The Issue Whether Respondent violated sections 458.331(1)(m), (q), and (t), Florida Statutes (2007-2011), and, if so, what discipline should be imposed.
Findings Of Fact The Parties DOH is the state agency charged with regulating the practice of licensed physicians pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. DOH is pursuing sanctions against Respondent based on her provision of medical care to patients A.M., C.B., and P.A. At all times relevant to this case, Respondent was licensed as a medical doctor within the State of Florida, having been issued license number ME 59800. Respondent is board certified by the American Board of Internal Medicine with a specialty in Infectious Disease. Respondent received her medical degree from Christian Medical College in India in 1984. Her medical career, according to her curriculum vitae, includes the following places of employment: 1996 Bay Area Primary Care 1997 American Family and Geriatrics 1998 Faculty appointment at University of South Florida – voluntary 2/99-11/99 Veteran’s Administration (Medical Officer on Duty) 1993-present Private Practice Respondent’s June 30, 2014, deposition testimony was that she is currently working as a medical provider at Fort Tryon Rehab and Nursing Home in New York, and prior to that she was working at a walk-in clinic in Queens, New York. Respondent testified that she currently resides in Pinellas Park, Florida. In 2008, Respondent’s Florida practice, Bay Area Infectious Disease (BAID), was located at 5840 Park Boulevard, Pinellas Park, Florida, and most recently at 1527 South Missouri Avenue, Clearwater, Florida. Each practice location is now closed. Respondent later testified that she had a practice located at 6251 Park Boulevard, Pinellas Park, Florida, which is also closed. Jamie Carrizosa, M.D. (Dr. Carrizosa) is a board- certified internal medicine and infectious disease physician who testified as an expert for DOH. Prior to his retirement in July 2011, Dr. Carrizosa had an active medical practice including hospital privileges. He is currently an Associate Professor of Medicine at the University of Central Florida, teaching first and second year students in the areas of microbiology and immunology. While in private practice, he treated patients with suspected skin infections, MRSA skin infections, candidiasis and other types of skin diseases. Issa Ephtimios, M.D. (Dr. Ephtimios) is a board- certified physician in internal medicine, infectious diseases and infection control who testified as an expert for Respondent. He is an attending physician at Sacred Heart Hospital, West Florida Hospital, Baptist Hospital, and Select Specialty Hospital in Pensacola, Florida. DOH Case No. 2009-13497 (DOAH Case No. 13-0595PL) On October 8, 2008, A.M. presented to Respondent with complaints of fatigue, headaches, and moodiness, according to a History and Physical Medi-Forms document. A BAID contract for services and an authorization for BAID to disclose protected health information (PHI) were executed on October 8. Within the records there was a diagram that contained pictures of a front and back body diagram and the handwritten words: “fatigue cold sweats fevers headaches.” Neither A.M.’s name nor the date appeared on the diagram, yet Respondent identified the diagram as belonging to A.M. and showing A.M.’s small lesions. On October 9, A.M. executed a Bay Area Infectious Disease and Infusion, PLC, “CONSENT FOR TREATMENT” form. Respondent’s progress notes are generally listed in the S.O.A.P. format.16/ The following appeared on one of A.M.’s October 9th Progress Notes: S: Complaint: MRSA,17/ headecha [sic], she like [sic] to talk W Dr. Pimple on but [sic] 3 rounds Zyvox, [illegible] c/o lethargic, gain wt, fatigue, headaches Pale, feets [sic] not Percocet –[illegible].” O: Exam: Ht 5.6” Wt 172 Age 16 M/F BMI T BP 118/64 P 65 R PO2 99_ Gluc A: General Appearance: WNL/18 HEENT: WNL Neck: WNL Chest: WNL Breast: WNL Heart: WNL Lungs: WNL Abdomen: WNL Genitalia: WNL Skin: WNL + multiple abcees [sic] Spine: WNL Extremities: WNL [All the “WNL” were typed capital letters.] DIAGNOSIS: Skin Abcess- Buttock, leg MRSA – Community Acquired P: PLAN: Vancomycin 1 gr daily [illegible] A second Progress Note for A.M., also dated October 9, contains the same information in the “S” and “O” portions, but at the “A” portion, it has no notations other than the pre-printed “WNL” at the “Skin” section, and it does not contain a “Diagnosis.” Respondent admitted that there were times when she would “complete records later on.” Respondent’s progress notes for A.M. from October 10 through October 16 were in a slightly different SOAP format. A.M.’s October 10 Progress Note reflects the following: S: Complaint: Vanco reaction O: Examination: BP P T R HT WT PO2 Glucose General Appearance; Awake alert,orientedx3 Head: Normocephalic atraurmatic EENT: PERLA, EOMI,Sclera-non-icteric, conjunctiva-pink Neck: Supple, no JVD. No Lymph nodes Heart: S1 S2 normal, murmurs Lungs: clear Abdomen: Soft, no masses, no tenderness, BS+, no hepatomegaly, no splenomegaly Left Lymph-inguinal: WNL Right Lymph-inguinal: WNL Extremities: No clubbing, cyanosis, edema Neurological: Motor-5/5, sensory-5/5, Deep tendon reflexes 2+ Cranial nerves Intact Skin: no rashes + circled Abscess Muskuloskeletal: WNL CLINICAL ASSESSMENT: MRSA, Skin Abcess CVIO PLAN: Zyvox A.M.’s progress notes between October 11 and 31, 2008, reflect various subjective complaints regarding her skin conditions. The physical examinations for each day do not contain consistent information regarding A.M.’s blood pressure, her height, weight, respirations, PO2, and glucose. On two days the “skin” section reflected “no rashes,” yet the clinical assessment reported “Skin Abces – improvely” [sic] or just “skin abcess.” On three progress notes (October 17, 18 and 20, 2008), there is a hand-written notation at the “Heart” section which indicates that A.M. might have a heart murmur, yet in the diagnosis section there is no mention of a heart issue or endocarditis.19/ All other progress notes regarding the “heart” contain the pre-printed “WNL.” A.M.’s IV/IM procedure notes beginning on October 10 and continuing through October 31, each reflect “heart murmur” in the diagnosis section along with “MRSA Skin abcess.” Respondent testified that she felt justified in using IV Vancomycin because A.M. was “doing the heart murmur.” However, Respondent’s initial plan included Vancomycin before any heart murmur was detected or assessed. Vancomycin is a prescription medication used to treat staphylococcal infections, and is usually utilized for more serious infections such as endocarditis. Zyvox is a prescription medication that comes in either an IV or oral form used to treat infections. Respondent claimed that there were missing medical records for A.M. However, with respect to patient A.M., Respondent claimed a progress note (part of the history and physical exam) from October 8 was the only medical record that was missing. Respondent then asserted that A.M. brought in her primary doctor’s referral which reflected A.M.’s treatment, including the medication prescribed; yet those medical records are not present. Respondent further testified that she “usually” puts prior treatment provider records in her patient’s file. Respondent maintained that she kept a lot of A.M.’s medical records on a computer that was bought in January 2001. However, that computer crashed in October 2011. A computer crash is plausible; however, the DOH subpoena was properly issued and served on Respondent on January 28, 2010, more than nine months before the alleged computer crash. Respondent then claimed that she “did not have access to that computer, which later crashed,” followed by her claim that “that practice was closed and when they came here, we only had the old, whatever, paper records.” Respondent’s position on these records was disingenuous at best. Respondent claimed that A.M. was seen and her medical records were at a different location (6251 Park Boulevard) than where the subpoena was served (5840 Park Boulevard).20/ Respondent then claimed the records that were moved from one facility to another facility could not be located. Respondent alluded to a potential police report regarding an alleged theft of medical records and other office items; however, nothing substantiated that, and Respondent’s testimony about possible criminal activity is not credible. Respondent admitted that some of A.M.’s medical records, specifically progress notes, were pre-printed, and that she wrote on some of the progress notes. In the progress notes dated October 10, 11, 13 through 18, 20 through 25, and 27 through 30, the handwriting appears to be the same, except for the change in each date. Further, Respondent confirmed A.M.’s 18 pages of progress notes of Vancomycin administration, yet distanced herself from them by saying “sometimes the charts were completed later on, so it’s possibility that it -- that it -- you know, it’s progress notes for the IV administration, but – um . . . the dates are written by nurses, so I don’t -- I don’t know.” Respondent’s inability or unwillingness to identify who may have written on A.M.’s progress notes and her avoidance in answering direct questions or claiming she did not recall the patient (and then discussing the patient) greatly diminished her credibility. Respondent claimed that there were “some verbal changes” she gave that were in a “set of nursing records,” which were not present. Any “changes” or directions given by Respondent should have been contained within her medical records for the care of A.M. Respondent maintained that her diagnosis of A.M. was based on Respondent’s total clinical picture of A.M., including A.M.’s “symptoms, her presentation, her lesions, her course -- she’d had repeated courses of oral antibiotics, and was getting recurrence.” Yet, Respondent also claimed A.M. “came in with these culture results from the primary, and that’s how the staff . . . it states MRSA, because it was already documented MRSA.” Standard of Care Respondent was required to practice medicine in her care of A.M. with “that level of care, skill, and treatment which is recognized in general law related to health care licensure.” Based on the credited opinions of Dr. Carrizosa, Respondent’s treatment and care of A.M. violated the standard of care for the following reasons. A reasonably prudent health care provider suspecting a patient has MRSA would observe the abrasion(s), culture the abrasion (MRSA), send the culture out for laboratory confirmation, prescribe oral antibiotics, and if the MRSA does not respond to the oral antibiotics, prescribe and administer IV antibiotics. Dr. Carrizosa noted that Respondent did not provide a description of A.M.’s abscesses, did not indicate that A.M.’s abscesses were drained, incised, cleaned or bandaged, or that Respondent provided any patient education to A.M. Although labs were ordered, there was no request for a bacterial culture or for an antimicrobial susceptibility test to be completed. Dr. Carrizosa expressed concern that young people can eliminate antibiotics within six to eight hours and there is a need for monitoring their medications to ensure they maintain a therapeutic level. Dr. Carrizosa opined that Respondent did not meet the standard of care in her treatment of A.M. The evidence clearly and convincingly establishes that Respondent violated the standard of care applicable to an infectious disease practitioner. Respondent presented the deposition testimony of Dr. Ephtimios. Dr. Ephtimios reviewed the same records as Dr. Carrizosa. Dr. Ephtimios admitted he had several lengthy conversations with Respondent during which time she provided additional information to Dr. Ephtimios that was not in A.M.’s written records regarding “the rationale for using the Vancomycin.” Respondent shared additional information with Dr. Ephtimios yet failed to recall or remember the patient during her own deposition testimony. Dr. Ephtimios’ opinion is not credible. Respondent’s deposition behavior lessens her credibility. Medical Records Medical records are maintained for a number of reasons. Primarily, medical records are necessary for the planning of patient care; for continuity of treatment; and to document the course of the patient’s medical evaluation, treatment, and progression through treatment. Further, medical records should document any communications between health care providers, and they serve as a basis for health care providers to be paid by either the patient or another party. See, rule 64B8-9.003. The medical records of A.M.’s contact with Respondent’s office between October 8, 2008, and October 31, 2008, do not meet Florida’s standards for medical records. A.M.’s records do not describe the abscesses, do not indicate if any of the abscesses were drained, incised, or cultured. Respondent failed to provide any assessment of a staph infection or provide any laboratory support for the use of the medication administered. Respondent did not document A.M.’s possible heart murmur, and failed to provide a diagnostic basis for endocarditis. Further portions of the medical record are illegible. There is no clear indication that Respondent provided A.M. with any education on her condition. Inappropriate Drug Therapy Respondent authorized the administration of Vancomycin and/or Zyvox to a 16-year-old female without adequately monitoring A.M.’s condition, or documenting the need for such use. Respondent’s failure to document the need for Vancomycin through appropriate or adequate testing was not in the best interest of A.M. DOH Case No. 2011-06111 (DOAH Case No. 14-0514PL) On February 28, 2011, patient C.B., a 42-year-old female, presented to Respondent with complaints of food allergy issues, and gastrointestinal problems, gas, bloating, and other stomach issues.21/ When she presented to Respondent in February 2011, C.B. did not have any concerns about candida or thrush.22/ Respondent prescribed a Medrol Pak (a steroid) and directed C.B. to have lab tests for the candida antibody and an immune system panel. One week later, C.B. again presented to Respondent. C.B. did not have any of the symptoms for a chronic yeast infection such as vaginal itching or thrush. Respondent advised C.B. that she had a chronic yeast infection and her immune system required treatment. However, Respondent did not prescribe any medication to C.B. at that time. On March 14, 2011, C.B. returned to Respondent’s office and received Immunoglobulin23/ via an intravenous (IV) line. On March 22, 24 and 25, 2011, C.B. received IV Ambisome.24/ Thereafter, C.B. developed a rash on her arm where the IV had been placed and a papule on her stomach. C.B. declined further IV treatments because she did not think the medication was working. On March 29, Respondent prescribed VFEND25/ to C.B. On March 30 and 31 and April 1, 2011, C.B. was a “no show” at Respondent’s office. Yet each of C.B.’s progress notes contained information regarding C.B.’s general appearance. Respondent testified that those progress notes are preprinted forms and would be adjusted upon a patient’s examination. On April 4, 2011, Respondent’s progress note for C.B. reflects “Discuss with patient in detail, patient complains of one papule, advised patient about candidiasis, GI tract not responding to azoles. Complains of diarrhea, abdominal symptoms, wants IV meds.” C.B.’s progress note dated April 5, 2011, reflects under the “S: COMPLAINT: No show - Refused to get PICC line out. Patient walked out yesterday. Patient was told to wait for dressing change. Patient states to receptionist she will come today.” Respondent elected to document on April 5, something that happened on April 4, despite the fact that the progress note for April 4 reflected a discussion with C.B. On April 11, 2011, C.B. presented a request for her medical records to Respondent’s staff. C.B. received copies of her medical records and provided them to DOH. Respondent testified as to C.B.’s 2011 presentation and Respondent’s course of treatment, including what medications were prescribed. Respondent confirmed that an undated “History and Physical” (H&P) for C.B. was C.B.’s “initial history and physical” created from a template. This H&P purports to reflect that C.B. was “discharged [from Respondent’s practice] for misbehavior . . . was in jail. . . [and] begging [for Respondent] to help her.” This H&P also contained Respondent’s physical examination of C.B., which was recorded on a “Progress Note” of the same date. Differences in the two records of the same date exist. C.B. testified that she has never been in jail and that she had not been discharged from Respondent’s practice. C.B. is found to be a credible witness. Respondent’s testimony is not credible. Respondent averred that she discussed C.B.’s vaginal itching with C.B. during the March 7, 2011, office visit, yet Respondent did not prescribe any medications for C.B. C.B.’s first IV immunoglobulin was administered on March 14, a week later. Respondent claims she discussed her care and treatment with C.B. on Wednesday, March 23, 2011. C.B. did not see Respondent on March 23, as C.B. went to Respondent’s office located on Park Boulevard in Pinellas Park and that location was closed. C.B. found out that Respondent was working at an address in Clearwater. C.B. did not have adequate time to get to that Clearwater location before it closed for the day. Thus, C.B. missed the appointment on that day. C.B.’s candid and succinct testimony is credible. Respondent testfied that certain medical records for C.B. were missing: anything that was documented electronic or anything -- any reports or any old records, old reports, it doesn’t contain anything. And she came in for the treatment of a disease that’s been existing since 2006, so a lot of workup that’s done in the prior years for -- which is the relevant basis of the treatment at this point is not there. Respondent was not clear which medical records were missing. C.B. had not been a patient of Respondent for approximately two years. Respondent’s reliance or purported reliance on C.B.’s “old records, old reports” without adequate confirmation of C.B.’s current health issues via appropriate work-ups, laboratory studies and tests falls below the reasonably prudent similar health care provider standard. Standard of Care Respondent was required to meet the same standard of care as outlined in paragraph 25 above. Dr. Carrizosa’s testimony was clear, concise, and credible. He did not appear to have any prejudice against Respondent as a person, but was concerned about how she was practicing medicine. Based on the credited opinions of Dr. Carrizosa, Respondent’s treatment and care of C.B. violated the standard of care for the following reasons. Respondent failed to practice in such a manner as to determine within a reasonable degree of medical certainty that C.B. had systemic candida as was diagnosed by Respondent. Further, the laboratory results were not positive for an antimicrobial sensitivity culture taken from C.B. Additionally, C.B.’s complete blood count (CBC) and the differential count, which included neutrophils and lymphocytes, were normal. The administration of Ambisome, the most expensive of all the drugs available, was not warranted as C.B. did not have systemic candidiasis. Further, the immunoglobulin treatment was inappropriate as there was no evidence that C.B. had an immune dysfunction. Medical Records Dr. Ephtimios also provided an opinion on behalf of Respondent. Dr. Ephtimios had a discussion with Respondent regarding the care and treatment provided to C.B. outside the medical records provided. Dr. Ephtimios admitted that he does not use a Medrol Pak in his practice; he does not feel comfortable practicing immunology (and would have referred C.B. out to an immunologist.) Dr. Ephtimios would not have ordered the laboratory tests that Respondent ordered; his understanding of what candidiasis means may differ from Respondent’s, and he speculated on what he thought Respondent “meant” in several instances. Dr. Ephtimios provided a somewhat exhaustive approach to the various forms of candidiasis; however, he qualified each approach. Each physician practices medicine using their own skill set and different methods of providing clinical assessments and treatment. However, Dr. Ephtimios provided various qualifiers to his opinion which rendered it less credible. The basis for creating, maintaining and retaining medical records is expressed in paragraph 25 above. The medical record of C.B.’s contact with Respondent’s office during this time does not meet Florida’s standards for medical records. C.B.’s records do not reflect an appropriate evaluation, as they fail to analyze C.B.’s main complaints, they fail to analyze the previous evaluations of C.B., and her physical exams were incomplete. DOH Case No. 2011-17799 (DOAH Case No. 14-0515PL) According to Respondent, patient P.A., a 38-year-old female, was “an ongoing patient [of hers] for over ten years.” Respondent saw P.A. between February 2008 and December 2011. Respondent provided medical records to DOH regarding P.A. However, Respondent admitted she did not provide all P.A.’s medical records because “a lot of records were missing,” and Respondent knew “at one point when they were very old records in the 6251 office some of them were also shredded.” Respondent further claimed in response to additional questioning about her shredding statement, [B]ecause the statute says, you know, after three years, so I’m not sure if the -- because I know some of the records were shredded by one of the secretaries. * * * The one [statute] which says once a practice is closed retain records for three years. Respondent identified one of P.A.’s progress notes (dated January 26, 2011) as “our procedure note,” but when asked “What was going on here according to these notes,” Respondent answered: “It’s hard to say. It’s not my handwriting.” Respondent could read the handwriting, but had “no clue” who wrote the progress note. Further, Respondent was unable to state if P.A. was administered either the gentamicin 40 milligrams or the clindamycin 600 milligrams as listed on the progress note. Medical Records The basis for creating, maintaining and retaining medical records is expressed in paragraph 25 above. In this instance, the testimony of Respondent clearly and convincingly proves Respondent violated section 458.331(1)(m) and rule 64B8-9.003. No evidence was presented that Respondent has been previously disciplined.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding that Respondent, Neelam Uppal, M.D., violated section 458.331(1)(m), (q) and (t), Florida Statutes; suspending her license for six months followed by two years probation with terms and conditions to be set by the Board of Medicine; imposing an administrative fine of $10,000.00; requiring the successful completion of a course or courses to make, keep and maintain medical records; requiring a course in professional responsibility and ethics, and such other educational courses as the Board of Medicine may require; and assessing costs as provided by law. DONE AND ENTERED this 17th day of September, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September,2014.
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Medicine has found probable cause exists to suspect that the physician has committed one or more disciplinable offenses. At all times pertinent to this cause, Respondent was a medical doctor licensed in the State of Florida, having been issued license number ME 92135. Although not the subject of the instant proceeding, Respondent has also been licensed by the State of Florida as a chiropractic physician. Background / Arrangement with Dr. Wagner In or around 1975, Respondent completed his education at the National University of Health Sciences and began to practice chiropractic medicine shortly thereafter. Some fifteen years later, Respondent and an acquaintance——Dr. Joseph Wagner, also a licensed chiropractor in the State of Florida——matriculated at a medical school in the Dominican Republic. Although both Respondent and Dr. Wagner ultimately earned Doctor of Medicine ("MD") degrees in the mid 1990s, Respondent was not licensed in Florida to practice as an MD until early 2006. Significantly, however, Dr. Wagner never obtained licensure as a medical doctor. Consequently, Dr. Wagner is prohibited by statute (with two exceptions, neither of which is applicable in this case6/) from prescribing any medicinal drug. In 2007, Respondent and Dr. Wagner entered into a joint venture designed, in the words of Respondent, to "expand" Dr. Wagner's chiropractic practice. At that time, and for the duration of their business agreement, Respondent's principal place of business was located in Palm Beach County, while Dr. Wagner practiced chiropractic medicine in Daytona Beach. Under the joint venture (which continued until August 2011, when both their offices were raided by the Federal Bureau of Investigation), Respondent traveled to Daytona Beach several times each month and interacted with Dr. Wagner concerning some, but not all, of Dr. Wagner's chiropractic clients (hereinafter "joint-venture clients" or "JVCs"). From what can be gleaned of the credible portions of Respondent's deposition and final hearing testimony, it appears that Respondent's activity with respect to JVCs included a review of client files, and, in some cases, a determination that one or more medications——including narcotics——should be prescribed. Indeed, Respondent's level of participation was so minimal that his face-to-face interaction with JVCs consisted, at most, of an initial introduction, and on no occasion did Respondent personally examine——or perform treatments upon——any JVC. As a consequence of Respondent's phantom-like presence at Dr. Wagner's clinic, it was common for a JVC who presented for routine follow-up appointments, which for some clients occurred as frequently as once time per week, to be seen only by Dr. Wagner or Dr. Wagner's son, John Wagner, who was also a chiropractor. Troublingly, these visits frequently ended (without Respondent having seen or spoken with the JVC on that day) with Dr. Wagner phoning in a prescription refill.7/ At the conclusion of a JVC's office visit, Dr. Wagner—— and possibly Respondent, if the JVC was seen on a day when Respondent was actually present in the Daytona office——dictated medical notes that Dr. Wagner usually transcribed at a later time. Subsequently, and with Respondent's blanket authorization, Dr. Wagner would create a claim form (if the JVC had insurance coverage) to submit to the insurance carrier for reimbursement. Incredibly, Respondent also granted Dr. Wagner complete authority to affix his signature to reimbursement claims and submit them——without Respondent looking at the forms beforehand——to insurance carriers. This was accomplished not by the use of a stamp, which medical professionals often provide to their subordinates to expedite business affairs, but by Dr. Wagner manually signing, in cursive, "John P. Christensen" inside the box of the claim form labeled "signature of the physician or supplier. Another unusual aspect of the joint venture was the manner in which Respondent and Dr. Wagner dealt with reimbursement checks from insurance carriers. By agreement, reimbursement checks for claims that related to JVCs were received by mail at Dr. Wagner's place of business in Daytona Beach. Upon their receipt, Dr. Wagner deposited the checks into a SunTrust checking account for which Respondent had sole signatory authority. At the end of each month, Respondent transferred the entire balance of the SunTrust account into his business account at PNC Bank. Respondent would subsequently draft a check on the PNC account to Dr. Wagner in an amount equal to 50 percent of the monthly proceeds. As Respondent readily admits, his joint venture with Dr. Wagner yielded substantial financial remuneration. Over a four-year period, reimbursement from insurance carriers totaling $800,000——a tidy sum in light of Respondent's nominal participation——was deposited into Respondent's SunTrust account, the proceeds of which were split 50/50 with Dr. Wagner. Against the foregoing backdrop, the undersigned will address, on a client-by-client basis, the specific wrongdoing alleged in the Administrative Complaint. Client K.R. On or about August 25, 2010, K.R. presented to Dr. Wagner's clinic for treatment of a back injury she sustained in an automobile accident approximately eight months earlier. K.R. continued to be seen at Dr. Wagner's clinic, on a weekly basis and as a JVC,8/ until November 11, 2010. During K.R.'s initial office visit, no examination was conducted, nor did Dr. Wagner order that any diagnostic scans (such as x-rays) be taken. Instead, Dr. Wagner simply asked K.R. about her injuries and "cracked" her back for several minutes. While the evidence does not foreclose the possibility that K.R. was introduced briefly to Respondent during the first appointment, it is clear that no further interaction——of any kind——occurred between them. Although Respondent had no contact whatsoever with K.R., the evidence demonstrates that Respondent permitted Dr. Wagner——on the date of K.R.'s first visit and on every follow-up visit, which generally lasted no more than a few minutes——to telephone a local pharmacy on his behalf and direct that certain prescriptions be filled. Specifically, each week from August 25, 2010, through November 10, 2010, K.R. was prescribed seven-day supplies of the following medications: 40 tablets of Lortab9/ (the brand name for the formulation of hydrocodone10/ and acetaminophen); 21 tables of Soma11/ (the brand name for carisoprodol,12/ a muscle relaxant); and 21 tablets of Xanax13/ (a brand name for alprazolam,14/ which is designed to treat anxiety). Petitioner's expert witness in this proceeding, Dr. Orlando Florete, credibly testified that the dosages of Lortab, Xanax, and Soma prescribed to K.R. were excessive, and that the combination of the three medications was inappropriate due to an unacceptably heightened risk of respiratory depression and death. Client M.R. In late July or early August 2009, M.R. presented to Dr. Wagner's clinic for treatment of leg, back, and neck pain. M.R. returned for follow-up appointments at least one time per week for the next several months. At no time did M.R. undergo a medical examination during his visits, which consisted of having his back cracked by either Dr. Wagner or his son (and, on occasion, the use of a bed with heat). Notwithstanding that Respondent and M.R. neither met nor had contact of any kind, Respondent considered M.R. to be a JVC.15/ As a consequence, Respondent allowed Dr. Wagner to phone-in the following medications——with Respondent listed on the prescription bottles as the prescribing physician——for M.R., on a weekly basis, from August 7, 2009, through October 16, 2009: 40 tablets of hydrocodone, with each pill containing 10 milligrams of hydrocodone and 500 milligrams of acetaminophen; and 24 tablets of Xanax, each in two milligram doses Clients L.J., S.J., and J.J. In or around August 2009, S.J., J.J. (S.J's cousin), and L.J. (S.J's mother) were involved in an automobile accident. Thereafter, in late 2009 and early 2010, S.J., J.J., and L.J. presented themselves on multiple occasions for chiropractic treatment at Dr. Wagner's office in Daytona Beach. Although there is insufficient evidence as to what occurred during J.J.'s office visits (no testimony of J.J. has been introduced), S.J. and L.J. were seen initially by Dr. Wagner's son, and later by Dr. Wagner himself during follow-up appointments. As with patient M.R., both S.J. and L.J. neither met nor had any contact whatsoever with Respondent. Nevertheless, as clients that were within the ambit of Respondent and Dr. Wagner's joint venture,16/ Respondent allowed Dr. Wagner to phone-in prescriptions for S.J. and L.J. as follows: Lortab (40 tablets) and Soma (20 tablets) for L.J. on January 30, 2010; and Lortab and Soma (40 and 20 tablets, respectively) for S.J. on November 7, 2009, January 2, 2010, and February 27, 2010. As with the JVCs discussed previously, Respondent was listed in the pharmacy records and on the medication bottles as the prescribing physician. Consistent with the terms of the joint venture, Dr. Wagner submitted reimbursement claims to Direct General Insurance Company ("DGIC," a personal injury protection carrier) for services purportedly rendered to S.J., L.J., and J.J during their office visits. In particular, clear and convincing evidence exists that Dr. Wagner, with Respondent's knowledge and authorization, submitted reimbursement claims to DGIC in connection with S.J., J.J., and L.J. that bear the following dates: January 30, 2010 (S.J.); January 30, 2010, and March 13 and 27, 2010 (L.J.); and April 10 and 24, 2010 (J.J.).17/ While the exact services billed to DGIC varied by patient and date, the content of each of these claim forms represented unambiguously that the examinations and/or treatments were performed by Respondent and no other. This was unquestionably deceptive in light of Respondent's consistent testimony that he never physically conducted medical examinations or treatments in connection with any JVC. Client C.H. In or around December 2008, C.H. was referred to Dr. Wagner's clinic by her personal injury attorney. Over the next four months, C.H. was treated by Dr. Wagner and/or Dr. Wagner's son during multiple office visits. In stark contrast to Respondent's position with respect to patients discussed above (Respondent admitted during his deposition that K.R., M.R., S.J., L.J., and J.J. were JVCs, yet attempted——unsuccessfully——during the final hearing to retract such testimony), Respondent has consistently maintained that C.H. was not a JVC, that he had no knowledge of C.H., and that any prescription phoned in by Dr. Wagner in connection with C.H. was without his knowledge or authorization. As the undersigned credits this portion of Respondent's testimony, any events that occurred at the clinic with respect to C.H. cannot serve as a basis to discipline Respondent. Findings of Ultimate Fact The undersigned finds, as a matter of ultimate fact, that Respondent violated section 458.331(1)(q), Florida Statutes, by prescribing controlled substances to K.R., M.R. S.J., and L.J. outside the course of his professional practice as a medical doctor. It is further determined, as a matter of ultimate fact, that Respondent engaged in deceptive conduct related to the practice of medicine, contrary to section 458.331(1)(k), Florida Statutes. Finally, the undersigned finds, as matters of ultimate fact, that Respondent is not guilty of violating subsections 458.331(1)(m), (1)(t), and (1)(nn), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine: Finding that Respondent violated section 458.331(1)(q), Florida Statutes, as charged in Count II of the Administrative Complaint; Finding that Respondent violated section 458.331(1)(k), as charged in Count V of the Complaint; Dismissing Counts I, III, and IV of the Administrative Complaint; Revoking Respondent's license to practice medicine; and Imposing a total administrative fine of $20,000.00. DONE AND ENTERED this 16th day of March, 2012, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 16th day of March, 2012.
The Issue The issues in this case are: (1) whether Petitioner is entitled to repayment for alleged Medicaid overpayments to Respondent; and, if so, the amount of the overpayment to be repaid; (2) the amount of any fine to be imposed against Respondent; and (3) the amount of any investigative, legal, and expert witness costs to be assessed against Respondent.
Findings Of Fact The Parties Petitioner is the agency responsible for administering the Medicaid program in the state of Florida, including overseeing the integrity of that program. § 409.913, Fla. Stat.1/ Respondent is a board-certified family practice physician. During the Audit Period,2/ Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered medical services rendered to Medicaid recipients.3/ Respondent provides medical services in a rural area to an underserved population. A substantial proportion of his patients are poor and are Medicaid recipients. The Audit As part of Petitioner's duties in overseeing the integrity of the Medicaid program, it investigates and audits Medicaid providers for services rendered to Medicaid recipients. In what is commonly referred to as the "pay-and-chase system," Medicaid providers bill Petitioner for medical services rendered to Medicaid recipients and Petitioner pays these bills, which are referred to as "claims." Thereafter, Petitioner audits those claims. The audit is conducted to determine whether the medical services rendered were appropriate for the condition being treated, whether the amounts billed for services are correct based on documentation provided, and whether Medicaid covers the services provided. If Petitioner determines that the provider was paid for services that did not comply with the Medicaid program requirements, it seeks reimbursement from the provider of the payments made for noncompliant claims. Here, Petitioner audited Respondent's medical records to verify that claims paid by Medicaid during the period from January 1, 2012, through June 30, 2014 (the "Audit Period"), qualified for payment under the Medicaid program. During the Audit Period, Respondent submitted a total of 7,093 claims for billable services rendered to a total population of 854 Medicaid recipients, for which Medicaid paid a total of $448,314.06. Rather than examine the medical service provision records of all 854 recipients Respondent served during the Audit Period, using a computer program, Petitioner randomly selected a sample comprised of 35 recipients from the total population of recipients. Respondent submitted 245 claims for the 35 recipients in the sample population. Once these 35 recipients were identified, Petitioner requested that Respondent provide the Medicaid services records for the claims submitted for these recipients. Upon receiving the Medicaid services records from Respondent, Petitioner, through its nurse consultant, Karen Reynolds, and its peer reviewer, Dr. Lisa Jernigan,4/ reviewed the claims for these 35 recipients. Reynolds' review of Respondent's records consisted of identifying the claims for which Respondent provided insufficient or no documentation, as required by the 2008 and 2012 Florida Medicaid Provider General Handbooks ("Handbooks"), to support the claims. When she determined that insufficient documentation had been submitted to support a claim, Reynolds made notations on a worksheet created for that particular recipient, regarding the insufficiency of the documentation. Reynolds made her notations on the worksheets in light red ink. After Reynolds completed her review, the records were transmitted to Dr. Jernigan for a substantive review of each claim to determine whether the documentation submitted in support of a claim complied with the pertinent standards in the Handbooks for payment of the claim. Based on her substantive review, Dr. Jernigan determined, for each claim, whether the claim should be approved, adjusted, or denied.5/ Dr. Jernigan's notations regarding approval, denial, or modification of payment for each claim, as well as the basis of her determination for each claim, were made on the worksheets in green ink and in darker red ink. After Dr. Jernigan completed her review of the claims, Reynolds went back through the worksheets and made additional notations, such as "NMN" for "not medically necessary," summarizing Dr. Jernigan's substantive review, in light green ink. For each claim that Dr. Jernigan determined should be adjusted or denied, Reynolds wrote the disallowed amount in the "dis-amt" space on the worksheet for that claim.6/ Based on the competent, substantial, and persuasive evidence, the undersigned determines that the audit was properly conducted. Dr. Jernigan engaged in the peer review of Respondent's records, and Reynolds merely served as an assistant whose role was confined to the ministerial tasks of determining whether Respondent had submitted the documentation requested by Petitioner for purposes of determining compliance with the Handbooks, and, after Dr. Jernigan completed her substantive peer review of each claim, summarizing Jernigan's determinations, as appropriate, and calculating the disallowed amounts for claims that Dr. Jernigan had determined should be adjusted or denied.7/ On the basis of this review process, Petitioner determined that Respondent had been overpaid in the amount of $4,867.97 ($19.86832653 per claim) for the 245 claims in the 35- recipient sample population. Using the statistical formula for cluster sampling,8/ which extrapolates the overpayment determined from the sample population across the total population of 7,093 claims, Petitioner determined that Respondent had been overpaid the total amount of $104,951.05. Petitioner informed Respondent of this preliminary overpayment determination through its Preliminary Audit Report ("PAR")9/ issued on November 10, 2015, and gave him the option of submitting further documentation in support of the claims that had been preliminarily identified as ineligible for payment by the Medicaid program.10/ In response to the PAR, Respondent provided additional documentation, which was reviewed by Dr. Jernigan. Based on the review of the additional records Respondent provided, Petitioner issued a FAR, dated August 8, 2016. The FAR determined that Respondent had been paid an overpayment of $4,637.45 ($18.92836735 per claim) for the 245 claims in the 35-recipient sample population. As with the PAR, Petitioner employed the statistical formula for cluster sampling to determine the alleged probable overpayment for the total population of 7,903 claims paid during the Audit Period. This analysis yielded a probable overpayment of $97,121.42, with a 95-percent probability that the actual overpayment is equal to or greater than that amount. Petitioner also sought to impose a fine of $19,424.28 as a sanction for violating Florida Administrative Code Rule 59G- 9.070(7)(e), and to require Respondent to pay $1,708.08 in investigative, legal, and expert witness costs, as authorized by section 409.913(23), Florida Statutes. Subsequent to issuance of the FAR, Petitioner and Respondent conducted a peer-provider meeting. As a result of that meeting, as well as subsequent discussions between the parties, Respondent was afforded several opportunities to submit additional documentation to support his claims. As a result of the documentation Respondent provided, Petitioner has further reduced the alleged overpayment amount to $72,084.43, which is now the amount at issue in this proceeding. Petitioner also seeks to impose a fine consisting of 20 percent of this overpayment amount, or $14,416.89. Additionally, if Petitioner prevails in this proceeding, it seeks to recover its investigative, legal, and expert witness costs. Grounds Stated in FAR for Denial or Reduction of Claims The FAR states four grounds, or "Findings," for Petitioner's determination that Respondent was overpaid by Medicaid for certain medical services he provided, based on cited provisions in the 2008 Florida Medicaid Provider General Handbook ("2008 Handbook"), 2012 Florida Medicaid Provider General Handbook ("2012 Handbook"), 2010 Physician Services Coverage and Limitations Handbook ("2010 Handbook"), 2012 Practitioner Services Coverage and Limitations Handbook, and 2014 Practitioner Services and Limitations Handbook ("2014 Handbook").11/ The FAR does not allege that Respondent committed any Medicaid fraud or abuse in this proceeding. Finding No. 1 Finding No. 1 in the FAR alleges that Respondent provided incomplete records, as defined in the 2008 and 2012 Handbooks, for some claims for which he billed and was paid, such that any payments for which incomplete records were submitted constitutes an overpayment that Petitioner is entitled to recover. The 2008 and 2012 Handbooks, "Provider Responsibility" section, states, in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: Have actually been furnished to the recipient by the provider prior to submitting the claim; * * * Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state and local law; and Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record. The 2008 and 2012 Handbooks, "Requirements for Medical Records" section, states in pertinent part: Medical records must state the necessity for and the extent of services provided. The following requirements may vary according to the service rendered: Description of what was done during the visit; History; Physical assessment; Chief complaint on each visit; Diagnostic tests and results; Diagnosis; Treatment plan, including prescriptions; Medications, supplies, scheduling frequency for follow-up or other services; Progress reports, treatment rendered; The author of each (medical record) entry must be identified and must authenticate his entry by signature, written initials or computer entry; Dates of service; and Referrals to other services. The 2008 and 2012 Handbooks, "Record Keeping Requirement" section, states: Medicaid requires that the provider retain all business records as defined in 59G- 1.010(30) F.A.C., medical-related records as defined in 59G-1.010 (154) F.A.C., and medical records as defined in 59G-1.010 (160) F.A.C. on all services provided to a Medicaid recipient. Records can be kept on paper, magnetic material, film, or other media including electronic storage, except as otherwise required by law or Medicaid requirements. In order to qualify as a basis for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamped signatures must be initialed. The records must be accessible, legible and comprehensible. The 2008 Handbook, "Incomplete Records" section, states that "providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped." The 2012 Handbook, "Incomplete or Missing Records" section, similarly states: "Incomplete records are records that lack documentation that all requirements or conditions for service provision have been met. Medicaid shall recover payment for services or goods when the provider has incomplete records or does not provide the records." The following claims, which are in dispute in this proceeding, were denied on the ground stated in Finding No. 1: Recipient 2, claim nos. 2 and 21; Recipient 6, claim nos. 1, 2, 3, and 4; Recipient 8, claim no. 6; Recipient 9, claim no. 4; Recipient 10, claim no. 10; Recipient 13, claim no. 3; Recipient 16, claim nos. 2, 3, 4, 6, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 27, 30, 31, 32, 33, 34, 35, 37, 38, 41, 43, 54, and 57; Recipient 18, claim nos. 2, 3, 4, and 5; Recipient 24, claim no. 1; Recipient 33, claim no. 9; Recipient 34, claim nos. 4 and 7; Recipient 35, claim nos. 5 and 6.12/ A total of 47 claims are in dispute on the ground stated in Finding No. 1. Finding No. 2 Finding No. 2 in the FAR alleges that the medical necessity of some services for which Respondent billed and was paid were not supported by the documentation he provided. The 2008 and 2012 Handbooks, in the section titled "Provider Responsibility," state in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * Are Medicaid-covered goods or services that are medically necessary[.] Additionally, as noted above, the 2008 and 2012 Handbooks, "Provider Responsibility" section, state, in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record. The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 2: Recipient 2, claim nos. 11, 13, 19, and 21; Recipient 16, claim nos. 15, 17, 30, 31, 32, 34, 36, 39, 41, 43, 45, and 47; Recipient 24, claim no. 1; Recipient 34, claim nos. 4 and 7; and Recipient 35, claim no. 4. A total of 20 claims are disputed on the ground stated in Finding No. 2.13/ Finding No. 3 Finding No. 3 in the FAR states that some services that Respondent provided to established patients were billed and paid as having been rendered to new patients. The 2010, 2012, and 2014 Handbooks, "Established Patient Visit" section, defines an "established patient" as "one who has received professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years." These Handbooks define a "new patient" as "one who has not received any professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years." The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 3: Recipient 21, claim no. 1; Recipient 23, claim no. 1. A total of two claims are disputed on the ground stated in Finding No. 3. Finding No. 4 Finding No. 4 in the FAR states that the level of service for some claims for which Respondent billed and was paid was not supported by the documentation submitted to support the claim. The 2010 Handbook, "Medically Necessary" section, states in pertinent part: Medicaid reimburses for services that are determined medically necessary and do not duplicate another provider’s service. In addition, the services must meet the following criteria: * * * Be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient’s needs; * * * Reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide[.] The 2012 and 2014 Handbooks, "Medical Necessity" section, state in pertinent part: Medicaid reimburses services that are determined medically necessary and do not duplicate another provider’s service. Rule 59G-1.010 (166), F.A.C. defines "medically necessary" or "medical necessity" as follows: The medical or allied care, goods, or services furnished or ordered must: (a) Meet the following conditions: * * * 2. Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient’s needs. * * * 4. Reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide. The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 4: Recipient 8, claim no. 4; Recipient 9, claim no. 2; Recipient 10, claim no. 3; Recipient 13, claim no. 1; Recipient 16, claim nos. 29, and 52; Recipient 17, claim no. 1; Recipient 21, claim no. 2; Recipient 22, claim no. 2; Recipient 30, claim no. 3; Recipient 32, claim no. 2; Recipient 35, claim no. 1. A total of 12 claims are disputed on the ground stated in Finding No. 4. In sum, a total of 69 claims are disputed on the grounds set forth in Finding Nos. 1 through 4. Medical Record-Keeping Purpose and Requirements Medical records should consist of a simple, complete, organized record that documents the patient's medical condition, needs, and the medical services rendered, so that the physician preparing the record, as well as any other physician——whether or not familiar with the patient or the record-keeping system, including an electronic health record ("EHR" system) used——is able to follow the patient's course of health and treatment. Additionally, medical records must be sufficiently complete and clear for purposes of billing, and in the case of Medicaid, for payment. For claims for services provided to Medicaid recipients to be payable under the Medicaid program, the medical records must meet the requirements set forth in the pertinent Medicaid Handbooks. As discussed above, among these requirements are that the records be true and accurate; demonstrate the medical necessity of, and level of service for, the services provided; contain certain specified components, such as a description of what was done during the visit, the patient's medical history, physical assessment of the patient, the patient's chief complaint on a particular visit, diagnosis, and treatment plan; and be comprehensible, individualized, specific, and consistent with the symptoms or confirmed diagnosis of the illness or injury treated. Dr. Jernigan opined, persuasively, that in the medical context, the term "comprehensible" means that the medical records are sufficiently intelligible and understandable such that another physician or other medically-trained individual could read the record and have a solid picture of the patient's medical history and general condition, as well as the treating physician's specific physical findings and reasons why a particular treatment or service was provided to the patient. Dr. Jernigan testified, credibly and persuasively, that when a medical record contains conflicting or inconsistent information, it is incomprehensible. If the medical record is incomprehensible, it cannot be determined to support the billed service, in which case, the claim for that service must be adjusted or denied. The Intergy EHR System During the Audit Period, Respondent used the "Intergy" EHR system to prepare and keep his medical records for his patients, including the Medicaid recipients he treated and whose claims he billed under the Medicaid program. Dr. Jernigan does not use the Intergy EHR system in her own practice. However, the components of the Intergy EHR system are the same or similar to the components of other commonly-used EHR systems with which she is familiar.14/ Dr. Jernigan explained the purpose of each component of the Intergy EHR template used to compile the medical records for a patient. The purpose of the first component of the Intergy template, "Reason for Visit," is to document the reason why the patient is seeking medical services. The second component, "History of Present Illness," serves to provide a chronological description of the issues surrounding the patient's chief complaint and the reason for the visit. In essence, this portion of the medical record documents the commencement of the patient's medical complaint; the length of time the patient has experienced that condition; its progression; effective and ineffective treatments; the specific location of the condition on or in the patient's body, including whether it is on the left or right side of the body, or both; and other information regarding the temporal and physical aspects of the patient's medical condition. The purpose of the "Past Medical/Surgical History" component is to document the patient's past medical or surgical history relative to the patient's current condition at the time of the particular visit. The purpose of the "Social History" component is to document the patient's social history or habits as related to the patient's medical condition presented at the visit.15/ The "Family History" component is to enable the provider to document any family history that may be relevant to diagnosing and treating the patient's condition.16/ The purpose of the "Review of Systems" component is to document the patient's medical condition at the time of the visit. This component includes a review of body systems involved in the patient's complaint, to determine and document whether there may be other health issues that could present with the same symptoms. This component enables the provider to document relevant information regarding the involvement of other body systems that may affect the diagnosis or treatment for the primary complaint or reason for a particular visit. The "Physical Findings" component is the portion of the medical record in which the provider documents the information regarding his or her findings resulting from a physical examination of the patient. The "Assessment" component is where the provider documents his or her conclusion, or diagnosis, as to the nature, identity, or cause of the patient's condition. The "Therapy" component enables the provider to describe and document the chosen course of treatment for the patient. The "Counseling/Education" component enables the provider to describe and document the matters discussed with the patient, such as the nature of the patient's medical condition and prognosis, the provider's chosen course of treatment or therapy, recommendations regarding the patient's actions to assist in treating the condition, and instructions provided to the patient. The "Plan" component describes the course of treatment for the medical condition and the reasons for choosing this course of treatment. The "Practice Management" component is included to implement certain meaningful use regulatory requirements. The Intergy EHR system has time-saving features, such as a "carry-forward" feature, which allows patient information from previous visits to be "carried forward," or copied and pasted, into the records for subsequent visits. Dr. Jernigan opined, credibly, that although the "carry-forward" feature is convenient, improper use or overuse of this feature can result in the records for a patient's subsequent visits containing all of the information from previous visits, rather than only the information pertinent to the particular subsequent visit. This may render the medical records outdated and inaccurate with respect to the patient's medical condition in subsequent visits. Additionally, carrying forward information from previous visits can render the records for subsequent visits incomprehensible, in that the patient's reason for that particular visit, the symptoms exhibited at that visit, and the specific treatment provided in that visit cannot be determined from the mass of comprehensive information that was carried forward from previous visits and included in the record for that particular visit. Here, the competent, credible evidence shows that Respondent was not trained in, and experienced difficulty in using, the Intergy EHR system. The competent, credible evidence shows that Respondent frequently used Intergy's "carry-forward" feature in preparing his medical records, and this was the likely cause for many of the records for his Medicaid patients including extensive carried-forward information from visit to visit——to the point that in numerous cases, it was difficult to identify which, if any, additional medical conditions, physical findings, treatments, or other services were provided to patients in their subsequent visits. The competent, credible evidence also shows that the Intergy EHR system has numerous flaws that render it difficult to use and not optimally functional in producing electronic medical records that are sufficiently accurate or comprehensible to be used for Medicaid billing purposes. As a result of the Intergy EHR system's flaws, as well as Respondent's apparent overuse of the system's "carry-forward" feature, his medical records were, in many cases, redundant, outdated, contradictory, and inaccurate with regard to documenting a patient's medical condition, physical findings, treatment, basis for services provided, and other key information for a particular visit. This rendered those records untrue, inaccurate, and incomprehensible, and, therefore, not in compliance with the Handbooks' requirements regarding documentation of services sufficient to support billed claims. Overpayment Determinations Rather than presenting evidence on each of the 69 total claims denied or adjusted on the grounds stated in Finding Nos. 1 through 4, the parties presented testimony and related evidence on selected representative claims for each Finding. The parties stipulated, with respect to Finding Nos. 1, 2, and 4, that Dr. Jernigan's analysis of Respondent's medical records, and her opinions regarding whether those records complied with the pertinent standards in the Medicaid Handbooks for payment purposes, applied to all claims for which the grounds in a particular Finding were cited as the basis for denial or modification of payment of that claim. It is important to note that Petitioner did not stipulate to the correctness of Dr. Jernigan's analyses and opinions——only that her analyses and opinions applied to all of the disputed claims denied on the grounds set forth in Finding Nos. 1, 2, and 4 in the FAR. Due to the small number of claims (two) that were denied or adjusted on the grounds cited in Finding No. 3, the parties presented testimony on each of those claims. Finding No. 1 – Insufficient Documentation to Support Claim For Finding No. 1, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 6, claim nos. 1 through 4; Recipient 8, claim no. 6; Recipient 16, claim nos. 3, 6, 15, 18, and 21. Recipient 6 Claim No. 1 Based on Dr. Jernigan's review, Petitioner denied Recipient 6, claim no. 1, for services provided by Respondent on February 29, 2012, on the basis of insufficient documentation to support the claim. The Reason for Visit noted that the patient was visiting due to "increased pains," but the documentation did not describe the location or nature of the pain, so was incomplete. The History of Present Illness component for this claim consisted of a bullet-point list of complaints, rather than a discussion of the development of those complaints over time. Additionally, this component contained incomplete and contradictory information. Specifically, this component contained a notation stating that the patient was suffering from hand pain and a range of other joint pain, without specifying which hand and joints (i.e., on the right side, left side, or both sides of the body) were painful. Additionally, the notation stated "no musculoskeletal symptoms," which conflicts with the notations regarding the existence of hand and other joint pain. The Review of Systems component for this claim also contained conflicting or contradictory notations. For example, there were conflicting descriptions of the patient's state of malaise, and conflicting notations documenting both the presence and the absence of night sweats. The Physical Findings component for this claim also contained contradictions and insufficient information. For example, the notations state both "wheezing was heard" and "no wheezing was heard"; that vomiting was observed and that the patient is to call the provider if vomiting develops; and that muscle spasms and tenderness in the back, as well as numerous trigger points, were observed, but that there was an overall finding of "normal" for the musculoskeletal system. Further, the notes did not identify whether these findings applied to the left or right side of the body, or both. The Assessment component consisted of a wide-ranging list of conditions, likely due to the carry-forward of all or much of the information from previous visits. Many of the conditions listed in this component were not supported by the information recorded in the History of Present Illness, Review of Systems, or Physical Findings components. For example, the assessment states that the patient suffers from hyperlipidemia, testicular dysfunction, viral syndrome, and upper respiratory infection, none of which are sufficiently supported by the information documented in any other component in the patient's medical history. The Therapy component states that Respondent provided pain management counseling and pain management by medication; however, the medication prescribed for the patient was not identified or documented in the medical record. The Counseling/Education component lists numerous matters on which counseling ostensibly was provided, including use of tobacco, alcohol, and illicit drugs, none of which were supported by any findings or notations in the patient's medical record. The Plan component for this claim diagnoses the patient as suffering from impotence of organic origin and suggests referring the patient to a urologist. Dr. Jernigan credibly testified that this diagnosis is not supported by the information documented in the other components of the patient's medical record, thus highlighting the point that if this diagnosis is accurate, the medical records for this claim are incomplete because they do not sufficiently document the basis for this diagnosis and course of treatment. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 1 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete and incomprehensible. Dr. Jernigan credibly and persuasively opined that as a result of these deficiencies, the medical records submitted to support claim no. 1 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 1 for Recipient 6 should be denied. Claim No. 2 Claim no. 2 is a follow-up visit for the same patient that took place on August 3, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirms, that the documentation for this claim suffers from most of the same deficiencies as did the documentation for claim no. 1. Specifically, the Reason for Visit was incomplete because it failed to document and describe the location or nature of the "increased pains." The History of Present Illness component consisted of the carried-forward information recorded in that EHR component for the previous visit, and, as such, suffered from the same deficiencies. Specifically, it did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead contained the same series of descriptive bullet points. Further, as previously discussed, several of the conditions described in these bullet points were contradictory. The Review of Systems component also appeared to carry-forward the same information contained in the same component from the previous visit, so suffers from the same deficiencies. Additionally, this component is inaccurate because it did not accurately reflect the patient's current medical condition at the time of the follow-up visit. The Physical Findings component also contained mostly carried-forward information from the same component in the record of this patient's previous visit, so contained the same inconsistencies and contradictions as the records submitted in support of claim no. 1. The Assessment component also appeared to be a carry- forward of all or much of the information from the previous visit, so it also suffered from the same deficiencies as the Assessment for claim no. 1. As discussed in detail above, many conditions listed in this component were not supported by the information documented in the other components of the medical record. In the Plan component for this claim, the urological diagnosis was deleted; however, the Plan did not specifically address or prescribe any treatments specific to the medical conditions identified in other components of the medical record for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 2 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that as a result of these deficiencies, the medical records submitted to support claim no. 2 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 2 for Recipient 6 should be denied. Claim No. 3 Claim no. 3 is a follow-up visit for Recipient 6 that took place on August 15, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirms, that the documentation for this claim suffers from several of the same deficiencies as did the documentation for claim nos. 1 and 2. The Reason for Visit component for this claim was incomplete because although it referenced that one of the reasons for the visit was a "medication refill," the medical record for this visit did not contain any documentation regarding the medication prescription being refilled. Additionally, as before, this component did not document and describe the location or nature of the "increased pains" also listed as a reason for the visit. As before, the History of Present Illness component consisted of carried-forward information, so continued to suffer from some of the previously discussed deficiencies. This component did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead consisted of a series of descriptive bullet points, some of which contained contradictory information. The Review of Symptoms component also appeared to consist mostly of carried-forward information that contained the same contradictory information as with the previous claims. In addition, new contradictory provisions documented the presence of "no sore throat" and "[s]ore throat," "no cough" and "cough causing vomiting," and "[a]nxiety" and "[n]o anxiety." The Physical Findings component also contained carried-forward information from the same component in the record of this patient's previous visit, so some of the previous contradictions in the notations, such as "wheezing was heard" and "no wheezing was heard," continued to be included. Additionally, the record still did not identify the specific location——i.e., left or right side of the body——of the musculoskeletal and neurological conditions noted, so was incomplete. The Assessment component also appeared to be a carry- forward of all or much of the information from the previous visit, so suffered from the same deficiencies as the Assessment for claim nos. 1 and 2. As discussed above, many conditions listed in this component were not supported by the information documented in the other components of the medical record. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 3 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 3 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 3 for Recipient 6 should be denied. Claim No. 4 Claim no. 4 is a follow-up visit for Recipient 6 that took place on November 21, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirmed, that the documentation for this claim suffered from several of the same deficiencies as claim nos. 1, 2, and 3. The Reason for Visit component for this claim was incomplete because although it referenced that one of the reasons for the visit was a "medication refill," the medical record for this visit did not contain any documentation regarding the medication prescription being refilled. This component also failed to describe the location or nature of the "increased pains" that are listed as a reason for the visit. As before, the History of Present Illness component consisted of the carried-forward information, so continued to suffer from some of the previously discussed deficiencies. As before, this component did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead consisted of a series of descriptive bullet points. New information regarding the patient's self- monitoring of blood glucose was added, but the blood glucose levels observed at various times of the day were not listed, rendering this notation incomplete. Additionally, this component continued to be incomplete due to lack of information regarding precise location of musculoskeletal and neurologic conditions. The Current Medication component, added into the medical records for this patient on this follow-up visit, was incomplete because it did not list the medications the patient is taking. The Review of Symptoms component also appeared to consist mostly of carried-forward information that contained the same contradictory information as with the previous claims. In addition, new contradictory provisions documented the presence of "no sore throat" and "[s]ore throat," "no cough" and "cough causing vomiting," and "[a]nxiety" and "[n]o anxiety." The Past Medical/Surgical History component stated "Pediatric: Failure to thrive." Because this patient is a 73-year-old adult rather than a pediatric patient, this information is inaccurate. As before, the Review of Symptoms component contained carried-forward information from this patient's previous visits, so perpetuated contradictions previously noted, such as "night sweats" and "no night sweats," and "no wheezing" and "wheezing worse during upper respiratory infection." The Physical Findings component still did not identify the specific location—i.e., left or right side of the body——of the musculoskeletal and neurological conditions noted. Additionally, necessary information, such as vital signs and lab testing results, was not documented. The Assessment component again appeared to be a carry- forward of all or much of the information from the previous visit, so suffered from the same deficiencies as the Assessment for claim nos. 1, 2, and 3. As previously discussed, many conditions listed in this component, such as "adult failure to thrive," "vascular dementia," and "chronic fatigue syndrome," were not supported by the information documented in the other components of the medical records. The Therapy Component noted that the patient's pain was being managed by medication, but there was no notation regarding the type of medication prescribed. Additionally, the patient was directed to perform a "self-examination" with no detail regarding what part of the body was to be examined, and the "addiction counseling" notation was unsupported by any other mention of addiction in the medical record. The Counseling/Education component continued to contain extensive carried-forward information, and also contained an extensive list of newly-added counseling notations that were not supported by other components of the medical record. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 4 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 4 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Accordingly, it is determined that claim no. 4 for Recipient 6 should be denied. Recipient 8 Claim No. 6 Based on Dr. Jernigan's review, Petitioner denied Recipient 8, claim no. 6, for services provided by Respondent on February 29, 2012, on the basis of insufficient documentation. Dr. Jernigan noted that much of the medical record for this visit appeared to be an exact carry-forward from the previous visit, so did not specifically address or reflect the patient's current condition at the time of her follow-up visit. Additionally, several of the components for this visit contained contradictory or clearly inaccurate information. She noted that when inconsistencies are repeated in medical records, it is very difficult to determine the patient's condition or course of treatment for a particular visit. Here, the History of Illness was again a bullet-point list of symptoms or conditions, rather than a chronological narrative of the patient's medical condition presented for this visit. Additionally, although one of the stated reasons for this visit was "infected hands after burns," this component contained the contradictory statement "no skin symptoms." Further, in the Past Medical/Surgical component, it is noted "Pediatric: Failure to thrive." Because the patient is an adult, this was an inaccurate notation in the record. The Social History component stated in part: "Abuse and Neglect: Receiving insufficient liquids and abandonment which resulted in hunger or thirst." Dr. Jernigan opined that this statement was inconsistent with the fact that the patient is obese. The Functional component describes the patient as "unable to lift more than" and "unable to drive more than," but did not contain a complete description of these limitations from which the patient suffered. Additionally, the statements "able to walk" and "difficulty walking unassisted" appeared to be contradictory. The Review of Systems also contained several contradictory statements. Specifically, the Reason for Visit component stated that one of the reasons for this visit was "infected hands after burns," but the Review of Symptoms component stated that the patient exhibited "no skin lesions." Additionally, this component stated that the patient exhibited "no polydipsia" and "polydipsia," "vertigo" and "no vertigo," and "no sensory disturbance" and "tingling of the hands and feet, a burning sensation, and numbness of the hands and feet (distal)." The Physical Findings also contained contradictory and incomplete information. For example, the stance and gait were shown as being both "abnormal" and "normal." Further, the description of the burns on the patient's hands did not specify whether they were first-, second-, or third-degree burns, and although her hands were burned, the skin was described as "general appearance was normal" and having "no skin lesions." The Assessment consisted of an extensive list of conditions, many of which were unsupported by the Review of Systems and Physical Findings components. The Therapy component consisted of an extensive list of items, many of which were unsupported by information in the other components of the medical record. For example, addiction counseling for alcohol and opioids is noted, but there was no information documenting addiction to these substances in other parts of the medical record. Additionally, "psychoactive medication management" was listed as a therapeutic item, but the specific medication was not identified and the other components did not support this therapy. Similarly, "pain management by medication" was listed, but the specific medication was not identified. "Education and instructions" also was listed but there was no description of the specific subjects. The Counseling/Education component consisted of an extensive list of subjects about which the patient ostensibly was counseled or education on this visit, but most of them were unsupported by the information in the other components of the medical record for this visit. Dr. Jernigan noted that it appeared that the EHR system "dumped" a laundry list of unrelated items into the notes for this component, making it difficult to know precisely what type of counseling and education was actually provided for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 6 for Recipient 8 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 6 for Recipient 8 did not comply with the pertinent standards in the Handbooks. Accordingly, it is determined that claim no. 6 for Recipient 8 should be denied. Recipient 16 Recipient 16 was a young male patient. During the Audit Period, this patient had numerous visits to Respondent, resulting in a total of 59 claims. Of those, 33 are in dispute in this proceeding. Dr. Jernigan testified about claim nos. 3, 6, 15, 18, and 21 as representative of her analysis and opinions regarding claims denied or adjusted pursuant to the grounds stated in Finding No. 1. Claim No. 3 Dr. Jernigan again noted incomplete documentation and inconsistencies with respect to the notations in the various components of the medical record for this claim. Specifically, she noted that in the Social History, there is a notation of "Abuse and neglect: Receiving insufficient liquids and abandonment which resulted in hunger or thirst," but this notation was not consistent with or supported by the information in the other components of the medical record for this visit. In the Review of Symptoms component, there was an inconsistent notation of "earache" and "no earache." In the Physical Findings component, no vital signs were recorded, rendering the medical record incomplete. Additionally, there were several inconsistent observations documented, including a notation of "no distress," notwithstanding that "vomiting was observed." The Assessment component contained extensive carried- forward information from previous visits, rendering that information inaccurate with respect to this particular visit. Additionally, the medications of Phenergan and Bentyl IM apparently were administered, but no dosage was documented. The Counseling/Education component listed subjects about which the patient ostensibly was counseled, such as tobacco, alcohol, and illicit drug use, but these items were not supported by information in the Social History component or in other components in the medical record for this visit. Ultimately, Dr. Jernigan determined that this claim, which was for an injection to treat nausea with vomiting, should be denied because no dosage for the injected medication was provided, as required by the Handbooks for the claim to be payable. Accordingly, it is determined that claim no. 3 for Recipient 16 should be denied. Claim No. 6 Although the Reason for Visit component referred to test results, the types of tests and results thereof were not addressed or otherwise documented in the medical record for this visit. The History of Present Illness again was presented in a bullet-point list, rather than a chronological narrative of the patient's medical condition and its progression and treatment. There was no information regarding when or for how long the list of conditions existed, or whether they existed at the time of this specific visit. The notation in the Physical Findings that there was "no nasal discharge seen" and "no sinus tenderness" was inconsistent with the Review of Symptoms notations documenting the presence of sinus pain and nasal discharge, and the notation that the oropharynx was "abnormal" and "inflamed" was inconsistent with the notation that it also was "normal." The Counseling/Education component notations stated that the patient again was counseled about tobacco, alcohol, and illicit drug use, but as before, there was no information in the other components to support this counseling for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 6 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 6 for Recipient 8 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 6 for Recipient 16 should be denied. Claim No. 15 The Reason for Visit component for this claim did not address the reason for the patient's visit or identify the test results that would be reviewed during that visit. As with previous claims, the History of Illness component for this visit was a bullet-point list of symptoms rather than a chronological narrative of the patient's condition. Additionally, it contained contradictory information regarding the presence or absence of pulmonary symptoms. The Review of Systems component for this visit contained multiple contradictions similar to those noted in the previous claims for this patient. Specifically, there were contradictory notations regarding the presence of "neck pain" and "no neck pain," the presence of "neck stiffness" and "no neck stiffness," the presence of "sore throat" and "no sore throat," and the presence of "localized joint stiffness" and "no localized joint stiffness." The Physical Findings component lacked information regarding the patient's vital signs, and contained contradictory notations regarding normal and abnormal breath sounds and the presence and absence of wheezing. The Assessment component contained extensive information that was unsupported by information documented in the other components of the medical record for this visit. Moreover, this patient had been documented in a previous visit as weighing 168 pounds and suffering abuse and neglect resulting in hunger or thirst, so the notation that he was at risk for obesity hypoventilation syndrome appeared inaccurate and inconsistent with his previously documented condition. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 15 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 15 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 15 for Recipient 16 should be denied. Claim No. 18 As with the medical records for previous claims, the Reason for Visit component for this claim lacked key information, such as information regarding the reason for the visit and the test results to be reviewed. The History of Illness component once again consisted of a bullet list of observed conditions, rather than a chronological narrative of the history of the patient's condition, its progression, and its response or lack of response to treatments. The Review of Systems contained many of the previously noted inconsistencies regarding the presence and absence of neck pain and stiffness and presence and absence of sore throat. Additionally, this component contained the contradictory notations of "heartburn" and "no heartburn." The Physical Findings component of this visit also contained many of the same contradictions as noted for previous claims for this patient. Specifically, there was a notation of normal and abnormal pharynx, normal and abnormal lungs, the presence of wheezing and absence of wheezing, and the presence of both an abnormal and normal gait. The Assessment component again consisted of an extensive list of conditions, many of which were not supported by information documented in the other components for this medical record. The Plan component was non-specific and did not address any of the diagnoses listed in the Assessment component. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 18 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 18 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 18 for Recipient 16 should be denied. Claim No. 21 Claim no. 21 for Recipient 16 suffered from many of the same deficiencies as previously identified for other claims for this patient. The Reason for Visit component did not specifically identify the reason for this particular visit, and the laboratory test results to be reviewed were not identified. The History of Present Illness component consisted of a bullet-point list, rather than a chronological narrative, and it did not discuss the history and progression of the patient's condition and response or lack of response to treatment. Additionally, it contained the same or similar contradictory statements as were previously discussed with respect to this component for other claims for this patient. The Review of Symptoms component contained many of the same contradictions previously noted with respect to other claims for this recipient. Specifically, "no facial pain" and "facial pain and sinus pain," "neck pain" and "no neck pain," "no sore throat" and "sore throat," "heartburn" and "no heartburn," and "dizziness" and "no dizziness" were noted in this component. The Physical Findings component also contained contradictory information, such as abnormal and normal orolarynx, wheezing and no wheezing being heard, and abnormal and normal gait and stance. The Assessment component again appeared to be a carried-forward list of numerous conditions, such as acne, anemia, arthropathy, fatigue, thyroid issues, and obesity that were not supported by documentation in the other components of the medical record for this visit. The Plan was non-specific and did not address the diagnosed conditions listed in the Assessment component. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 21 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 21 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 21 for Recipient 16 should be denied. Summary of Grounds for Denial of Claims Under Finding No. 1 Dr. Jernigan's overall assessment of the claims denied on the basis of Finding No. 1 was that Respondent's documentation was not sufficiently clear and accurate to enable a reviewer to discern the reason for a particular patient visit; the symptoms presenting for a particular visit; the nature, history, and progression of the medical condition; the diagnosis or determination of the medical condition; the treatment; or the therapy and counseling provided to address the medical condition. In particular, the frequent lack of key details, such as the patient's vital signs, and the frequent and pervasive contradictions in many of the components of the records rendered them inaccurate, unreliable, and essentially useless in determining the nature of the patient's condition, treating the patient's condition, and documenting that treatment for payment purposes. Additionally, the diagnoses documented in the Assessments component were rarely well-supported by accurately documented information in the other components, and appeared to be more a "basketful of therapies" that were not specific to the patient and not supported by other information documented in the rest of the medical record. As Dr. Jernigan put it, "if I was looking at [the medical record for] that specific patient, I would have nothing that would be helpful to me." Dr. Jernigan testified, credibly and persuasively, that the frequent and pervasive inconsistencies in Respondent's records rendered them untrue, inaccurate, and incomprehensible. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the basis of no documentation or incomplete documentation to be credible, accurate, and supported by the documentary and other evidence in the record. Pursuant to the parties' stipulation noted above, the undersigned has applied this analysis in reviewing each of the other claims disputed on the basis of Finding No. 1. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 1. Finding No. 1: No Documentation or Incomplete Documentation Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 2 2 99212 Deny 48.56 2 21 99213 Deny 77.34 6 1 99214 Deny 39.46 6 2 99214 Deny 39.46 6 3 99214 Deny 39.46 6 4 99214 Deny 39.46 8 6 99213 Deny 79.34 9 4 99214 Deny 48.27 10 10 93000 Deny 9.67 13 3 99213 Deny 83.35 16 2 J2550 Deny 2.05 16 3 96372 Deny 12.42 16 4 93672 Deny 12.42 16 6 99214 Deny 48.27 16 15 99214 Deny 48.27 16 16 99372 Deny 12.42 16 17 99214 Deny 48.27 16 18 99214 Deny 48.27 16 19 96372 Deny 12.42 16 21 99214 Deny 48.27 16 22 96372 Deny 13.43 16 23 99214 Deny 48.27 16 24 96372 Deny 13.43 16 25 99214 Deny 48.27 16 27 99214 Deny 48.27 16 30 99213 Deny 83.35 16 31 99213 Deny 83.35 16 32 99211 Deny 23.06 16 33 96372 Deny 13.43 16 34 99212 Deny 50.56 16 35 96372 Deny 13.43 16 37 96372 Deny 13.43 16 38 99213 Deny 83.35 16 41 99212 Deny 50.56 16 43 99212 Deny 50.56 16 54 99212 Deny 50.56 16 57 96372 Deny 14.14 18 2 J0969 Deny 2.00 18 3 96372 Deny 12.42 18 4 J1100 Deny 0.15 18 5 96372 Deny 14.42 24 1 99213 Deny 79.34 33 9 99213 Deny 77.34 34 4 99214 Deny 39.46 34 7 88150 Deny 10.00 35 5 99214 Deny 39.46 35 6 99214 Deny 39.46 Total Recipients: 12 Total Claims: 47 Determined Total Overpayment Amount: $1,810.95 Finding No. 2 – Services Provided Not Medically Necessary For Finding No. 2, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 2, claim nos. 11, 13, and 19; Recipient 16, claim nos. 15, 17, and 30; and Recipient 34, claim no. 7. However, because claim nos. 15, 17, and 30 are being denied in this Recommended Order on the basis of Finding No. 1, they are not addressed in this discussion of claims denied on the basis of Finding No. 2, and they are not counted toward the amount of reimbursement determined in this Recommended Order to be owed. Additionally, because the following claims previously have been denied in this Recommended Order on the basis of Finding No. 1, they have not been counted toward determining the overpayment amount for claims denied on the basis of Finding No. 217/: Recipient 2, claim no. 21; Recipient 16, claim nos. 15, 17, 30, 31, 32, 34, 41, and 43; Recipient 24, claim no. 1; and Recipient 34, claim nos. 4 and 7. Accordingly, a total of eight claims in dispute on the basis of Finding No. 2 have been addressed in this Recommended Order. The CPT Codes The 2012, 2013, and 2014 versions of the Current Procedural Terminology manuals (collectively, "CPT Manuals") establish the CPT Codes that apply in billing services to Medicaid.18/ The following CPT Codes are pertinent to the claims denied on the basis set forth in Finding No. 2: 99211, 99212, 99213, and 99214. These CPT Codes indicate a progressive increase in the complexity of the medical visit, so require progressively greater levels of documentation to justify billing Medicaid for the service. Dr. Jernigan regularly bills Medicaid for services she provides using these CPT Codes. She is very familiar with their use and with the nature of the medical services that are appropriately billed under each code. CPT Code 99211 The CPT Manuals define CPT Code 99211 as: "Office or other outpatient visit for the evaluation and management of an established patient, that may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services." CPT Code 99212 The CPT Manuals define CPT Code 99212 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 components: A problem focused history; A problem focused examination; Straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self[-]limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. CPT Code 99213 The CPT Manuals define CPT Code 99213 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: An expanded problem focused history; An expanded problem focused examination; Medical decision making of low complexity. Counseling and coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. CPT Code 99214 The CPT Manuals define CPT Code 99214 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: A detailed history; A detailed examination; Medical decision making of moderate complexity. Counseling and/or coordination of care with other physicians, other qualified health care professionals, or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Typically, 25 minutes are spent face-to-face with the patient and/or family. In determining whether a service provided is medically necessary for purposes of Medicaid billing, the focus is on whether there is sufficient documentation to support the necessity of the service provided to the patient. The documentation submitted to support a claim is reviewed to determine whether there is sufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided, and to justify the need for the service provided. A. Recipient 2 Claim No. 11 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Specifically, while the patient presented with conditions that may indicate a urinary tract infection or pelvic inflammatory disease, those diagnoses were only two in a list of 32 assessments, so the record did not clearly indicate the specific diagnosis for her condition at this specific visit. Further, the treatment consisted of a topical medication used to treat arthritis and a medication used to treat painful menstruation, rather than a medication used to treat a urinary tract infection or pelvic inflammatory disease. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 11 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Claim No. 13 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Specifically, there were no physical examination findings that appeared to be specifically related either to the patient's condition at that visit, or to the treatment provided. For example, Dr. Jernigan specifically noted that while there was an assessment of vulvodynia and the patient was treated for a yeast infection, the medical record does not note an examination of the patient's genitalia having been performed to support that assessment and treatment. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 13 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Claim No. 19 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Here, the stated reason for the visit included fatigue, somnolence and weakness with problems sleeping, arthralgias with muscle pain and tenderness, headache and dizziness, and snoring with acid reflux. However, the assessment contained a list of 33 diagnoses, many, if not most, of which did not appear to be related to the stated reason for the visit. Additionally, the treatment did not appear appropriate for the conditions stated as the reason for this specific visit. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 19 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Summary of Grounds for Denial of Claims under Finding No. 2 In sum, Dr. Jernigan determined that the claims denied as not medically necessary did not contain sufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided, and to justify the need for the service provided. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the basis of no documentation or incomplete documentation to be credible, accurate, and supported by the documentary and other evidence in the record. Pursuant to the parties' stipulation noted above, the undersigned has applied Dr. Jernigan's analysis in reviewing each of the other claims disputed on the basis of Finding No. 2. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 2. Finding No. 2 – Not Medically Necessary Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 2 11 99213 Deny 81.35 2 13 99213 Deny 81.35 2 19 99213 Deny 77.34 16 36 99211 Deny 23.06 16 39 99212 Deny 50.56 16 45 99212 Deny 50.56 16 47 99211 Deny 23.06 35 4 99214 Deny 39.46 Total Total No. Determined Recipients: of Claims: Total 3 8 Overpayment Amount: $426.74 Finding No. 3 – Established Patients Billed as New Patients As discussed above, a new patient is one who has not received any professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years. The two claims in dispute that were denied on the basis set forth in Finding No. 3, that they were not new patients are Recipient 21, claim no. 1; and Recipient 23, claim no. 1. These claims were downcoded to reflect that the patient was an established patient, rather than a new patient. The CPT Codes pertinent to this Finding are 99203, 99204, 99213, and 99214. CPT Codes 99213 and 99214 previously have been defined in the findings pertaining to Finding No. 2, above. CPT Code 99203 The CPT Manuals define CPT Code 99203 as: Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A detailed history; A detailed examination; Medicaid decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. CPT Code 99204 The CPT Manuals define CPT Code 99204 as: Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A comprehensive history; A comprehensive examination; Medicaid decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. Recipient 21 Claim No. 1 Recipient 21, claim no. 1 was adjusted from CPT Code 99204 to CPT Code 99214. Dr. Jernigan determined that this claim should be denied because the notations for the Past Medical History, Social History, and Family History state that they are "unchanged." This notation would not be appropriate for a new patient, but would be appropriate for an established patient. Dr. Jernigan noted that had she determined this claim was for a new patient, it would have been denied, rather than adjusted downward, because the supporting documentation did not contain the patient's comprehensive history, which is one of the three components required in the documentation to support a claim billed under CPT Code 99204. Instead of denying this claim, Dr. Jernigan determined that under the documentation submitted, it should be billed under CPT Code 99214, as a claim for an established patient having a medical problem of moderate to high severity, and for which two of the three components are documented in the medical record. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to support billing the claim as one for a new patient, but would support billing the claim as one for an established patient, was credible, supported by the evidence, and persuasive. Accordingly, claim no. 1 for Recipient 21 should be billed under CPT Code 99214, rather than CPT Code 99204. Recipient 23 Claim No. 1 Dr. Jernigan determined that this claim should be denied because the notations for the Past Medical History, Social History, and Family History state that they are "unchanged." This notation would not be appropriate for a new patient, but would be appropriate for an established patient. Accordingly, she reviewed the claim as one for an established patient, and, based on the documentation in the medical record, determined that the presented problem was one of low to moderate severity and at least two of the required components were present in the record. For these reasons, Dr. Jernigan determined that this claim should be billed under CPT Code 99213, rather than under CPT Code 99203. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to support billing the claim as one for a new patient, but would support billing the claim as one for an established patient was credible, supported by the evidence, and persuasive. Accordingly, claim no. 1 for Recipient 23 should be billed under CPT Code 99213, rather than CPT Code 99203. Summary of Grounds for Downcoding Claims Under Finding No. 3 In sum, Dr. Jernigan's determined that the notations in the Past Medical History, Family History, and Social History components of the documentation submitted for these claims, as well as the lack of other components in the record, did not support billing these claims as new patient claims, but would support billing them as established patient claims. The undersigned finds Dr. Jernigan's analysis and opinion regarding the downcoding of these claims to bill them as established, rather than new, patient claims to be credible, accurate, and supported by evidence in the record. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 3. Finding No. 3 – Incorrectly Billed as New Patient Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 21 1 99204 Adjusted to 99214 25.38 23 1 99203 Adjusted to 99213 37.66 Total Recipients: 2 Total Claims: 2 Determined Total Overpayment Amount: $63.04 Finding No. 4 – Level of Service Not Supported Claims denied on the grounds set forth in Finding No. 4 of the FAR did not contain documentation sufficient to support the higher level of service billed, but did contain documentation sufficient to support a lower level of service than that billed. CPT Codes 99212, 99213, 99214, and 99204 are pertinent to this Finding, and have been previously defined in the findings pertaining to Findings No. 2 and 3, above. As previously noted, CPT Codes 99212, 99213, and 99214 indicate a progressive increase in the complexity of the medical visit, so require progressively greater levels of documentation to justify billing Medicaid for the service. For Finding No. 4, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 8, claim no. 4; Recipient 9, claim no. 2; Recipient 10, claim no. 3; Recipient 13, claim no. 1; and Recipient 16, claim nos. 29 and 52. Recipient 8 Claim No. 4 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. Despite the extensive description in the Reason for Visit component and the extensive list of conditions noted in the Assessment component, the visit ultimately was to address a urinary tract infection, which is a problem of low to moderate complexity and involved the components which would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 4 for Recipient 8 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 9 Claim No. 2 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. This visit was a follow-up without any significant changes in the findings documented in the components of previous visits. There was no documentation in any of the components for this visit which would indicate that it involved problems that were of moderate to high complexity, and that it entailed components that would justify billing the claim under CPT Code 99214. The documentation for this visit indicated a problem of low to moderate complexity and entailed the components that would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 2 for Recipient 9 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 10 Claim No. 3 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. This claim entailed extensive internal inconsistencies and contained numerous contradictory notations, which affect the reviewer's ability to determine the purpose of the visit and the appropriate type and level of treatment. Here, Dr. Jernigan opined that this visit ultimately was a follow-up for hypertension and diabetes, and that the patient's condition had not changed from the previous visit. The documentation did not indicate that this visit entailed problems that were of moderate to high complexity, nor did it document the components would justify billing the claim under CPT Code 99214. Rather, the documentation for this visit indicated a problem of low to moderate complexity and involved the components that would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 3 for Recipient 10 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 13 Claim No. 1 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99204 to CPT Code 99214. The documentation for this claim did not support billing the visit under CPT Code 99204, for a new patient, because it did not contain sufficient information that a comprehensive examination was performed, which is required by this CPT Code. Additionally, the documentation lacked any substantial discussion of the patient's Social History, Family History, or Past Medical History——information that, according to Dr. Jernigan, would be particularly important for a new patient——especially one who, per the documentation in the record, was sexually abused. Further, the Past Medical/Surgical History, Social History, and Family History components all listed this patient's condition as "unchanged," indicating that the patient must have been an established, rather than a new, patient. These deficiencies in the record for this claim did not justify billing the claim under CPT Code 99204, for a new patient. However, due to the severity of the patient's condition, the treatment documented in the record for this visit entailed the components under CPT Code 99214 for an established patient. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 1 for Recipient 13 is correctly adjusted from CPT Code 99204 to CPT Code 99214. Recipient 16 Claim No. 29 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. Dr. Jernigan found much of the information documented for this claim to be incredible. For example, the patient is a 19-year old male, but the notations in the record state such things as "parental concerns about baby's growth" and "assessment for menopause performed." Dr. Jernigan ultimately determined that this visit was a follow-up to address hypothyroidism and that thyroid medication was prescribed as a treatment for this condition. This visit concerned a problem of low to moderate complexity and involved the components that would justify billing the claim under CPT Code 99213, rather than a more complex problem that would justify the level of service under CPT Code 99214. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 29 for Recipient 16 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Claim No. 52 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99213 to CPT Code 99212. Here, the Reason for Visit stated that the visit was, among other things, to address a skin rash. Although the documentation for this claim contained numerous inconsistencies, Dr. Jernigan was able to discern that the patient had two dermatological conditions that would support the prescription of Doxycycline. According to Dr. Jernigan, skin issues are relatively easy to see and treat, which would justify billing this claim under CPT Code 99212, for a minor problem that would entail the components for that CPT Code, rather than a more complex problem that would justify the level of service under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible and persuasive. Accordingly, it is determined that claim no. 52 for Recipient 16 is correctly adjusted from CPT Code 99213 to CPT Code 99212. Summary of Grounds for Denial of Claims Under Finding No. 4 Dr. Jernigan's overall assessment of the claims denied on the basis of Finding No. 4 was that while a basis for billing Medicaid could be discerned from the medical records for the claim, the documentation in those records was not consistent with the symptoms or confirmed diagnosis, so did not reflect the level of service that could safely be furnished. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the grounds stated in Finding No. 4 to be credible, supported by the evidence, and persuasive. Pursuant to the parties' stipulation noted above, the undersigned has applied this analysis in reviewing each of the other claims disputed on the basis of Finding No. 4. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 4. Finding No. 4 – Incorrectly Billed at Higher Level of Service Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 8 4 99214 Adjusted to 99213 38.79 9 2 99214 Adjusted to 99213 15.71 10 3 99214 Adjusted to 99213 36.79 13 1 99204 Adjusted to 99214 122.14 16 29 99214 Adjusted to 99213 38.79 16 52 99213 Adjusted to 99212 32.79 17 1 99214 Adjusted to 99213 23.32 21 2 99214 Adjusted to 99213 14.85 22 2 99214 Adjusted to 99213 73.87 30 3 99214 Adjusted to 99213 12.85 32 2 99214 Adjusted to 99213 32.56 35 1 99204 Adjusted to 99202 36.77 Total Recipients: 11 Total Claims: 12 Determined Total Overpayment Amount: $479.23 Findings of Ultimate Fact Pursuant to the foregoing, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid by the Medicaid program for the disputed and undisputed claims in this proceeding. Respondent defends its position that many of the claims in dispute should be adjusted downward in this proceeding, rather than denied, by asserting that the inaccuracies and lack of comprehensibility in the documentation for the claims were due to the flaws and defects in the Intergy EHR system, rather than any deficiency on his part in diagnosing or treating his patients or in properly documenting their visits. In support of this position, Respondent notes that in many cases, the documentation provided to support a claim did contain——among the many listed conditions and assessment——a diagnosis that matched the reason for the visit. There is little question in the undersigned's mind that Respondent actually provided the services in the claims he billed to Medicaid. However, the issue in this proceeding is not whether the provider did, in fact, provide the services or accurately diagnose and treat the patient's condition. Rather, the issue is whether the documentation submitted to Petitioner to support the Medicaid-billed claims is true, accurate, comprehensible, and demonstrates the medical necessity of the billed claim, as required by section 409.913 and the Handbooks. Unfortunately, due to the substantial flaws in the Intergy system and Respondent's difficulty in using that system, his records did not comply with those standards, so do not support the billed claims. As the enrolled Medicaid provider, Respondent is ultimately responsible for the completeness, accuracy, and comprehensibility of the documentation submitted in support of his claims billed to Medicaid. § 409.913(7), Fla. Stat. The Handbooks, section 409.913, and applicable rules do not recognize, as a defense to actions seeking reimbursement for overpayments, that deficiencies in the provider's records may be excused due to poor or dysfunctional EHR systems. Based on the foregoing, the undersigned found Dr. Jernigan's analyses and opinions credible, supported by the competent substantial evidence in the record, and persuasive. Accordingly, it is determined, as a matter of ultimate fact, that Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid by the Medicaid program in the amount of $72,084.43 for the disputed and undisputed claims in this proceeding. However, the undersigned determines that Petitioner did not prove the overpayments by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Agency for Health Care Administration, enter a final order directing Respondent to repay to the Agency the sum of $72,084.43 in overpayments. Pursuant to section 409.913(23)(a), Petitioner, as the prevailing party in this proceeding is, entitled to recover, as costs, all investigative, legal, and expert witness costs as the prevailing party is granted. If the amount of these costs cannot be stipulated by the parties, Petitioner may request a hearing solely to establish the amount of costs it is entitled to recover in this proceeding. DONE AND ENTERED this 12th day of March, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 12th day of March, 2018.
The Issue Whether Petitioner is liable for overpayment of Medicaid claims for the period of January 1, 2001, through January 1, 2003, as stated in Respondent's Final Agency Audit Report dated October 26, 2004, in violation of Sections 409.907 and/or 409.913, Florida Statutes (2002), and, if so, in what amount.
Findings Of Fact Based upon the stipulations of the parties and the evidence presented at the hearing, the following relevant Findings of Fact are made: Respondent is the state agency charged with the regulation of the Medicaid program in the State of Florida and has the authority to perform Medicaid audits and collect overpayments, pursuant to Section 409.913, Florida Statutes (2002). Petitioner is a Florida-licensed physician and an authorized Medicaid provider. He was paid by Medicaid for providing services to Medicaid patients during the Audit Period of calendar years 2001 and 2002. Blanca Notman, R.N., Medicaid health care analyst in Respondent's Medicaid Program Integrity Unit, conducted the audit of Petitioner's Medicaid billing during the Audit Period. Respondent's audit involved a review of services Petitioner provided during the Audit Period of 30 randomly chosen Medicaid patients. Upon completion of the audit, Respondent alleged that during the Audit Period, Petitioner violated Medicaid policy and law in that: (1) some services for which Petitioner billed and received payment were not documented; (2) the documentation/medical records Petitioner provided to Respondent support a lower level of office or hospital visit than the one for which Petitioner billed and received payment; (3) Petitioner billed for radiology services when a radiologist outside of the office/group previously billed the reading and interpretation; and (4) Petitioner's records indicate instances of double- billing Medicaid for services by using two CPT codes when one of these codes incorporates the elements of the other. With respect to each of the services reviewed, Respondent relied upon the opinion of its expert, Dr. Averbuch, as to whether or not Petitioner billed Medicaid correctly. Dr. Averbuch based his opinion on a review of documents regarding each service which were provided to him by Respondent. Respondent did not establish that the records provided to Dr. Averbuch were complete, and in several instances, the records reviewed by Dr. Averbuch were incomplete. The most common difference of opinion between what was billed by Petitioner for each service and what Dr. Averbuch felt should have been billed, involved the "level of service." Billing codes are five-digit numbers, the last digit denoting the degree of difficulty of the service. Generally, there are five "levels of service," with "1" being the least difficult and "5" being the most difficult. There are general guidelines for establishing the "level of service" (or degree of difficulty) which are set forth in documents such as Documentation Guidelines for Evaluation and Management Services, published by the American Medical Association. However, the correct coding can only be established through expert testimony, which is based upon established and identified criteria. With respect to each of the 30 patients being reviewed, Respondent prepared a worksheet listing each service provided by Petitioner for that patient during the two-year Audit Period, the code and amount billed for each of those services, and Dr. Averbuch's opinion of the code which he felt should have been billed. Dr. Averbuch testified that in his opinion, Petitioner's claims contained an inordinate number of level "4" and "5" claims and that his records did not support the level of coding billed to Respondent. Someone on Respondent's staff then filled in the purported dollar value for each adjusted code. That amount was subtracted from the amount originally billed by Petitioner, and an average error (dollar amount) for each sample claim was calculated. Respondent then applied the average error in the sample claims to all the claims during the Audit Period. A further statistical calculation was performed to arrive at a 95 percent confidence level which Respondent alleged to be the amount of overpayment it was seeking from Respondent. That amount was shown as $81,682.06.1/ Dr. Averbuch is a knowledgeable medical practitioner, who specializes in orthopedic surgery. Respondent did not establish what records he reviewed, where they came from, or that they were complete. Additionally, Dr. Averbuch's deposition testimony did not set forth much information regarding the reason he felt as he did when his opinion differed from that of Petitioner. Also, Respondent did not establish what criteria Dr. Averbuch relied upon in arriving at his opinion. Jeffrey Howard, a consultant for Petitioner, although not a physician or other health care provider, is an experienced CPT code reviewer. He testified at length about each billing code in which he disagreed with Dr. Averbuch. In his testimony, he included details about each patient and each billed service. He also testified that he relied upon the 1995 Documentation Guidelines for Evaluation and Management Services, which has been adopted by HCFA, to base his opinions. Howard did not support all of Petitioner's billings. There are 40 instances in which Petitioner challenges the billing codes urged by Respondent. This is a substantial proportion of the billing codes which were in dispute. There are eight billing codes, the values of which need to be established to calculate the overpayment in this case. Those codes are: 99204, 99213, 99214, 99243, 99244, 99245, 29876, and 76140. In carefully reviewing each of the joint exhibits admitted in this case, the dollar amount for code 99204 was established by the worksheet on Patients 10 and 30, to be $68.74. The dollar amount for code 99213 is a variable amount. In January 2001 through April 3, 2001, it is $26.29 (Patients 2, 24, and 4). The amount goes up to $31.31 (Patient 21) in June and July 2001, then returns to $26.29 in August and September for Patients 13 and 7. Once again, the amount goes up to $31.31 in October 2001 (Patient 29), before backing down to $26.47, where it remains until March 5, 2002, when it once again goes to $31.31 (Patients 2, 14, and 6). On April 23, 2002, the dollar value for code 99213 returns to $26.47, where it stays for the rest of the Audit Period, except for June 21, 2002, when it changes to $31.31 for Patient 21. The dollar amount for code 99214 seems to fluctuate even more than code 99213. It is valued at anywhere from $39.03 (Patients 24, 13, and 7) to $48.27 (Patients 16, 17, 9, and 11) and at least four values in between. It changes 13 times, both up and down, during the two-year Audit Period. The dollar amount for code 99243 fluctuates between $62.11 and $64.28, with the majority approved at $64.28. The dollar amount of code 99244 is not reflected anywhere in the record. The dollar amount for code 99245 fluctuates in an apparently random fashion between $112.18 and $122.84, with three values in between. The dollar amount for code 29876 is $121.00, according to the worksheet for Patient 2. The dollar amount for code 76140 is not reflected anywhere in the record. Because of the seemingly random variation in the dollar amounts for codes 99213, 99214, 99243, and 99245, which were not explained and could be the result of clerical error, it is found that Petitioner shall be given credit for the highest dollar amount for each of those three codes that are reflected in the record, that is: 99213 + $31.31; 99214 + $48.27; 99243 + $64.28; and 99245 + $122.84, unless those amounts are greater than that originally billed by Petitioner, in which case he shall be given credit for the amount billed. Since there is nothing in the record to establish the value of code 99244, it is found that Petitioner shall be given credit for the value of the next higher level of service (code 99245), which is valued at $122.84 or any lesser amount which was originally billed. Since there is nothing in the record to establish the value of code 76140, it is found that Petitioner shall be given credit for the value of the service as he originally billed it at $42.81 [Patient 24, Date of Service [DOS] January 7, 2002, code 72148]. Patient 1 was a 64-year-old woman that was referred to Petitioner and presented with numbness and pain in the right hand and wrist. The patient had a stroke in 1994 on her left side and had numbness and tingling in the right upper extremity. The patient had been referred by a neurologist, Dr. Jeronimo, who had performed an electromyography and nerve conduction studies. The symptoms indicated carpal tunnel syndrome. The patient had not received treatment for this condition and was, at the time of the visit, on nine different medications. The fact of a prior cerebral vascular accident and the multitude of medications added complexity to this case. Petitioner recommended surgery, but the patient requested alternatives. The patient was placed in a splint and instructed on home therapies. The greater weight of evidence demonstrates that the correct code should be 99244, and Petitioner shall receive credit for $116.12 for DOS October 15, 2002, thus reducing the total amount disallowed to $13.04. Patient 2 was a 24-year-old woman who saw Petitioner for the first time in 2001. The patient had injured her knee in 1998 and was not treated by an orthopedist. The patient had pain in the right knee, and it popped and moved in a funny way. She had difficulty ambulating. Petitioner reviewed the patient's history, examined the patient, and X-rays were taken. Petitioner's impression was a torn medial meniscus, which had been left untreated for three years. Petitioner counseled the patient about further diagnostic work, but the patient opted for surgery. Petitioner performed and billed two separate procedures, arthroscopy knee surgical synovectomy (code 29876) and arthroscopy knee surgical meniscusectomy (code 29880). Dr. Averbuch testified that this was "unbundling," but Howard explained how it was not according to the National Correct Coding Edits. The greater weight of evidence demonstrates that Petitioner should receive credit for $115.18 for DOS January 4, 2001, code 99244; and $121.00 for DOS January 19, 2001, code 29876, thus reducing the total amount disallowed to $61.50. Patient 3 was a 37-year-old female with chronic back pain for several years. She had been previously treated with various treatments without relief. The patient was on Social Security disability because of her condition. The patient was upset and crying during her visit to Petitioner on July 3, 2001, because of her back pain. Recently, the patient reported the pain had been getting worse. The patient did not bring any previous medical records with her. Petitioner observed that she was limited in her motion. Petitioner based his diagnosis solely upon his physical examination and discussion with the patient. Because of the nature of her injury, this was a highly complex patient. The greater weight of evidence demonstrates that the correct code should be 99244, and Petitioner should receive credit for $113.18 for DOS July 3, 2001, thus reducing the total amount disallowed to zero. Patient 4 was seen by Petitioner five years prior to the visit of April 3, 2001. The patient presented with swelling and pain in the right elbow. She had recently experienced soreness and redness in the area of the right elbow. She had been seen at a diagnostic center where she had been X-rayed, but was not treated other than she was advised to take Ibuprofen. The patient had not improved. The patient had also experienced a severe sprain of her knee in the past, but was allergic to codeine. Petitioner reviewed her past medical history and gave her an examination. The bursitis appeared to be resolving. The patient was counseled to come back if she had any more swelling and that she might need an aspiration. This patient was complex due to insufficient history and past treatment. Since the patient had not been seen in over three years, she was considered a "new patient" per the CPT guidelines. The greater weight of evidence demonstrates that the correct code should be 99204 for DOS April 3, 2001, and Petitioner should receive credit for $68.74 (the value of code 99204 as established by Patients 10 and 30), thus reducing the total amount disallowed to $15.48. Patient 5 was a new patient, who was referred by Dr. Cosic. She was a 13-year-old female who had been having pain in her right knee for two years. She had not seen any other physician for this problem. In 1995, the patient had been struck by a vehicle and sustained some damage. Petitioner reviewed the patient's history and examined the patient. He took an X-ray, which showed a possible tumor. This is a complex case. Dr. Averbuch recognized in his deposition that this patient had been referred by another physician, yet he opined that the proper coding should not be for a referral. The greater weight of evidence demonstrated that Petitioner should receive credit for $115.18 for DOS June 19, 2001, because the correct code is 99245, thus reducing the total amount disallowed to zero. Patient 6 was a 17-year-old male who injured his hand when he struck a telephone pole. The majority of the pain was on the fifth metacarpal. Petitioner reviewed the patient's history and examined the patient. Tenderness was found on the border of the hand, which localized the ulna aspect, and X-rays were taken. The patient was given a short-arm cast and aluminum splint for his little finger. The age of this patient contributed to the complexity of this case. The greater weight of evidence shows that the correct code should be 99244, and Petitioner should receive credit for $118.12 for DOS February 12, 2002, thus reducing the total amount disallowed to $15.11. Patient 7 was a 59-year-old female with pain in her right shoulder for four months. The patient was seen by another physician, Dr. Lynch, who referred her to Petitioner. The patient had difficulty raising her arms and sleeping. She had pain all over the subacromial clavicle region of the shoulder. She denied any trauma. Unexplained pain increases the complexity of a case. The greater weight of evidence demonstrates that the correct code should be 99244, and Petitioner should receive credit for $113.18 for DOS August 20, 2001, thus reducing the total amount disallowed to $12.74. Patient 8 had a chief complaint of pain in the right knee. She was a 73-year-old female from Sulfur Springs (over an hour's drive away from Petitioner's office), who had been having problems for three months with her right knee. It resulted from an injury when she slipped and fell at home. The pain was on the medial side of the knee. She had seen a physician in Sebring and received an MRI. The MRI revealed a tear in the posterior medial meniscus. She was referred to Petitioner, who reviewed the history and performed an examination. His impression was a torn medial meniscus, and the plan was for arthroscopic surgery. Although Petitioner initially agreed with the lower code, the need for surgery added to the complexity of this case. The greater weight of evidence demonstrates that the correct code should be 99244, and Petitioner should receive credit for $116.12 for DOS July 1, 2002, thus reducing the total amount disallowed to $15.97. Patient 9 was a 13-year-old male with pain in his right hand, who saw Petitioner on February 15, 2001. He had fallen off his bicycle and had abrasions on this right hand. The patient had been seen at another facility where he was X-rayed and received a splint. Due to pain, the patient had removed the splint. Petitioner reviewed the patient's history and examined the patient. He took X-rays, which demonstrated a fracture of the second metacarpal of the distal limb. The patient was treated with an aluminum splint. Although Petitioner initially agreed with the lower code, due to the previous treatment which did not work, this was a relatively complex case. On the May 28, 2002, visit, Patient 9 had an injured left ankle, again from a bicycle accident, five days prior. The patient had difficulty walking. He had received a splint at another facility. There was tenderness over the anterior lateral aspect of the ankle, and X-rays were taken. The complexity of this patient was influenced by the patient's Tourette's Syndrome and his Attention Deficit Disorder. The patient was changed from a splint to a hand-walker. The greater weight of evidence demonstrates that the correct code for DOS February 15, 2001, should be 99244, and Petitioner should receive credit for $115.18. For DOS May 28, 2002, the correct code should be 99214, and Petitioner should be given credit for $8.27, thus reducing the total amount disallowed to $36.90. Patient 10 was a referral from Dr. Madedes of Suncoast Community Center, Inc. The patient was diagnosed as a "classic gamekeepers thumb." The correct code should be 99243. Therefore, Petitioner should not be given any credit for DOS December 5, 2002. Patient 11 was a referral from the Nativity Clinic. He was a 13-year-old male who had fallen off his bicycle approximately 31 days previously. He was diagnosed with a fracture and was treated without a reduction. He had been placed in a cast. Petitioner reviewed the medical history and performed an examination. Petitioner checked the patient's range of motion and took X-rays. Petitioner diagnosed a fracture of the left distal radius. He told the patient to return in two weeks for removal of the cast. A complicating factor in this case is that the patient also had back pain. The greater weight of evidence demonstrates that the correct code should be 99244, and Petitioner should receive credit for $122.84 for DOS July 21, 2002, thus reducing the total amount disallowed to $21.80. Patient 12 was a 37-year-old female from Avon Park who was referred to Petitioner by another physician. She had been in an auto accident three years prior, and her shoulder was hurting and getting worse. She had seen other physicians and had MRIs. At the November 12, 2002, visit, she did not bring any medical records with her. The patient was a poor historian. At the time of her visit, she said that the pain was going into her back as well. Petitioner reviewed the history and performed an examination, which included palpation of the shoulder, which did not reveal tenderness or swelling. Petitioner also performed range of motion tests. X-rays did not show any abnormalities. Petitioner's clinical impression was "shoulder pain, etiology undetermined." The patient was sent for an MRI. An old injury, which although being treated, continues to get worse, increases the complexity of this case. With respect to the visit of November 26, 2002, the patient did not show signs of improvement, and a decision was made for surgery. This decision was not complex. The greater weight of evidence demonstrates that the correct code for DOS November 12, 2002, should be 99244, and Petitioner should receive credit for $115.12. The correct code for DOS November 26, 2002, should be 99213, thus reducing the total amount disallowed to $39.51. Patient 13 was a referral from Dr. Haiger and was seen by Petitioner on June 5, 2001. The patient was a 65-year-old deaf female, who presented experiencing severe pain in her left knee for almost ten years. Eight years prior she had undergone arthroscopic surgery on the knee, but it had not gotten better. The patient was in physical therapy and using canes. Petitioner reviewed the history and performed an examination. Communication between Petitioner and the patient was by writing. This was a complex patient, both because of the difficulty in communication and the fact that this was an old injury which had received much treatment, including surgery, and had not improved. On her return visit on August 7, 2001, the patient had not improved using the ordered medication. After consultation, a decision for surgery was made. With respect to the visit of June 4, 2002, the patient's complaint was pain in her left shoulder for a month. The patient continues to regress, in spite of Petitioner's treatment. This is a complex patient, and her medical record is voluminous. However, the visit of August 13, 2002, was merely routine. The greater weight of evidence demonstrates that Petitioner should be given credit for $113.18 for DOS June 5, 2001, since the correct code is 99244; the correct code for DOS August 7, 2001, is 99213; the correct code for DOS June 4, 2002, is 99214; and the correct code for DOS August 13, 2002, is 99213, thus reducing the total amount disallowed to $89.21. Patient 14 was a referral from Dr. Bagloo, who presented to Petitioner on January 15, 2002, with pain in her left foot. She had twisted her ankle at home a week previously and actually heard bones cracking. She was initially seen at the hospital. A computed tomography scan did not reveal a fracture. A week later on January 15, 2002, she came to see Petitioner. Her examination revealed tenderness of the dorsal aspect of the left foot. An X-ray revealed a fracture of the second-base metatarsal. The patient received a short-leg cast. The patient was seen again on February 12, 2002, and examination indicated that the patient was "healed." On July 9, 2002, the patient again saw Petitioner with pain in her left foot. She had experienced a seizure a week and a half prior. The seizure and the prior injury added to the complexity of this case. The greater weight of evidence demonstrates that the correct code for DOS January 15, 2002, is 99244, and Petitioner should be given credit for $118.12. The correct code for DOS February 12, 2002, is 99213, and Petitioner should receive no credit; the correct code for DOS July 9, 2002, is 99214, and Petitioner should be given credit for $48.27, thus reducing the total amount disallowed to $32.33. Patient 15 was a 15-year-old male from Avon Park, with scoliosis. He had hurt himself when he fell off his boogie board and hit his chest. After reviewing the history, performing an examination, and taking X-rays, the patient was referred to a pediatric orthopedist. The age of the patient and the pre-existing condition affected the complexity of this case, although the scoliosis was previously diagnosed. The greater weight of evidence supports a finding that the correct code for DOS June 11, 2002, is 99243, and Petitioner should not be given credit. Therefore, there is no reduction of the total amount disallowed. Patient 16 was a referral from Dr. Libbrato. However, the patient was previously diagnosed, Petitioner billed at code 99245, and Respondent's expert opined that the code should be 99203. The billing code should account for this being a referral. The greater weight of evidence supports a finding that the correct code for DOS March 25, 2002, is 99243, and Petitioner should be given credit for $64.28, thus reducing the total amount disallowed to $75.64. Patient 17 was a referral from a Medicaid clinic. The patient was a 10-year-old male who had hurt his left elbow playing football a week prior. Petitioner reviewed the history and examined the patient, who was in a long-arm splint. Petitioner replaced the splint with a long-arm cast. The age of the patient and the prior inappropriate treatment added to the complexity of this case. The greater weight of evidence demonstrates that for DOS May 14, 2002, the correct code is 99244, and Petitioner should be given credit for $122.84. The correct code DOS June 6, 2002, is 99213, and Petitioner should be given credit for $31.31, thus reducing the total amount disallowed to $38.76. Patient 18 was a 63-year-old male who had been referred by another physician for pain in his right-hand ring finger of six months' duration. The patient claimed no trauma. The age of the patient and the unexplained injury added to the complexity of this case. The greater weight of evidence demonstrates that the correct code for DOS June 18, 2002, should be 99244, and Petitioner should be given credit for $116.12, thus reducing the total amount disallowed to zero. Patient 19 presented with a fracture that appeared to be healing, but it was difficult to tell if the patient's problem was from the fracture or from osteoporosis. The patient was not responding to treatment. The greater weight of evidence demonstrates that the correct code for DOS August 12, 2002, is 99214, and Petitioner should be given credit for $41.51, thus reducing the total amount disallowed to $15.04. Patient 20 was an eight-year-old male who had pain in his left heel from jumping off a truck and falling. He was referred from his primary care physician. The complexity of this case was increased due to the age of the patient and the fact that prior treatment had not been effective. The greater weight of evidence demonstrates that the correct code for DOS October 17, 2002, is 99244, and Petitioner should be given credit for $122.84, thus reducing the total amount disallowed to zero. Patient 21 was a 10-year-old male from Plant City, who injured his right arm and shoulder in a fall from monkey bars. Petitioner's diagnosis was a fractured right humerus. The young age of this patient, plus the fact that he was a referral, added to the complexity of this case. The greater weight of evidence demonstrates that the correct code for DOS May 24, 2001, is 99244, and Petitioner should be given credit for $115.18, thus reducing the total amount disallowed to $45.33. Patient 22 was a nine-year-old male referred by Dr. Narvez for right leg pain. He was injured when another child fell on him. Also, the patient had broken the same leg about a year prior. A re-injury and young age added to the complexity of this case. The greater weight of evidence demonstrates that the correct code for DOS January 8, 2002, is 99244, and Petitioner should be given credit for $118.12, thus reducing the total amount disallowed to zero. Patient 23 was a 37-year-old male from Lake Placid, referred by Dr. Campbell. He presented with right shoulder pain. Approximately two years prior he was shot in that shoulder. The pain was in the acromioclavicular joint. The pain was felt to be a result of the injury from the gunshot wound, and surgery was recommended. The pre-existing condition increased the complexity of this case. The greater weight of evidence demonstrates that the correct code for DOS January 29, 2002, is 99244, and Petitioner should be given credit for $116.12, thus reducing the total amount disallowed to $14.47. Patient 24 was referred by Dr. Rivas for ongoing low back pain. The patient presented on January 16, 2001, as a 53-year-old female and stated that the pain had been getting worse in spite of treatment. It was localized in the left groin, the left posterior iliac region, the left buttock, the posterior aspect of the thigh, and the calf. The long-standing nature of the pain, without improvement from treatment, added to the complexity of this case, as well as the multiple therapies employed. The MRI reading on February 1, 2001, should be allowed. On the visit of March 1, 2001, the patient reports a new problem with pain in her knee. The visit of June 5, 2001, revealed that the patient is improved, but still in pain. The greater weight of evidence demonstrates that Petitioner should be given credit for $115.18 for DOS January 16, 2001, code 99245; $42.81 for DOS February 11, 2001, code 76140; $31.31 for DOS March 1, 2001, code 99213; $31.31 for DOS June 5, 2001, code 99213, thus reducing the total amount disallowed to $28.18. Patient 25 was a seven-year-old female from Lake Wales, referred by Dr. Powell for bilateral leg deformities and fallen arches. The patient also had scoliosis. The greater weight of evidence demonstrates that the correct code for DOS January 27, 2001, is 99244, and Petitioner should be given credit for $115.18, thus reducing the total amount disallowed to $32.56. Patient 26 was an 18-year-old male with scoliosis, who had recently come to the United States from Cuba and was referred to Petitioner for evaluation. The greater weight of evidence demonstrates that the correct code for DOS September 12, 2002, is 99243, and Petitioner should not be given credit, thus the total amount disallowed remains at $58.56. Patient 27 was a 36-year-old female who was referred by Dr. Korabathing for left hip pain. She had injured it two or three weeks prior when she fell. She was initially seen in the emergency room. The discoloration persisted and the knee continued to "give out." The complexity of the case is increased because of the patient's lack of improvement. The greater weight of evidence demonstrates that the correct code is 99244 for DOS April 11, 2002, and for April 23, 2002, the correct code is 99214, thus reducing the total amount disallowed to $29.87. There was no challenge to the adjusted coding of Patient 28 to 99213. Patient 29 was a referral from Dr. Katherinlin. He was a 13-year-old male, who injured his left foot while playing football two or three days prior. He was initially treated at an outpatient facility. Petitioner changed the treatment plan. The greater weight of evidence demonstrates that the correct code for DOS October 2, 2001, is 99244, and although he did not initially challenge the change in coding, Petitioner should be given credit for $116.12, thus reducing the total amount disallowed to $15.11. Patient 30 was referred by Family Medical Center of Lakeland, Florida. The patient was a 56-year-old male with pain in the right hip and pelvis. He had been in a motorcycle accident three years prior with numerous and substantial injuries. Due to the number and substantiality of the injuries, this was a complex case. The greater weight of evidence demonstrates that the correct code for DOS February 26, 2002, is 99244, and Petitioner should be given credit for $118.12, thus reducing the total amount disallowed to zero. The adjustments in the preceding paragraphs drop the total overpayments for the 30 sample patients as shown in Respondent's Audit Report from $2,405.10 to $790.99. Dividing that by the total number of sample claims reviewed (133), yields a disallowance per claim of $5.94. Multiplying $5.94 by the total number of claims for the Audit Period (5,399), yields a "point estimate of overpayment" of $32,070.06. Calculating the 95 percent confidence level can be accomplished by Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Care Administration, enter a final order revising its Final Agency Audit Report as directed herein. DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 30th day of December, 2005.
The Issue The issue in this case is whether Petitioner is entitled to an award of attorney’s fees and costs pursuant to Section 57.111, Florida Statutes (2007).1
Findings Of Fact On November 2, 2006, the Department filed with the Board of Medicine a one-count Administrative Complaint against Dr. Thompson, alleging that Dr. Thompson violated Subsection 458.331(1)(t), Florida Statutes (2003). The Administrative Complaint was based on a probable cause finding by the Probable Cause Panel of the Board of Medicine (Panel) on October 27, 2006. The Panel included two physicians. Prior to the meeting of the Panel on October 27, 2006, the members of the Panel received the following materials on the cases to be considered: “the complete case files, including any patient medical records, expert opinions, if any, any materials supplied by the licensee or their counsel” and a draft of the Administrative Complaint. The file on Dr. Thompson included the investigator’s file; the expert opinions of Thomas F. Blake, M.D., F.A.C.S.; Dr. Blake’s curriculum vitae; medical records for the treatment of T.C.; and letters from Bruce M. Stanley, Sr., counsel for Dr. Thompson, along with a draft of the Administrative Complaint. At the Panel meeting, the members indicated that they had received the materials with sufficient time to review and familiarize themselves with the materials. The Panel members did not find any problems with the materials such as missing pages or illegible copies. Additionally, the panel members indicated that they had no conflict of interest or prior knowledge of the cases before them that would make it inappropriate to deliberate and vote on the issues. In the case of Dr. Thompson, the Panel was supplied with expert opinions from Dr. Blake. Dr. Blake was a diplomat certified by the American Board of Obstetrics and Gynecology, a fellow of the American College of Surgeons, and a fellow of the American College of Obstetricians and Gynecologists. By letter dated December 20, 2004, Dr. Blake rendered the following opinion concerning the care provided by Dr. Thompson: Thompson, M.D. fell below the standard of care by abandoning a patient under general anesthesia and leaving the facility to attend to another patient. However, there were no complications or injury to either patient. The potential problem would be that he would unexpectedly be confronted with complications in the delivery. This could detain him for a prolonged period of time and place the patient under anesthesia in jeopardy of having to have the anesthesia discontinued and subjecting her to further risks. By letter dated December 29, 2004, the Department requested clarification on the issue of whether there were any identifiable deficiencies or problems with the medical records that were maintained by Dr. Thompson. Dr. Blake sent an addendum to his report dated January 11, 2005, in which he gave the following opinion: Medical records utilized in the treatment of the patient are complete and justify the treatment. There are no identifiable deficiencies or problems with the medical records maintained by the subject. At the Panel meeting, an attorney for the Department summarized the case against Dr. Thompson as follows: Patient T.C. presented to the surgery center for several gynecological procedures. While T.C. was under general anesthesia, the Respondent physically left the surgery center to attend to another patient in another building. Respondent delivered a baby of that other patient. T.C. was left under the care of a certified registered nurse anesthetist. After returning from delivering the child, Respondent finished the gynecological procedure. The Department is charging a violation of Section 458.331(1)(t), for violation of the applicable standards of care by leaving T.C. for several minutes in the middle of surgery and in between procedures while she was under a general anesthesia, by failing to notify the patient that Respondent had left and by failing to note in the medical record that Respondent had left the building. The Panel members discussed the case against Dr. Thompson during the meeting and voted on the case, finding there was probable cause to believe a violation had occurred. The findings of the Panel resulted in the issuance of the Administrative Complaint. The case was received by the Division of Administrative Hearings on February 8, 2007, for assignment to an Administrative Law Judge to conduct the final hearing. The Department retained another expert, Jose H. Cortes, M.D., F.A.C.O.G, to provide an opinion concerning Dr. Thompson’s actions relating to the treatment of T.C. By letter dated February 27, 2007, Dr. Cortes opined that Dr. Thompson fell below the standard-of-care while attending T.C. by leaving the operating room and going to another building to attend to another patient. Dr. Cortes was also of the opinion that Dr. Thompson did not adequately maintain the medical records for T.C. by the following actions: The departure from the normal course of surgery such as leaving the operating room was not documented by the attending physician, the outpatient establishment nursing staff, nor the anesthesia attending or nurse anesthetist. A signed consent form not available. * * * As the record documents the evaluation of 07/18/03 and 08/05/03 by the Physician Assistant describes the patient’s complaint and ultrasound study review respectively. The blood count presented from 07/18/03 shows a Hemoglobin of 13.6 gms and Hematocrit of 40.1 percent with normal indices, a pelvic ultrasound which documented fibroids of less than 2.1 cm in size each. With the above findings a conservative management strategy is usually employed initially and the patient is followed prior to recommending any surgical procedure unless declined by the patient. However, all of this has to be documented as recommended by the literature and agencies which review patient care and guidelines such as KePRO. On July 10, 2007, the Department filed a motion to amend the Administrative Complaint, which motion was granted by Order dated July 13, 2007. The Amended Administrative Complaint added a count alleging a violation of Subsection 458.331(1)(m), Florida Statutes (2003), alleging that Dr. Thompson: [F]ailed to keep legible medical records justifying the course of treatment by failing to document in T.C.’s medical records that he left the building during the procedures he performed on T.C. on or about September 11, 2003, and/or by failing to document any discussion with T.C. about alternative treatment options such as discontinuing oral contraceptives, a formal dilation and curettage, and/or the use of a Mirena IUD to address T.C.’s problems or concerns. The final hearing was held on July 27, 2007. A Recommended Order was entered on October 31, 2007, recommending that a final order be entered finding that Dr. Thompson did not violate Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2003), and dismissing the Amended Administrative Complaint. A Final Order was entered on December 18, 2007, adopting the findings of fact and conclusions of law of the Recommended Order and dismissing the Amended Administrative Complaint against Dr. Thompson. The parties have stipulated to the reasonableness of the fees and costs claimed by Dr. Thompson. Dr. Thompson has incurred $34,851.00 in attorney’s fees and costs. The parties have stipulated that Dr. Thompson is a prevailing small business party and that Respondent is not a nominal party to this action.
