior while testifying; consequently, Petitioner's testimony on this point is not credited. Although his application was pending, privileges are granted only when a staff vacancy ocurrs and employment begins. Petitioner knew at the time that he stated he had privileges at Ellis Hospital that a neurology position on the staff was not yet available and added the words "I have not begun to work there yet." As stated by Petitioner at the final hearing, he would have better served his own interest by not representing that he possessed privileges since the purpose of disclosure of such information is to enable the Board of Medicine to review an applicant's performance. Petitioner's action in stating that he possessed privileges at Ellis Hospital constituted misrepresentation by him, notwithstanding the addition by him on the application of the words "I have not begun to work there yet".
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application, absent the legal determination of the Board of Medicine to permit the conditioned admission of Petitioner to the practice of medicine in the State of Florida. DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 6th day of December, 1994. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. Adopted. Adopted as to first sentence, remainder rejected as redundant. 3.-12. Adopted. 13.-35. Rejected, subordinate to HO findings. Respondent's Proposed Findings. 1.-10. Adopted, but not verbatim and frankly in much more condensed form than that proposed by Respondent's counsel. COPIES FURNISHED: Wilson Jerry Foster Attorney at Law 227 E. Virginia St. Tallahassee, FL 32301 Gregory A. Chaires Assistant Attorney General Department of Legal Affairs PL-01, The Capitol Tallahassee, Florida 32399-1050 Harold D. Lewis General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration The Northwood Centre 1940 N. Monroe St. Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether the statement contained in Respondent's letter dated September 9, 1997 (1997 Letter), establishing a $24.00 payment for hospital outpatient services billed as revenue code 451 constitutes a rule as defined by Subsection 120.52(15), Florida Statutes (2010),1 and, if so, whether Respondent violated Subsection 120.54(1), Florida Statutes, by not adopting the statement in accordance with applicable rulemaking procedures.
Findings Of Fact AHCA is the state agency responsible for the administration of the Florida Medicaid Program. § 409.902, Fla. Stat. Petitioners are acute care hospitals that are and were enrolled as Medicaid providers of outpatient services in Florida, at all times relevant to this proceeding. On September 9, 1997, AHCA issued a letter to hospital administrators, which provided the following: This letter is to inform you that Medicaid coverage for hospital emergency room screening and examination services is now in effect. Hospitals will be reimbursed a $24.00 flat fee for providing these services to Medipass and Medicaid fee-for-service recipients who do not require further treatment beyond the screening and examination services. This policy is retroactive to July 1, 1996. The letter further provides that the $24.00 reimbursement would be billed under the revenue code 451. The statement in the letter applies to hospitals which are Medicaid providers and, therefore, is a statement of general applicability. The statement meets the definition of a rule. AHCA concedes that the statement, which provides "payment of a $24 rate for Medicaid Hospital Outpatient Services billed under Revenue Code 451, constitutes a rule under s. 120.52(16), Fla. Stat." AHCA concedes that the statement has not been adopted as a rule by the rule adoption procedures provided in Section 120.54, Florida Statutes. AHCA has discontinued all reliance on the challenged statement.
Findings Of Fact At all times material hereto, Respondent has been licensed to practice medicine in the State of Florida, having been issued license number ME-0027913, and was employed by the Norton Seminole Medical Group in Pinellas County, Florida. Respondent has been licensed in Florida since 1976. At approximately 3:50 p.m. on November 1, 1983, a 31 year old white male, with the initials R. L., arrived at the emergency room of Lake Seminole Hospital, Seminole, Florida, and was examined by the emergency room physician on duty. R. L. complained of substernal mid-chest pain radiating to his back, which had begun the night before. He was agitated and exhibited a great deal of emotional stress. The emergency room physician on duty treated R. L. for suspected cardiac pathology, placed him on a cardiac monitor, inserted a heparin lock into a vein, and ordered lab work which included a chest x-ray, electrocardiogram, electrolytes, cardiac enzymes, CBC (complete blood count), blood sugar, creatinine and BUN (blood urea nitrogen). These were appropriate tests under the circumstances. When the Respondent came on duty in the emergency room at 7:00 p.m., all lab work had been completed, except for the cardiac enzymes. The emergency room physician who had been on duty when R. L. appeared at the emergency room briefed Respondent about R. L.'s medical history, condition while in the emergency room, and the test results which had been received. After the cardiac enzyme values were received, Respondent reviewed R. L.'s medical history and lab test results, which he determined to be normal, and discharged R. L. at approximately 7:35 p.m. on November 1, 1983, with instructions that he see his family physician the next morning. Respondent's discharge diagnosis for R. L. was atypical chest pain secondary to anxiety. At approximately 11:21 p.m. on November 1, 1983, R. L. expired from cardiopulmonary arrest at the emergency room of Metropolitan Hospital, Pinellas Park, Florida. The autopsy report notes extensive coronary artery disease, but makes no mention of acute myocardial infarction. It was not established by clear and convincing evidence that R. L. suffered an acute myocardial infarction. There is conflicting expert testimony from Steven R Newman, M.D., and Stephen J. Dresnick, M.D., concerning whether Respondent should have admitted R. L. to Lake Seminole Hospital instead of discharging him from the emergency room, and also whether his E.K.G. taken at the emergency room was normal. Drs. Newman and Dresnick are experts in the care and treatment of patients in an emergency room, but their testimony was received by deposition instead of through live testimony at hearing. Thus, based upon this conflict in testimony, and the fact that the demeanor of these witnesses cannot be assessed, it is found that it was not established by clear and convincing evidence that Respondent failed to practice medicine with that level of care and skill which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances when he discharged R. L., and evaluated the tests which were administered to the patient while in the emergency room as within normal limits. A patient who appears at a hospital emergency room with unstable angina, such as R. L., does not necessarily require admission to the hospital. While serial electrocardiograms and serial cardiac enzymes are called for with patients whose symptoms of cardiac discomfort warrant hospitalization, these procedures are not usually and customarily performed in an emergency room. Therefore, since it was not established that Respondent should have admitted R. L. to the hospital as an in-patient, it was also not established that he failed to exercise the required level of skill and care by failing to order such serial tests while R. L. was in the emergency room. Although the emergency room physician on duty when R. L. arrived at the emergency room at approximately 3:50 p.m. on November 1, 1983, was initially responsible for obtaining a patient history and ordering the tests which were performed, when Respondent came on duty at 7:00 p.m. and took over this case, he was also responsible for insuring that his medical records concerning his evaluation and treatment of R. L., as well as his decision to discharge the patient, were full and complete. Respondent failed to document his review and findings based upon the lab tests and chest x-ray which had been completed, as well as the patient's medical history, and the specific reason or basis for his decision to discharge R. L. Respondent relied almost completely on the medical records compiled by the emergency room physician who was initially on duty when R. L. arrived at the emergency room, and made no significant additions to those records while the patient was under his care, or which would justify his course of treatment, including discharge, of this patient.
Recommendation Based upon the foregoing, it is recommended that the Board of Medicine enter a Final Order reprimanding Respondent for his violation of Section 458.331(1)(m), Florida Statutes, and placing him on probation for a period of six months from the entry of the Final Order in this case, conditioned upon his complying with such reasonable terms and conditions as the Board may impose, including review and verification of the completeness of medical records prepared by the Respondent while on probation. DONE AND ENTERED this 5th day of July, 1990 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1990. APPENDIX (DOAH CASE NO. 89-6874) Rulings on the Department's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1. 3-4. Adopted in Finding of Fact 2. 5-6. Adopted in Finding of Fact 3. 7. Adopted in Finding of Fact 4. 8-9. Rejected in Finding of Fact 5. 10. Rejected in Finding of Fact 4. 11-12 Rejected in Finding of Fact 6. 13. Adopted in part in Finding of Fact Rejected in Findings 5 and 6. 7, but otherwise Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Findings of Fact 2 and 3. 4-5. Adopted in Finding of Fact 2. 6. Adopted in Finding of Fact 3. 7-9. Adopted in Finding of Fact 4. Rejected in Finding of Fact 5. Rejected in Finding of Fact 7. 12-13. Adopted in Finding of Fact 6. Adopted in part in Finding of Fact 2, but otherwise Rejected in Finding of Fact 5. Adopted in Finding of Fact 5. Rejected in Finding of Fact 7. COPIES FURNISHED: Andrea Bateman, Esquire Kevin F. Dugan, Esquire 1940 North Monroe Street Wittner Centre West Suite 60 Suite 103 Tallahassee, FL 32399-0792 5999 Central Avenue St. Petersburg, FL 33710 Kenneth E. Easley, Esquire General Counsel 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Is the practice of Respondent, Agency for Health Care Administration (Agency), limiting Medicaid reimbursement for services provided to undocumented aliens determined by the Department of Children and Families (DCF) to be eligible for Medicaid services for the duration of a medical emergency an "agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency"1/ that section 120.54, Florida Statutes (2014),2/ requires the Agency to adopt as a rule? Are Agency rules 59G-4.160(2) and 59G-5.020 invalid because they exceed the Agency's delegated authority and contravene the statute which the rule implements?3/ & 4/
Findings Of Fact The Parties Title XIX of the Social Security Act establishes Medicaid as a collaborative federal-state program in which the state receives federal financial participation (FFP) from the federal government for services provided to Medicaid-eligible recipients in accordance with federal law. The state also provides funding for the Medicaid program. Section 409.902(1) designates the Agency to administer Florida's Medicaid program. The program provides medical care for indigent people in Florida. Federal and state laws, federal regulations, and state rules, including Medicaid handbooks incorporated by reference into the rules, govern eligibility for, participation in, and payment by the program. The Hospitals are acute care hospitals enrolled as providers in the Florida Medicaid program that provide emergency medical services. They have obtained, and intend to seek in the future, Medicaid compensation for emergency services provided to undocumented aliens. To participate in the Medicaid program, the Hospitals have agreed to a Medicaid Provider Agreement with the Agency. The agreement governs the terms under which the Medicaid program will compensate hospitals for services provided to individuals. Those terms include multiple state and federal statutes and rules discussed below. The Agency makes payments to Hospitals subject to its right to later audit the claims for payment and recoup payments if the Agency determines that they were not authorized. The Medicaid Program and Undocumented Aliens Until 2010 Federal law prohibits compensating a state through federal financial participation under the Medicaid program "for medical assistance furnished to an alien who is not lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law [undocumented aliens]." 42 U.S.C. § 1396b(v)(1). It permits federal financial participation for services provided to otherwise eligible undocumented aliens that "are necessary to treat an emergency medical condition as defined in paragraphs (b)(1) and (c)," if the individual otherwise meets the conditions for participation in the Medicaid program. 42 C.F.R. § 40.255(a). See also 42 U.S.C. § 1396b(v)(2). For purposes of eligibility of undocumented aliens, 42 U.S.C. § 1396b(v)(3) defines "emergency medical condition" as: medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in-- (A) placing the patient's health in serious jeopardy, (B) serious impairment to bodily functions, or (C) serious dysfunction of any bodily organ or part. Florida statutes and rules, with minor variations, incorporate the federal standards limiting the eligibility of undocumented aliens to treatment for emergency medical conditions. Federal laws and regulations do not impose a defined endpoint or quantitative limit on the duration of the eligibility due to the emergency medical condition. Sections 409.902 and 409.904 address Medicaid services for undocumented aliens. Section 409.904(4) establishes the criteria for the limited Medicaid eligibility of undocumented aliens. Section 409.902(1) designates the Agency "as the single state agency authorized to make payments for [Medicaid services]." Section 409.902(1) makes [DCF] "responsible for Medicaid eligibility determinations." Section 409.902(2) restricts Medicaid eligibility to United States citizens and lawfully admitted noncitizens who meet the Medicaid eligibility criteria for "qualified noncitizens" for temporary cash assistance.5/ Section 409.902(2)(b) limits use of state funds to provide medical services to individuals who do not meet the requirements of the subsection. It permits an exception for use of state funds to provide medical services that are necessary "to treat an emergency medical condition." The Florida Medicaid Hospital Services Coverage and Limitations Handbook, June 2011 (Hospital Handbook), incorporated by reference into the Agency's rule 59G-4.160(2), states on page 2-7 the limits on reimbursement for services provided undocumented aliens as follows: The Medicaid Hospital Services Program reimburses for emergency services provided to aliens who meet all Medicaid eligibility requirements except for citizenship or alien status. Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated. The Florida Medicaid Provider General Handbook, 2012 (Provider Handbook), incorporated by rule 59G-5.020, repeats this limitation. Earlier versions of the Handbooks have essentially the same requirements and limitations. Section 409.904(4) authorizes DCF to find an undocumented alien eligible for Medicaid, but limits the duration of the eligibility for undocumented aliens. It states: A low-income person who meets all other requirements for Medicaid eligibility except citizenship and who is in need of emergency medical services. The eligibility of such a recipient is limited to the period of the emergency, in accordance with federal regulations. From 2005 to 2012, the definitions of section 409.901 for "emergency medical condition" and "emergency services and care" have remained unchanged, although the subsection numbering for them has changed. "Emergency medical condition" is defined as: A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain or other acute symptoms, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: Serious jeopardy to the health of a patient, including a pregnant woman or a fetus. Serious impairment to bodily functions. Serious dysfunction of any bodily organ or part. With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery. That a transfer may pose a threat to the health and safety of the patient or fetus. That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. "Emergency services and care" are defined as: [M]edical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable laws, by other appropriate personnel under the supervision of a physician, to determine whether an emergency medical condition exists and, if it does, the care, treatment, or surgery for a covered service by a physician which is necessary to relieve or eliminate the emergency medical condition, within the service capability of a hospital. DCF's Emergency Medical Services for Aliens, rule 65A-1.715, provides: Aliens who would be eligible for Medicaid but for their immigration status are eligible only for emergency medical services. Section 409.901(10), F.S., defines emergency medical conditions. The Utilization Review Committee (URC) or medical provider will determine if the medical condition warrants emergency medical services and, if so, the projected duration of the emergency medical condition. The projected duration of the emergency medical condition will be the eligibility period provided that all other criteria are continuously satisfied. Emergency services are limited to 30 consecutive days without prior approval. For continued coverage beginning with the 31st day prior authorization must be obtained from the Agency for Health Care Administration (Medicaid Program Office). DCF's rule 65A-1.702(2)(c), implementing Title XIX, in its provisions for establishing a patient's date of eligibility, states: "Coverage for individuals eligible for the Emergency Medicaid for Aliens program begins the first day of a covered emergency and ends the day following the last day of the emergency medical situation." Until July 1, 2010, neither DCF nor the Agency had a system, procedure, or practice for determining when the duration of an undocumented alien's emergency ended or when the emergency was alleviated, other than the initial determination of eligibility. DCF's consistent practice was to make its eligibility determination based upon a review of the information provided by healthcare providers on DCF Form 2039 after discharge of the patient. The providers usually provided additional information and documents, including information about the diagnosis and treatment and the projected or actual duration of the emergency. DCF's practice, since 2002, has been to routinely accept the information and documents submitted by the provider and base the eligibility determination on them. DCF's consistent practice was to not allow providers to submit any documentation until after the patient was discharged. Consequently, the information upon which DCF based its eligibility determination for undocumented aliens was actual, not projected. DCF notifies providers of the eligibility decision by sending a completed DCF Form 2039 or making the information available online. The information contains the specific period of eligibility for the undocumented alien, including the beginning and ending date of the eligibility period. This is the duration of the emergency medical condition. Until July 1, 2010, under previous administrations, the Agency did not make any consistent or meaningful effort to determine if the services for which a hospital billed Medicaid were for the emergency medical conditions that were the predicate for DCF's determination of emergency eligibility. The Agency's automatic process for reviewing Medicaid claims kicked out claims for services to undocumented aliens eligible because of an emergency medical condition. These claims were manually reviewed by just two nurses. The system allowed two choices, "approve" or "deny." Sometimes the nurses reviewed requests for Medicaid reimbursement from providers solely to determine if the services provided were medically necessary. This is the same standard used to determine if Medicaid will pay for services provided to citizens and documented aliens. The process and the number of claims overwhelmed the two nurses conducting the review. A huge claims backlog developed. This resulted in the review becoming more minimal and intermittent. Hospitals complained about the resulting payment delay. The Agency worried about it, too. On September 9, 2009, Dyke Snipes, deputy director of Medicaid, released all the backlogged claims for payment without review. Later, he sent the hospitals a memorandum stating the claims would be paid without further review subject to later audit and claims for recoupment. However, from July 1, 2005, through June 30, 2010, the Agency did not audit any of the claims for payment for hospital services provided to undocumented aliens. In 2002, as required by statute, the Agency began a prior authorization program for Medicaid inpatient hospital services. The purpose was to determine, before payment, if services were medically necessary. The Agency contracted with KePRO to perform the prior authorization reviews for medical necessity. In the case of services to undocumented aliens, the prior authorization review and medical necessity determination was not made, despite the name, until the patient was discharged. The Agency's Bureau of Medicaid Services performed a separate review of claims for payment of services to undocumented aliens to determine if the services were for the treatment of an emergency medical condition. The Bureau conducted this review after the Department had determined that the patients were eligible for Medicaid and after KePRO had authorized the services. Nurses employed by the Agency reviewed the claims and accompanying records to determine if the services were for treatment of an emergency medical condition. The review did not include judgments about the number of days appropriate for treatment, the relationship between services provided, and the emergency or the duration of the emergency. Before July 1, 2010, the Agency, to the extent that it did anything, implemented and applied the rule, statute, and regulation provisions permitting payment for emergency medical services to eligible undocumented aliens by paying claims for the period of eligibility determined by the Department for services that KePRO determined were medically necessary and that the Bureau had determined to be necessary for treatment of an emergency medical condition. The Agency did not conduct a targeted review to determine when the emergency ended or when the emergency was alleviated. Altogether, the Agency was just not enforcing the statutory and rule limitations upon payment for emergency medical services to persons that DCF determined eligible. Federal Audit Eventually, Florida's failure to enforce the limitations came to the attention of the federal government. On August 25, 2009, the federal Centers for Medicare and Medicaid Services (CMS) presented the Agency with the report of its Financial Management Review of Florida's Medicaid Payments for Emergency Services to Undocumented Aliens. The transmittal letter asked Florida "to retroactively review claims for emergency medical services provided to undocumented aliens for proper eligibility determinations. We will defer these claims until the State has reviewed the claims." The federal government said that payment of the FFP to Florida for emergency medical services for undocumented aliens was in question, but it would delay deciding while Florida conducted the requested review. In plainer words, the federal government said it would hold up on recouping FFP paid for services to undocumented aliens. CMS "determined that the Agency for Health Care Administration (AHCA) claimed Federal Financial Participation (FFP) for emergency services to beneficiaries that did not meet the Federal Definition of undocumented alien. In addition, AHCA claimed FFP for additional medical services that did not qualify as emergency care after the patient was stabilized." Finding number 2 of the report stated: "AHCA is claiming FFP for emergency medical services to undocumented aliens provided beyond what Federal statutes and regulations define to be an emergency." Recommendation number five stated: AHCA should review all emergency services for undocumented alien amounts claimed for FFP during Federal Fiscal Years 2005, 2006 and 2007 and re-determine allowability of these claims utilizing the required Federal criteria. Based on this review and re-determination, AHCA should revise previous FFP amounts claimed on the Form CMS-64 quarterly statement of expenditures report to reflect only emergency services to undocumented aliens (supported by SAVE and IVES research) up to the point of stabilization. Upon completion, please report the results of your review to CMS. Recommendation number 6 stated that: "AHCA [should] promptly implement the necessary system edits so that services provided as emergent care can be differentiated from services provided after the point the patients are stable, and then bill to the proper Federal programs."6/ The audit identified the Agency's electronic claims system's lack of system edits needed to account and separate claims for costs incurred "during emergent care and costs past stabilization" as a contributing factor. CMS concluded that it believed Florida's claims for payment for emergency medical services were "significantly overstated." The report stated: "During our review, we found that AHCA is claiming costs for emergency services for undocumented aliens, during the patients' entire hospital stay, and beyond the emergency or stabilization point as defined by Federal statutes and regulations." It asked Florida to conduct "re-reviews of claims for emergency medical services provided undocumented aliens." CMS did not recommend that Florida change its statutes or rules governing Medicaid eligibility of undocumented aliens. It only recommended that Florida enforce existing law. In September 2010, the Office of Inspector General for the United States Department of Health and Human Services released its "Review of Medicaid Funding for Emergency Services Provided to Nonqualified Aliens [by Florida]." This review observed that the Agency "relied upon two medical staff to review approximately 4,000 such claims per month, and this limited review was not sufficient to prevent some unallowable claims from being paid." The review also noted the problem with the system edits that the Agency was using. The system just identified claims for services to undocumented aliens and kicked them out for review by the two nurses who were not capable of properly reviewing the claims because of the overwhelming volume. The review observed that the system had an edit which could classify claims under five options: emergency, urgent, elective, newborn, and information not available. The review stated: "If active, this edit may have ensured that the State Agency properly claimed Federal reimbursements." The audit and the review, as well as the testimony of Johnnie Shepherd, the Agency administrator, convincingly establish that up to 2010, the Agency was not applying or enforcing federal or Florida statutory and rule requirements limiting medical services to undocumented aliens for emergency conditions. The Agency Reacts to the Audit and Review The Agency began working to implement the recommendations. KePRO presented a proposal to expand the scope of its services that it described in this fashion: It is our understanding that the Agency for Health Care Administration used internal resources to conduct such [emergency care for undocumented aliens] reviews. Previously, cases were authorized for payment using medical necessity criteria verses [sic] "point of stabilization." Approximately 12,000 cases dating back to 2006 fall into this category. This presents the Agency with an opportunity to recoup payments for hospital days that exceeded the "point of stabilization." The Agency amended its contract with KePRO to include review of claims for emergency services to undocumented aliens to determine if the services continued beyond the duration of the emergency. The Agency and KePRO began the review process. The requirements are included in the Agency's contracts with KePRO's successor, eqHealth Solutions. The Agency began advising providers of the coming changes in review and authorization of Medicaid services for undocumented aliens. The Agency's campaign incorporated use of "stabilization" from the CMS reviews. "Stabilization" did not appear in any pertinent Florida statutes or rules. A July 1, 2010, letter to all Medicaid providers from the chief of the Bureau of Medicaid Services advised of upcoming changes to the Agency's procedure and practice for reviewing claims for undocumented aliens. It is representative of the Agency's approach. The letter stated: Beginning July 1, 2010, the Keystone Peer Review Organization (KePRO), Medicaid's contractor for utilization management of inpatient services, will implement revised review processes for inpatient admissions for undocumented aliens. KePRO will review these requests to determine whether conditions requiring hospitalization are an emergency, defined in 42 CFR 440.255 as follows: The sudden onset of a medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in: Placing the patient's health in serious jeopardy; Serious impairment to bodily functions; or Serious dysfunction of any bodily organ or part. Medicaid will not pay for continuous or episodic care after the emergency has subsided and the patient is stabilized. The letter also stated: Professional services provided to an inpatient alien on or after the date that the patient has been stabilized will not be reimbursed by Medicaid. From the point of patient stabilization, the patient may continue to require medically necessary treatment; however, Medicaid cannot reimburse medically necessary treatment for aliens, only emergency treatment. Hospitals, including many of the challengers here, brought an action claiming the Agency was using a new "stabilization" standard that amounted to a rule that had not been adopted. They prevailed. That action was Bayfront I. The Final Order in Bayfront I found that "the 'point of stabilization' standard was an interpretation or an implementation of the existing statutes and rules and not merely a restatement of them." Bayfront I, DOAH Case No. 12-2757RU, at ¶ 54. It concluded that the "Agency's 'stabilization' standard for determining which services to un-documented aliens Medicaid will pay for is a statement of general applicability meeting the definition of a rule that has not been adopted pursuant to section 120.54(1)(a)." Bayfront I, DOAH Case No. 12-2757RU, at ¶ 74. The Final Order required the Agency to "immediately discontinue all reliance upon the 'stabilization' standard or any substantially similar statement as a basis for agency action." Since Bayfront I The Agency complied with the Final Order by discontinuing all reliance on a "stabilization standard" (or any other unadopted standard) as a basis for agency action. It did not abandon its efforts to review past, present, and future hospital claims for Medicaid payment for emergency services provided to undocumented aliens. The Agency developed new instructions for peer reviewers evaluating claims and amended affected contracts. It provided reviewers the language of the governing rules and statutes to use in evaluations. The material included the provisions of the Florida Medicaid Handbooks that have been incorporated by reference into the Agency's rules. The Agency emphasized, as Shevaun Harris, bureau chief, Bureau of Medicaid Services, testified: [Peer reviewers should] no longer use stabilize, to use--to use that terminology anymore, and that they should follow the policy. The policy--the handbook provides instruction to readers in terms of which words they need to go back to the glossary. And then words that are not defined are its plain--should be used--should be applied using its plain meaning. (Pet. Ex. 130, pp. 29 & 30). The Agency expected the reviewers to apply their education, clinical expertise, and experience to determine if services provided were "emergency services or treatment," as defined in section 409.901(11) for an "emergency medical condition," as defined in section 409.901(10). A January 28, 2013, memorandum to peer reviewers from Johnnie Shepherd, AHCA Administrator, Medicaid Program Integrity, is a representative example of the Agency's instructions to peer reviewers. It told the reader of the result of Bayfront I and stated that the Agency "will cease to rely upon the 'stabilization' standard or any substantially similar statement as a basis for determining the duration of the emergency." The Agency attached applicable excerpts from statutes and rules. It also advised the importance of reports "of sufficient detail and complexity to clearly support any claims payment adjustments based upon the medical determination and the application of Medicaid rules." (P. Ex. 130, AHCA Bates No. 463). Similarly, the Agency advised other "vendor[s] to make sure that they were using terminology as found in the rules that are promulgated and that their determinations are consistent with the rules as they are promulgated." (Pet. Ex. 130, p. 15). The vendors advised their employees and agents accordingly. Exhibit 2 to the desposition7/ of Carol Roberts, program manager for the Fee for Service Rules Unit, is a representative example of these instructions. The Power Point slides for a presentation reproduced the statutory definition for "emergency medical condition" and "emergency services and care." A March 7, 2013, internal eqHealth e-mail from Naveen Gande to Mary McPhee demonstrates that the vendors followed the instructions. It states that the "stabilization" standard should not be used and that reviewers should refer to the Agency handbooks. Likewise an e-mail exchange between Mr. Shepherd and Eileen Bechkes of Vendor Health Integrity demonstrates the Agency's reliance upon statutes and rules. Ms. Bechkes relayed a question from Winter Haven Hospital asked during an audit entrance conference. It asked to "explain the difference between the standard of 'stabilization of the emergency condition' and the standard of 'emergency condition is relieved or eliminated.'" (Pet. Ex. 119[B], p. 3).8/ Mr. Shepherd's response states the Agency position frankly. Thanks for this question. Our positon is to direct the provider to the Medicaid Provider's general Handbook and the other references mentioned in the audit letters. Since this question has been brought up prior to the other letters conveying the references to the provider, we should simply tell them to read the Medicaid policy reference for the limited coverage category that pertains to Medicaid for Aliens as found in the Medicaid Provider General Handbook. Also, the General Handbook includes definitions for Emergency Services and Care and Emergency Medical Condition. Finally, we are asking the peer reviewers to apply their education, experience and judgment in reviewing the respective medical records to determine if an emergency medical condition existed, and if it did at what point was the emergency medical condition alleviated or eliminated per the definitions found in the Medicaid references. The instructions to Agency or vendor employees reviewing the claims for payment for emergency medical services to undocumented aliens consistently emphasized that all participants were to apply only the applicable statutes and rules and that "stabilization" was not a criterion. The Hospitals rely heavily upon the wording of the post-Bayfront I amendment to the eqHealth contract (P. Ex. 89) and Ms. Harris's testimony about it. (P. Ex. 130, p. 117, ll. 19-22). These things, the hospitals argue, prove that the Agency is still attempting to determine the length of the period of eligibility and that this is a new interpretation of the rules and statutes. The existing language provided that the vendor would review the cases to time the point at which the emergency no longer existed and the patient's condition was stable. The amendment said: "The Vendor shall review these cases to determine the point at which the emergency no longer exists, in accordance with state and federal statutes." Ms. Harris's testimony on page 119 of Petitioner's Exhibit 30 clarifies that the amendment was referring to "the Agency's obligation to pay for services for undocumented aliens or individual who met all other requirements for Medicaid, except citizenship." The weight of the evidence, including training materials and written communications, proves that despite poor wording in the amendment, the parties to the contract stayed focused on determining whether the Agency was being asked to pay for services that state and federal law permitted it to, not determining the length of the emergency medical condition. The Agency was resolute in its commitment to only apply the standards and definitions of statutes and rules in the evaluation of claims for payment for emergency medical services to undocumented aliens. The Agency's resolve was tested in meetings with provider representatives, inquiries from vendors, and internal questions. Agency representatives repeatedly said that the rules and statutes determine the standards and people should apply the plain meaning of their words. Agency documents did the same. The Agency did not succumb to the temptation, as it did with "stabilization," to explain in different words the words of statute and rule. The weight of the evidence convincingly established that after entry of the Final Order in Bayfront I, the Agency's statements of general applicability implementing the law governing Medicaid reimbursement for emergency medical services to undocumented aliens were only quotes from or references to governing statutes and rules.
Findings Of Fact At all times relevant hereto Daniel Francis Sanchez was licensed as a physician by the Florida Board of Medical Examiners having been issued license number ME0038795. At all times relevant hereto Respondent was Regional Medical Director of IMC which operated HMO offices in Hillsborough and Pinellas Counties. On October 17, 1985, Alexander Stroganow, an 84 year old Russian immigrant and former cossack, who spoke and understood only what English he wanted to, suffered a fall and was taken to the emergency room at Metropolitan General Hospital. He was checked and released without being admitted for inpatient treatment. Later that evening his landlady thought Stroganow needed medical attention and again called the Emergency Medical Service. The ambulance with EMS personnel arrived and concluded Stroganow was no worse than earlier when taken to the emergency room and they refused to transport him again to the hospital. The landlady then called the HRS hotline to report abuse of the elderly. The following morning, October 18, 1985, an HRS case worker was dispatched to the place where Stroganow lived. She was let in by the landlady and found an 84 year old man who was incontinent, incoherent, apparently paralyzed from the waist down, with whom she could not carry on a conversation to find out what condition he was in. She called for a Cares Unit to come and evaluate the client. An HRS Cares Unit is a two person team consisting of a social worker and nurse whose primary function is to screen clients for admission to nursing homes and adult congregate living facilities (ACLF). The nurse on the team carries no medical equipment such as a stethoscope, blood pressure cuff, or thermometer, but makes her determination on visual examination only. Upon arrival of the Cares Unit both members felt Stroganow needed to be placed where he could be attended. A review of his personal effects produced by his landlady showed his income to be over the maximum for which he could qualify for medicaid placement in a nursing home; that he was a member of IMC's Gold- Plus HMO; his social security card; and several medications, some of which had been prescribed by Dr. Dayton, a physician employed by IMC at the South Pasadena Clinic. The Cares team ruled out ACLF placement for Stroganow at the time because he was not ambulatory but felt he needed to be placed where he could be attended to and not left alone over the coming weekend. To accomplish this, they proceeded to the South Pasadena HMO clinic of IMC to lay the problem on Dr. Dayton, the Assistant Medical Director for IMC in charge of the South Pasadena Clinic. Stroganow had been a client of the South Pasadena HMO for some time and was well known at the clinic and by EMS personnel. There were two and sometimes three doctors who treated patients at this clinic and, unless the patient requested a specific doctor, he was treated by the first doctor available. Stroganow had not specifically requested he be treated by Dr. Dayton. When the Cares team met with Dr. Dayton they advised him that Stroganow had been taken to Metropolitan General Hospital Emergency Room the night before but did not advise Dayton that the EMS team had refused to transport Stroganow to the hospital emergency room a second time the previous evening. Dayton telephoned the emergency room at Metropolitan General to ascertain the medical condition of Stroganow when brought in the evening before. With the information provided by the Cares team and the hospital, Dayton concluded that Stroganow should be given a medical evaluation and the quickest way for that to occur was to call the EMS and have Stroganow taken to an emergency room for evaluation. When the Cares team arrived, Dayton was treating patients at the clinic. A doctor's office, or clinic, is not a desirable place to have an incontinent, incoherent, non- ambulatory patient brought to wait with other patients until a doctor is free to see him. Nor is the clinic equipped to do certain procedures frequently needed in diagnosing the illness and determining treatment needed for an acutely ill patient. EMS squads usually arrive within minutes of a call to 911 for emergency medical assistance and it was necessary for someone to be with Stroganow with the EMS squad arrived. Accordingly, Dayton suggested that the Cares team return to Stroganow and call 911 for assistance in obtaining a medical evaluation of Stroganow. If called from the HMO office, the EMS squad would have arrived long before the Cares team could have gotten back to Stroganow. Dr. Dayton did not have admitting privileges at any hospital in Pinellas County at this time. Upon leaving the South Pasadena HMO clinic, the Cares team returned to Stroganow. Enroute, they stopped to call a supervisor at HRS to report that the HMO had not solved their problem. The supervisor then called the Administrator at IMC to tell them that one of their Gold-Plus patients had an emergency situation. Respondent, Dr. Sanchez, called and advised that Dr. Dayton would take care of the problem. Later, around 2:00 p.m. when no ambulance had arrived, the Cares team called 911 from a telephone a block away from Stroganow's residence and arrived back just before the emergency squad. The EMS squad again refused to transport Stroganow to an emergency room and this information was passed back to Sanchez who directed that Stroganow be taken to Lake Seminole Hospital. This was the first time either Dayton or Sanchez was aware that the EMS squad had refused to transport Stroganow to an emergency room. Although Sanchez did not have admitting privileges at Lake Seminole Hospital, IMC had a contractual agreement with Lake Seminole which provided that certain staff doctors at Lake Seminole would admit patients referred to Lake Seminole by IMC. Pursuant to this contractual arrangement, Stroganow was admitted to Lake Seminole Hospital where he was treated for his injuries and evaluated for his future medical needs.
