Findings Of Fact Christopher Charles Campbell (Christopher) was the natural son of Barbara Denard and David Campbell. He was born a live infant on January 21, 1994, at Jackson Memorial Hospital, a hospital located in Miami, Dade County, Florida, and his birth weight was in excess of 2500 grams. The physicians providing obstetrical services during the birth of Christopher were two residents of Jackson Memorial Hospital who were directly supervised by Salih Yasin, M.D. Dr. Yasin was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. During the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital, Christopher received an injury to the brain caused by oxygen deprivation and mechanical injury which rendered him permanently and substantially mentally and physically impaired. Subsequently, on February 3, 1994, while still a resident at Jackson Memorial Hospital, Christopher died. The immediate cause of death was the severe perinatal asphyxia he had suffered. Given that Christopher has been shown to have suffered a "birth-related neurological injury," and that obstetrical services were delivered by a "participating physician" at birth, petitioners are entitled to an award of compensation pursuant to Section 766.31, Florida Statutes. In this regard, the parties have stipulated to a lump sum award of Seventy-six thousand dollars ($76,000.00), of which Barbara Denard will receive Fifty- seven thousand dollars ($57,000.00) and David Campbell will receive the sum of Nineteen thousand dollars ($19,000.00), and reasonable expenses incurred in connection with the filing of the claim, including reasonable attorney's fees, in the sum of Ten thousand dollars ($10,000.00). Such sums are reasonable and are hereby approved.
The Issue At issue in this proceeding is whether Justo Angel Aguiar, Jr., a minor, weighed at least 2500 grams at birth.
Findings Of Fact Preliminary matters Blanca Mejia and Justo Angel Aguiar, Sr., are the parents and natural guardians of Justo Angel Aguiar, Jr. (Justo), a minor. Justo was born a live infant on May 26, 1990, at Jackson Memorial Hospital, a teaching hospital located in Miami, Dade County, Florida. The physician providing obstetrical services during the birth of Justo was Mary Ann Sarda-Maduro, M.D., who was, at all time material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Justo's birth At or about 12:26 a.m., May 26, 1990, Blanca Mejia (Ms. Mejia) was admitted to Jackson Memorial Hospital in active labor, with complaints of abdominal pain since 7:00 p.m.. At the time, Justo was preterm, with an estimated gestational age of 36 weeks. Ms. Mejia's progress record reflects that at 2:35 a.m., the fetal heart rate was at 120-130 beats per minute, with good beat to beat variability, but severe variable decelerations in the 60 beat per minute range were noted, with some late return to baseline. Vaginal exam revealed the cervix to be at 6 centimeters, effacement complete, and the fetus at station 0, with no amniotic fluid present. Ms. Mejia was infused, and at 4:10 a.m., May 26, 1990, Justo was delivered. Upon delivery, Justo was noted to be very floppy, with minimal response to stimulation, and suffering severe respiratory distress. Apgars were 4, 5, and 6, at one, five and ten minutes, respectively. Justo was suctioned, bagged and intubated, and transferred to the neonatal intensive care unit. Pertinent to this case, Justo was admitted to the neonatal intensive care unit at 4:28 a.m., May 26, 1990. At that time, certain vital statistics were taken and entered on the "neonatal nursing admission interview" sheet, including Justo's weight, which was recorded as 2,340 grams. Following his admission to the neonatal intensive care unit, Justo's weight was closely monitored, as his progress records reflect. As documented by those records, Justo's weight progress over the ensuing days was noted as follows: May 27, 1990, 2340 grams; May 28, 1990, 2325 grams; May 29, 1990, 2325 grams; May 30, 1990, 2320 grams; May 31, 1990, 2300 grams; June 1, 1990, 2305 grams; June 2, 1990, 2325 grams; June 3, 1990, 2325 grams; June 4, 1990, 2410 grams; June 5, 1990, 2445 grams; June 6, 1990, 2440 grams, June 7, 1990, 2450 grams; and June 8, 1990, 2450 grams. Finally, on June 9, 1990, two weeks after birth, Justo's weight finally achieved 2500 grams. Of a similar nature are the observations regarding Justo's weight recorded on the neonatal flow sheets, classification of newborns sheet, consultation reports, and the admission physical to the neonatal intensive care unit. [Respondent's exhibit 1]. Given the proof, Justo's weight at birth was, more likely than not, 2340 grams.
Findings Of Fact Respondent, Herbert Goloff, D.C., is a chiropractor licensed to practice in the State of Florida. From March 10, 1988, through September 3, 1991, Dr. Goloff treated Ruth Waddle, a Workers' Compensation patient, for lumbar myofascitis. Lumbar myofascitis is an inflammation of the muscle and the fascia in the lumbar spine. Lumbar myofascitis is indicated by the following objective findings: recurrent spasms, limitation of motion, tender nodules, trigger point tenderness in the muscles, and taut or sensitive skin. On June 14, 1988, the Respondent placed Ruth Waddle at maximum medical improvement (MMI). The Respondent treated Ruth Waddle 14 times before placing her at MMI. The Respondent treated Ruth Waddle a total of 171 times after MMI. The Respondent is required to maintain documentation substantiating the treatment and services he rendered to Ruth Waddle in order to receive reimbursement for those services. The Respondent is required to perform an initial history, make a diagnosis, and develop a plan of care and document his subjective and objective findings in his records. The Respondent is also required to keep notes reflecting his subjective and objective findings, his appraisal or assessment and his plan of action (SOAP notes) for the patient Ruth Waddle, in order to substantiate and justify that the medical treatment and services he renders are medically necessary. If a health care provider cannot document that this treatment and services are medically necessary, he is not entitled to receive reimbursement for his services. The Respondent's records indicate that there was unscheduled ongoing care of the patient after June 14, 1988. Whenever the patient was in pain she would come in to the Respondent's Office and ask for a treatment. Respondent was not practicing full time in 1988. The patient seldom scheduled an appointment. She frequently came in on a Tuesday, a day she knew that Respondent had office hours. The patient would describe her symptoms to Respondent and he would perform various therapies, including mild adjustments. Respondent would make minimum entries in the patient's progress notes. Respondent's treatment of the patient Ruth Waddle, after reaching MMI, for the temporary relief of pain was palliative care. The Respondent's records indicate that there was inadequate testing of the patient Ruth Waddle to substantiate the medical necessity of treatment after June 14, 1988. The Respondent's records do not contain a plan of care or treatment for Ruth Waddle. The Respondents records do not contain an initial history for Ruth Waddle. The Respondents records do not contain an evaluation of Ruth Waddle's physical condition at the time of MMI relative to muscle spasms and range of motion, as well as other neurological and orthopedic tests. Respondent failed to maintain SOAP notes for the patient Ruth Waddle. The Respondent's records do not contain objective medical findings to substantiate the medical necessity of services rendered to Ruth Waddle after June 14, 1988. The Respondent's records do not substantiate the medical necessity of the frequency and duration of the treatment provided to Ruth Waddle after June 14, 1988.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Respondent be determined to have failed to substantiate the treatment of Ruth Waddle after June 14, 1988. The Respondent be ordered to return the sum of $7,354.68 to the American States Insurance Company for the fees that the Respondent collected in treating Ruth Waddle after June 14, 1988, when the patient reached MMI. DONE and ENTERED this 30th day of March, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 30th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4546 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 of fact. Accepted in substance: paragraphs 1-14. Respondent's proposed findings of fact. Accepted in substance: paragraphs 2, 5(a), 5(b) (in part). Rejected as against the greater weight of the evidence: paragraph 4, 5(b) (in part), 5(c). COPIES FURNISHED: Michael G. Moore, Esquire Department of Labor and Employment Security Suite 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2189 William J. McCabe, Esquire Shepherd, McCabe & Cooley 1450 West S.R. 434, Suite 200 Longwood, Florida 32750 Shirley Gooding, Secretary Department of Labor and Employment Security Suite 303 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152 Cecilia Renn, Esquire Chief Legal Counsel Department of Labor and Employment Security Suite 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2152
The Issue Whether the Petitioner is entitled to reimbursement for charges billed to a workers' compensation insurance carrier for medical services rendered to an injured employee/claimant, pursuant to Section 440.13, Florida Statutes (2007).2
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, including the pertinent portions of the stipulations of fact contained in Section VI of the Joint Pre-Hearing Stipulation, the following findings of fact are made: The Department is the state agency responsible for resolving reimbursement disputes involving health care providers and workers' compensation insurance carriers and employers ("employer/carrier"). See §§ 440.13(7) and (11)(c), Fla. Stat.4 The dispute resolution process is initiated when a health care provider files a petition with the Department contesting the decision of an employer/carrier to disallow or adjust payment to the health care provider for services provided to an injured worker/claimant. The petition must be accompanied by documentation supporting the allegations in the petition; if the documentation is not complete, the Department is to dismiss the petition. See § 440.13(7)(a), Fla. Stat. The employer/carrier is then required to submit a response to the petition to the Department, together with all documentation supporting its decision to disallow or adjust the health care provider's reimbursement requests. See § 440.13(7)(b), Fla. Stat. After review of the documentation submitted by the provider and the employer/carrier, the Department must determine whether the employer/carrier properly disallowed or adjusted payment to the health care provider, and it must provide a written determination setting out its decision. See § 440.13(7)(c), Fla. Stat. Procedure followed by the Department in resolving reimbursement dispute at issue in this proceeding The reimbursement dispute at issue herein arose after Sedgwick CMS, a workers' compensation insurance carrier, issued through its agent an Explanation of Bill Review and a First Notice of Disallowance dated April 16, 2008, notifying Dr. Merayo of its decision to disallow reimbursement for medical services he provided to the Claimant on April 11, 2007, August 21, 2007, September 18, 2007, October 16, 2007, December 11, 2007, and January 22, 2008, on the grounds that there had been over-utilization; specifically, Sedgwick CMS stated that it had based its decision with regard to those dates on its conclusion that that the treatment Dr. Merayo had provided the Claimant on those dates was excessive and/or not medically necessary. After receiving the First Notice of Disallowance from Sedgwick CMS, Dr. Merayo initiated the dispute resolution process when he timely filed with the Department a Petition for Resolution of Reimbursement Dispute ("Reimbursement Dispute Petition") dated May 16, 2008. Dr. Merayo requested in the Reimbursement Dispute Petition that the Department resolve the dispute between him and Sedgwick CMS regarding reimbursement for psychiatric services that he rendered to the Claimant on the dates identified in the First Notice of Disallowance. Dr. Merayo attached to the Reimbursement Dispute Petition documentation including medical records for the Claimant, and Sedgwick CMS timely submitted a response to the Reimbursement Dispute Petition, together with extensive medical and other records related to the Claimant. Among the records submitted to the Department by Sedgwick CMS were reports of two psychiatric independent medical examinations of the Claimant, both conducted in 1999, and peer review reports completed by three psychiatrists in December 2007, January 2008, and February 2008. Department personnel reviewed the documents submitted by Dr. Merayo and by Sedgwick CMS, including the two independent medical examination reports and the three peer review reports. After reviewing the documentation, Department personnel determined that, because there was no consensus among the physicians conducting the peer reviews regarding the frequency, duration, or intensity of services for the medical management of the Claimant's psychiatric needs, an EMA should review the documentation and provide guidance to Department personnel in resolving the reimbursement dispute. As authorized by Section 440.13(9)(f), Florida Statutes, the Department referred the matter to Dr. Guthrie, a psychiatrist certified by the Department as an EMA pursuant to Section 440.13(9)(a), Florida Statutes, and requested that he prepare a report regarding the medical necessity for the treatment Dr. Merayo provided the Claimant on the dates for which Sedgwick CMS had denied reimbursement. The Department indicated that all documents contained in its records would be provided to Dr. Guthrie and that, if he required additional documentation, he should immediately contact the Department. Dr. Guthrie submitted his report to the Department on November 3, 2008. The Department based its Determination that there was over-utilization of Dr. Merayo's medical services on April 11, 2007, August 21, 2007, October 16, 2007, December 11, 2007, and January 22, 2008, on a review of the documentation submitted, "specifically the carrier-obtained peer review report prepared by Dr. Sinakin [sic] and response from the Expert Medical Advisor." It based its decision that there was no over- utilization by Dr. Merayo on September 18, 2007, on Dr. Guthrie's EMA Report. Claimant's relevant medical history and independent medical examination reports prior to her treatment by Dr. Merayo5 The Claimant suffered injuries to her back as a result of an employment-related accident on December 29, 1997. Sedgwick CMS authorized psychiatric evaluation and treatment for the Claimant in April 1999, which she received from the Center for Occupational Psychiatry of Florida. The Claimant was diagnosed by Dr. Noel Delgadillo in 1999 as suffering from adjustment disorder and disorder of chronic pain, and he recommended treatment, with maximum medical improvement expected within six months. The Claimant received psychiatric medical services involving group and individual therapy and medication prescriptions and management from Dr. Delgadillo's associate, Dr. Angel Diaz, and employees of the Center for Occupational Psychiatry of Florida. Sedgwick CMS ordered a psychiatric independent medical examination of the Claimant, which was conducted on July 23, 1999, by Dr. Marilu Sabas. Dr. Sabas diagnosed the Claimant as suffering from "adjustment disorder," and she opined that the Claimant's symptoms were "the direct result of the accident . . . and the subsequent physical pain and emotional stress." On October 1, 1999, Dr. Diaz determined that the Claimant reached maximum medical improvement and assigned a permanent impairment rating of five percent. Sedgwick CMS ordered a second independent medical examination, which was conducted on October 20, 1999, by Dr. Anastasio Castiello. In Dr. Castiello's opinion, the Claimant "presented the clinical picture of an individual manifesting the exaggerated elements of a personality disorder and her actual representation is tailored to the circumstances of the litigation." Dr. Castiello concluded that, "under the circumstances, a recommendation for further psychiatric intervention is not clinically warranted." Sedgwick CMS continued to authorize Dr. Diaz to provide psychiatric evaluation and treatment in the form of group and individual psychotherapy, together with medication prescriptions and management until December 2004, when Sedgwick CMS authorized Dr. Merayo to provide psychiatric treatment to the Claimant. Dr. Merayo's treatment of the Claimant Dr. Merayo is a board-certified psychiatrist who has treated patients suffering from work-related injuries for more than 10 years. In December 2004, Dr. Merayo diagnosed the Claimant as suffering from major depressive disorder, recurrent and severe, without psychotic features, and he recommended continued group and individual psychotherapy, which was authorized by Sedgwick CMS and which she received from the Merayo Medical Arts Group. Dr. Merayo initiated an aggressive medication treatment regimen for the Claimant and conducted individual psychotherapy sessions. The Claimant also attended group therapy sessions led by members of Dr. Merayo's group. On August 23, 2005, Dr. Merayo opined that the Claimant had reached maximum medical improvement, and he assigned her a permanent impairment rating of 15 percent. Dr. Merayo also opined that the Claimant was unable to work due to her compensable injury. In 2006, Dr. Merayo conducted nine individual psychotherapy sessions, approximately one every six weeks, and the Claimant also participated in 30 group therapy sessions. At the end of 2006, Dr. Merayo was notified by Sedgwick CMS that it would not authorize further group therapy sessions, and, beginning in January 2007, the Claimant received only individual psychotherapy and medication management reviews from Dr. Merayo. Dr. Merayo conducted monthly individual psychotherapy sessions with the Claimant in 2007, for a total of 12 sessions, and in January, February, and March 2008. Sedgwick CMS paid Dr. Merayo for the individual psychotherapy sessions he conducted in January, February, March, May, June, July, and November 2007 and February 2008. Sedgwick CMS did, however, advise Dr. Merayo in the April 16, 2008, First Notice of Disallowance that it considered the services provided on July 18, 2007, November 13, 2007, and February 22, 2008, to be excessive, not reasonable, and medically unnecessary. The treatment Dr. Merayo provided the Claimant on the dates at issue herein was no different from the treatment provided on the dates for which Dr. Merayo received reimbursement. On the dates at issue herein, Dr. Merayo documented his individual psychotherapy sessions with the Claimant on a form entitled "Progress Notes," which consisted primarily of a checklist of items that he completed during the sessions, including observations on such things as appearance, behavior, attitude toward examiner, speech, mood, affect, perceptions, thought process, thought content, orientation, and the type of therapy provided. The form had blank spaces for Dr. Merayo to enter the Claimant's subjective complaints, stressors, and functioning, testing done, side effects of medication, and referrals and interventions. Dr. Merayo's notes of the Claimant's individual psychotherapy sessions on the dates at issue indicate that the Claimant consistently complained of chronic pain in her back and legs, of anxiety, and of difficulty sleeping.6 The Claimant's diagnosis of major depression, recurrent and severe, remained the same throughout the time period at issue, and, at each psychotherapy session, Dr. Merayo prescribed medications for insomnia, depression, and anxiety. Specifically, Dr. Merayo prescribed Restoril, Wellbutrin, Effexor, and Klonopin at the Claimant's psychotherapy sessions on April 11, 2007, and on August 12, 2007. As discussed in more detail below, Dr. Merayo substituted Ambien and Vistaril for the Restoril on October 16, 2007,7 and he prescribed these two new medications, together with Wellbutrin, Effexor, and Klonopin, in December 2007 and January 2008.8 On December 11, 2007, Dr. Merayo increased the dosage of Wellbutrin, an antidepressant, from 150 milligrams to 300 milligrams because the Claimant was exhibiting increasing depression. In Dr. Merayo's opinion, prescribing only a month's supply of medications at each monthly visit was the safest procedure for the Claimant. If a patient is taking only one antidepressant and is otherwise doing well, it is appropriate to conduct a medication review for that patient every three months. The Claimant's case was complex, however, because she was taking four or five medications at any given time, including two benzodiazepines and two antidepressants. In Dr. Merayo's medical judgment, even though there was no indication that the Claimant misused the medications or had any side effects, it was necessary that he conduct medication management reviews for the Claimant every month and prescribe only a 30-day supply of medications because of the number and nature of the medications. Dr. Merayo noted in his Progress Notes on the dates at issue that the Claimant's ego defenses were weak and that her recent memory was not very sharp. Dr. Merayo was particularly concerned about the Claimant because her weak ego defenses indicated possible regression. At the Claimant's psychotherapy session on October 16, 2007, Dr. Merayo decided to substitute Ambien and Vistaril for Restoril because he was concerned about the possible addictive effects of Restoril and because of his concern that Restoril was related to the Claimant's declining recent memory. Dr. Merayo also noted in his Progress Notes for the October 16, 2007, psychotherapy session that the Claimant complained of pain all over her body and expressed frustration that she was not getting any better. The Claimant's treatment plan, consisting of cognitive behavior therapy, supportive therapy, coping skills, and anxiety control, remained unchanged on the dates at issue, and Dr. Merayo indicated in the Progress Notes for each of the psychotherapy sessions that the Claimant's condition was the same. On all of the dates at issue except for October 16, 2007, Dr. Merayo checked the box on the Progress Notes specifying that the Claimant's progress toward the treatment goals was between 30 percent and 40 percent; on October 16, 2007, Dr. Merayo checked the box on the Progress Notes specifying that the Claimant's progress toward the treatment goals was between 20 percent and 30 percent. There are, however, no treatment goals stated in any of the Progress Notes. Additionally, the observations Dr. Merayo recorded on the Progress Notes for almost all of the dates at issue indicated that the Claimant's appearance was casual9; her behavior was quiet and needy; her eye contact was fair; her attitude toward Dr. Merayo was cooperative; her speech was spontaneous; her mood was depressed and anxious; her affect was labile; her thought process was goal oriented; her thought content was logical10; she was not suicidal; her orientation was "OK"; her consciousness was alert; her sleep was "OK"; her appetite was "OK"; her libido was low; her concentration was poor; her attention was good; her judgment was fair; and her coping skills were fair. In Dr. Merayo's opinion, the appropriate treatment for the Claimant, or any patient with her diagnosis, is medication management and psychotherapy. Dr. Merayo described the Claimant as a person who is in need of psychotherapy because of her diagnosis and explained that she needed the 45 minutes allotted for each of her monthly psychotherapy sessions on the dates at issue. In Dr. Merayo's opinion, the Claimant was regressing during the time period covering the dates at issue and required psychotherapeutic intervention for chronic mental illness to avoid moving from major depression to exhibiting psychotic features. In his years of medical practice, Dr. Merayo has observed that patients having the Claimant's diagnosis and amount of medication often end up in the hospital if they go for too long a period without being seen. Dr. Merayo acknowledged, however, that many patients probably do not need the level of service he provided to the Claimant after reaching maximum medical improvement and that most patients could be adequately treated with 25-minute psychotherapy sessions conducted less frequently than those he conducted with the Claimant. In Dr. Merayo's opinion as a board-certified psychiatrist, the quality, quantity, and duration of medical care that he provided to the Claimant on each of the dates at issue were medically reasonable and necessary in order to prevent the Claimant from regressing and to provide her with psychotherapy that she needed and that provided her relief. He was aware of no guidelines setting forth the frequency and intensity of psychiatric services to be provided to a claimant after a declaration of maximum medical improvement except the sound medical judgment of the health care provider. Notwithstanding the reimbursement dispute at issue herein, Dr. Merayo was authorized by Sedgwick CMS to provide psychiatric treatment to the Claimant at the time of the final hearing. EMA Report Dr. Guthrie was appointed by the Department as an expert medical advisor to render an opinion as to the medical necessity/over-utilization issues presented in the reimbursement dispute between Sedgwick CMS and Dr. Merayo. In its Order Referring Matter for Expert Medical Advisor Review, the Department requested that Dr. Guthrie assist in resolving the reimbursement dispute by specifically answering the following question: Whether the type, intensity and duration of the evaluation and treatment provided on April 11, 2007, August 21, 2007, September 18, 2007, October 16, 2007, December 11, 2007, and January 22, 2008, are consistent with the medically necessary standard of care for the clinical problem(s) documented by the Petitioner in the medical record of the Injured Employee? Please identify the standard(s) of care that support the opinion provided. Dr. Guthrie submitted his EMA Report on November 3, 2008, and he listed the documents he reviewed in an appendix to the report. The documents listed by Dr. Guthrie were all those submitted to the Department by Sedgwick CMS and by Dr. Merayo regarding the medical services provided to the Claimant since the date of her injury in 1997. Dr. Guthrie did not examine the Claimant in the course of preparing his EMA Report. In his report, Dr. Guthrie opined "within a reasonable degree of medical certainty" that reimbursement for the psychotherapy sessions conducted by Dr. Merayo with the Claimant on April 11, 2007, August 21, 2007, September 18, 2007, October 16, 2007, December 11, 2007, and January 22, 2008, should be disallowed by Sedgwick CMS because these psychotherapy sessions "would not be expected to be necessary."11 Dr. Guthrie noted, however, that, in his opinion, Sedgwick CMS should reimburse Dr. Merayo for the psychotherapy session conducted September 18, 2007, because "if all three of those visits [August, September, and October] are disallowed, then there would be a four month gap from July to November without adequate follow-up."12 Dr. Guthrie stated the basis for his opinion in pertinent part as follows: Typically, following a declaration of maximum medical improvement, it is anticipated that the frequency and to some degree, the intensity of therapeutic treatments would gradually decrease with the ultimate expectation that therapeutic follow-ups (which might include simply medication management or at times, might necessarily include medication management plus individual therapy of a supportive nature) would be necessary on an every two to three month basis, requiring at most, four to six such appointments per year. * * * Given what would be considered a more typical need to treatment following a declaration of maximum medical improvement, it would be anticipated that during the year 2007, there would typically need to be four follow-up appointments unless some extraordinary situation developed. No such extraordinary situation is discernable from Dr. Merayo's records. Dr. Guthrie summarized his opinion as follows: Therefore, given the expectation of follow- up care requiring four to at most six appointments per year subsequent to an [sic] maximum medical improvement declaration, it is my opinion, within a reasonable degree of medical certainty, that Dr. Merayo's continued monthly appointments of forty-five minutes duration suggest a pattern of over- utilization of services, [13] Dr. Guthrie also observed: From the clinical status of the claimant/patient indicated in Dr. Merayo's notes, it is clear that she has continued to struggle emotionally and with chronic pain despite aggressive treatment provided by Dr. Merayo. It is quite possible that his pattern of over-utilization has been in an attempt to assist an ill patient; however, given his declaration of maximum medical improvement on August 23, 2005, we are left with no other conclusion than a pattern of over-utilization. Summary The evidence presented by Dr. Merayo is sufficient to establish with the requisite degree of certainty that he should be reimbursed for medical services he provided the Claimant on April 11, 2007; August 21, 2007; October 16, 2007; December 11, 2007; and January 22, 2008. For reasons discussed in more detail below in the Conclusions of Law, the opinions of Dr. Merayo and Dr. Guthrie are the only evidence presented on which a determination of the medical necessity of the Claimant's monthly psychotherapy and medical management sessions with Dr. Merayo can be based. After consideration of all of the creditable evidence, Dr. Merayo's opinion is accepted as more persuasive and more grounded in the medical needs of the Claimant than the opinion of Dr. Guthrie. Dr. Guthrie's opinion was not based on an articulated "medically necessary standard of care for the clinical problem(s) documented by the Petitioner in the medical record of the Injured Employee," as required by the Department when it referred the reimbursement dispute to Dr. Guthrie,14 nor did Dr. Guthrie identify an established standard of care for psychiatric treatment of a patient with problems similar to the Claimant's. Rather, Dr. Guthrie's opinion was based on the "expectation" that, after a patient is found to have reached maximum medical improvement, the number of psychotherapy and medication management sessions would decrease to a maximum of four to six sessions per year, at a frequency of once every two to three months. In reaching his opinion regarding the frequency of psychotherapy and medication management review sessions that Dr. Merayo should have provided the Claimant, Dr. Guthrie imposed a standard that reflected "a more typical need" for treatment after maximum medical improvement of four sessions annually, but he never refers to the source of this standard of "typical need." In addition, there is only one reference to the medical necessity of monthly treatments for the Claimant, given her clinical problems and the complexity of her medications, in the Conclusion and Opinion section of Dr. Guthrie's EMA report. In that reference, Dr. Guthrie acknowledged that the Claimant continued to struggle with emotional issues and chronic pain and that the frequency of Dr. Merayo's psychotherapy sessions with the Claimant may have been "in an attempt to assist an ill patient."15 Nonetheless, because of the "expectation" regarding the frequency of treatment after a declaration of maximum medical improvement to which he referred in his report, Dr. Guthrie found that, regardless of the Claimant's need for treatment, he "is left with no other conclusion than a pattern of over-utilization" based solely on Dr. Merayo's having declared that the Claimant attained maximum medical improvement in August 2005.16 In the absence of reference by Dr. Guthrie to an established practice parameter, a protocol of treatment, or a standard of care for a psychiatrist treating a patient with a diagnosis, symptoms, and medications similar to those of the Claimant to support the opinion expressed in his EMA report, the opinion expressed in Dr. Guthrie's EMA Report is rejected. Dr. Merayo's testimony that the frequency and duration of his psychotherapy and medication management review sessions with the Claimant were, in his medical judgment, medically necessary to avoid deterioration of the Claimant's mental state and her possible lapse into psychotic features is accepted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order requiring Sedgwick CMS to remit payment to Huberto Merayo, M.D., for medical services he provided the Claimant on April 11, 2007; August 21, 2007; September 18, 200726; October 16, 2007, December 11, 2007; and January 22, 2008, in accordance with the rates established in the applicable Health Care Provider Reimbursement Manual. DONE AND ENTERED this 17th day of June, 2009, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 2009.
Findings Of Fact The Petition named Dr. Banadera and Dr. Alviedo as the physicians providing obstetric services at Khamari’s birth on April 9, 2013. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA’s official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the “NICA CARES” database for each physician. The “NICA CARES physician payment history/report” attached hereto for Dr. Neil J. Alviedo and Dr. Felix D. Banadera indicate that in the year 2013, the year in which Dr. Alveido and Dr. Banadera participated in the delivery of Khamari Parks, as indicated in the Petitioner’s Petition for Benefits, neither doctor paid the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan. Further, it is NICA’s policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Alviedo nor Dr. Banadera in relation to an exempt status for the year 2013. To the contrary, the attached “NICA CARES physician payment history/report” shows that in 2013, Dr. Alviedo and Dr. Banadera each paid the Two Hundred Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non-participating, non-exempt licensed physicians. The physician payment history/report for Dr. Alviedo and Dr. Banadera supports Mr. Daughtry’s affidavit. Petitioner has not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Alviedo and Dr. Banadera had not paid their $5,000 assessment for 2013. At the time of the birth of Khamari, neither Dr. Alviedo nor Dr. Banadera were participating physicians in the Plan.
The Issue The issue is what is the correct amount of workers’ compensation reimbursement to Largo Medical Center for emergency services rendered to patient M.C. for a work-related injury?
Findings Of Fact Petitioner, Guarantee, is a carrier within the meaning of Subsections 440.02(4) and (38), Florida Statutes, and Florida Administrative Code Rule 69L-7.602(1)(w). Respondent, the Department, has exclusive jurisdiction to decide disputes relating to the reimbursement of health care providers by carriers for medical services rendered to injured workers. § 440.13(7) and (11)(c), Fla. Stat. Intervenor, Largo, is a health care provider within the meaning of Subsection 440.13(1)(h), Florida Statutes. Largo is an acute care hospital located in Largo, Pinellas County, Florida. On July 25, 2009, Largo provided emergency services to patient M.C., a 32-year-old female, who was injured at her place of work. M.C. was examined by Largo’s emergency department physician. She received two Computed Tomography (“CT”) scans without contrast dye, one of the brain and one of the cervical spine. She also received a pregnancy test and an X-ray of her lumbar spine. The results of these diagnostic tests were negative. M.C. was given a cervical collar to wear, and was discharged. Largo’s total charges for M.C.’s outpatient emergency services were $7,885.05. Largo submitted its claim for reimbursement using the standard “uniform billing” form, UB-04. The UB-04 sets out each service provided to M.C., the individual charge for each service, and the total charge. The individual services on the UB-04 submitted for patient M.C. are listed as follows: urine pregnancy test; X-ray; CT scan of the cervical spine; a three-dimensional rendering of the image and its interpretation; the CT of the brain; and the emergency department visit itself. Largo’s claim was received by MCMC, an organization described as a “third-party administrator,” and was referred in turn to Qmedtrix. Qmedtrix is a medical bill-review agent located in Portland, Oregon. Qmedtrix performs bill review by referral from carriers and third-party administrators, and performed a bill review for Guarantee of the bill submitted by Largo. For its compensation, Qmedtrix is paid a percentage of the difference, if any, between the amount billed by the facility and the amount paid by the carrier. Following Qmedtrix’ review, Largo received a check from Guarantee in the amount of $5,287.97, along with an “Explanation of Medical Benefits” review (EOBR), which is required to be sent along with the bill payment. For reasons that are not clear, there are two EOBRs in evidence for this claim. One (Petitioner’s Exhibit 4) has the logo “MCMC” in the upper left hand corner and is substantially more formal. The other (Largo’s Exhibit 3) does not have any identifying logo, but the following statement appears on page two: “For questions regarding this review, please call MCMC at 1-888-350-1150.” It is not clear why MCMC would have generated two different EOBRs for the same claim, but, in any event, the allowed amounts for the six components of Largo’s charges and the total payment amount, $5,287.97, is the same on both EOBRs. The EOBR that is Largo’s Exhibit 3 sets out the six individual components of Largo’s claim, and indicates that the first five were approved for reimbursement at 75 percent of the charge billed by Largo. The sixth component is the charge for the emergency department visit itself. For that charge, Largo billed $1,365.38, of which 75 per cent would be $1,024.04. The EOBR indicates the corresponding 25 percent discount from billed charges ($341.35) under a column entitled “MRA,” and indicates further that an additional reduction of $625.81 was applied, leaving an approved payment of $398.22 for the emergency room component of the claim. The additional reduction of $625.81 is under a column entitled “Ntwk Redc,” and the narrative explanation under the total payment states, ”The network discount shown above is based on your contract with the network.” Guarantee conceded at hearing that there was no contract applicable to the claim. The EOBR also has references to “convalescent care” and “PIP days,” neither of which apply to Largo’s claim. The EOBR that is Guarantee’s Exhibit 4 has one column entitled “Qualify Code.” In completing an EOBR, insurers must select a code from a list of approximately 50 codes found in Florida Administrative Code Rule 69L-7.602(5)(o)2., which identifies the reason for the disallowance or adjustment. For the emergency room visit, the EOBR shows a code of 82, which is explained as follows: “Payment adjusted: Payment modified pursuant to carrier charge analysis.” Both EOBRs indicate a “procedure code” of 99283. The UB-04 submitted by Largo used code 99284. These codes are among five codes that are used by hospitals to bill emergency department visits based on “level” of intensity rendered. These codes are taken from the American Medical Association’s Current Procedural Terminology (or CPT), a coding system developed for physician billing, not for hospitals. Over the years, these CPT codes have been adopted by hospitals for billing emergency department visits. Emergency department services are billed with CPT codes 99281 through 99285. After receiving the payment and EOBR, Largo timely filed a Petition for Resolution of Reimbursement Dispute, with attachments, to the Department. Largo alleged in its Petition that the correct reimbursement amount owed was $5,913.79, leaving an underpayment of $625.82. Qmedtrix, acting as Guarantee’s representative, then filed Guarantee’s Response to Petition for Resolution of Reimbursement Dispute and attachments with the Department. Attached to the Response was a letter from R.W. von Sydow dated November 5, 2009. The letter asserted that the correct payment to the hospital (Largo) should be determined on an average of usual and customary charges for all providers in a given geographic area, rather than the hospital’s usual and customary charges. As authority, Mr. von Sydow cites the case of One Beacon Insurance v. Agency for Health Care Administration, 958 So. 2d 1127 (Fla. 1st DCA 2007). The letter also requested that the Department “scrutinize the bill in question in order to determine, first, whether the hospital in fact charged its usual charge for the services provided and, second, whether the billed charges are in line with the customary charges of other facilities in the community.” The letter further alleges that the hospital “upcoded” the emergency room visit, billing using CPT code 99284, asserting that the proper billing code should have been 99283. The letter concludes that the amount paid, $398.22, for the emergency department visit is closer to the “usual and customary” charges that Qmedtrix asserts, on behalf of Guarantee, is applicable to the claim. On November 13, 2009, the Department issued its Determination. The Determination states in pertinent part: The Carrier Response to Petition for Resolution of Reimbursement Dispute disputes the reasonableness of the hospital’s “usual and customary charges,” maintains the petitioners’ charges should be based on the average fee of other hospitals in the same geographic area, and references a manual not incorporated by rule. There are no rules or regulations within Florida’s Workers’ Compensation program prohibiting a provider from separately billing for individual revenue codes. The carrier did not dispute that the charges listed on the Form DFS-F5- DWC-90 (UB-92) or the charges listed on the itemized statement did not conform to the hospital’s Charge Master. Nor did the carrier submit the hospital’s Charge Master in the response or assert that the carrier performed an audit of the Charge Master to verify the accuracy of the billed charges. Therefore, since no evidence was presented to dispute the accuracy of the Form DFS-F5- DWC-90 or the itemized statement as not being representative of the Charge Master, the OMS finds that the charges billed by the hospital are the hospital’s usual and customary charges. Rule 69L-7.602, F.A.C., stipulates the appropriate EOBR codes that must be utilized when explaining to the provider the carrier’s reasons for disallowance or adjustment. The EOBR submitted with the petition does not conform to the EOBR code requirements of Rule 69L-7.602(5)(q), F.A.C. Only through an EOBR is the carrier to communicate to the health care provider the carrier’s reasons for disallowance or adjustment of the provider’s bill. Pursuant to s. 440.13(12), F.S., a three member panel was established to determine statewide reimbursement allowances for treatment and care of injured workers. Rule 69L-7.501, F.A.C., incorporates, by reference, the applicable reimbursement schedule created by the panel. Section 440.13(7)(c), F.S., requires the OMS to utilize this schedule in rendering its determination for this reimbursement dispute. No established authority exists to permit alternative schedules or methodologies to be utilized for hospital reimbursement other than those adopted by Rule 69L-7.501, F.A.C., unless the provider and the carrier have entered into a mutually agreeable contract. Rule 69L-7.501, F.A.C., incorporates, by reference, the Florida Workers’ Compensation Reimbursement Manual for Hospitals, 2006 Edition (Hospital Manual). Since the carrier failed to indicate any of the services are not medically necessary, the OMS determined proper reimbursement applying the above referenced reimbursement guidelines. Therefore, the OMS has determined that the carrier improperly adjusted reimbursement to Largo Medical Center for services rendered to the above- referenced injured employee on July 25, 2009. Based upon the above analysis, the OMS has determined that correct reimbursement equals $5,913.79 ($7,885.05 x 75% [Hospital Manual] = $5,913.79). The determination letter also informed Guarantee of its right to an administrative hearing. Guarantee timely filed a Request for Administrative Hearing, which gave rise to this proceeding. CODING FOR M.C.’S EMERGENCY SERVICES As mentioned above, Largo reported the emergency department visit using CPT Code 99284. No one from the hospital testified, but Largo’s expert, Allan W. March, M.D., reviewed Largo’s hospital record for M.C. Dr. March is a graduate of Dartmouth College and Johns Hopkins University Medical School. He has extensive experience in, among other things, hospital physician practice and utilization review. Dr. March describes utilization as the oversight of medical care to affirm that it is appropriate, cost-effective, and medically necessary. Dr. March has worked as an emergency department physician and has personally treated upwards of 5,000 workers’ compensation patients. Dr. March testified on behalf of Largo and the Department. Dr. March described M.C. and her injuries from the hospital record as follows: This is a 32-year-old female who had just slipped at her place of work prior to arrival at the emergency department and presented in moderate distress, with moderate pain in the head, neck, and lower back. And the patient displayed tenderness in the posterior neck area as well as in the right lower back. Dr. March reviewed Largo’s hospital record for M.C. to analyze whether Largo appropriately used CPT code 99284, or whether it should have used a lower CPT code. Largo’s coding for the emergency department visit is based on the American College of Emergency Physicians’ “ED Facility Level Coding Guidelines” (ACEP Guidelines). By using the ACEP Guidelines, Largo used a nationally recognized methodology in determining the level of service to which the hospital should bill. He noted that the hospital’s charge sheet indicated that the level of services was marked at a Level 4. Dr. March compared the hospital’s charge list with the ACEP Guidelines and found them to be essentially the same, and that the Level 4 marked on the charge sheet corresponded with CPT code 99284. Dr. March found that Largo used a nationally recognized methodology in determining the level of service to which the hospital should bill. In Dr. March’s opinion, Largo correctly assigned 99284 to M.C.’s emergency department visit, and that the assignment of 99284 is substantiated by the medical record. Under the ACEP guidelines, the CPT code level assigned is always the highest level at which a minimum of one “possible intervention” is found. In this case, Dr. March determined that two CT scans were ordered by the physician and performed by the hospital, which substantiates the use of a 99284 code under the ACEP Guidelines. Dr. March further explained that the coding level of a hospital does not correspond directly to the coding level assigned by the physician. The physician’s services are coded under the CPT-4 coding book. According to Dr. March, the CPT coding manual is applicable to facility coding only if the hospital chooses to use this manual as a basis in their methodology for coding. Further, Dr. March explained that the separate billing of the emergency department visit captures separate and distinct costs incurred by hospitals that are not included in line-items for procedures. The claim submitted by Largo was sent to Qmedtrix for a bill review. Its data elements were first entered into Qmedtrix’ proprietary bill-review software known as “BillChek.” The software placed Largo’s claim on hold for manual review. The claim was then manually reviewed by Mr. von Sydow, Director of National Dispute Resolution for Qmedtrix. Although his educational background is in law, Mr. von Sydow is a certified coder certified by the American Health Information Management Association (AHIMA). Mr. von Sydow determined in his bill review that Largo should have used code 99283 instead of 99284. Mr. von Sydow described what he considers to be inconsistencies between certain diagnosis codes under the International Classification of Diseases, Ninth Edition (ICD-9) and the CPT codes used to classify the emergency department visit. He considers the ICD-9 codes on Largo’s claim (specifically 959.01 used to indicate “head injury, unspecified”) to be inconsistent with CPT code 99284. In his view, ICD-9 corresponds more closely with CPT code 99283. Moreover, Mr. von Sydow referenced a study by the American Hospital Association (AHA) and AHIMA, which suggests that hospitals should count the number and kind of interventions to approximate the CPT factors, but that a hospital should not include in this count interventions or procedures, such as CTs or X-rays, which the hospital bills separately. He further acknowledged that the federal Centers for Medicare and Medicaid Services (CMS) allow hospitals to use their own methodology in applying the CPT codes. David Perlman, M.D., received his undergraduate degree from Brown University and his medical degree from the University of Oregon. He has considerable experience as an emergency room physician. For the past six years, he has worked for Qmedtrix initially doing utilization review and as its Medical Director since 2005. Dr. Perlman testified on behalf of Guarantee. Dr. Perlman is familiar with the ACEP guidelines relied upon by Dr. March and the AHA/AHIMA study relied upon by Mr. von Sydow. He is also familiar with the CPT code handbook. Dr. Perlman suggested that the use of the ACEP guidelines could result in reimbursement essentially already provided in a separate line-item. He agrees with the methodology recommended by the AMA/AHIMA study. That is, counting the number and kind of interventions or procedures to approximate the CPT book’s factors to consider in selecting the code billed for emergency department services, but not including in this count interventions or procedures, such as CTs or X-rays, which the hospital bills separately. In Dr. Perlman’s opinion, M.C.’s injuries supported assignment of CPT code 99283 rather than 99284. The fact that M.C. underwent CT scans did not alter this conclusion. According to Dr. Perlman, use of a CT scan in a patient’s emergency department treatment determines that the facility may assign a 99284 code under the ACEP guidelines. In his opinion, this does not necessarily reflect the severity of the illness or injury. Dr. Perlman acknowledged, however, that hospitals are free to use the ACEP guidelines and that many hospitals do so. The preponderance of the evidence establishes that there is no national, standardized methodology for the manner in which hospitals are to apply CPT codes 99281-99285 for facility billing. The preponderance of the evidence also establishes that, while there is a difference of opinion as to whether ACEP guidelines are the best method, it is a nationally recognized method used by many hospitals. Largo’s use of this methodology is supported by the weight of the evidence as appropriate. M.C.’s hospital record amply documents the interventions required for the assignment of CPT code 99284 under the ACEP guidelines. Dr. March’s opinion that the separate billing of the emergency department visit captures separate and distinct costs incurred by hospitals that are not included in line-items for procedures is accepted. It is concluded that the coding of M.C.’s emergency department visit as 99284 by Largo was appropriate. There is no dispute that Largo’s charges as represented on the UB-04 form conform to its internal charge master, or that the services represented were in fact provided, or that they were medically necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers' Compensation, enter a Final Order requiring Petitioner to remit payment to Largo consistent with the Determination Letter dated November 13, 2009, and Section 440.13(7)(c), Florida Statutes. DONE AND ENTERED this 17th day of June, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 17th day of June, 2010.
